Projects
American Indian Community Data Profile, 2002
Namadji Youth and Elders Project Report, 2001
Forum Reports
1997 Fall: Tribal Sovereignty and
American Indian Leadership
1996 Fall: Tribal Governments: What will they look like in the year 2010?
1996 Spring: The Threatened State of Tribal Sovereignty
Framework of tribal sovereignty
There is nothing more important to Indian governments and Indian people
than sovereignty. That is why I am honored to be able to share my thoughts
about sovereignty with you, and to hear your words of wisdom.
I'd like to begin at the beginning and talk about the history of Indian
sovereignty, for without an understanding of where we've been, it is hard
to know where to go.
There are basically three types of sovereigns in the United States. There
is the federal government, which is sometimes called the supreme sovereign.
There are state governments, which derive their sovereignty from the federal
government, and there are Indian governments. Indians' sovereignty predates
both federal and state governments. That means Indian governments have
inherent sovereignty which is not derived from any other government, but
rather from the people themselves.
Sovereignty is often a hard concept for people to grasp. Part of the reason
for this is that there is no clear definition of sovereignty. However,
there are a number of generally accepted, fundamental attributes that
qualify something as sovereign.
First, and most important, are people. There must be a distinct, unique
group of people. These people must have a distinct language, a distinct
moral and religious structure, and a distinct cultural base. They must
have a specific geographic area that they control and regulate. Within
that area, they must possess governmental powers, including the power
to tax and the power to change their government if they see fit. These
governmental powers must be acknowledged by the people who are subject
to them, and they must be enforceable by some sort of authority, whether
it be military, police, or general citizen control.
When you break it down like this, sovereignty no longer seems so hard
to understand. It is not some abstract concept - it is about real people,
their lives, and their dignity. And it is being made and remade every
day. Look at the Palestinians. Look at the states of the former Soviet
Union. The same thing that has happened for hundreds and thousands of
years is still happening today. People will work and fight and die to
protect their sovereignty.
There is one more fundamental attribute of sovereignty that I have not
mentioned yet. That is recognition by another sovereign, such as the way
the United States recognizes the existence of Mexico or Canada. For Indian
tribes, the mechanism of recognition was treaties.
Treaties are a contract between governments. When two governments enter
into a treaty with each other, that means they are recognizing each other
as sovereigns. For example, states generally enter into contracts with
each other that are called compacts. Recently, tribes have also begun
to enter into compacts with states to establish casino gaming.
Treaties are the basis of the relationship between tribes and the United
States. When the United States government recognized tribes as sovereigns
through treaties, they were following in the footsteps of European nations
that had done the same thing. The Europeans had two very good reasons
for entering into treaties with Indian tribes. First, tribes had significant
military power. Until around 1800, tribes-if they had united-had enough
military power to run Europeans off this continent. After 1800, the growing
masses of white people in the East, coupled with changes in military technology,
changed this situation.
The second reason that Europeans made treaties with Indian tribes was
that until about 1800, tribes controlled the balance of power in this
country. That means if you were France, you wanted the tribes to support
you against Spain or Britain or any other European country that had a
presence here.
If the tribes wouldn't support you, you at least wanted them to remain
neutral towards you. What you did not want was for tribes to be against
you, because they were powerful enough to crush your efforts if they chose
to.
As a side note, it is interesting to look at the language used in treaties
right around 1800. Before 1800, when Indian tribes still represented a
significant threat to the United States, the federal government called
Indians their "red brothers." After 1800, when tribes were no longer seen
as powerful enough to drive the white man off the continent, the federal
government began calling Indians their "red children."
It was also around this time-during the 1800s-that many Indian tribes
entered into what can be described as large "real estate transactions"
with the United States. Those transactions have colored the dynamics of
federal-tribal relationships ever since.
