Professor Breaks Down Sovereignty and Explains its Significance

sovereign
Shaawano Chad Uran, Indian Country Today Media Network
Sovereignty is one of those terms we toss around without much thought. It is an important word within contemporary American Indian discussions. The term itself draws from legal, cultural, political, and historical traditions, and these traditions are connected to both European as well as Indigenous philosophies in complicated ways. A shared understanding of the term would be helpful to both local people working on their own issues, and working with surrounding communities.  Rather than defining sovereignty as a term, what I hope to do here is acknowledge aspects of sovereignty that have become sticking points as Indigenous people assert their own self-determination. I won’t go into Indigenous philosophies about sovereignty because it’s probably none of your business.

Sovereignty is a type of political power, and it is exercised through some form of government. For the sake of simplicity, I will focus on the United States and its treaty federalism.  In the US, there are basically three types of sovereigns:

–The US Federal Government

–Each of the 50 State governments

–Tribal governments

The US Federal government is sometimes called the supreme sovereign of the United States. Its powers are defined and limited by the US Constitution. It represents the largest focus of political, economic, and legal power, and has some (but not absolute) power over other sovereigns within the US.  As a constitutional democracy, its power is supposed to come from the People—its citizens.

The State governments derive much of their sovereign power from the US Federal government. The US Constitution explicitly grants States residual powers—those powers that are not explicitly given to the Federal government. The Tenth Amendment to the US Constitution reads,

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Tribes have sovereignty that is obviously older than the US Constitution. Tribes had their own form of government, and many had legal codes written into their own documents, their own stories, their own practices, and their own memories.  Tribal sovereignty is derived from the people, the land, and their relationships; tribal sovereignty was not a gift from any external government. Tribal sovereignty is not defined in the US Constitution. But anyone at all familiar with the history of US Indian Policy knows that many limitations—as well as possibilities—for tribal sovereignty have been defined over time.

Tribal sovereignty is recognized in the US Constitution.  Article VI, Clause 2 (sometimes called “the supremacy clause”) of the US 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, anything in the constitution or laws of any state to the contrary notwithstanding.”

This clause is why American Indian treaties are so important to understanding sovereignty. Treaties are agreements made between sovereign entities—usually called nations. The US has signed several hundred treaties with Indigenous nations and other nations around the world. International relations occur through, and are often defined by, international treaties. Therefore, by signing a treaty, both sides are showing that they recognize the sovereignty of the other, and the treaty spells out how each nation will relate to the other as nations.

The relationship between many tribes and the US Federal government is based on treaties. The US Federal government did not have treaties with the individual States. The supremacy clause recognizes that tribal nations and other international laws are just as powerful as the US Constitution itself. This also means that the sovereignty of tribal nations is different—and in many ways higher—than the sovereignty enjoyed by individual States

Tribal sovereignty was immediately (if inconsistently) recognized by Europeans as they explored the hemisphere. Christopher Columbus himself wrapped his descriptions and interactions with “Indians” in the language of nationhood.  This wasn’t progressive or respectful, though.  It was a holdover from the Inquisition and other efforts to destroy and/or exploit nonchristian nations.

We all should know by now that Columbus was genocidal. Despite being a violently domineering slave trader, usurper, and land thief, the fact that he used the language of nationhood gives us a clue that sovereignty does not need to be absolute for it to be real, or legal, or recognized by other nations.

In fact, we can look to the Roman philosopher Cicero to explain how national sovereignty may be recognized despite a very unequal power relationship.  He said:

“Every nation that governs itself, under whatever form, without dependence on any foreign power, is a sovereign state. Nations or states are body politic, societies of men united together for the purpose of promoting their mutual safety and advantage by joint efforts of their combined strength.”

At first, this seems like the usual understanding of sovereignty as meaning absolute power, or at least absolute independence. This is the type of sovereignty celebrated by US patriots, anti-treaty rights activists, the TEA Party, and others who think that “might makes right” is a good idea. However, Cicero continues:

“We ought to include as sovereign states those who have united themselves with another more powerful by an unequal alliance, in which, as Aristotle says, to the more powerful is given more honor, and to the weaker more assistance. Provided the inferior ally reserved to itself the sovereignty, or the right of governing its own body, it ought to be considered as an independent state that keeps up an intercourse with others under the authority of the law of nations.”

