Sovereignty: Teacher Background Information

from the Native American History, Culture and Language curriculum framework
of the Minnesota Indian Affairs Council
http://www.indians.state.mn.us/resources/s-bkgnd.html

Tribal Sovereignty

"Tribal sovereignty" refers to the right of American Indian tribes to determine
their own future. American Indian tribes through elected tribal governments have
the right to operate as self-governing nations.

Historical Perspective

When the United States government signed treaties with tribal nations, it
affirmed the inherent sovereignty of the tribes. American Indian tribes have
always been sovereign nations and controlled their own destiny. The United
States Congress acknowledged this under House Concurrent Resolution 331. Among
the attributes of sovereignty are American Indian control of the land and
inherent powers. The inherent powers include: the power to determine the form of
government; to define conditions for membership in the nation; to administer
justice and enforce laws; to tax; to regulate domestic relations of its members;
to regulate property tax.

One of the aspects of sovereignty is to be able to exert power to enforce the
sovereignty.

The governments of these nations have always operated in accordance with
democratic principles. An example is the Iroquois Confederacy. The framers of
the U.S. Constitution based many of their basic concepts on this Confederacy.
Each nation within the confederacy selected individuals to represent them at
confederacy meetings. Issues were deliberated until all were in agreement on a
common course of action. This method of decision making still used today is
called consensus democracy.

Treaties

In all the treaties and agreements that took place between American Indian
nations and the United States government, the tribes retained the right to
maintain their own governments. This right has been upheld since the 1830's when
federal courts affirmed a trust responsibility to the tribes. That
responsibility includes the protection of tribal rights and interests
particularly with regard to tribal lands and resources. Federal Indian policy,
however, followed an opposite course. In the treaties American Indian tribes
agreed to cede vast segments of their homelands in exchange for honoring their
right to retain small segments of this land for tribal members in common. The
treaties included provisions that guaranteed the tribes government services in
the areas of education, health and technical assistance. Some of the treaties
guaranteed tribal members the right to hunt, fish and gather resources in a
customary manner on ceded lands.

Federal Polices and Practices

The federal government did not honor the treaties. Instead the federal and state
governments pursued polices and passed laws that led to the erosion of tribal
political rights and the further confiscation of American Indian lands. Although
the right of tribes to govern their own nations has been affirmed by treaty,
federal laws, executive orders, federal policy and procedure have eroded the
tribes' freedom to exercise this sovereign right.

Early in the relationships between American Indian Nations and the United States
government, Congress used constitutional powers as justification for passing
laws and approving treaties and agreements to regulate trade with Indian
Nations. Later Congress arbitrarily passed legislation which interfered with the
internal affairs of Indian Nations and assumed plenary power of Indian Nations.
These actions attempted to exercise control over all aspects of American Indian
life. United States courts have usually supported the plenary powers of
Congress.

In 1790, the enactment of the first Indian Trade and Intercourse Act brought
federal control over non-Indians on Indian land. This act was designed to
"control" invasions of Indian land. This act and subsequent Trade Acts
encouraged broader intrusions upon American Indian self-government.

The loss of the Indian land base through acts of the federal government has been
enormous. Despite provisions of acts authorizing the acquisition of lands for
American Indians, Congress did not appropriate money for the purpose of Indian
land buy-back. The Dawes Act of 1887 allotted Indian lands that resulted in the
further loss of millions of acres.

Assimilation policies followed the loss of land. These policies sought to
destroy tribal cultures and assimilate American Indians as individuals into
mainstream society.

The exercise of sovereign powers by Indian nations had already been eroded
through legislation. The following methods were used:

1.The political question doctrine. Questions decided by the legislature or
executive branch and not by courts. 2.The guardian-ward relationship. "Trust"
responsibility supposedly allowed Congress extraordinary power to take actions
to protect Indian Nations. 3.Plenary power of Congress. The courts have said
that the power of Congress in Indian affairs is plenary (full and complete).
Congressional power in Indian affairs is mentioned in the United States
Constitution.