As you know, at one time the Mille Lacs Band hunted and fished throughout
north central Minnesota. But when the United States took our land and
resources under the Treaty of 1855, we were left with only 61,000 acres
of land. Some additional lands were later added at East Lake and Lake
Lena.
We were also left with an important agreement-an agreement upon which
we have based our essential existence as a nation. As a part of our "real
estate transaction," the United States agreed that our tribal government
would exercise sovereign authority within our reservation boundaries,
and that we would be funded forever by the federal government.
Today we exercise that sovereignty over our domain. That is the price
that the United States paid for taking our lands. That is the price we
paid. That price gives us the right to regulate all matters impacting
the Mille Lacs Reservation, including: civil regulatory jurisdiction,
environmental jurisdiction, taxation and land use.
Many of you have heard about the policy of Termination of Indian Tribes,
which the United States adopted in the early 1950s under the Eisenhower
administration. The idea of terminating treaty ties between Indian tribes
and the United States government had been considered since 1871, when
formal treaty making with Indian tribes had ended. With the election of
General Eisenhower as president of the United States, and the Republican
party in control of Congress, the termination idea gained national support.
The federal government's line of reasoning was that Indians wanted more
freedom, so why not give it to them? Instead of keeping Indian tribes
"dependent" on the federal government, why not cut them lose?
To do this, the federal government planned to eliminate all federal legal
protection and support services to tribes - in other words, back out of
their promises and responsibilities again. And because government officials
were ready to drop their responsibilities, they assumed the tribes they
chose to terminate were ready and willing to handle the devastation that
would follow. The deprivation and misery that followed were a disgrace
to the entire nation.
But one person believed that treaties with Indians should not be violated.
His name was Felix S. Cohen. Cohen was an expert in Indian law and a respected
philosopher with degrees from Harvard University and Columbia's School
of Law. He wrote the Handbook of Federal Indian Law, which is used to
this day as a vital resource. He was also a famed philosopher on the nature
of American Democracy.
In 1953, during the heat of the argument over termination, Cohen made
a remarkable analogy that described the state of the Indian living in
America as a gauge for the state of American democracy itself.
The analogy reads as follows: "Like the miner's canary, the Indian marks
the shift from fresh air to poison gas in our political atmosphere; and
our treatment of Indians, even more than our treatment of other minorities,
reflects the rise and fall in our democratic faith."
For centuries, canaries had been used by miners to scout out the level
of poisonous gas in mines before any workers were allowed to go in. The
miners figured that if the canaries died from the toxic fumes, then the
mine was not safe enough for humans to enter.
By making his analogy, Cohen was saying that the treatment of the Indian
in America was a reliable gauge of the state of American democracy. He
recognized that if the federal government was willing to mistreat Indians
-the most vulnerable group in the country - then it was probably denying
all vulnerable peoples their democratic rights.
It is not by accident that when Cohen made his analogy about Indians.
The McCarthy era was flourishing in the United States. At the same time
government officials were trying to terminate all funding to Indian tribes,
they were also hunting down innocent people and branding them as communists
and enemies of the government. American society in the 1950s was one of
strict conformity, and those who didn't fit the bill were denied justice.
Fortunately, President Richard Nixon put a stop the Termination era and
in 1970 began a new policy of Self-Determination for tribes. He saw this
nation's debt to our people, and he rightly recognized that this debt
was an ongoing one.
The tide certainly shifts as the years pass. Today there are some members
of Congress who once again seek to take funding away from the Indian tribes.
Many people want to bypass this nation's responsibility to American Indians
and cut off tribes altogether. We call this policy "termination by appropriation."
The Mille Lacs Band has no problem with the vision of an America composed
of many smaller governing bodies. We are one of those governing bodies,
and we exercise our power of self-government. But our sovereignty does
not excuse the United States from its debts to our People. This is not
a question of our dependency. This is a matter of the United States' legal
obligation to Indian tribes across the nation.
The fact is, we don't see ourselves as the government's "red children."
