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Wednesday, September 1, 2010

Tribal Sovereignty

Global politics today only recognize sovereignty from nation-states, which, as Opello and Rosow clearly define in The Nation State and Global Order, is a “type of politico-military rule” comprised of many aspects including a specific geographic region indicated by boundaries. There are, however, other entities that are associated in organized groups, but do not have territory that is recognized by global politics, and thus these entities do not have sovereignty.
The perfect examples of this are tribes. America, which was once a mere land mass inhabited by Native Americans, has been transformed into a series of nation-states that have sovereign powers in global politics. The Native American tribes in the United States have undergone much cultural persecution, property confiscation, and limitation of sovereignty. These tribes, after many tortuous decades, have been given reservations on U.S. soil and partial sovereignty, but are given no say in the global political spectrum. In 1831, Cherokee Nation v. Georgia went to the Supreme Court where Chief Justice John Marshall ruled that Indian nations can be regarded as “‘domestic, dependent nations’” that are only theoretically sovereign. Over 140 years later, the Supreme Court ruled against the Indian nation again in United States v. Blackfeet Tribe. The 1973 court ruling stated that “‘an Indian tribe is sovereign to the extent that the United States permits it to be sovereign’”(http://www.umass.edu/legal/derrico/nowyouseeit.html). Can the extent of sovereignty truly be governed by higher sovereignty? Isn’t the principle of sovereignty the opposite of being governed by another body?
This poses an interesting dilemma, reverting one’s thought process back to the definition of sovereignty. While the Indian nations within the U.S. may be autonomous and may, through cultural beliefs and practices, deem their rulers as authorities over their nations, it would be superfluous to argue that these nations have the power or the capacity to dominate politically and thus claim their sovereignty. Of course, this only applies to the tribes within the States. In Africa, for example, many tribes have strong and threatening dominance. In these situations, tribes have lots of power in their areas of influence, they have the capabilities to control many people within this area, they have created a position of authority within themselves, and they are autonomous in that the tribe governs itself. It could then be argued that these tribal bodies have sovereignty, but in this era when globalization has linked many foreign lands and politics are discussed, debated and determined on a global level, it becomes obvious that 1) only nation-states are given a voice of sovereignty and 2) tribes are seen as inferior entities to nation-states.
That being said, I do think that tribes, and clans should be recognized as sovereign groups. In the history of the United States alone it may have prevented much of the oppression and assimilation of tribal peoples. Recognizing these ethnic clans as bodies of influence might prevent some of the violent acts being committed between tribes because these entities would have the opportunity to politically wrestle for the land, rights or other issues that they deem necessary to haggle over instead of resulting to their only current means of persuasion: violence.

2 comments:

  1. This is a great post that brings up a prevalent issue within the United States today. After reading your post, I felt like your argument directly correlated with the issue of the plenary power doctrine. Plenary power, is the "complete power of a governing body" (Sehn, 2009). The doctrine encompasses numerous issues ranging from interstate commerce, to immigration, and tribal affairs. The most notable case regarding self-determination and tribal entities is the United States v. Kagama case in which the Supreme Court determined that Congress had complete authority over Native American issues and that the federal court has jurisdiction over Native American issues.

    While I believe that the nation state, a.k.a. the United States, has attempted to rectify its history of discriminatory policies against the Native Americans, I agree with you that this is still an issue today. I'm not entirely sure if you are offering a solution or rather stating that increased attention must be given to these tribal entities. Regardless, I feel that a step in the right direction towards increase Native American sovereignty would be to have the Supreme Court rule that tribal courts should have jurisdiction over crimes committed by non-Indians on tribal reservations.

    While I acknowledge that this is not a "solution" to the problems Native Americans face, I feel like this is an important facet of Native American sovereignty (Stetson, 1970). The basis of this tribal courts issue derives from the Supreme Court case Oliphant v. Suquamish Indian Tribe in 1978. The case addressed the issue of the jurisdiction regarding a crime committed by a non-Indian resident on a reservation. The basic premise of the case was whether tribal courts or the federal government had the authority to prosecute criminals on reservations. The final vote determined that tribal courts did not have that jurisdiction. This was an immense blow to the Native American's sovereignty that was already dwindling.

    I believe that the nation state has a unique role in resolving issues such as tribal sovereignty. Rather than transitioning towards a bioregionalist type of world that some authors suggest, the United States should utilize its power as a nation-state to effectively address this issue. The power to have criminal prosecution within tribal courts will be a large step towards greater tribal sovereignty (Heisey, 1998)

    Cites:

    Sehn, 2009.(Robert t. Senh, J.D. University of Oregon School of Law, California State Bar Member, “The Liberty Rights of Resident Aliens: You Can’t Always Get What You Want, But if You Try Sometimes, You Might Find, You Get What You Need”, Oregon Review of International Law,
    11 Or. Rev. Int'l L. 137, lexis)

    Stetson, 1970. (Catherine Baker Stetson, M.A. 1972, Brown; “DECRIMINALIZING TRIBAL CODES: A RESPONSE TO OLIPHANT,” American Indian Law Review 9 Am. Indian L. Rev., Hein Online)

    Heisey, 1998. (Geoffrey C. Heisey, J.D. Candidate, Indiana University School of Law-Bloomington B.A., 1993,“Oliphant and Tribal Criminal Jurisdiction over Non-Indians: Asserting Congress's Plenary Power to Restore Territorial Jurisdiction,” Indiana Law Journal VOLUME 73, ISSUE 3: SUMMER 1998, http://www.law.indiana.edu/ilj/oldsite/volumes/v73/no3/heisey.html)

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  2. I agree wholeheartedly. I am glad you found the Supreme Court evidence so strong as I did. When looking at the history of the wrongdoings and tragedies thrust upon the Native American population by Americans it is impossible not to see that the American government has been continually in the wrong. I like your solution to return judicial powers to the Native American courts. I can understand the need for the United States to remain ultimately sovereign, however I think the Native American population needs a voice in U.S. politics, and I think judicial powers would be a great way to empower sovereignty within their reservations.

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