Where do you want to go?

An Excerpt 

Sovereignty is viewed in terms of political relationships.  Self-determination is the 
potential means to that end (Stuart, 1990). There is distinction between the two
concepts.  Deloria and Lytle (1984) remark that the two ideas represent “entirely 
different positions in the world” (p. 13).  

[Sovereignty] implies a process of decision-making that is free and uninhibited within 
the community, a community in fact that is almost completely insulated from external 
factors as it considers its possible options (p. 14). 

On the other hand:

[Self-determination] implies a recognition by the superior political power that some 
measure of local decision-making is necessary but that this process must be monitored 
very carefully so that its products are compatible with the goals of polices of the 
larger political power (p. 14).


To frame this discussion, we begin by examining the role of US law and its impact on 
Indian political culture.  The relationships that appear in our story, however, are not 
those just between the US government and the tribes.  It includes relations between 
factions within the tribes themselves.  The Reorganization Act of 1934 allowed the tribes 
to reestablish their own governments, but only with US approval. Bear in mind the earlier 
discussions on power, authority and cooptation.    


While originally treated as sovereign nations, Chief Justice John Marshall’s 
characterization of Indian tribes as “domestic dependent nations” in Cherokee v. Georgia, 
30 US, (1831) redefined the future of US-Indian relations. 


From a traditional positivist view of law, the Anglo-American interpretation of 
sovereignty is treated as an entity.  Either one has it, or one doesn’t.  Some would say 
that Congress has sovereignty whereas contemporary Indian activists would argue that the 
tribes have it.  A more pluralistic concept envisions a decentralized minimalist 
sovereignty involving many centers of political authority.  Another model exists in which 
sovereignty can be “absolute”, but only in the context of specific legal relations, such 
as land rights or water rights (Chaudhuri 1985, Nelson, R. and Sheley, J. 1985).  


[It] is not an “either-or” proposition.  Rather, it is a matter of degree: the degree to 
which Indians can keep intact their cultural heritage and social structures, the degree 
to which they can provide their own subsistence, and the degree to which they can legally 
govern themselves (Nelson, R. and Sheley, J., 1985, p 177).  


The discussion of sovereignty is made more complex by the fact that there are 578 
recognized tribes in the US, each with a different perspective on how they should relate 
to the US government.  Despite this disparity, the sources of American Indian law (from 
an Anglo-American perspective) are the same for all.  When Columbus returned to Spain 
after landing in the New World, Spain was confronted with a new problem.  How should it 
relate with this newly discovered land?  America was not only Terra Nova; it was also 
inhabited.  The theoretical basis of relationship with the aboriginal population under 
Spanish law was that of citizenship.  Spain did not recognize Indian tribes as separate 
or even as dependent governments.  Indians would be treated as individuals, and the 
concepts of aboriginal title, property and individual rights fell within the pigeonholes 
of Spanish jurisprudence (Ragsdale, 1985).


The English chose to treat the Indian tribes as separate nations and negotiated with them 
through the treaty process.  By electing to deal with Indians as citizens of a separate 
sovereign, the English did not have to reconsider property and personal rights under 
English common law.  With independence, the United States adopted the English viewpoint.

Three court opinions written by Chief Justice John Marshall set the direction for legal 
debate on tribal sovereignty for the next century a half. Johnson & Graham’s Lessee v. 
McIntosh 21 US (1823) and Cherokee v. Georgia, 30 US, (1831), shaped the definition of 
Indian relationships with the US.  Johnson decided who had better title to land, a 
grantee from a private purchaser of land who secured title from an Indian tribe, or a 
grantee whose title was derived from the United States after the US had purchased the 
land from the tribe.  Marshall held the for the rights of the former, determining that 
aboriginal title is a right of occupancy subject only to defaulting by the United States 
and no one else.  “Indians were like tenants in apartments owned and managed by the 
United States.  Eventually, the Court held that the powers of the landlord were almost 
unlimited” (Ragsdale, 1985, p. 67).

In Cherokee v. Georgia, 30 US, (1831), the Cherokee nation had balked at restrictive 
rules placed on it by the State of Georgia.  It appealed to the Supreme Court to hear the 
case under the original jurisdiction clause of the Constitution with the claim that such 
jurisdiction was correct because of its status as a foreign sovereign nation.  While the 
Court may decide on its own jurisdiction, it did not invoke its power in this case.  
Marshall said that the status of Indians was not like a foreign nation, but more like 
that of a dependent nation or ward within the US.  While these two cases weakened the 
legal status of Indian sovereignty, they at least reinforced the idea that the 
relationship was a government-to-government one.  

The third of Marshall’s landmark decisions, Worcester v. Georgia 31 US, (1832), however 
had a more positive effect on long-term relations.  Sam Worcester, a non-Indian 
missionary had made an appeal to the Georgia courts to teach the Cherokees over their 
objections.  Marshall found that tribes did have significant rights.  In this case, 
citing the “domestic dependent nations” decision under Cherokee v. Georgia, Marshall 
explained that the US has a plenary power over tribes, but all powers not explicitly 
removed from the tribe reside with the tribe, and as a consequence, the state has no 
power over it (Ragsdale, 1985).

