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The political status of Native Americans in the U.S. system
Who Will Govern Indian Country?
by
Rudolph C. Ryser -- Cowlitz
There are 177 independent, self-governing states in the world
today. One hundred twenty of these states became independent in
the last thirty years. States like Vanuatu and Nauru in the
Pacific, Nevis-St. Kitts in the Caribbean and Belize in Central
America are among those which became independent in only the last
ten years.
From these numbers, we can tell that international agreements
promoting decolonization and self-determination of peoples have had
a profound affect on the geo-political shape of the world. More
peoples live under self-governing State structures now than at any
time in human history. As a result of what might be called the
enlightened period of Human Rights and Self-Determination of
peoples, we might conclude that virtually all people in the world
are self-governing and free to choose their own social, economic,
political and cultural future. Despite appearances to the
contrary, there is an estimated one-half billion people in the
world who do not enjoy the full right to govern themselves. These
are the peoples of what we now call the Fourth World. They are
peoples of the original nations which speckle six continents and
hundreds of islands. Peoples of the Fourth World make up nations
which are under the control of older and newer states.
While there are scores of states, there are more than three
thousand nations in the world which are surrounded by older and
newly created states. These nations are in the main under the
control of a state against their will -- without their consent.
These nations were once separate, independent and fully self-
governing. Now they are either non-self-governing or partially
self-governing nations dependent on the will and whims of
independent states. In many ways we can say these nations have
become captives of the state system.
In the Peoples' Republic of China there are fifty separate and
distinct nations including the peoples of Tibet, Manchuria, and
East Turkistan. The dominant state population is made up of Han
people, or people we call Chinese. The Han run and control the
Chinese state.
In Guatemala, there are about fifty original nations with a
collective population of nearly six million. Together they are
known as the Maya. About half of more than eleven million Maya are
located in the southern part of the state of Mexico. In both
Guatemala and Mexico the state government apparatus is controlled
by the descendants of immigrant populations -- mostly from Spain.
In Indonesia, the vast archipelago north of Australia, there are
about 300 separate and distinct nations living under the control of
a Javanese controlled state apparatus in Jakarta. Some of the
nations which have not consented to Indonesian control are the West
Papuans, South Moluccans and the East Timorese.
In the vast continent of Africa there are about fifty states,
most of which have come into independent existence in only the last
thirty years or less. Hundreds of nations continue to exist,
surrounded and sometimes bi-sected by the newly created states.
Some of these nations are the Alur, Kamba, Maasai, Xhosa,
Eritreans, Zulu, and the Lambwa. If an African state government
apparatus is not under the control of an immigrant population from
Europe, it is under the control of a dominant nation.
In the Union of Soviet Socialist Republics the Russians control
the state apparatus, but there are more than 150 non-Russian
nations like Latvia, Estonia, Tadsig, Armenia, and Usbek which are
either non-self-governing or only partially self-governing. A
similar pattern occurs in virtually every European state; and
states in South America, South Asia and North America.
The reality of non-self-governing nations is truly a world-wide
phenomenon. It is no less a phenomenon inside the boundaries of
the United States of America. There are over four hundred Indian
and Alaskan Native reservations, rancherios, and village
communities surrounded by the United States. Some of these nations
are the Hopi, Chippewa, Shoshone, Yakima and Quinault. Like other
nations in the world, they are either non-self-governing or
partially self-governing. Non is fully self-governing. If all of
the reservations, rancherios and village communities were combined,
Indian Country would have a land mass of 680,000 square miles -- an
area about the size of Alaska. Each part of Indian Country is
occupied by a people that makes up a single nation, or a fragment
of scores of other nations.
The presence of many nations inside a State's boundaries is
clearly not unique.
Who governs these nations? Who will govern these nations in the
future? What is the political status of these nations? What is
the future political status of these nations. These are the
questions which now echo around the world; in the halls of the
United Nations, in the capitols of states and increasingly in the
councils of Indian Nations in the United States. The United
Nations has since 1973 been examining the future status of nations
inside existing states. Indeed, the U.N. Working Group on
Indigenous Populations is seriously considering language for an
International Declaration on the Rights of Indigenous Peoples which
would impose international standards on the relations between
nations and states.
The States of Sweden, Australia, Canada, Nicaragua, Sri Lanka are
all now considering proposals for the future political status of
nations inside their boundaries. In December 1987, the United
States government adopted a plan proposed by Indian Nations to
determine the extent to which several Indian Nations will assume
greater powers of self-governance. The Self-Governance
Demonstration Project was authorized by the U.S. Congress in
September 1988. This U.S. adopted plan opens the possibility of
new self-governance agreements between Indian governments and the
U.S. government.
