MPR: Tribal Sovereignty: Legal History and Modern Practice

Tribal Sovereignty: Legal History and Modern Practice
Catherine Winter
April 17, 1998

Part of the Mainstreet Radio series Treaty Rights and Tribal Sovereignty

At the center of disputes about treaty rights to hunt and fish is a concept called tribal sovereignty. Tribal sovereignty gives Indian bands the right to govern themselves - to a degree. They can set their own rules about natural resources - such as fish - in some places. Some bands can also print license plates and run casinos. But Native American tribes can't coin money, nor make treaties with other countries. Scholars call their status semi-sovereign or quasi-sovereign. This set of complex rules has a long history and affects Indian people today.

Joycelyn Shingobee Wedll: This section here is called "Nation within a Nation" and it deals with sovereignty and tribal government.

AT THE NEW INDIAN MUSEUM on the Mille Lacs Ojibway Reservation, manager Joycelyn Shingobee Wedll walks into an exhibit where big white letters on a curved blue wall spell out a quote from former tribal chair Art Gahbo.

Shingobee Wedll: Our sovereignty is as sacred as our land. It is our right and ability to control our own destiny.

Another wall holds symbols of sovereignty: a car door from a tribal police car, showing that the band has its own police force; a bumper with a Mille Lacs Band license plate, showing that the band can license cars; and what looks like a slot machine, such as you might see in an Indian casino.

Shingobee Wedll: You can also pull the lever here and it'll ... so we're showing people how dollars are spent within the community.

Instead of spinning up lemons, the slot machine shows pictures of things built with money from the band's Grand Casino: a water tower, a clinic, a school. Wedll says the point is to show the Mille Lacs Band has its own laws and culture and the right to govern itself.

Scholars of Indian history and law say the right of Indian tribes to govern themselves was not a gift from the US government; tribes had sovereignty before Europeans came to North America. Minneapolis attorney Henry Buffalo, a member of the Red Cliff Band of Chippewa, says that's why Europeans made treaties with tribes.

Buffalo: Europeans decided they would recognize tribes as having nations as they were, and decided they would treat these tribes the same as they would treat each other as far as recognizing the nation status.

Buffalo says the American government followed the same policy.

Buffalo: Early American government was not in a position of directing tribes to do any one thing or another. They depended on military and economic alliances with tribes to ensure their survival and carried on a policy of recognizing them as nations - they governed themselves; had complex systems.

In the 1800s the Supreme Court began chipping away at Native sovereignty. The court called tribes dependent nations that were wards of the United States. It said the United States was a superior and civilized nation, so Congress could regulate tribal affairs and even go back on treaties.

In 1953 Congress gave states the power to prosecute some crimes on some reservations, while tribes retained jurisdiction over some offenses. Minnesota's Appeals Court recently ruled that tribes can issue tickets for various driving offenses on reservations. Some are now building up police forces and court systems.

Some tribes are asserting their sovereign rights more vigorously than in the past. The few Indian tribes flush with casino cash can hire lawyers to press treaty rights cases; they can build governments that regulate natural resources or auto licensing or education. The natural resources commissioner for the Mille Lacs Band, Don Wedll, says asserting sovereign rights has helped the band.

Wedll: Mille Lacs has used its sovereignty to provide a better environment, better economic condition, better government structure, more input from people into the government structure.

Wedll says Indian tribes derive some benefits from their relationship with the United States, such as protection and economic assistance. But some Native people want tribes to throw off the United States and be entirely self-governing.

On the White Earth reservation last week, a dozen members of the band gathered at the government building to rally against their current leaders. White Earth has been fraught with such conflict for years. Activist Marvin Manypenny says a lot of the internal strife stems from the band's quasi-sovereign status. He says the current form of government was imposed by the United States.

Manypenny: I see no difference from the 13 colonies who were under the thumb of the king of England. The very thing the US fought a revolution to get out of, they've placed us in the same type of position here, and what I'm talking about is true self-determination: that either we're going to succeed or we're going to fail, and it should be left up to us. That to me is true self-determination.

The issue of how much sovereignty tribes should have evokes extremism on both sides. Minnesota Appeals Court Judge Jim Randall believes tribal governments should be eliminated. Judge Randall has written lengthy opinions arguing that Indian people living on reservations are denied civil rights because their governments don't have to comply with the state or federal constitutions.

Randall: There's no civil service, no OSHA, no laws against harassment, no freedom of speech or press, no teachers' tenure, no recourse to courts.

Judge Randall calls the current system red apartheid. And some Indian people agree. But many are appalled by that idea; they say sovereignty allows tribes to protect their culture, history, and language.

Wedll: Judge Randall's kind of concepts would be devastating to Indian people.

The Mille Lacs Band's Don Wedll.

Wedll: The sovereignty is in the people, and the only way you take sovereignty away is to do away with the people. The US has sovereignty. The government doesn't have anything; the people have sovereignty, and the only way to take it away would be to do away with the people or subjugate them. And there's international laws that protect countries from doing that.

Wedll says only a few extremists advocate doing away with tribal governments, and he doesn't think it will happen. He thinks the federal government is moving toward allowing tribes to expand their use of sovereignty. Other observers believe the opposite is happening, that court decisions and laws continue to narrow the right to self government. The complex web of law means that, for now, the rights of tribes vary widely from reservation to reservation, but on each reservation, at least some of the sovereign powers Native people had before Europeans arrived still remain.

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