Copyright 2000 (c) Kenneth R. Conklin, Ph.D. All Rights Reserved
Why do Indian tribes get special rights? Why do nations have sovereignty, independence, and self-determination? What follows is a very brief look at the history of the United States and the history of Indian tribes. It is also a very brief look at the U.S. Constitution, treaties with Indian tribes, treaties with the Kingdom of Hawai’i, and the laws governing Indians.
There are good reasons why Indian tribes get special privileges not available to ordinary racial minorities or ordinary groups of like-minded people. But first, we should explore why ANY group of people are entitled to exercise sovereignty.
The nations of the world are separate from each other and sovereign because each nation has a combination of factors that makes its people different from the people of other nations. Such factors include language, religion, race, geographic separation, and cultural factors such as different types and styles of food, clothing, housing, hunting, agriculture, art, music, economic system, etc. Occasionally one nation will conquer another and assimilate its population and territory (as England did with Scotland, or China did with Tibet) ; or nations may peacefully merge (as Austria voted to merge with Germany under Hitler, or the new European Union is slowly being created); or an ethnic group or geographic area within one nation will peacefully or violently declare independence and form a separate nation (as the Czech Republic and Slovakia peacefully separated, or as Pakistan violently became independent from India after India became independent from Britain); or a geographically concentrated ethnic group which finds itself spread among neighboring countries will seek to become a sovereign nation (like the Basques in Spain and France, or the Kurds in Turkey and Iraq). Whenever nations split apart peacefully or violently, or merge peacefully, the reasons why they do so demonstrate the characteristics that define the meaning of sovereign identity and the circumstances under which an entity is sufficiently unique to warrant sovereign independence. Nations do not easily break apart. They do not easily allow pieces to secede. They do not easily merge.
The name of the United States indicates how its national sovereignty was formed. Following the voyages of Columbus and other explorers, various colonies were established composed of settlers from different European countries, or different religious or corporate sponsors within the same European country. Eventually 13 English-speaking British colonies joined together with each other peacefully, because of shared language and culture; and worked together in a revolution to become independent from the geographically remote and economically exploitative Britain. The 13 colonies had separate histories, separate religions, separate lifestyles, and wanted to maintain their sovereign independence from each other, even while uniting in their common desire to be independent from Britain and share economic resources among themselves. The loose union under the Articles of Confederation was found to be too weak, and a stronger unity was established under the 1787 Constitution of the United States. Ever since then there has been a constant struggle between “states’ rights” and federal power, illustrated most graphically by the attempt of the Confederate States to secede, and their defeat by the Union forces in the Civil War (some history books in the Southern states continue to refer to that war as “the War Between the States” rather than “the Civil War”, illustrating the vastly different perception between the Union view that it was merely an internal rebellion vs. the Southern view that it was an assertion of the rights of the sovereign and independent states of the South to retain their unique culture and economy).
So the national sovereignty of the United States has a strong tradition of subordinate yet independent sovereignty of the individual states. And within each state there are separate counties or townships or cities which exercise their own subordinate sovereignties. The local sovereign entities exercise self-determination to a certain extent, making independent decisions about zoning regulations, schools, parks, streets, etc.; but always under the laws of the states and of the nation.
Indian tribes existed in North America for many, many thousands of years before the European settlers arrived. The tribes were racially similar, but they were separate nations with different languages, different geographical areas, and different cultural practices. The differences were preserved partly because of geographic isolation and partly because of lack of communication: no TV, radio, telephone -- even horses were not available until after the European settlers arrived.
As the settlers moved westward, they displaced the Indian tribes from their ancestral homelands. Millions of Indians died from diseases against which they had no resistance, and from being slaughtered by the settlers. After tribes were forced out of their homelands and forced to move hundreds or even thousands of miles away, the newly empty lands were opened for settlement. In other areas (the Louisiana Purchase; Texas; the former Mexican territories) tribes remained in place in greatly reduced homelands which then became tribal reservations.
During the American revolution against Britain, most tribes still functioning within the 13 colonies that had any excess time or energy beyond mere survival needs supported the British. Later, the tribes saw the central government of the United States as much more favorable to their interests than the individual States and communities where they lived. The tribes were constantly struggling against local communities of settlers, and the states. Violent action, and legal confrontation, constantly pressured the Indians regarding land occupation, boundaries, food, water, fishing rights, etc. Thus, the impartial laws of a distant sovereign power (Britain, or the United States) became a source of protection for the tribes against their more immediate neighbors or the states. Furthermore, some tribes had territories in more than one state, or migrated from state to state, or had been forced out of one state into another. For all these reasons, the U.S. Constitution established in 1778 recognizes the existence of the Indian tribes as being sovereign dependent nations, and gives Congress (rather than the States) the power to protect and control them.