Shouldn't the full meaning of self-determination, of self-
government, be extended to nations as freely as it was extended to
former colonies which have become independent states?
Of course, we agree that all peoples should freely govern
themselves. What is often the bone of contention is *how* nations
which were once fully self-governing, and which have sometimes very
small populations and land areas can become self-governing again.
Inside the United States, the question of how Indian Nations can
fully govern themselves is complicated by generations of systematic
territorial and population fragmentation. The *how* is further
complicated by the existence of fifty states joined in federation,
and more than 3000 counties. While many Indian Nations were being
fragmented, dismembered and scattered the United States of America
was being formed and consolidated. Despite four hundred years of
fragmentation and two hundred years of U.S. consolidation, however,
there are still sovereign Indian Nations and countless unresolved
disputes between these nations and the United States.
Some people ask the question, "How can you have a lot of
sovereign nations inside the United States which is itself a
sovereign state?" Still others, like Washington State Attorney
General Ken Eikenberry in the 1985 report "The State of Washington
and Indian Tribes" ask the question, "how to govern a complex,
interdependent society with independent sovereignties existing as
jurisdictional enclaves within its borders." Indian leaders
frequently raise the same questions, only from the point of view of
governing an Indian Nation.
In 1980, an Inter-Tribal Study Group on Tribal/State Relation
said in its report "Tribes and States in Conflict", "Indian Nations
are not now, nor have they ever been, a part of the United States
or its system of governments." The Washington Attorney General's
1985 report made the observation "One reason that the State of
Washington and its Indian citizens have frequently been in court is
because no one truly understands exactly what position an Indian
tribe occupies within the federal system." The certainty of Indian
leaders and uncertainty among State government officials on the
political status of Indian Nations in relation to the U.S. federal
system add to the complexity of answering the questions of "Who
governs Indian Nations?" and "What is the political status of
these nations?"
Questions like these were at the heart of a two year, joint
Congressional Study conducted by the American Indian Policy Review
Commission in the middle 1970s. Such questions stirred intense
controversy inside the Commission and throughout the country.
In 1977, the American Indian Policy Review Commission published
its final report. Strong differences of opinion within the
Commission produced a report that included a dissenting statement
by former Congressman Lloyd Meeds who sat as the Vice Chairman
during the two years of the Commission's life. Congressman Meeds
took exception to many parts of the Commissions's final report, but
he was particularly concerned with the Report's conclusions about
tribal governing powers. Congressman Meeds described what he
believed to be the Commission's "fundamental error." He wrote that
the Commissions's report,
perceives the American Indian tribe as a body politic in the
nature of a sovereign as that word is used to describe the
United States and the States, rather than as a body politic
which the United States, through its sovereign power, permits
to govern itself and order its internal affairs, but not the
affairs of others.
At the heart of Congressman Meeds' dissent was this argument:
In our Federal system, as ordained and established by the
United States Constitution, there are but two sovereign
entities: the United States and the States. This is obvious
not only from an examination of the Constitution, its
structure, and its amendments, but also from the express
language of the 10th amendment which provides: The powers
not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the peoples.
(A.I.P.R.C. Final Report 1977:573)
Congressman Meeds goes on to say finally: "The blunt fact of the
matter is that American Indian tribes are not a third set of
governments in the American federal system. They are not
sovereigns." In his statement, Congressman Meeds has done us all
a great service. His argument might be outlined in this way:
1. Indian Nations are a body politic which the United States
permits to govern itself and order its internal affairs, but
not to govern the affairs of others who do not participate in
the Indian government.
2. The United States Constitution provides for two
sovereigns, the United States and the various States, but
it does not provide for a third set of governments which
are Indian governments in the American federal system.
3. Indian Nations and their governments are not sovereigns.
I think we might agree that in some respects he helps us to
understand why the Washington State Attorney General expresses his
doubts about how a State can "govern a complex, inter-dependent
society with independent sovereignties existing as jurisdictional
enclaves within its borders." He also helps us to understand why
some people have doubts about how there can exist many sovereigns
inside a sovereign state. In one respect we find that Congressman
Meeds is in complete agreement with some Indian Leaders when he
says: "American Indian tribes are not a third set of governments
in the American federal system," and he gives the Washington
Attorney General a clue about what position Indian tribes have in
the federal system. Finally, Congressman Meeds helps us to
understand "Who governs these Indian Nations?" and what their
political status is. He also gives us some clues about "Who will
govern these Indian Nations in the future?" and what their future
political status might be.
