Reviewed I. Introduction to American Indian Politics and the American Political System by David E. Wilkins A. “We claim that the constitution… shall be the supreme law of the land. But we also claim to recognize the sovereignty of Native American nations, the original occupants of this land… Two hundred years have produced no resolution of the contradiction except at the expense of the tribes and the loss to non-Indians of the Indian’s gift of their difference. ” (Pg. 41) II. What are Indian “rights” and “tribal sovereignty”? A. “The situation of the 561 indigenous polities in North America is and has always een distinctive in comparison to the status and place of African Americans… and other racial or ethnic groups in the country. ” (Pg. 41) B. “First, tribal peoples are the original-the indigenous-inhabitantes of North America and they are nations in the most fundamental sense of the word. ” (Pg. 41) C. “Second, the preexistence of over six hundred independent tribal nations (which) well in advance of the formation of the United States… necessitated the practice of aboriginal sovereigns negotiating political compacts… with European nations and later the United States. (Pg. 42) 1. The fact of treaty making, which no other resident American group … participated in, and products of that process… confirmed a nation-to-nation relationship between the negotiating tribal and nontribal parties. ” (Pg. 42) 2. “A large number, over five hundred, of these important contractual arrangements form the baseline parameters of the political relationship between tribes and the United States. ” (Pg. 44) 3. “… tribal nations have an extraconstitutional relationship to the United States that no other group has. ” (Pg. 44) 4. “… while tribal sovereignty is not behold to or rooted in American constitutional aw, a tribe’s treaty rights are, at least in constitutional theory, the supreme law of the land and should be subject to full protection under the Constitution’s rubric. ” (Pg. 44) D. “A third feature differentiating indigenous peoples from other racial/ethnic groups is the trust doctrine. ” (Pg. 44) 1. “President Clinton… put forth a clear description (treaties, statutes, executive orders and court decisions) of what the trust relationship entails from the federal government’s perspective: … the United States has recognized Indian tribes as domestic dependent nations under its protection. ” (Pg. 4) 2. “The hundred of treaties and agreements that were negotiated in which the tribes were guaranteed all the rights and resources… ” (Pg. 44) 3. “… they had not ceded to the federal government when they sold or exchanged the majority of their lands… were contractual rights that were also protected by the trust doctrine, which is the federal government’s legal and moral pledge to respect those reserved Indian rights. ” (Pg. 44) 4. “… President’s use of the phrase ‘under its (government’s) protection. ‘ This is a declaration that the federal government has a protectorate obligation to support ndigenous peoples legally, culturally, economically, and politically. ” a. “it is best characterized by the phrase trustee (United States)-beneficiary (Tribes) relationship. ” (Pg. 44) b. Vine Deloria Jr. , the leading scholar of Indian law and politics, stated “No constitutional protections exist for Indians in either a tribal or an Individual sense, and hence the need for special rules and regulations… ” (Pg. 45) 5. “Tribal nations tend to think of ‘trust’ as entailing four interrelated components. ” (Pg. 45) a. “the federal government -or its agents-was pledged to protect tribal property nd sovereignty and would not move for or against tribes with out first securing tribal consent. ” (Pg. 45) b. “the United States would act with the utmost integrity in its legal and political commitments to Indian peoples as outlined in treaties or governmental policies. ” (Pg. 45) c. “the United States would act in a moral manner regarding tribal rights, as the Judeo-Christian nation it historically professed to be in its dealing with tribes. ” (Pg. 45) d. “the United States would continue to support any additional duties and responsibilities in its self- assumed role as the Indians’ ‘protectors. ‘” (Pg. 45)