The fact that other nations lack power, or may be dependent upon other nations, does not detract from their status as sovereigns. The US Supreme Court once defined tribes as “domestic dependent nations,” but this does not prevent the use of the term, “sovereignty,” to describe tribes. The treaties between tribes and the US Federal government are recognized as being equal to the US Constitution as the supreme law of the land.  Even the ancient philosophies of Europe demand legal, ongoing treaty relations between nations that may be unequal in power.

Thus, absolute power is not necessary for sovereignty to exist. In fact, the US Constitution limits the sovereignty of the US, not only by recognizing the co-supremacy of international treaties, but by delegating some powers to the States.  Most importantly, the US Constitution has recognized that the citizens themselves hold residual powers, or all those powers not granted to the State and Federal governments.

This is similar to a feature of American Indian treaty law, where those powers—those rights—not explicitly given up to the US Federal government are still held by tribes. Here is where we find the inherent sovereignty of tribes, and this is where many tribes have exercised their self-determination in ways like language revitalization, treaty rights, and Indigenous governance.

Absolute independence is also not necessary for sovereignty to exist. After all, how “independent” is the US? Does the US have energy independence? Trade independence? Manufacturing independence? Technological independence? Military independence? Resource independence? Agricultural independence? Economic independence? In many respects the US is dependent upon other nations for these things, but I rarely hear anyone doubt the sovereignty of the US.  While the economic situation for most tribal nations is dire, we have to remember that tribal economies were based on access to land. Lands were ceded to the US by treaty in exchange for tribal economic security and other provisions.  It is ridiculous to blame tribes for economic dependence, when that dependence arose from loss of the very lands that allow Americans to enjoy economic success, especially since holding 97 percent of the land base is still somehow not enough to support the desires of the US: they’re still after our lands and resources.

So what is the defining aspect of sovereignty? It’s not independence. It’s not absolute power. The defining aspects of sovereignty are the international relationships carried out as sovereign nations. Treaties are the most obvious evidence that one nation recognizes or acknowledges the sovereignty of another nation. This is why it is possible to say that the United States, as a nation, was not born in 1776 with the Declaration of Independence, or in 1789 with the establishment of the Constitution. No, the US became a nation with the Treaty of Paris in 1783. Put another way, the US only became a legitimate, recognized nation by entering into a treaty relationship with other recognized sovereign nations.

So next time someone says that Indigenous nations are “only quasi-sovereign” or “only domestic dependent nations,” kindly teach them about law, history, and philosophy. And if that someone is a Governor, tell them they’re just jealous of the inherent superiority of tribes over states.

 

Shaawano Chad Uran (Shaawano.com/Alex Colby)
Shaawano Chad Uran (Shaawano.com/Alex Colby)

Shaawano Chad Uran, a member of the White Earth Nation and professor of American Indian Studies at the University of Washington, received his PhD in Anthropology, concentrating on Ojibwe language revitalization, in 2012 from the University of Iowa. He completed his undergraduate work at the University of Minnesota. Urah has taught at Bowdoin College in Maine, the University of Victoria in British Columbia, The Evergreen State College in Washington, and the University of Washington.

Uran’s research areas are: Indigenous language revitalization, language and identity, American cultural studies, language ideologies, American Indian sovereignty, critical theory, Native American studies, and coloniality. He is also known for applying Indigenous critical theory to zombie films and literature.

He currently lives north of Seattle, Washington.

 

Read more at http://indiancountrytodaymedianetwork.com/2014/01/03/professor-breaks-down-sovereignty-and-explains-its-significance-152958

IRS Harassing Tribes with Audits, Threatening Sovereignty

Gale Courey Toensing, Indian Country Today Media Network

The Tea Party is not the only entity that’s come under improper scrutiny by the Internal Revenue Service. Over the past several years, tribal governments have been targeted for audits by a government entity that was set up to help them understand and comply with applicable tax laws. Instead the IRS’s Indian Tribal Governments office has initiated audits and other compliance check activities throughout Indian country that tribal leaders say not only violate tribal sovereignty, but are discriminatory, harassing, and almost always fail to find any tax abuse.

The IRS scandal surrounding the Tea Party came to light in May when the Treasury Department Inspector General issued an investigation report revealing that the IRS had singled out groups with conservative-sounding words such as patriot and Tea Party in their titles when applying for nonprofit tax-exempt status. The story was all over the mainstream media. Not so much about the IRS targeting tribal governments. Oglala Sioux Tribe President Bryan Brewer noted the difference. “When the IRS gores the Tea Party Ox, heads roll.  When Indians are targeted, the mainstream press takes a nap. It’s time for Congress to Act!” Brewer told Indian Country Today Media Network.

