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Tribal Sovereignty

INCREASINGLY, Indian leaders speak of “sacred national sovereignty” as if its meaning were incontrovertible and self-evident. Their rhetoric can be jarring. “Indian Nations are not now, nor have they ever been a part of the United States or its federal system,” Rudolph C. Ryser, a Cowlitz Indian and chairman of the Center for World Indigenous Studies declared at a 1989 conference on Indian self-government. “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,” Dismissing the argument that the Constitution allows no place for autonomous Indian nations, Ryser said, “No Indian Nation ever ratified the U.S. Constitution, but then, neither did France, Canada or China... 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.” For sovereignty to be meaningful, he asserted, Indian Nations must be recognized as the sole governing authority inside their respective reservation boundaries. “The only alternatives to this arrangement are continued jurisdictional chaos on Indian Reservations or tribal suicide.”

At a minimum, tribes demand legal parity with the states. Within the spectrum of Indian politics, Bourland is comparatively restrained: “We are simultaneously citizens of two nations, the United States and our own, although we may be closer to Puerto Rico than to Canada.” More extravagant declarations of tribal independence abound. “We, the members of the Confederated Tribes of the Warm Springs Reservation of Oregon hereby declare our national sovereignty,” that tribe’s council proclaimed in 1992. “We declare the existence of this inherent sovereign authority—the absolute right to govern, to determine our destiny, and to control all persons, land, water, resources and activities, free of all outside interference—throughout our homeland and over all our rights, property, and people, wherever located.” Although claims to sovereignty are sometimes based on treaty stipulations or court rulings, they frequently appeal to a kind of divine right that flies in the face of modern American ideas about law. “Our sovereignty is based, not on the laws of human beings, but on natural laws given to us by our Creator; these natural laws are as they are, not as human beings may find them,” the Confederated Tribes mystifyingly declared. Increasingly, tribal officials invoke the principle of “sovereign right” in wide-ranging debates with state governments over everything from law and order, highway maintenance, fishing quotas and toxic waste disposal to, most visibly in recent years, the phenomenal proliferation of tribal gambling casinos.

“The sovereignty issue won’t go away,” Timothy Wapato, a member of the Colville Confederated Tribes of Washington, and then-executive director of the National Indian Gaming Association, wrote in International Gaming and Wagering Business Magazine, in 1994.

“What needs to occur is an educational process, so the governors will deal with their local tribes on a government-to-government basis, not a government-to-special-interest basis. Many of the state and local politicians want to treat tribes as if they were Donald Trump’s Taj Mahal or Caesar’s World—as a commercial special-interest group as opposed to a government...[T]he states that have been successful in resolving their issues on gaming have come to a recognition that a true negotiation has to occur between the two governmental sovereigns.”

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