Sovereignty for the Native American Indians
|October 28, 2013||Posted by Fred Foldvary under Editorials|
I previously wrote about justice for the native American Indian (www.progress.org/fold161.htm), and now I will examine sovereignty more specifically.
As stated in the Wikipedia article “Johnson v. M’Intosh,” Chief Justice John Marshall affirmed in this 1823 case the “discovery doctrine,” by which a European power gains radical title, i.e. sovereignty, to the land it “discovers”. This “discovering” power includes the legal right to extinguish the “right of occupancy” of the indigenous occupants. When the States declared independence from Great Britain, the United States government inherited the British legal right of preemption over Native American lands. Hence, the U.S. government had the sole legal right of negotiations and land transfers with the Native American nations.
As stated by Eric Kades in his article “History and Interpretation of the Great Case of Johnson v. M’Intosh” (2001, Law and History Review), “At the root of most land titles in America outside the original thirteen colonies sits a federal patent. The validity of government title, in turn, rests on … Johnson v. M’lntosh.” As stated by Kades, the Marshall ruling did not cite the U.S. Constitution, but rather appealed to custom. By prohibiting private sales by Indians, the case enabled the U.S. government, as the single buyer, to purchase Indian land at minimum financial cost. Kades cites president James Monroe as an example of the rationale use to take Indian lands: “[T]he hunter or savage state requires a greater extent of territory to sustain it, than is compatible with the progress and just claims of civilized life, and must yield to it … ”
U.S. Public Law 83-280, enacted in 1953, empowers the U.S. States to impose their jurisdictions onto reservation Indians, although the States do not have the full power they possess on their non-Indian territory, as declared by the case of McClanahan v. Arizona State Tax Commission (1973), whereby the U.S. Supreme Court held that Arizona may not impose an income tax on Navaho Indians who live in their reservation and whose income is derived from reservation sources.
However, Public Law 280 authorized a transfer of federal law enforcement authority within some tribal nations to the state governments of California, Minnesota, Nebraska, Oregon, Wisconsin and Alaska. Other states may adopt jurisdictions over crimes in tribal lands if the Indian nations provide their consent. The 1978 Supreme Court case of Oliphant v. Suquamish Indian Tribe ruled that tribal courts do not have jurisdiction over non-Indians.
There are thus multiple law-enforcement jurisdictions in some of the Indian reservations and pueblos, a mix of local, state, tribal, and federal authorities. Where Public Law 280 is not applied, Bureau of Indian Affairs (BIA) police respond to major crimes. But in practice, as described in the novel The Roundhouse by Louise Erdrich, many crimes such as rape are left unpunished due to a lack of jurisdiction over non-Indians by the tribal governments on tribal land, and due to the absence of prosecutions by the state and federal governments.
As stated by the Wikipedia article on “Tribal sovereignty in the United States,” the native American Indian nations have an inherent authority for self-governance as “domestic dependent nations.” However, this is only a partial sovereignty, as Congress has great authority for the Indian nations. The Indian Appropriations Act of 1871 stated that no Indian nation shall be recognized as an independent nation. As semi-sovereign nations under the U.S. Constitution and under Congress, the Indian nations do not owe allegiance to the U.S. States.
In 1887, the “Dawes Act” seized the lands of the Indian nations, including much of Oklahoma, and sold much of the territory to non-Indians. In 1934 the Indian Reorganization Act allowed the Indian nations to select constitutional documents that authorized the powers of tribal governance. Most Indian land is held in trust by the United States, and federal law and the Bureau of Indian Affairs limit the jurisdictions of tribal governments. As U.S. citizens, the native American tribal citizens are subject to U.S. laws, including taxation.
As described by the Wikipedia article “Indian termination policy,” the U.S. war on the native American Indians continued during the 1940s, as the U.S. government sought “Indian termination” to eradicate Indian culture and the remains of sovereignty. Congress passed termination acts on over 100 specific tribes. The federal land grabs were extended, as 2,500,000 acres of Indian trust land were taken off of protected status, and much of the land was transferred to non-Indians. Many Indian children were sent to boarding schools where they were forbidden to speak their native Indian languages and forced to convert to Christianity. There was a high mortality rates in these boarding schools. Termination continued through the Kennedy administration, but was phased out under Johnson and Nixon. President Reagan repudiated the termination policy.
The legislation and court rulings that took both land and self-governance from the Native American Indians violate their natural rights as equal human beings. These also violate the U.S. Constitution as it recognizes these natural rights in its 9th Amendment. Justice requires the restoration of sovereignty for the native American Indians and their nations. Congress should repudiate and reverse the 1823 Johnson v. M’Intosh case, the 1953 Public Law 280, the Act of 1871, the Dawes act of 1887, the 1978 case, and the Indian termination policy, and declare that the Indian nations have sovereignty parallel to that of the U.S. states and the federal government, with no authority for foreign policy, but otherwise with full jurisdiction over domestic policy, including criminal law.
As author Frank Pommersheim has proposed in his article “Is There a (Little or Not So Little) Constitutional Crisis Developing in Indian Law?: a Brief Essay” (5 University of Pennsylvania Constitutional Law Review 271, 2002), the courts have ignored the U.S. Constitution in their rulings on American Indians, and so sovereignty for the American Indian nations requires a Constitutional amendment to cement their liberty and equality in place.