Ragsdale (1985) avers that although these early judgments set the conceptual stage for 
tribal sovereignty, Williams v. Lee 358 US (1959) had the most impact for contemporary 
American Indian law and strengthened the concept of sovereignty.  In this case, a Navajo 
Indian was unable to pay for goods purchased from federally licensed outpost owned by a 
non-Indian.  While he was off the reservation, an Arizona sheriff served him a summons to 
appear in a state court.  Arizona had reasoned that exercising this act would not be an 
infringement of tribal self-government.  State courts operate under the tenet of general 
jurisdiction.  In other words, subject matter may be heard simply if a litigant pleads a 
cause for action.  In this case, it was that the outpost was injured by not being paid.  
Federal courts, however, have a limited jurisdiction.  The litigant in this case must 
plead some authority, such as a federal statute or the Constitution to authorize the 
hearing of the case.  

The Supreme Court did not rule which of the laws, Arizona’s or the tribe’s, was 
applicable.  It simply ruled that Arizona did not have subject matter jurisdiction over 
the tribe.  In doing so, it reinforced tribal sovereignty as explained in Worcester.  
Furthermore, it extended the notion of sovereignty beyond the geographic boundaries of 
the reservation to that of a “people.”  Despite the fact that over 60 percent of Indians 
are living off the reservation, the deception of geography has ruled US-Indian policy. 
The Williams decision refocused American policy beyond its traditional dealings with 
Indian tribes and their land to the Indian tribes as a sovereign people.


The effect of Williams on Indian tribes was much more than a reassertion that tribal self-
governance was as American as apple pie.  It was also an incentive to tribes to exercise 
long dormant powers of self-governance: Williams brought confidence (Ragsdale, 1985, p. 
73).

Coupled with the provisions stated in treaties (see Chapter 2), these major decisions 
defined the way relations between the tribes and the US would evolve.  Within the tribes, 
different perspectives on what sovereignty meant also added to the complexity of 
relationships.  Returning to Deloria and Lytle’s definition of sovereignty, namely, a 
process of decision-making that is free and uninhibited within a community, leads to the 
further examination of how free and uninhibited is interpreted.  At issue here again is 
the degree of autonomy.

In regards to governance, the Indian perspective consists of basically two camps of 
interpretation.  The first perspective is that of the traditionalists.  The belief here 
is that total autonomy is what should be inherent in governmental relationships, and that 
this autonomy did not exist.  The other perspective is the one forwarded by those that 
adhere to the governments established through the IRA.  By allowing the formation of 
tribal governments, the US government had enabled the process of self-determination and 
in this way a created a coordinate authority. 

The occupation of Wounded Knee,  SD in 1973 serves as an illustration of how 
deeply held these interpretations were.  On February 27, 1973, a group of Indians, many 
from the American Indian Movement (AIM) entered this small town on the Pine Ridge 
Reservation in South Dakota and held it in siege.  During the three-month day occupation, 
two Indian men were killed during exchanges of gunfire between the Indians and federal 
agents.  The press coverage and later white scholarship on this focused on the element of 
radical militancy, comparing some of the actions to that of groups such as the Black 
Panthers.  It was not widely regarded as a traditional/non-traditional confrontation.

The American Indian Movement leaders were viewed as habitual dissidents striking out 
against authority in any form—Indian or white.  The media and recent scholarly view of 
Wounded Knee holds it to have been a youthful protest in mimicry of inner-city rioting.  
Several people, in looking back at the event, have taken the view that the members of the 
occupying group were too young or had come from urban backgrounds and were therefore 
unable to know about traditional political thought (Holm, 1985). 

Holm (1985) rejects this interpretation. At the center of the decision to occupy Wounded 
Knee was controversy surrounding the ability of the established constitutional government 
to effectively govern.  Charges were made against Richard Wilson, the elected tribal 
chairman, of mismanagement, fraud and denying certain Ogalla Sioux of the right of 
assembly.  The AIM rejected the authority given to this government and sought to remove 
Wilson under the traditional methods of tribal governance. 

Supporters of the tribal government argued that only through the IRA did the tribes have 
the legal authority to self govern.  The response of the traditionalist was that self-
governance was illusory, because existing governments created by the US was a cooptative 
mechanism to blunt the threat of opposition from the traditional ways of the tribe (Lacy, 
1985).  The traditional view was deciding on what form of government the Sioux would use 
to direct their own destiny.  The tribal government view was what direction the existing 
government should take.  

For the traditionals the issue was philosophical and, by extension, theological and 
sociological; for the tribal government the issue was pragmatic, programmatic, and 
operational.  They believed that the larger questions were considered settled by the 
passage of time and by the changes that had already been wrought in many of the tribal 
members (Deloria et al, 1984, p. 13).  

The legacy of history and these divergent views on sovereignty self-determination were 
deeply held by the members of the IHDT.  As the participants to the policy-making process 
came together (see Chapter 7) they needed to reconcile this problem stream with solutions 
before they could progress.  Deloria and Lytle (1984) posed this conundrum.  “Real self-
determination, if anyone had cared to think about it, was indeed termination” (p. 216).