Native American Sovereignty (Native Americans and the Law)

333 Pages·1999·2.12 MB·English

by  John R. Wunder

Native American Sovereignty
Edited with an introduction by
John R.Wunder
University of Nebraska-Lincoln

GARLAND PUBLISHING, INC.
A MEMBER OF THE TAYLOR & FRANCIS GROUP
New York & London
1999
This edition published in the Taylor & Francis e-Library, 2005.
“To purchase your own copy of this or any of Taylor & Francis or Routledge's collection of
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Introduction copyright © 1999 John R.Wunder.
All rights reserved.
The Library of Congress has cataloged the previous edition of this work as follows:
Native American sovereignty/edited with introductions by John R. Wunder. p. cm. (Native
Americans and the law; 6) Includes bibliographical references. ISBN 0-8153-2490-1 (alk. paper)
1. Indians of North America—Legal status, laws, etc. 2. Indians of North America—Government
relations. 3. Indians of North America—Politics and government. I. Wunder, John R. II. Series.
KF8205.N386 1996 342.73′0872–dc20 96–34704 [347.302872] CIP
ISBN 0-203-01030-2 Master e-book ISBN
ISBN 0-8153-3629-2 (Print Edition)
Contents

Introduction v

Indian Sovereignty 1

Kirke Kickingbird et al.
Treaty Legislation 62

Markku Henriksson
Implications of Treaty Relationships Between the United States and Various 74
American Indian Nations
Ward Churchill
The U.S. Supreme Court’s Explication of “Federal Plenary Power:” An Analysis 85
of Case Law Affecting Tribal Sovereignty, 1886–1914
David E.Wilkins
Self-Determination and the Concept of Sovereignty 107

Vine Deloria Jr.
The Origins of Self-Determination Ideology and Constitutional Sovereignty 115

Emma R.Gross
The Challenge of Indigenous Self-Determination 129

Russell Lawrence Barsh
Indian Tribal Taxation: A Cornerstone of Sovereignty 158

Ann McCullogh
Federal Indian Identification Policy: A Usurpation of Indigenous Sovereignty in 174
North America
M.Annette Jaimes
Crazy Snake and the Creek Struggle for Sovereignty: The Native American Legal 190
Culture and American Law
Sidney L.Harring
Peterson Zah: A Progressive Outlook and a Traditional Style 205

George M.Lubick
The Quest for Sovereignty 222

Linda Medcalf
Self-Determination and Subordination: The Past, Present, and Future of American 238
Indian Governance
Rebecca L.Robbins
International Law and Politics: Toward a Right to Self-Determination for 274
Indigenous Peoples
Glenn T.Morris
The Future of Indian Nations 307
VineDeloriaJr andCliffordMLytle
Vine Deloria Jr. and Clifford M.Lytle