External controls are requested by American Indian governments, but often
Congressional action has been prompted by special interest groups who oppose the
exercise of tribal sovereignty.

From 1770 to 1870, Congress increased its role in Indian affairs from
regulating trade with American Indians to controlling almost all facets of
American Indian government. Treaty specifications were systematically reduced by
subsequent acts of Congress.

One example is the reduction of land holdings of the Red Lake Reservation. Prior
to 1863, the seven clans who comprised the Red Lake Chippewa owned and
controlled more than 13 million acres of land in northwestern Minnesota. Land
holding extended into North Dakota on the west and Canada on the north.

Red Lake was and is a separate and distinct nation. The Treaty of 1863
officially recognized Red Lake as separate and distinct with the signing of the
Old Crossing Treaty of 1863. In this treaty, the Red Lake Nation ceded more than
11 million acres of the richest agricultural land in Minnesota in exchange for
monetary compensation and a stipulation that the "President of the United States
direct a certain sum of money to be applied to agricultural education and to
other such beneficial purposes calculated to promote the prosperity and
happiness of the Red Lake Nation."

In the Agreement of 1889 and the Agreement of 1904, Red Lake ceded another
2,256,152 acres and the Red Lake Nation was guaranteed that all benefits under
existing treaties would not change. But they did.

There are additional examples in the treaty deliberations with other tribal
nations.

Need for Historical Accuracy

Tribal sovereignty has not been understood, therefore a prevalent concern among
American Indian scholars is to present an accurate history. The Institute for
the Development of Indian Law defines sovereignty as the supreme power from
which all specific political powers are derived.

All of the sovereign powers were once held by tribes, not the U.S. government.
Whatever power the federal government may exercise over Indian nations it
received from the tribe, and not the other way around.

Included in the inherent power are the following:

The power to determine the form of government.
The power to define conditions for membership in the nation.
The power to administer justice and enforce laws.
The power to tax.
The power to regulate domestic relations of its members.
The power to regulate property tax.

The law is clear that an Indian nation possesses all of the inherent powers of
any sovereign government, except those powers that have been limited or
qualified by treaties, agreements or an act of Congress.

Students will be able to function as responsible citizens if they know how
sovereignty affects interactions of tribes with the federal government, the
state of Minnesota and local governing units. All of the land in Minnesota was
gained by the United States through a series of treaties with Anishinabe and
Dakota sovereign nations. In order to understand issues of treaties, sovereignty
or rights, one must first understand these very basic premises: No great war
took these lands from American Indians. No American Indian leader gave Minnesota
to the United States. The nations of Anishinabe and Dakota made concessions as
to specific land uses by the United States. These concessions were clearly to
benefit the settlers who wanted to establish businesses and homes on Indian
lands. The United States was obligated to carry out the specifications of the
treaties. Anishinabe and Dakota nations clearly retain any and all rights not
specifically mentioned in the contracts.

A common misconception is that the United States gave American Indian nations
rights through treaties. In fact, American Indian nations gave land to the
United States while retaining inherent rights and powers.


The Plenary Power Doctrine, established in 1889, gives Congress and the
Executive the power to make {...} policy free from judicial review. The doctrine
rests on the assumption that {...} is a question of national sovereignty,
relating to a nation's right to define its own borders.

=========+=========
FEEDBACK?
http://nativenewsonline.org/Guestbook/guestbook.cgi
WANT TO TALK ABOUT IT?
NatNews_chat-SUBSCRIBE@yahoogroups.com
Escribe archives
http://escribe.com/culture/native_news/
Reprinted under the Fair Use http://nativenewsonline.org/fairuse.htm
=========+=========
Tsonkwadiyonrat (We are ONE Spirit)
Native News Online
a Service of Barefoot Connection

FREE LEONARD PELTIER!! "YOU ~ARE~ THE MESSAGE"