Let's take the points in Congressman Meeds's argument one by one
and see how they can help in our debate on the Political Status of
Indian Nations in the United States of America.
First, Congressman Meeds argues that Indian Nations are permitted
to exercise a form of self-government by the United States. He
suggests that the word self in self-government should be emphasized
meaning that Indians should govern Indians only. He furthermore
implies, that any resident of an Indian reservation or community
who does not have the right to participate in the decisions of an
Indian Nation's government must be held exempt from the governing
powers of an Indian Nation. Congressman Meeds also suggests that
Indian Nations may exercise only those governmental powers that the
U.S. government permits.
Though Congressman Meeds seems a victim of gross over
simplification, he is probably correct in saying that the
governmental powers of Indian Nations are heavily restricted by the
U.S. government. Indeed, I would suggest that because the United
States government unilaterally decided to cease making treaties
with Indian Nations in 1871, thus effectively bringing to a halt
250 years of treaty relations and setting up the U.S. Congress as
the primary arbiter of Indian governmental decision-making; the
U.S. government in general and the Congress in particular became a
virtual dictator over Indian Nations. Unilateral decision-making
by the U.S. government is doubtless responsible for the diminished
powers of self-government among Indian Nations.
As for Congressman Meeds' emphasis on the word self in self-
government to mean Indians may only govern Indians, he doubtless
expresses a somewhat race-conscious view shared by many citizens of
the United States. He would surely not intend such a narrow
interpretation to apply to the United States or her various States.
He surely does not intend that the U.S. government, which is a
self-governing state, should have only authority to govern its own
citizens and not the non-citizens who visit or live inside U.S.
boundaries. He surely would not intend his interpretation of self-
government by Indian Nations to also apply to the other 176 states
in the world. Were his narrow interpretation to apply to the
States of the world, we would now see a world in jurisdictional
chaos.
The plain fact is that the term "self-government" has a well
established meaning in literature, history and international
relations. It simply means the inherent right of a people to adopt
their own form of government, to define citizenship, to regulate
domestic relations, prescribe rules of inheritance, levy taxes,
regulate property, regulate residents by municipal legislation,
conduct trade, and to administer justice, among other things. That
the United States has unilaterally restricted Indian self-
government does not mean that Indian Nations lack the right and
power to exercise full self-government -- the same as any other
peoples in the world. Indian Nations reserved their powers of
self-governance, and have the right, like any other people to fully
resume those powers. To be meaningful, such powers of self-
governance must necessarily extend over all civil and criminal
activities within an Indian Nation's territory.
In answer to the question "Who governs these Indian Nations?" let
us note that since 1871, the United States government, Indian
Nations, and more recently some of the various State governments
exercise governmental powers inside Indian Nations. Most Indian
Nations are only partially self-governing while some exercise no
governing powers at all. In the latter case, the United States
government and some State governments as well as some counties and
even cities exercise governmental powers over some Indian Nations.
Where Indian Nations are partially self-governing in their
territories, there exists mixed, overlapping and even competing
legal and political systems. For many Tribal, Federal, State,
County and municipal legal authorities, Indian Reservations are in
political and legal chaos. This is the very condition that
Congressman Meeds and all of us expect to avoid in the relations
between the states in the world. Because of racial bigotry and
historical realities, we find that the chaos we would avoid among
States is precisely the disorder created in Indian Country.
Where Congressman Meeds seems certain about the political
sovereignty of the United States, the various States and the lack
of sovereignty in Indian Nations; others are either totally
confused or absolutely certain that all three governments are
sovereign. To establish the fact that the U.S. government and the
governments of the various States are political sovereigns,
Congressman Meeds turns to the U.S. Constitution. He correctly
observes that the U.S. Constitution allows for but two sovereign
entities. He notes that the U.S. Constitution allows that some
powers are delegated and inherent between the two governments. He
furthermore observes correctly that the American Indian Policy
Review Commission argued in its Final Report that Indian Nations
HAVE THE CHARACTERISTICS OF SOVEREIGNTY over the lands they occupy
analogous to the kind sovereignty possessed by the United States
and the States. (A.I.P.R.C. 1977:573) Congressman Meeds suggests,
accurately I believe, that "American Indian tribes are not a third
set of governments in the American federal system." Were this so,
Indian Nations would be specifically identified in the U.S.
Constitution as a third level of government. This is clearly not
the case. Finally, the Congressman states bluntly that Indian
Nations "are not sovereigns." It is this last statement that gets
the Congressman into trouble.
