Few noticed when President Obama issued an executive order last week establishing the White House Council on Native American Affairs. That is, few people outside of Indian Country—where news spread especially fast, partly due to social media. To start, the order reads: 

The United States recognizes a government-to-government relationship, as well as a unique legal and political relationship, with federally recognized tribes. This relationship is set forth in the Constitution of the United States, treaties, statutes, Executive Orders, administrative rules and regulations, and judicial decisions. Honoring these relationships and respecting the sovereignty of tribal nations is critical to advancing tribal self-determination and prosperity. 

Last week, we were all reminded how little Americans understand this foundational idea about the relationship between Native peoples and the U.S. government. When the Supreme Court ruled on June 25 in a case regarding the adoption of a Cherokee baby, Adoptive Couple v. Baby Girl, the prevailing justices seemed to forget tribal sovereignty exists at all. In Justice Samuel Alito’s majority opinion, the very first sentence read, “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.” Through the inherent right of tribal sovereignty, the Cherokee Nation determines its own citizens. The Cherokee Nation doesn’t use the practice of blood quantum, and instead identifies its members through the use of very specific genealogical records. Therefore, the baby at question in the case is not 1 percent Cherokee; she is Cherokee.

Popular conversation about the ruling followed Alito’s lead. A headline in USA Today declared that the Supreme Court “gives 1% Cherokee girl to adoptive parents.” The obsession with classifying Natives by blood is a contemporary anomaly that society reserves rather exclusively for Natives. USA Today would have never run a headline in 2008, for example, that read, “Voters elect first 50% black President.” We’ve figured out ways to get so much right when it comes to race—but still almost unknowingly accept when so much is wrong, and fundamentally misunderstood, about tribal sovereignty.

So while it might take some time to tackle the new White House Council’s numerous goals, the language of its opening lines is notable. As I’ve written previously, many people are unaware of the distinct issues that come with being part of a federally recognized tribe in the U.S. While many people are repelled instinctively by racism when it appears in certain cultural venues—say, for example, the Washington football team’s mascot—there’s a lack of understanding among non-Natives about the unique political position that Natives hold, a position which stems from tribal sovereignty.

As the brilliant legal scholar Walter Echo-Hawk concludes in his valuable book, “In the Courts of the Conqueror,” tribal sovereignty is not an abstract concept. Native tribes and nations are governments, and as Echo-Hawk points out, they “are the primary government on an area nearly the size of Oregon.”

Of course, before we can accept that tribal sovereignty is real, we’ll have to first learn about what it is. One of the pitfalls of the way in which Natives are discussed in our popular and political culture is a constant reference to the past—which is dangerous, because it relegates Natives to a time with which we cannot interact, and fails to acknowledge the millions of living, breathing Natives that make up nearly 600 federally recognized tribes within the U.S. But while I avoid writing about the past, it’s incumbent to do so in order to explain tribal sovereignty.

In short, the original, non-amended U.S. Constitution makes explicit references to Natives, all of which hinge on tribal sovereignty—that is, the intrinsic right that Natives have to govern themselves. Part of the reason why is that, before European contact, Natives already had their own nations in what we now call the United States. These nations managed themselves through sophisticated political systems that precede colonization; they provided for their people and held diplomatic relations with others. Those political systems have changed through time (as all governments do), but continue to exist today.

That the U.S. Constitution recognizes sovereignty is rather remarkable, although several U.S. presidents have botched even the most basic understanding of its elements. Twenty-five years ago, then President Ronald Reagan erroneously referred to Natives living on “preservations,” and added several insulting and wildly inaccurate remarks, including, “Maybe we should not have humored [Natives] in that wanting to stay in that kind of primitive lifestyle.” What he failed to mention, of course, is the long history of the U.S. government forcing the removal of entire Native nations away from their lands and onto reservations. If a lack of basic utilities, for example, appeared “primitive” to Reagan, it was because reservations were often engineered by the U.S. to lack resources and infrastructure. Reagan also mentioned that the U.S. should have forced Natives to become citizens—again failing to mention that the U.S. refused to grant Natives citizenship until 1924, while simultaneously ignoring that all Natives were, indeed citizens when Reagan offered his comments. 

President George W. Bush didn’t fare much better. Just seven years ago, prize-winning journalist Mark Trahant specifically asked Bush about tribal sovereignty. His response would be hilarious if it wasn’t so incredibly offensive. Bush infamously answered that Natives had “been given sovereignty.” The thing with sovereignty, though, is that by definition it cannot be granted—it’s inherent.

In all fairness, some Republicans have been excellent when it comes to Native affairs: President Richard Nixon reversed the so-called Termination Policy, which essentially sought to do away with Native tribes and nations. In contrast, he pushed to recognize Native self-determination. Nixon also supported the return of key lands sacred to Natives, and established an office to deal with Native water rights. 

The Supreme Court, since its inception, has appeared anxiously fixated on tribal sovereignty. In 1823, Chief Justice John Marshall’s high court presided over Johnson v. M’intosh—in which the justices ruled that “discovery” essentially diminished Natives’ inherent right of sovereignty. Johnson v. M’intosh reads incredibly racist; the fact that it hasn’t been overturned means that the high court still leans on a precedent based in the idea that Natives are “fierce savages.” While the Supreme Court has swayed back and forth in cases involving Natives, legal scholars have noted that the court has continued to distance itself from the idea that sovereignty existed prior to European contact, and instead build upon the notion that Congress bestowed sovereignty as a type of protection for Natives.

Last week’s ruling, for example, mentioned Congress 80 times—often in reference to the protection that that legislative body provided to Native families in enacting the Indian Child Welfare Act. In comparison, the high court never once mentioned sovereignty, even in its dissenting opinion.

Justice Sonia Sotomayor did point out, when writing for the dissent, however, that the prevailing justices made “repeated, analytically unnecessary references to the fact that Baby Girl is 3/256 Cherokee by ancestry,” which is a distraction to the case at hand. Sotomayor added that she sees “no ground for this Court to second-guess the membership requirements of federally recognized Indian tribes, which are independent political entities.” Sotomayor again noted that the majority’s needless condemnation of membership criteria leaves nothing but a “lingering mood of disapprobation.”

It’s more than plausible that had the majority never questioned the Cherokee Nation’s citizenship standards, the ruling would have come down much differently. Instead, by ignoring tribal sovereignty and the practices that come along with it, the Supreme Court’s logic naturally led the majority to a ruling that may well place a Cherokee baby with a white family.

And therein lies the danger of understanding Native issues solely through the lens of race, as Alito’s opening sentence implies we should. It ignores tribal sovereignty—and the self-determination that results from it. 

Read this online at http://colorlines.com/archives/2013/07/tribal_sovereignty_supreme_court.html


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