Indians as a racial group do not have special protection. Individual Indians not affiliated with any tribe are treated the same as any other citizen of a town, a State, or of the United States. But a tribe recognized by the federal government has a direct government-to-government relationship with the U.S. which is managed through the Bureau of Indian Affairs. (The Bureau of Indian Affairs was formerly within the War Department because of all the warfare with the Indians, but now the BIA is within the Department of Interior along with the national parks.) Individual Indians get special Indian benefits only through their tribal governments, and only from the federal government, not the states. The states have very limited power to control what happens on Indian reservations, because the federal government has that power. Indian tribes cannot sell reservation land without approval from Congress -- this is meant to protect the tribes from the states, municipalities, and corporations. States and municipalities cannot regulate or impose taxes on Indian-owned businesses operating on tribal reservations. Tribal law governs what happens if one Indian commits a crime against another Indian on tribal lands, or if there are civil disputes among Indian individuals or companies. The situation regarding who has jurisdiction over taxes, criminal law, and civil law is very complex (and constantly changing over the years) when some parties are Indians and some are not, or when non-Indians travel into Indian country.
Some Indian tribes have treaties with the Federal government. These treaties came about because the U.S. government was very weak after the Revolutionary War, and was very weak again after the Civil War. If a tribe could not be totally destroyed, and if there was not enough military power or will-power available to subdue it totally and unconditionally, then military commanders would make a treaty which Congress might ratify. Some of these treaties contain clauses granting concessions of land, water, fishing rights, welfare benefits etc. “for so long as the grass shall grow or the rivers shall flow.” But the courts have interpreted these phrases as metaphors not to be taken literally. Congress has the power to take Indian land without compensation, or to move a tribal reservation, or to pass laws governing what happens on reservations. Individual Indians get rights only through their tribes. So the plenary power of Congress over Indian affairs is a mixed blessing for both the Indians and everyone else. On one hand, the tribes are protected against states, municipalities, and corporations; and exercise great independence and autonomy within their reservations. On the other hand, tribes and individual Indians affiliated with them sometimes have fewer rights than ordinary corporations or citizens, and can be discriminated against by the federal government in ways not permitted in non-indian situations.
The following lengthy passage regarding treaties is taken from an excellent widely-used book by William C. Canby, Jr., who is Senior Judge of the United States Court of Appeals for the Ninth Circuit: “American Indian Law in a Nutshell,” 3rd ed., 1998, pages 104-105.
At the start of a section on “Abrogation of Treaties” Canby writes: “One of the least understood facts about Indian treaties is that they may be abrogated unilaterally by Congress. Because treaties often contain recitals that they will remain in effect “as long as the grass shall grow” or for some other equally eternal length of time, many people assume that any alterations in terms would have to be mutually negotiated by the federal government and the tribes. The law, however, is to the contrary.”
Canby then states something that will surely distress advocates of both the independence model of Hawaiian sovereignty and the nation-within-a-nation model of Hawaiian sovereignty :
"Indian treaties as well as international treaties stand on the same footing as federal statutes. Like federal statutes, they can be repealed or modified by later federal statutes. Thus if the United States enters a treaty with a foreign nation and Congress subsequently passes a statute inconsistent with the provisions of the treaty, the statute will control and the treaty is abrogated, at least to the extent of the inconsistency. Whatever may be the implications of the abrogation for purposes of international law, there is no question that the abrogating statute becomes the governing internal law of the United States.” [several legal citations are then given and further explained]
Article VI of the U.S. Constitution says "This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding."
The primary purpose of the above section of the Constitution is clearly to state that judges must be bound by the U.S. Constitution and U.S. laws and U.S. treaties, all of which take precedence over the laws of particular states. A secondary observation is that treaties are placed on an equal footing with the Constitution and with acts of Congress. It is clear that treaties are not placed above the Constitution or acts of Congress. Hawaiian sovereignty activists like to take one piece of this out of context (as they so often do!) by quoting only this one phrase from the foregoing: “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” That quote out of context clearly distorts the meaning of the Constitution. Please read the entire quote in the above paragraph!
