September 25, 2023


Future Depends on What You Do

Letter: Federal Indian law is a myth – InForum

In response to “

Has tribal sovereignty become a fantasy

?” by Lloyd Omdahl:

When Lloyd Omdahl


to “tribal sovereignty” as “an concept that is more than 200 years old,” he was talking about a U.S. legal concept, not the position of Indigenous nations centered on their existence in these lands for millennia. The concept of “tribal sovereignty” is a denial of the absolutely free existence of Indigenous nations.

March 10, 2023, will be the 200th anniversary of the U.S. Supreme Courtroom decision that started out the watered-down plan of “tribal sovereignty” as the basis for a U.S. assert of domination above Indigenous nations. Johnson v. McIntosh, an 1823 residence regulation determination penned by Main Justice John Marshall, claimed the United States owns Indigenous lands “discovered” by Christian colonizers! Due to the fact the U.S. statements possession of Indigenous lands, the court added, it has a correct of “ultimate dominion” more than Indigenous peoples residing in these lands. It mentioned Indigenous nations had only a type of “occupancy,” not ownership. That “occupancy” was the basis for the extremely constrained concept of “tribal sovereignty,” which was supposedly beneath U.S. “guardianship.”

The “discovery” doctrine is nevertheless alive in what I get in touch with federal anti-Indian law. For case in point, in 2005, Justice Ruth Bader Ginsburg’s belief in City of Sherrill v. Oneida Nation denied Oneida land rights, saying, “Under the ‘doctrine of discovery,’ . . . rate title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the exploring European nation and afterwards the unique States and the United States.”

The vital distinction in between totally free Indigenous existence and the watered-down plan of “tribal sovereignty” is that the latter claims Indigenous nations do not very own their lands. You can see why I titled my recent e book

Federal Anti-Indian Legislation: The Legal Entrapment of Indigenous Peoples


Prof. Omdahl did not glimpse at the authorized mess of land title, but he did level to a further way that U.S. regulation has trapped Indigenous nations—the 1924 “Indian Citizenship Act.” As he puts it, that act “struck the demise knell for tribal sovereignty. By accepting citizenship in a further sovereignty, Native Us residents have develop into concerned in the affairs of one more nation.” This is a honest characterization, while it runs counter to the well-known idea that Indigenous participation in American elections is a excellent issue, an affirmation of Indigenous civil rights.

The Indian Citizenship Act was component and parcel of the overall U.S. system to assimilate Indigenous individuals as people today into American society, paving the way for the termination of Indigenous peoples as different nations. Citizenship adopted the blueprint laid down by Richard Henry Pratt’s notorious boarding faculty motto: “Kill the Indian and help you save the guy.” In the exact same speech wherever he produced that remark in 1892, he lamented the lack of progress in “citizenizing and absorbing them” into American culture.

Lots of Indigenous leaders understood this. The Onondaga Country

to this day

maintains the stance it took in a letter to President Calvin Coolidge in December 1924, contacting the Act “a destructive and an injurious weapon” that attacked the 1794 Treaty among the United States and the Six Nations.

The Onondaga check out has been drowned out by strategies for “Native American Voting Legal rights,” these as people run by corporations such as Indigenous American Legal rights Fund, 4 Directions, and the Nationwide Congress of American Indians. NCAI President Jefferson Keel’s 10th annual Point out of Indian Nations deal with in 2012, entitled

“Our The usa,”

is a very clear illustration. It opened with thanks to “Native support associates serving nowadays to shield the sovereignty of the United States and the tribal nations of North America” and identified as for “the best Native turnout ever” in the future U.S. elections. The deep paradox of all this was skipped. But that doesn’t mean the paradox doesn’t exist.

The paradox is coming to a head in the Indian Youngster Welfare Act scenario now in the Supreme Court docket. Suspicions are that the courtroom will determine in some way to limit ICWA. The courtroom could do this retail, so to communicate, by limiting the result of ICWA on condition courts and businesses but the biggest concern is that the courtroom will do this wholesale, by deciding the time has appear to upend the notion of “tribal sovereignty” entirely. It could do this by selecting that “Indian” is not a “political” category that lets Congress to “guard” their pursuits, as by way of ICWA, but fairly a “racial” category that is prohibited by the US Constitution. That would be the final triumph of a process established in motion by the court docket in 1823.

What Omdahl states is that the civil rights idea of “Indian voting rights” is quick-circuiting “tribal sovereignty.” But in the last analysis, Indigenous legal rights are totally diverse from civil legal rights and the limited notion of “tribal sovereignty.” Indigenous rights come up from the original cost-free existence of Indigenous nations, listed here extended prior to the US was even dreamed of.

Peter d’Errico is a 1961 graduate of Fargo Central Superior School and professor emeritus of lawful reports for the College of Massachusetts Amherst.

This letter does not always replicate the view of The Forum’s editorial board nor Discussion board possession.