Fed Sovereignty Article

08-Aug-F&F (LoRez)

8/28/08

7:00 PM

Page 14

Virginia Example

Federal Sovereignty of Indian Tribes By David Richardson, Paralegal here has been a noteworthy resurgence of American Indian nations based upon issues of sovereignty, selfgovernment, education, and pride in the Indian heritage. While the focus of this article is on the six Indian tribes in the Commonwealth of Virginia seeking federal recognition, the resurgence trend is by no means unique to Virginia. Research in the area of American Indian law is intricate and challenging. Identity issues, conflict of laws, and jurisdiction that defines federal sovereignty are part of a complex quilt work of matters involved. Delineation of federal recognition and sovereignty related to Indian Law are also among the plethora of federal laws critical to outcome-based results. During the European discovery of America, Indian tribes were recognized as sovereign. Government relations were formed between them by treaties. The United States government discontinued the practice of treaties in 1871, but was unsuccessful in later attempts to dissolve all relations with Native Americans. Relationships with the Indians became strained and moved from a trust relationship to self determination. The Secretary of the Interior is responsible for maintaining relations with the Indians and must publish a list of recognized tribes in the Congressional Record. The Virginia tribes want to be listed in this publication.

T

14 FACTS & FINDINGS

AUGUST 2008

Information Resources

Rule of Law

Primary law on this subject is found in Title 25 of the United States Code Annotated (USCA) and United States Code Service (USCS), which contains most federal statutes dealing with Native Americans. Title 25 Code of Federal Regulations (CFR) provides the regulatory materials.

More than 560 federally recognized tribes in the United States have succeeded in achieving sovereignty. The rule of law is used to clarify the distinction between myth and reality. Using the rule of law, the emerging theme is that tribes do exercise substantial, albeit limited, sovereignty. This sovereignty is not a set of “special” rights. Its roots lie in the fact that Indian nations pre-existed the United States. Their sovereignty, although diminished, has not been terminated. Tribal sovereignty is recognized and protected by the US Constitution, legal precedent, and treaties as well as applicable principles of human rights—the cornerstone of American governance. The concept of the initial treaties was based on land doctrines and such rights of governments as De Jure Belli. American Indian tribes hold a unique position in US history and its contemporary affairs. Virginia Indian tribes were recognized as sovereign from the time of initial European contact, and that recognition should continue as the 400th anniversary of European occupation is observed this year. Besides their indigenous status, what makes American Indian tribes unique compared to other ethnic minorities, is that they have a political relationship with the US government. This political relationship has three primary legal bases:

sovereignty is not a set of ‘special’ rights The publication Indian Country Today serves as a digest source on general Indian topics with articles containing primary and secondary law statements. Other opinions can be accessed online using Lexis and Westlaw, and found in the Indian Law Reporter and the Navajo Reporter. These sources also include legal citations of relevant court cases. Three 19th century US Supreme Court opinions serve as a cornerstone of sovereign status of Indian Nations. Three cases are the most widely cited with respect to tribal sovereignty: 1) Cherokee Nation v. Georgia, 2) Worcester v. Georgia, and 3) Johnson v. McIntosh.

08-Aug-F&F (LoRez)

8/28/08

7:00 PM

Page 15

1. The “commerce clause” of the US Constitution 2. Treaties between the United States and the Indian nations, legislation, and subsequent federal policy 3. US Supreme Court decisions and Executive actions

Sovereign–‘sort of’ A number of studies show a paradox of sovereignty—American Indian tribes do not enjoy “absolute” sovereignty. They are domestic independent nations with nation-to-nation relationships with the federal government, but the government has a fiduciary responsibility for American Indians. The federal government’s term for this form of sovereignty is “federal recognition.”

American Indian tribes do not enjoy ‘absolute’ sovereignty The Commonwealth of Virginia must deal with a form of “documentary genocide,” which makes it difficult for tribes to win federal sovereignty through the Bureau of Indian Affairs (BIA) federal recognition process. This is one of a number of extenuating circumstances that bear a burden of proof issue on the Virginia Tribes. These barriers effectively deny the existence of Virginia Indians who, ironically, are considered to be the “First Nation.” The Virginia Indian tribes have sought federal sovereignty by way of a special exception from the troubled BIA process. Experience with this process, however, has led the tribes to seeking sovereignty through legislation. A General Accounting Office audit of the BIA’s

Office of Federal Acknowledgment (the Bureau’s recognition arm) essentially termed it dysfunctional. However, there are difficulties with the legislative approach as well. Virginia Senate Bill 480 (March 2005), seeking

recognition for Virginia tribes, is a good example of the complexities involved with seeking sovereignty through legislation. Also, pervading discrimination toward American Indians can be seen in the smoke-and-mirrors discussion of gaming put up to cloud the issue of sovereignty. This hinders a focus on the real issue.

government, and the judicial system which acts as the watchdog of our conscience toward American indigenous peoples, invites an international image of perfidy. In the 1804 case of Murray v The Schooner Charming Betsy (6 US 2 Cranch 64 64 (1804)) the federal court system of the United States affirmed that the federal government is obligated to conform its laws as much as possible to international law. The International Covenant on Civil and Political Rights (ICCPR) has stated that indigenous peoples of the United States continue to suffer from discriminatory treatment International law, then, has potential in the treatment of indigenous people. International perspective should not be ignored in a discussion of federal recognition (sovereignty) for Virginia Indians.

International Law

Current Status

Based on Rice v. Cayetano, (the 2000 US Supreme Court case ruling that Hawaii could not restrict voting in Office of Hawaiian Affairs elections to Native Hawaiians) the relationships of native peoples have been predicated on forced “inclusion.” This is dramatically unlike other racially subordinated groups whose relationships to the federal government have been defined largely by forced “exclusion.” The rule of law is important in crafting a plan for the Virginia Tribes federal recognition effort. If the Virginia tribes win their struggle, future events may cause them to seek judicial remedies to misunderstandings or unforeseen events. The courts will then be asked to intervene. In the final analysis, the United States is a sovereign nation among other sovereign nations on a global scale, but our government’s view of indigenous people differs from that of other nations. Our

The 109th US Congress (2005–07) ended with no resolution on these matters, and since that time a new bill, HR 1294, was introduced to the 110th Congress and sent to the Senate for action. David Richardson is a litigation paralegal with a Richmond, VA, law firm. He has a Masters of Arts in Education from Virginia Tech and a post-baccalaureate certificate in paralegal studies from the University of Richmond, where he is also the School of Continuing Studies Student Government Association Vice President. He is a member of the Richmond Paralegal Association and is a pro bono paralegal with the Central Virginia Legal Aid Society.

AUGUST 2008

FACTS & FINDINGS 15