We never have. And ever since we made our first treaties, Indian tribes
have been fighting our way back to the kind of recognition we enjoyed
before 1800.
Fortunately, we are beginning to see some important changes. President
Clinton is providing tribes direct access to him, just as tribes had direct
access to the president at the time of the original treaties. And we do
have some supporters in Congress who have said the trust responsibility
"includes the protection of the sovereignty of each tribal government."
In fact, last June, the Attorney General created an Office of Tribal Justice
to coordinate policy towards Indian tribes.
This kind of interaction-government-to-government relationships at the
highest level-is the goal of all sovereigns. But a goal isn't something
we reach by accident. We must work at it. For Indian tribes, that means
we must carefully examine our sovereignty and then work to keep it as
strong as possible.
One of the easiest ways to do this is by simply making a list. Earlier,
I mentioned the fundamental attributes of sovereignty: a language, a moral
and religious structure, a cultural base, a specific geographic area,
governmental powers, and recognition by other sovereigns.
Several years ago, we sat down at Mille Lacs and made a list of all these
things. Next to each one, we wrote down the percentage of that attribute
that our Band had at the time of the original treaties. Then we wrote
down the percentage we currently had.
By making this list, we were able to see how strong or weak we were in
each vital area of sovereignty. For example, we realized that culturally
and religiously, the Mille Lacs Band was on about same level it had been
at the time of the original treaties. We also discovered that our governmental
authority was actually stronger than it had been at that time. But on
the down side, we found that we had experienced a tremendous loss in the
area of language, so strengthening our language became one of our top
priorities.
I suggest that you make your own list and see where you stand today. Then
use your list to keep watch over sovereignty. We cannot afford to lose
any ground, and must work to strengthen any areas that are weak.
Attacks on sovereignty are increasing. State governments are trying to
assert regulatory authority over Indian tribes in many areas, including
economic enterprises, environmental regulations, social programs, education
standards, and taxation.
There are also the federal regulations that were intended to be beneficial
to Indians, but wind up having aspects that erode our sovereignty. For
example, Public Law 280 transferred some federal authority to some state
governments, which negatively impacted tribal sovereignty.
The decision makers who are responsible for these laws, the ones who are
responsible for upholding the federal government's side of the sovereignty
equation, are sadly lacking in understanding about this issue. Probably
only ten members of Congress can identify what sovereignty is, and only
four can really tell you what it means. If they hear the term sovereignty,
they think of King George the Third and the American Revolution - they
don't think of the federal government's relationship with Indian nations.
Indian tribes and federal officials are totally mismatched. Indian tribes
begin and end discussion with the concept of sovereignty-it's our core,
our root, our foundation.
Federal officials, on the other hand, begin a discussion with "how much
money does it cost?" or "how big a voting block is this?" or "who will
attack me if I support this bill?" The administrators in the federal government
aren't much different. Few people in the BIA understand sovereignty, and
those who do tend to ignore it.
Then there are the tribes themselves. Tribes are sovereigns, but they
don't always treat other tribes like sovereigns. They don't always do
the things that could help promote the sovereignty of other tribes, and
sometimes they do things that jeopardize sovereignty for all of us.
For example, some tribes are using the federal courts to resolve their
differences with each other or with other entities. That means they're
letting another sovereign come in and solve their problems.
This practice has started a serous debate in Indian country. Some people
believe that the more you invoke sovereignty as a defense in court cases,
the more vulnerable you make it to attack. Other people feel that if Indian
tribes do not fight each attack on sovereignty, no matter how small, we
risk seeing it eventually waste away to nothing.
This is a serious problem, perhaps the most serious problem we face today.
But I am confident it is one we can solve, just as we have solved so many
difficult problems in the past. As Shining Arrow, a Crow, once said, "If
you have one hundred people who live together, and if each one cares for
the rest, there is One Mind."
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Last updated:
Tuesday November 1, 2005