Asserting that Indian Nations are not identified as a third level
of government in the U.S. Constitution, Congressman Meeds concludes
that Indian Nations are not sovereign entities. I hasten to note
that the U.S. Constitution does not list France, China, Canada, or
Mexico either. It doesn't even mention the Republic of Vanuatu
which became an independent State in 1980. Despite these
oversights, I don't believe anyone, including Congressman Meeds
would doubt that these are sovereign entities. That the U.S.
Constitution fails to mention Indian governments as a third level
of government only means that INDIAN NATIONS ARE NOT NOW, NOR HAVE
THEY EVER BEEN A PART OF THE UNITED STATES OR ITS FEDERAL SYSTEM.
Indian Nations were not participants in the development and
formulation of the Constitution of the United States of America.
No Indian Nation ever ratified the U.S. Constitution, but then,
neither did France, Canada or China. That Indian Nations were not
identified as sovereigns under the U.S. Constitution has nothing to
do with their sovereign identity unless you are among those people
who believe incorrectly that the United States government created
Indian Nations. Of course, to hold this view would require that
you ignore archaeological, anthropological, historical, political,
and legal evidence to the contrary.
The settled reality is that Indian Nations have original or
inherent sovereignty, in many ways more sure and certain than many
of the States in the world. The legitimacy of Indian national
sovereignty is confirmed by their long presence as peoples on the
continent. The fact that Indian Nations established treaty
councils between themselves to establish boundaries and resolve
disputes confirm that sovereignty. The fact that nations and
states in Europe and elsewhere in the world met in treaty councils
with Indian Nations before the establishment of the Unites States
of America further confirms that the predecessor states of the U.S.
recognized the sovereignty of Indian Nations. That the United
States government itself entered into treaties (more than 400) with
Indian Nations, confirms that even the U.S. recognizes the original
sovereignty of Indian Nations.
From this discussion, we must conclude that the political status
of Indian Nations is outside the United States and Indian Nations
are sovereigns which have some kind of association with the United
States.
While Congressman Meeds' reasoning about Indian Nations and the
U.S. federal system is sensible, his conclusion is erroneous.
Indian Nations are sovereign entities in a way analogous to the
sovereignty of the United States and the various States. Indeed,
I would go further to say that the sovereignty of Indian Nations is
fundamentally no different than any other nation or state in the
world.
What does this all mean for our second questions: "Who will
govern these nations in the future?" -- what is their future
political status?
First, I would suggest that we must all agree that the current
chaotic "non-governance of Indian Country" is neither good for the
Unites States and its various States, nor each Indian Nation.
Neither Indians, nor non-Indians living on Indian Reservations can
live a secure, productive and even prosperous life as long as there
is uncertainty about who governs in Indian Country. That is my
first point.
Secondly, it is essential that we all attempt to understand how
the United States was created and that the United States did not
create Indian Nations. While it may be a controversial view shared
by some Indian Leaders, Congressman Lloyd Meeds and me, I believe
we must recognize as a fundamental reality that the political
status of Indian Nations has not been formally established. It is
certain, however, that Indian Nations are not now, nor have they
ever been a part of the United States or the U.S. federal system.
Indian Nations are not a THIRD LEVEL OF GOVERNMENT IN THE AMERICAN
FEDERAL SYSTEM. Indian Nations do not have a defined political
status inside the United States. If they do have a political
status in relation to the United States, it might be described as
"associated nations."
Thirdly, I believe we must understand and agree that Indian
Nations have original and inherent sovereignty -- separate and
distinct from the sovereignty of the United States, the various
States and all other nations and states in the world.
Finally, I suggest that peoples which are distinct from all other
must share in the human right to self-determination, the right to
freely exercise their own social, economic, political and cultural
rights and to choose their political status without external
interference; and they must, therefore, have the right to exercise
self-government.
The answer to our second questions largely depends on the extent
to which Indian people and non-Indians alike agree to these four
points. If these points are generally agreed to, then the prospect
of determining who will govern Indian Nations and establishing
their political status in the future becomes realistic.
To those who ask, "How can you have sovereign nations inside a
sovereign state?" I would only ask that they examine the facts.
There are sovereign Indian Nations inside the United States
boundaries whether they like it or not. How do you have many
sovereigns inside of a country? Examine the U.S. Constitution and
you will see that there are already many sovereigns inside the
United States. That there are still many other sovereigns not
accounted for in the U.S. Constitution means only that either the
Constitution should be changed or we create new structures between
Indian Nations, the United States and the various States to allow
for mutually acceptable ways of dealing with each form of
government.