After Hawaiian sovereignty activists take part of a quote out of context to falsely claim that U.S. “treaties are the supreme law of the land,” the Hawaiian sovereignty activists then further claim there are such treaties in the case of Hawai'i. But what they fail to mention is that the treaties were between the multiracial Kingdom of Hawai'i and the U.S. -- there were no treaties with the race of kanaka maoli people. And the ceded land trust is similarly for all the people of Hawai'i, not just the race of kanaka maoli. And, of course, the treaties of the U.S. with the Kingdom were continued under the Republic of Hawai'i, after the overthrow, and were then extinguished in the process of the annexation (see the section of this website on the lawsuit filed by Lili'uokalani against the U.S. in 1910, where I have explained about the treaties and shown the language regarding the treaty extinguishment contained in the appendices of the court decision).
Indian tribes are coherent groups of people practicing a culture different from the culture of their surrounding communities. The tribes may need protection because of hostility or discrimination from their neighbors. They are often unable to fend for themselves because of extreme poverty. They have internal systems of government whereby the tribe exercises political and economic control over its members, and the members get most of their rights and benefits directly from the tribe rather than from the surrounding communities or states. They have existed as tribes continuously since Western contact. Kanaka maoli are not an Indian tribe, because they do not meet these requirements.
Many individuals and groups would love to be able to operate as independently as possible from government. Some individuals and groups claim to be sovereign and independent. They claim they do not have to pay taxes, or get automobile registration or insurance, or obey local laws. The news often contains stories about groups of religious zealots who gather into a commune and declare independence from surrounding governments. For example, David Koresh established the Branch Davidians whose compound in Waco Texas was attacked by the FBI and many people died. There was the story of Jim Jones who moved a church from California to South American nation of Guyana, set up a commune in the jungle, and eventually hundreds committed mass suicide. We also remember Ruby Ridge, and groups of men in Montana who build a community, declare they are sovereign, surround themselves with barbed wire, refuse to pay taxes, and shoot when the sherrif comes by.
Everywhere in the world, nations and communities are constantly confronted with individuals and groups who would like to be separate and independent, not pay taxes, not obey the laws of the larger community. Sometimes these individuals or groups feel entitled to use the roads built by the state, and collect welfare from the state, yet assert sovereign independence when it suits their convenience. There are often small or large rebellions which governments need to control. Individuals and groups are not allowed to claim sovereignty or independence merely because they want to. Why that is so is beyond the scope of this website.
The issue here in this website is not to defend in general against anarchy or libertarianism. The issue here is to distinguish legitimate Indian tribes from phony ones. Many groups would like to have sovereignty and declare independence. Many individuals and groups would like to have the self-determination and collect the special economic benefits Indian tribes are entitled to. How can genuine Indian tribes be distingushed from phony ones? There must be laws for making such determinations. The President and the Congress cannot arbitrarily or capriciously award tribal status recognition. In the past, the courts have overturned such wrongful recognitions.
There are seven criteria which a group of Indians must meet in order to receive tribal recognition (called "acknowledgment"). Those criteria are listed in their entirety on this webpage.
The denials of recognition to two Indian groups are also provided. From reading the denials, it is clear that all seven criteria must be met or else tribal status is denied. It is also clear that Native Hawaiians must be denied, because they fail to meet the first three criteria, in a way similar to the denial of the Duwamish group. (a) Native Hawaiians have not been identified as an Indian entity on a continuous basis since 1900, (b) the predominant portion of Native Hawaiians do not comprise a distinct community that has existed as a community from historical times until the present, and (c) Native Hawaiians have not maintained political influence or authority over their members as an autonomous entity from historical times until the present.
Let's face reality: kanaka maoli (Native Hawaiians) are not an Indian tribe, no matter how much they would like to be. Seeking tribal status is merely one more attempt to preserve racial entitlements that are headed for the dustbin of history, and diverts energy from more constructive efforts to preserve and promote the culture and spirituality. A selfish minority of Hawaiian racial supremacists is willing to tear apart the State of Hawai'i to establish a phony Indian tribe so that the Federal government can continue racial entitlement programs; and political leaders of the State of Hawai'i are blindly endorsing this concept because they think it will resolve the sovereignty issue and bring in large amounds of Federal funding. A terrible mistake is going to be made unless brave people are willing to express strong opposition soon enough and in large enough numbers to make a difference.
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