Native American Tribes Are Becoming Sovereign in More Than Theory
Mr Lupe has been in tribal government, off and on, since 1964. His career thus spans several historic changes for Indian tribes, each of which affirmed and increased their sovereignty. “When I was first elected, I received no financial reports, no letters, they all went over there,” he recalls, pointing across the street to a branch of the Bureau of Indian Affairs (BIA), the federal agency that handles relations with tribes. “Over the years I took their power away.” Then he flips his middle finger in the BIA’s direction. “I’m not responsible to you, I’m a sovereign nation.”
That sovereignty is still a topic of discussion at all should be surprising. America’s constitution names three sovereigns: the federal government, states and tribes. The “treaties” America signed with tribes in the 18th and 19th centuries also implied sovereign parties. Tribes could not keep armies or devise a currency, but they could issue their own passports, as the Iroquois have famously done (which made their lacrosse team miss a tournament in 2010, after Britain refused to recognise the documents). The Iroquois, the Sioux and the Ojibwe (Chippewa), even separately declared war on Germany in 1941.
Casinos are lucrative, but the opportunity for jurisdictional arbitrage offers great promise in other industries as well. Michael Strong previously wrote on bootstrapping Native American sovereignty here:
In the U.S., Chief Justice John Marshall laid out a series of opinions starting in the 1830s that affirmed the sovereignty of indigenous peoples. For instance, in Worcester v. Georgia, he wrote, “The Cherokee nation . . . is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force.” To which, of course, President Andrew Jackson is said to have replied “John Marshall has made his decision; now let him enforce it!” Jackson’s subsequent policy of “Indian removal,” including his infamous support for removing the Cherokees from their homes and sovereign territory in “The Trail of Tears” makes his actions among the most shameful in U.S. history (Google offers “Andrew Jackson worst president” as among its autocompletes).
Arguments for continued and expanded Native American sovereignty are strong; Here is an excellent summary of the state of Native American sovereignty from Harvard’s Project on American Indian Development led by Joseph Kalt, who got his doctorate under Armen Alchian. Even more important than Marshall’s Supreme Court decisions is the fact that the U.S. government signed treaties with most of the Native American tribes as sovereign governments.