E. “A fourth concept, congressional plenary power, is yet another distinctive feature of the tribal-federal relationship that separates tribal nations from all other racial/ethnic groups in the United States. ” (Pg. 45) 1. “‘plenary’ means complete in all aspects or meanings in federal Indian policy and law. (Pg. 45) 2. “First, it means exclusive. The federal Constitution… vests in Congress the sole authority to ‘regulate Commerce with foreign Nations, and among the several States and with the Indian tribes’. ” (Pg. 45) 3. “Second, and related to the first definition, plenary also means preemptive. ” (Pg. 45) . “Finally, since (preemptive) definition lacks a constitutional basis, plenary means unlimited or absolute. ” (Pg. 45) a. “This judicially constructed definition (United States v. Kagama, 1886) means that the Congress has vested in itself, without a constitutional mooring… jurisdiction over tribal nations, their lands, and their resources. ” (Pg. 45) b. “Congress has plenary authority to legislate for the Indian tribes in all matters, including their form of government. (United States v. Wheeler, 1978)” (Pg. 45) F. “Plenary power, like the trust doctrine, has proven to be a mixed blessing for Indian peoples. (Pg. 46) 1. “… Congress is empowered to exercise a great deal of authority in Indian affairs because it must be ‘immune from ordinary challenges which might otherwise hamper the wise administration of Indian affairs’. ” (Pg. 46) 2. “… Congress may literally terminate the legal existence of tribal nations. ” (Pg. 47) 3. “Congressional action, therefore, that is based on plenary power does not violate the equal protection due process clauses of the Constitution that prohibit discrimination on the basis of race. ” (Pg. 47) 4. “A sovereign nation is a distinct political entry which exercises a measure of urisdictional power over a specific territory. ” (Pg. 47) 5. According to Sam Deloria, “In recognizing these rights (in treaties and agreements) the United States has voluntarily limited its sovereignty. ” (Pg. 47) G. “jurisdictional monopoly vs. jurisdictional multiplicity. ” (Pg. 48) 1. “… the reality that indigenous nations constitute the third set of sovereigns-along with the federal and state governments- whose politics deserve focused attention. ” (Pg. 48) H. “The sovereignty of tribes… was not delegated to them by federal or state governments-it is original and inherent power. ” (Pg. 48) 1. Tribal sovereignty is the intangible and dynamic cultural force inherent in a given indigenous community… ” (Pg. 48) III. Indians as Citizens/subjects of the united states A. The Declaration of Independence, “… proclaimed the right of the colonies to separate from Great Britain and outlined the rights of man and the rights to rebellion and self-government. ” (Pg. 49) B. Treaty with the Delaware Tribe, “… first Indian treaty written in formal diplomatic and legal language. ” (Pg. 49) C. Articles of Confederation, “… to persuade New Yorker to support the newly proposed Constitution. ” (Pg. 49) D. The Northwest Ordinance, “… stablished the policy that territories were not to be kept in subjugation but were to be developed for admission to statehood on an equal footing with other states. ” (Pg. 50) E. U. S. Constitution, “… assigned powers and duties of governmental agencies, and established the relationship of the people to the government. ” (Pg. 50) F. Trade and Intercourse Act, “… to secure license before trading with Indians and generally restricted transactions between settlers and Indians. ” (Pg. 50) G. Cherokee Nation v. Georgia, “… what it perceived the Cherokee status to be” (Pg. 51) H. Worcester v. Georgia, “…
Georgia did not have the right to arrest white missionaries for having failed to obtain state license. ” (Pg. 51) I. “… in 1817… one earliest Indian removal treaties signed with the Cherokee Nation… 8 whereby individual Cherokee heads of family who opted to remain in the east rather than relocate to the new lands in the west were given… to become citizens of the United States and receive 640-acre tracts of land. ” (Pg. 51) J. Dred Scott v. Sandford, “Taney did indicate that individual Indians could be naturalized by Congress, but only if they left their tribal nation and adopted and habits and values of whites. ” (Pg. 2) K. The Committee stated that “individual Indians… became subject to federal jurisdiction, but stoped even detribalized Indians American citizens. ” (Pg. 53) L. “three important developments (congress, federal district and Supreme Court)” (Pg. 53) M. “1884… did finaly address the issue of citizenship. 1887, Indians were to be granded citizenship. 1890, any Indians could become citizens. (Pg. 54) 1. “(in 1905) Although the Court’s ruling in Heff appeared to fit the thrust of what federal policymakers had been pushing for some time… the unbridled assimilation of Indians. ” (Pg. 55) 2. In 1916, United States v.
