Issues in Indian Country

Tribal elder Bill LeBlanc talks about the privileges and responsibilities of tribal sovereignty.

An article by Mi'kmaq scholar Prof. Marie Battiste, the academic director of the Aboriginal Education Research Centre at the University of Saskatchewan. She makes a strong and detailed critique of the challenges for Native children in public schools.

Sovereignty is defined as the right of a unique group of people who share a governance structure and live in a delimited geographical area to govern themselves independently. Centuries ago, sovereign was defined in European parlance as the person of a king or queen, and that and other, more modern definitions of the term were utterly foreign to Native Americans before the settlers came to America. The clans that were part of a tribe were represented by one person, and the whole tribe was represented by a chief. In traditional native forms of governance, the chief was in no way similar to a king, as kings in Europe had complete control over their "subjects" and chiefs didn't hold that much power over the tribal members. Indeed, a chief was traditionally merely the first among equals.

Before White incursions, Native Americans conducted their own affairs both internally and externally, that is, in both “domestic” and “foreign” affairs, and there was usually no over-arching authority above that of individual tribes, though there were a few large alliances, such as the Iroquois Confederacy. There was little distinction drawn between sovereignty and ownership, so, "[…w]hen asked by an anthropologist what the Indians called America before the white man came, an Indian said simply, Ours." - Vine Deloria [full citation?]

Under English legal traditions in which territorial control implied sovereignty, early settlers treated the tribes sovereign, making it possible for Whites to develop contracts and treaties between themselves and the Natives. At the same time, despite having strong traditions of autonomy and self-governance, notions of written formal contracts and agreements were alien to Native American, as such matters were resolved by the use of honor codes and witnessed verbal agreements. A man’s (or woman’s) word was his honor, often accompanied by ritual practices (pipe-smoking, exchange of token gifts), and documents were considered too weak to act as enforcement mechanisms. As a consequence, treaty-making procedures were fraught with misunderstandings, misinterpretations, and, of course, White violations. Many treaties were written and many were broken. In addition, thanks to language barriers, Native Americans ended up signing many treaties based on poorly translated oral explanations of their content. Conversely, Whites never signed treaties authored by Natives and translated loosely to English. The language barrier was often used to the Europeans advantage and the Indian disadvantage. As Gilles Havard argued in his book, The Great Peace of Montreal of 1701 (McGill/Queen’s University Press, 2001), “It should be noted that the Amerindians never signed such documents to validate the words written in them; rather they were validating the words that had been delivered in their language by an interpreter. This could lead to misunderstandings.” (p. 186). Such was the case with the numerous treaties between the Ojibwe peoples and the French, British, and American governments. Land and rights the tribes had as a sovereign governments were simply taken away and given to the settlers.

The Dawes Act of 1887, passed at the close of the Indian Wars, ended the long practice of treaties and assumptions of Native sovereignty that had prevailed since the sixteenth century. The new regime meant that Indian lands were to be broken up by allocations to individual tribal members (ranging from 160 to 40 acres per family), thereby radically reducing the land base of the Indian nations. At the same time, the US Government became the custodian of most of the natural resources located on Indian land. This allowed mining, timber, and other resource-extraction corporations to remove natural resources from Indian lands at scandalously low prices, often with arm’s-length inside connections to government officials. The proceeds from the resources sales were placed in a trust account managed by the Department of the Interior, and over a century later, in the Cobell case, tribes were still unable either to get a credible income from those resources or even a coherent accounting of the sales. Suffice it to say, in the Dawes era, Indian nations lost the majority of their land base and control over their own resources, deeply undermining any claims of sovereignty, and tribes were considered not really as sovereign nations than “internal dependent entities.”

The Indian Reorganization Act (IRA) of 1934 allowed tribes, after gaining Federal recognition, to reestablish credible systems of tribal government, with local police and judicial power, albeit limited. The Bay Mills tribe was one of the first to gain Federal recognition, and to establish its own elected Tribal Council, and that council has been the governing entity of the Bay Mills Indian Community ever since, acting as the robust core of local self-governance. Tribal elections have been robust, and the strength, self-confidence, and competence of Bay Mills tribal government have served as a model for other Native communities since the 1930s.

Federal policy reversed again after World War II as the Termination Era began in the 1950s. The US government’s objective was to “free” tribes from their treaties and land base, and to assimilate them into the larger American society. Not incidentally, this often meant as well that Native claims to lands, rights and natural resources were terminated as well, in return for one-time payments or annuities to individual members of terminated tribes. Tribes all over the US, from the Klamath in Oregon to the Menominee in Wisconsin were dissolved as their members were individually given checks that were intended to “cash out” all Indian claims to land and natural resources. The Bay Mills Community wisely avoided that fate, as it was far too strong to be destroyed by Federal fiat.

President Richard Nixon stopped the Termination Era in 1970 and set in a new policy of “self-determination.” Under this new policy, Native communities were encouraged once again to set up their own governments. In this period, which ostensibly extends to the present day, leaders in the Bay Mills community are often asked to consult other tribes on how best to set up their systems of local governance. At the same time, however, thanks to the Oliphant v. Suquamish case in 1978, the Supreme Court again revived the term, 
“dependent nation,” particularly in terms of law enforcement, thereby undermining sovereignty and leaving the actual status of Native governance in an ambiguous position.

"Indians were admitted to be the rightful occupants of the soil...their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil, at their own will to whomsoever they pleased, was denied by the original fundamental principle, that discovery have exclusive title to those who made it." - Chief Justice John Marshall

Under the Cherokee Nation v. Georgia Supreme Court decision, Chief Justice John Marshall described the tribe as a "distinct political society that was separated from others, capable of managing its own affairs, and governing themselves."

Native Americans have been fighting for decades to get the recognition they had before 1800.

Without the reserved rights the tribes obtain from the federal or state governments our reservations would lose the culture and tribes could no longer survive as Indian Nations.

"Sovereignty isn't anything if you don't act upon it." - Dwight "Bucko" Teeple

Broken Justice in Indian Country Article by N. Bruce Duthu

http://law.jrank.org

Native American Rights-Reserved Rights Doctrine

Native American Rights-Tribal Sovereignty.html">Native American Rights-Tribal Sovereignty
Native American Rights-Tribal Sovereignty,Treaty Rights,Reserved Rights Doctrine,Federal Power Over Native American Rights,Hunting and Fishing Rights

http://www.mpm.edu/wirp/ICW-07.html