Acknowledgments 323
Introduction
Sovereignty for Native Americans is defined in many ways. Sometimes it is seen as a
question of military control. Ben Kindle wrote his Winter Count for the year 1791 and
expressed in Oglala Sioux his definition: “We’ mapi mak’o’ ‘kawih ahi’yayapi’” [Flag
around the earth/they carry it along.] He was referring to the new United States nation.1
Modern definitions have become more precise. Article I of the Montevideo Convention
on the Rights and Duties of States defined a sovereign nation as having a permanent
population, a definitive territory, a functioning government, and an ability to conduct
relations with other states.2 Vine Deloria Jr. sees sovereignty as dynamic and
evolutionary. A sovereign nation, to Deloria, has the power to “determine its own course
of action with respect to other nations,” to control “sufficient territory and military
strength,” and “regulate one’s own international functions in the field of domestic
relations,”3
At first European nations and then the United States made agreements with Native
American nations. These agreements, treaties, became the basis for international
relationships. Confrontations and wars ended with the signing of treaties, and alliances
were concluded with treaties. Treaties helped calm cultural tensions. Treaties also
required a meeting of minds, a contractual agreement, and a sense of fair play. Nation
states continue to use this kind of agreement and recognize the power of treaty
agreements.4
However, the treaty in American law with reference to United States-Indian
agreements has been significantly altered. Supreme Courts cases, such as Lone Wolf v.
Hitchcock (1903),5 have denigrated the nature of these agreements. The Indian Claims
Commission attempted to once and for all rectify past treaty violations, but even though
this body functioned for nearly thirty years, it failed miserably. Treaty agreements remain
an important aspect of Indian sovereignty discussions.
Given past relationships, do American Indian nations today retain sovereignty,
whatever its form, under American law? The answer is unequivocal—Yes. In Menominee
Tribe of Indians v. United States (1968),6 the U.S. Supreme Court was asked to interpret
the legal meaning of termination, arguably the greatest threat to Indian sovereignty. The
Menominees of Wisconsin were terminated by federal statute, and they wished to retain
past treaty hunting and fishing rights. The Court held that termination meant merely the
loss of federal support services. It did not mean the legal abolition of the tribe. That was
not possible as long as the Menominees continued to exist. Tribes, even those terminated,
retained sovereignty.
Most Indian tribes today in the United States consider themselves nations with limited
forms of sovereignty. The legal struggle for Native American nations is to eventually be
in a position to control one’s own economic, social, and political destiny. Indian tribes in
the past were fully capable of making treaties, deciding what was in their own national
interests, and operating legal systems within their nations. Many today continue to
exercise these sovereign rights. Independent political autonomy, a goal of some Indian
leaders, requires military strength and self-government, aspects of sovereignty that are
beyond any current Indian nation’s grasp. However, there are clearly degrees of
sovereignty, home rule elements political scientists would say, that are achievable.
The following essays help define Native American sovereignty in today’s world. They
draw upon past legal experiences and project into the future. The collection begins with a
brief definition of sovereignty as formulated by Kirke Kickingbird, Lynn Kickingbird,
Charles J.Chibitty, and Curtis Berkey of the Institute for the Development of American
Indian Law. This is followed by a consideration of the most important documents that
show the relationships between Native American nations and the U.S. government.
Finnish scholar Markku Henriksson has studied how treaties were handled by Congress,
and Ward Churchill follows this selection with a consideration of current and future
implications of the treaty relationships. David E.Wilkins then looks at the issue of federal
plenary power in terms of treaties and the evolution of American case law.
The next group of essays interprets how the recent federal policy of Indian self-
determination impacts the pursuit of Native American sovereignty. Vine Deloria Jr. first
explores how self-determination meshes with sovereignty generally. Then Emma Gross
traces the evolution of both concepts, and Russel Barsh attempts to formulate how self-
determination will eventually foster the strengthening of Indian sovereignty. Ann
McCullogh singles out tribal taxation powers as a very important aspect of the exercise of
Indian sovereignty today. Annette Jaimes explains how federal interference in a tribe’s
ability to choose its own members is a basic infringement upon Indian sovereignty, and
must be resisted.
The next three essays attempt to place historically the struggle for the exercise of any
and all aspects of Native American sovereignty. Sidney L.Harring shows how the Creeks
of Oklahoma in the early twentieth century attempted to retain control over their lands
and avoid allotments in the face of significant legal and extra-legal obstacles. George
Lubick then documents the important career of Peterson Zah, former Navajo Legal
Services director and tribal chairman of the Navajos. Zah represents modern Indian
leadership, legally educated and committed to the retention and expansion of tribal
sovereignty. Much of the current struggle for Native American sovereignty has been
handled by the legal warriors, those Indians together with sympathetic non-Indians who
have brought the issues to the courts and legislatures throughout the United States. Linda
Medcalf explains this development.
The last articles project the pursuit of sovereignty into the future. Rebecca L. Robbins
considers how self-determination policies can impact future efforts at Indian governance.
Glenn T.Morris explains how international law and international politics are fruitful
avenues for taking the struggle for Native American sovereignty. And Vine Deloria Jr.
and Clifford Lytle summarize how far the pursuit of sovereignty has come and what the
future holds.
NOTES
1. See Martha Warren Beckwith, “Mythology of the Oglala Sioux,” Journal of American
Folklore 43 (1930): 399–422.
2. Roxanne Dunbar Ortiz, “Sources of Underdevelopment,” in Economic Development in
American Indian Reservations, ed. Roxanne Dunbar Ortiz (Albuquerque: University of New
Mexico Native American Studies, 1979), 61. See also John R.Wunder, “Retained by The
People”: A History of American Indians and the Bill of Rights (New York: Oxford
University Press, 1994), 8.
3. Vine Deloria Jr. “Self-Determination and the Concept of Sovereignty,” in Economic
Development in American Indian Reservations, ed. Roxanne Dunbar Ortiz. See also John
R.Wunder, “Retained by The People”: A History of American Indians and the Bill of Rights
(New York: Oxford University Press, 1994), 8.
4. John R.Wunder, “Retained by The People”: A History of American Indians and the Bill of
Rights (New York: Oxford University Press, 1994), 17–18.
5. Lone Wolf v. Hitchcock, 187 US 533 (1903).
6. Menominee Tribe of Indians v. United States, 391 US 404 (1968).
FURTHER READING
American Indian Law Review, University of Oklahoma College of Law, Norman, Okla.
Russel Lawrence Barsh and James Youngblood Henderson, The Road: Indian Tribes and Political
Liberty (Berkeley: University of California Press, 1980).
Vine Deloria Jr. and Clifford Lytle, The Nations Within: The Past and Future of American Indian
Sovereignty (New York: Pantheon Books, 1984).
Indian Country Today (formerly Lakota Times), Rapid City, S.D.
Peter Iverson, ed., The Plains Indians of the Twentieth Century (Norman: University of Oklahoma
Press, 1985).
L.G.Moses and Raymond Wilson, eds., Indian Lives: Essays on Nineteenth- and Twentieth-Century
Native American Leaders (Albuquerque: University of New Mexico Press, 1985).
The NARF Legal Review (formerly Announcements, newsletter of the Native American Rights
Fund), Boulder, Colo.
Roger Nichols, ed., The American Indian: Past and Present, 4th edition (New York: McGraw-Hill,
1992).
James S.Olson and Raymond Wilson, Native Americans in the Twentieth Century (Urbana:
University of Illinois Press, 1984).
Rebecca L.Robbins, “The Forgotten American: A Foundation for Contemporary American Indian
Self-Determination,” Wicazo Sa Review 6 (Spring, 1990): 27–33.

Indian Sovereignty
Kirke Kickingbird Lynn Kickingbird
Charles J.Chibitty Curtis Berkey

We are of the same opinion with the
people of the United States; you
consider yourselves as independent
people; we, as the original
inhabitants of this country, and
sovereigns of the god, look upon
ourselves as equally independent,
and free as any other nation or
nations
–Joseph Brant. Mohawk
WHAT IS SOVEREIGNTY?
A. General Definition
“Sovereignty” is a difficult word to define. Sovereignty is a difficult word to define
because it is intangible, it cannot be seen or touched. It is very much like an awesome
power, a strong feeling, or the attitude of a people. What can be seen, however, is the
exercise of sovereign powers.