Rethinking tribal sovereignty
Dr. Vine Deloria Jr. gave the keynote address at the May 26, Sovereignty Forum. Deloria is a political scientist, professor at the University of Colorado-Boulder, prolific author and activist. In his speech, he expressed concern for the future of Indians as both individuals and nations. In discussing sovereignty, he stressed the importance of understanding sovereignty as a tool for dealing with the challenges of the future.
When Deloria visited Standing Rock Indian Reservation in South Dakota, he noticed that many tribal programs are derived from the basic idea of sovereignty, but that most people have a difficult time understanding how to take the idea of sovereignty and apply it to the expansion of tribal activities.
Sovereignty can be hard to understand because it's not a traditional Indian concept. Sovereignty comes from the feudal system of medieval Europe where power flowed up pyramid-style.
Historically, the political structure of Indian tribes has not been like a pyramid with most of the power concentrated in the hands of a few. Rather, tribes have been organized in clusters of families and clans or related families. When a group became too large, it split apart forming separate bands.
Because sovereignty doesn't fit the natural organization of tribes, Deloria suggested adapting the idea of sovereignty to fit.
"I think what you got to do," he said, "is set up a series of structures in which you're able to move the application of the idea of sovereignty back and forth in your mind. And, be able to articulate then how sovereignty affects the people, tribe, legal rights and how it's useful to do things you want to do," he said.
Deloria broke the concept of sovereignty into three smaller pieces: external sovereignty, internal sovereignty and property rights.
External sovereignty forms the basis for tribes as nations to deal with other political entities. This is the context in which to understand treaties with the United States government and any local contracts or agreements that might come out of those treaties. External sovereignty can be applied to all external activities where the tribe acts as a single political entity. The important principle to remember, according to Deloria, is that to keep external sovereignty, you must maintain that you are a nation and that there is nationhood involved.
In practical application, tribes need to identify their external activities and then decide at what level to negotiate with other political entities and with whom. Deloria expressed concern that tribes who regularly dealt with low level groups, such a conservation districts, instead of dealing with the highest executive official of an outside political group ran the risk of being perceived as a low level political group.
Internal sovereignty encompasses the political activities of the tribe within its own borders and with their own members. For example, this would include the operation of a tribal police force and implementation of the Indian Child Welfare Act.
The Supreme Court addressed this issue in the Talton v. Mays case where a Cherokee jury convicted a man of murder. The case was appealed because the Cherokee jury was smaller than a jury under the U.S. Justice System would have been. In its decision, the court found for the Cherokees, saying that in domestic activities, the tribe was exercising political power it had always possessed and in fact had possessed before the U.S. Constitution had been written.
"What this means," Deloria said, "is that Indian tribes must act like Indians. That's the only justification for preserving internal sovereignty." Deloria lamented that many tribal government had moved away from traditional ways of life and thereby had become as irresponsible as non-Indian governments.
The shift away from traditional leadership is partly responsible for irresponsibility. Traditionally, Indians followed the leadership of elders as long as decisions were good. Elders were respected because they were the originators of the ancestral bands, and families were responsible to the elders. Under elected leadership, the elders have no status and people have become alienated from a government that they don't feel related to or responsible to, Deloria said.
"So if we're going to have internal sovereignty, we're going to have to bring back the majority of social traditions. There are traditional mechanisms of reconciliation, traditional ways of child adoption, traditional ways of dealing with spouses, siblings and any problem that can arise between human beings," he said.
"You see, if we don't bring those traditions back, then the problems those traditions solved are going to continue to grow. Then we'll have to get funding to set up programs to deal with those issues." The problem with programs Deloria said, is that "When you set up programs, you are exercising your internal sovereignty, but the funding source determines how the program is going to operate and then the funding source defines internal sovereignty."
In looking at external and internal sovereignty, Deloria made a distinction between tribal leadership. He felt that tribal councils ought to deal with external sovereignty and a council of elders ought to deal with internal sovereignty and community life.
Indian elders need to identify their relatives so that councils of elders can be established to deal with internal sovereignty issues, Deloria said.
The third piece of sovereignty that Deloria discussed was property rights. Although property rights aren't a traditional concept, the idea can be useful. In the 1886 U.S. v. Kagama, the Supreme Court rejected the constitutional basis for the seven major crimes act and instead used the idea of the United States as a property owner.
Frequently, people look at property rights as something distinct from sovereignty. This leads to confusion, Deloria said. "We could be doing well were we to think through what are property rights."
In today's world, if you own property you own everything about the property, regardless if the property is land, knowledge or a song. The concept is powerful, but unexamined.
Deloria would like to see tribes take advantage of the idea of property rights and adopt the same posture as the U.S. Government at its most radical position. That is, if you own property, you own everything that pertains to the property or could ever be conceived of as pertaining to the property. "If flying saucers land," Deloria said, "by god, they'd better land exactly where you zoned it. If they're going to abduct people, they can't abduct tribal members, etc."
More seriously, tribes need to consider the concept of property rights as part of sovereignty because of the direction in which the Supreme Court is moving. In Deloria's opinion, the court is moving towards the protection of property at the expense on human rights.
Once you can think of sovereignty in three separate piece, the next step is to bring it back together to solve problems. In almost every situation, you can apply at least two of the three pieces, Deloria said.
© Copyright 2002, American Indian Policy Center. All Rights