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Stereotype of the Month Entry
(9/12/04)


Another Stereotype of the Month entry:

From The Day, 9/12/04:

Tribal Sovereignty? It Doesn't Exist

That George W. Bush cannot define tribal sovereignty does not surprise me. In the first place, "sovereignty" is a four-syllable word and he can barely speak in complete, grammatically correct sentences. By the same token, all the journalists who laughed at his inability to explain what tribal sovereignty means would be hardpressed themselves to give a cogent and accurate reply.

Put yourself to the test and print what you think tribal sovereignty is, as a recent lettert writer requested. The difficulty lies in the fact that tribal sovereignty is just a term that the government likes to pull out of a hat, like a rabbit, whenever it wants to evade the issue of equal rights of Native Americans. It does not exist in legal reality.

The U.S. trust policy makes each tribe a "ward of the state." All so-called "Indian land" is, in reality federal land that Congress has designated to be used as "reserves" for Native Americans. Congress, through its plenary powers, can terminate a tribe and extinguish Indian land title at any time, in any manner, without the tribe's consent.

Does that sound sovereign to you?

It gets worse. The U.S. trust policy for Native Americans requires all tribes to obtain the approval of the secretary of the Interior for their choice of attorney. So, if a tribe wants to sue the federal government, it has to get the OK from Uncle Sam on who will represent them. Attorney General Richard Blumenthal can explain how this works.

In 1991, the Connecticut General Assembly voted to approve $30,000 for the Connecticut Indian Affairs Council, but when CIAC Chairwoman Paulette Crone requested the release of those funds so they could hire an attorney, the attorney general refused to release the funds, citing Connecticut's trust agreement. There are numerous examples where a tribe was denied the right to legal counsel of it choice.

Does that sound sovereign to you?

A tribe also must obtain the approval of the secretary of the Interior for every business proposal it wants to enter. The U.S. has often expanded its trust responsibility to approve of the tribe's choice of legal counsel and simply appointed an attorney to a tribe, whether or not one is wanted.

Usually these are former U.S. attorneys who proceed to accept settlements against a tribe's wishes, or who simultaneously represent the tribe and an American company with whom they are doing business. One example was the 1950s appointment of attorney John C. Boyden, to the Hopi Tribe, to represent them in a lease with Peabody Coal, for whom he also served as legal counsel. The tribe got 25 cents a ton for coal that was sold for $75 a ton.

When Peabody Coal wanted to expand its coal mining, Sen. John McCain, R-Ariz., member of the Senate Select Committee on Indian Affairs, did his campaign contributor, Peabody Coal, a favor and introduced legislation in 1974 calling for the forcible removal of 10,000 Navajo and Hopi with a completion date of July 6, 1986.

It gets worse. One would think if a tribe enjoyed "sovereignty" it could decide on the tribal children's education. Wrong. By the authority of the U.S. Trust Policy, Indian children since the early 1900s were forcibly removed from their homes and transported long distances to BIA schools where they were forbidden to speak their own language on pain of torture.

By forcibly, I mean the U.S. Cavalry riding out to an Indian village, shooting dogs so families could not be warned and breaking the shins of children attempting to run away. Parents who refused to give their children up voluntarilly were sent to Alcatraz for 10 years.

Would you call that sovereign?

And then there's the issue of the military draft and so on, but you get the picture.

You could ask our two senators and our congressmen to help you define tribal sovereignty, but I would wager that their comprehension is as dismally unenlightened as that of George W. Bush. It could be amusing, though.

Kathleen Grasso Andersen divides her time between a home in New London and California. She assisted the Hopi Tribe in its formal complaint to the United Nations that U.S. trust policy was a legal form of discrimination against Native Americans.

Rob's reply
Andersen apparently works for an Indian tribe. Considering how she disparages the concept of sovereignty, the tribe may not be getting its money's worth. If people like Jeff Benedict and Richard Blumenthal would be quoting it happily in their anti-Indian campaigns.

>> The difficulty lies in the fact that tribal sovereignty is just a term that the government likes to pull out of a hat, like a rabbit, whenever it wants to evade the issue of equal rights of Native Americans. <<

No, it's a longstanding concept that predates the founding of the United States. How can the government pull it out of a hat if it existed before the government did?

>> It does not exist in legal reality. <<

What the heck is "legal reality"? Is that whatever the government says is the law? Well, tribal sovereignty is as "legally" real as other constitutional provisions such as freedom of the press. Both are abstract concepts, not tangible objects. Neither has any reality except that which Congress and the courts grant.

>> Congress, through its plenary powers, can terminate a tribe and extinguish Indian land title at any time, in any manner, without the tribe's consent. <<

Congress established each new state as a sovereign entity. I imagine Congress could abolish a state if it wanted to. So much for the sovereignty of states.

Congress also could abolish any legal right, or at least try to, by defining it out of existence. The courts might or might not be able to stop it. If the courts did stop it, it would be giving that legal right the same protection as tribal sovereignty. Again, no right has any reality except that which Congress and the courts grant.

>> Does that sound sovereign to you? <<

Yes, actually. It sounds about as sovereign as a US state is. No one claims, except as a rhetorical argument, that tribes are truly sovereign. Their actual status is quasi-sovereign, just like US states.

>> So, if a tribe wants to sue the federal government, it has to get the OK from Uncle Sam on who will represent them. <<

I believe individuals can't sue states or the federal government in many circumstances. I believe states can't sue the federal government in many circumstances. Likewise, individuals and states can't sue sovereign tribes in many circumstances. So what's the difference?

Again, tribes are quasi-sovereign just like states. This would be obvious if Andersen listed all the ways tribes are sovereign, not all the ways they aren't. She's presented a one-sided argument to make a phony case.

Try moving to a reservation and joining a tribe if you think it isn't sovereign. Try starting a business on tribal land with the government's approval but not the tribe's approval. Try suing the tribe for damages if you slip and fall. You'll quickly learn just how sovereign the tribe is.

>> Parents who refused to give their children up voluntarilly were sent to Alcatraz for 10 years.

Would you call that sovereign? <<

The federal government forced the southern states to integrate their schools at gunpoint. Would you call that sovereign?

Does that mean the states forfeited their absolute sovereignty at some point? Yes, when joined to form the United States under the Constitution. Now they're semi- or quasi-sovereign, not sovereign.

Unlike the states, the tribes didn't agree to accept the authority of the US government. Not until the US broke the treaties they signed and forced them to accept US authority or die, anyway. So theoretically the tribes are more sovereign, since many didn't agree to reduce their sovereignty of their own free will.

Likewise, the federal government will forcibly shut down your website and send you to prison for 10 years if you post child pornography. Does that sound like freedom of speech to you? Using Andersen's logic, freedom of speech has no "legal reality." If it's not absolute, she implies, it doesn't exist.

This example shows the idiocy of Andersen's position. Clearly freedom of speech does have some legal reality, even though it's not absolute. No legal right is absolute, but it will exist under some conditions if society wants it to exist.

If Andersen is saying sovereignty is no more real than any other legal right or concept, then she has a point. A trivial point, perhaps, but a point nonetheless. If she's saying sovereignty is less real than other legal concepts, she has no argument. Her noting the qualifications of a qualified right is merely stating the obvious.

Related links
The facts about tribal sovereignty


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