Nice, “they are citizens of their own nation and subjects/citizens of the United State. ” (Pg. 55) N. “Five Civilized Tribes (Cherokee, Choctaw, Chickasaw, Seminole and Creek)” (Pg. 56) IV. The politics of ambivalence: Indian quandaries A. “Tribal nations and their individual members… have often suffered because of conflicting federal policies, which have vacillated between respecting the internal sovereignty of tribes and seeking to destroy tribal sovereignty in order to assimilate individual Indians into American body politic. ” (Pg. 57) 1. “First, tribes, as governments, face the conflicting tasks of ‘providing social ervices for people whose educational, health, and economic level is far below that of the general population in the United State… ” (Pg. 57) a. Indian Gaming Regulatory Act of 1988 are examples of what can transpire when a government is also the chief employer. (Pg. 57) 2. “Second, tribes have a real desire to exercise political, economic,and cultural self- determination… ” (Pg. 57) a. “(It) is complicated (because) most tribes insist that one of the primary obligations of the federal government under the trust doctrine is to protect and strengthen tribal sovereignty and the assorted rights and powers that ccompany that doctrine. ” (Pg. 57) 3. “Third, American Indians are citizens of their own tribal nations, which are recognized as extraconstitutional governments. ” (Pg. 57) a. “… the federal Constitution does not apply to Indian tribes. ” (Pg. 57) b. “… the first Amendment has been interpreted by the Supreme Court as not protecting the religious freedom rights of tribal members. ” (Pg. 57) c. “Indians are indeed American citizens, but this status does not restrict the plenary powers of Congress with respect to Indians. ” (Pg. 57) 4. “Fourth, Indian tribal governments are nations inhabiting territorial units… in hich the U. S. Constitution is largely inapplicable” (Pg. 58) a. “… due to the passage of a number of laws like the general Allotment Act of 1887, a large number of non-Indians moved within the boundaries of Indian reservations,” (Pg. 58) B. “… Internal and intergovernmental quandaries are complicated by the indeterminate manner in which the federal government has dealt with indigenous nations… (respecting/disrespecting) their sovereignty. ” (Pg. 58) 1. “tribes are… ‘distinct, independent communities’ capable of exercising a significant measure of sovereign power… but they are also described as domestic dependent ations limited to exercising a reduced degree of internal sovereignty subject to federal dominance. ” (Pg. 58) 2. “… tribal sovereignty has been defined as an inherent and reserved power. ” (Pg. 58) 3. “A ‘trusteeship’ is a relationship that limits the property rights of the trustee, who is the beneficiary’s servant; a guardianship relationship is one that limits the personal rights of the ward. ” (Pg. 58) 4. “General acts of Congress are inapplicable to tribal nations unless they are specifically mentioned in the legislation, because of the extraconstitutional status of the tribes. ” (Pg. 8) 5. “the federal government has sometimes acknowledge tht its political power in relation to tribes islimited and must be based on specifically enumerated constitutional clauses. ” (Pg. 59) 6. “state laws have noforce within Indian Country because of tribal sovereignty and federal supremacy under the commerce clause, unless the contrary is shown by an express act of Congress or some special circumstance… ” (Pg. 59) a. ” So long as this ambivakence persists, there can be no permnent resolution to many of the problems indigenous nations confront internally and externally. ” (Pg. 59) C. ” … he status of Indians tribes and individual Indians has three very differet sources in law, policy, and popular attitudes. ” (Pg. 59) 1. ” one source is the cultural distinctiveness of tribal peoples. ” (Pg. 59) a. ” the federal government sporadically seeks to protect cultural distinctiveness through bilingual education programs… and allowances for Indians to practice traditional religions” (Pg. 59), but it is still difficult. b. ”e. g. , the Atlanta Braves and their ‘tomahawk chop'” (Pg. 59) 2. ” the property rights of tribes and individual Indians landowners and possessors of other important rights… (Pg. 59) a. ”Tribes went from being the landlords of the entire continent to owning less than 4 percent of their originl lnds by the 1930s. b. ”1887 General Allotment Act… exacebated the land loss and contriduted to the state of poverty most Indians found temselves in during the harshest days of Indian land dispossession” (Pg. 60) – ”As Vine Deloria noted, ‘Indian poverty was deliberately planned and (was) as predictable as the seasons,’ because of the allotment process and the way it was administered by the BLA. ” (Pg. 60) c. ”Indians continue ro suffer… becuase of the manner in which their property ight and lack of a contitutionally recognized status, (which) have been occasionally proctected and more often exploited, when the rights are help in common by the tribal nation. ” (Pg. 61) 3. ” the rights of tribal nations as distinct political entities exercising inherent sovereignty… ” (Pg. 61) a. ”constitutionally necessary to enable the society to make a legal distinction between Indian tribes and other cultural groups or other groups of poor people. ” (Pg. 61) b. ”foundatioin for the entire structureof policies, programs, and laws. Yet it is the one source of Indian status which, as a ractical matter, probably cannon tand alone. ” V. Conclusion A. ”These three sources – cultural distinctivenes, property rights, and political sovereignty – are braided together in the public and federal and state government’s perceptions of Indians. ” (Pg. 61) 1. ”tribal cultural distinctiveness and property ownership find… support in ‘the simultaneous humanitarian impulse and sense of cultural superiority that re the peculiar heritage of Anglo-American society'” (Pg. 61) B. ”Indian governments are thus sebjected to a different status than other governments… Unlike that of Indian tribes, their political status is taken for