 Oglala Sioux Tribe President Bryan Brewer

Oglala Sioux Tribe President Bryan Brewer

In June tribal leaders acted. They came together at the National Congress of American Indians’ mid-year conference and passed a resolution for legislation that they hope will stop the audits and clarify the status of sovereign tribal nations with governments that are as tax exempt as states and other nations.

Their effort could not be more timely. Senate Finance Committee Chairman Max Baucus (D-Montana) and ranking member Orrin Hatch (R-Utah) are preparing major tax reform legislation – an overhaul of the Internal Revenue tax code that hasn’t happened for 30 years. The two legislators floated what’s been called a “blank slate” approach to reform. “We plan to operate from an assumption that all special provisions are out unless there is clear evidence that they: (1) help grow the economy, (2) make the tax code fairer, or (3) effectively promote other important policy objectives,” Baucus and Orrin wrote to their Senate colleagues June 27.

But the blank slate approach doesn’t fit tribal nations. In the NCAI resolution, tribal leaders insist that treaty rights, the federal government’s trust obligations to Indian tribes, the Constitution’s acknowledgment of Indian tribes as governments, and the role played by Indian tribal governments in serving their citizens are the overarching principals that must guide tax reform issues in Indian country.

“Support for Legislation to Amend the Internal Revenue Code to Respect the Sovereignty of Indian Nations to Govern and Promote the General Welfare of Tribal Citizens and to Protect Our Homelands” is the name of the resolution and, according to sources who attended the conference, there was a lively debate over the tone and strength of the language. The final version that passed is a strongly worded document that recalls the constitutional recognition of Indian nations as sovereigns with rights of self-determination and self-government over tribal citizens and tribal territory and tribal nation citizens as “Indians not taxed.” It calls on Congress to pass legislation to clarify that tribal government programs, services, and benefits authorized or administered by Indian nations and tribes for tribal citizens, spouses, dependents, and others as determined by the tribal governments, are excluded from income under the General Welfare Exemption (GWE). The resolution seeks legislative clarification that “items of cultural significance or cash honoraria provided by tribal governments to tribal citizens for cultural purposes or cultural events shall not represent compensation for services and shall be excluded from taxable income.”

John Yellow Bird Steele, former Oglala Sioux Tribe president, told the Senate Committee on Indian Affairs at a hearing last year just how menacing and intrusive the Internal Revenue Service had become across Indian country. IRS agents have been showing up unannounced on reservations, as they did on the Oglala Sioux’s Pine Ridge Reservation, to conduct audits of tribal governments’ expenditures that have not been and never should be subject to taxation – things like health care and education benefits, utility and housing assistance, even powwow prizes and funeral expenses, he said.

In his testimony Steele described the IRS agents’ disrespectful behavior at length, but it is perhaps best characterized by a single sentence. “When one tribal member raised objections to IRS intrusion based on tribal treaty rights, he was told, ‘You can read your treaties in prison, if you like,’” Steele told the committee.

As the Senate Finance Committee works to complete the tax code overhaul by the end of next year, others are taking a broad approach to tax code reform. “We need to think bigger and bolder,” said Tom Rodgers (Black Feet Nation), lawyer-lobbyist-owner of Carlyle Consulting. “This is tax reform which comes along every 30 years. This is not an annual tax bill.” While the NCAI resolution pursues legislation to clarify the tax exempt status of tribal governments, Rodgers is working on legislation for Indian country empowerment zones that he says will incorporate and benefit both poor tribes and tribes with financial resources. “If you are to be taken seriously in tax policy you should provide revenue offsets for tax expenditures. I have identified one that is empathetic, moral and ethical, which is somewhat ironic given we are dealing with tax policy,” Rodgers said. He said he will roll out the details of his plan over the next month or so as they are finalized. Meanwhile, the tax reform efforts in the Senate are moving along briskly, Rodgers said.”The tax option papers have been written and released, almost all tax writing committee hearings have been held, the one-on-one chairman and senator meetings are taking place. The question now is whether the politics will line up with the policy.”

 

Read more at https://indiancountrytodaymedianetwork.com/2013/07/01/irs-harassing-tribes-audits-threatening-sovereignty-150211