To the Attorney General who asks how do you "govern a complex,
interdependent society with independent sovereignties existing as
jurisdictional enclaves within its borders?" I suggest that the
answer rests with present and future dialogue between officials
representing the separate sovereignties. The fact of the matter is
that while many States in the United States have sovereign Indian
Nations inside their boundaries, Indian Nations also experience the
presence of State, County, City and federal jurisdictional enclaves
inside their territories. The broad response to State governments
is to withdraw their jurisdictional activities inside the
boundaries on the basis of mutual agreement with the governments of
Indian Nations. Where local state jurisdiction is withdrawn, an
Indian government must assume the responsibilities of governance.
Indian governments must be the sole governing authority inside
the boundaries of a Reservation in the future. The only
alternatives to this arrangement are continued jurisdictional chaos
on Indian Reservations or tribal suicide. Neither of these can be
acceptable alternatives to the exercise of full self-government by
Indian Nations. As the noted Jurist, Felix Cohen observed in the
_Handbook of Federal Indian Law_:
The most basic right of all Indian rights, the right of self-
government, is the Indian's last defense against
administrative oppression, for in a realm where the states
are powerless to govern and where Congress, occupied with
more pressing national affairs, cannot govern wisely and
well, there remains a large no-man's land in which government
can emanate only from officials of the Interior department or
from the Indians themselves. Self-government is thus the
Indians' only alternative to rule by a government department.
(Cohen 1942:122)
As for the future political status of Indian Nations, there are
but three alternatives which might be considered. Either Indian
Nations are fully and recognizably independent, they are associated
with a state like the United States or they are absorbed into the
United States either as a member of the federal system of
governments, or they simply disappear. Clearly Indian Nations in
the United States are neither independent nor are they absorbed.
I assert that Indian Nations are now sovereign nations which are
associated with the United States. The political status of
"associated sovereign nations" is implicit in the relationship
between Indian Nations and the United States. The United States is
a state associated with Indian Nations.
The United States is associated with many political entities like
Puerto Rico, the Virgin Islands, the Federations of Micronesia, the
Marshall Islands, American Samoa, Guam and Belau -- all island
nations or states in the Caribbean or the Pacific Ocean. What
these nations and states have in common that is not shared with
Indian Nations is a mutually defined agreement of association with
the United States of relatively modern vintage. Such agreements
spell out relationships, methods of dispute resolution and levels
of self-government. What Indian Nations have in common that is not
shared with sea-ward associated nations and states is a close
proximity to the United States itself. Indian Nations are very
much like islands in a sea of land where they are in close
competition with the United States for natural resources, and
governmental jurisdiction.
A defined political status of Indian Nations in relation to the
United States is both desirable and necessary. Each Indian Nation
and the United States must enter into government to government
negotiations to define what their future relationship will be. A
political status formally defined would settle in a way not
otherwise possible how Indian Nations, the United States and the
various States deal with each other. Of greatest importance,
Indian Nations would once again become active participants in the
political process which determines their political future.
The most desirable future one might project would allow for fully
self-governing Indian nations which have formally chosen to
associate themselves with the United States. By virtue of free
association agreements between Indian Nations and the United
States, the U.S. constitution would not have to be amended, the
United States would in fact have but two sovereigns and the
relationship between the various States and Indian Nations would
become that of cooperative neighbors instead of fierce competitors.
The political development of the Indian Nations would be advanced,
and the certainty and stability of the United States of America
would be assured.
The acceptance of an Indian government developed self-governance
plan by the United States in 1987 opens the door for determining
the level of self-governance and future political status of Indian
Nations. Ten Indian governments are now engaged in a self-
governance Indian Nation/U.S. agreements. The Indian Nations which
have begun to trek on this uncharted path include the Red Lake
Chippewa, Mille Lac Chippewa, Rosebud Sioux, Confederated Salish-
Kootenai, Tlingit-Haida, Hoopa, Mescalero Apache, Jamestown Band of
Klallam, Lummi and the Quinault Indian Nation. The path that these
Indian Nations cut through the thicket will largely determine
whether Indian Self-Governance can become a full reality or not.
It is my hope that they are successful.
=============================================================
Mr. Ryser is a member of the Cowlitz Indian Tribe. He is a
former Special Assistant to the President of the World Council of
Indigenous Peoples and a former Acting Executive Director of the
Center for World Indigenous Studies. Mr. Ryser is the Editor of
the "Fourth World Journal" and an author of many articles about the
political development of indigenous nations. He is currently co-
authoring a book with Dr. Bernard Q. Nietchmann entitled _States
and Nations: Roots of Conflict_.
To obtain more information, address inquiries to:
Center for World Indigenous Studies
P.O. Box 82038
Kenmore, Washington 98028
U.S.A.
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