Tribal sovereignty in the 21st century

The present state of American Indian tribal sovereignty is undergoing transition.

Indian people generally lament the decline of tribal sovereignty powers owing to Congressional acts, court decisions and federal policies. The Declaration on the Rights of Indigenous Peoples is based on universal human rights principles and, while supporting political and cultural autonomy, does not support establishment of indigenous governments that are seen to compete with existing nation-states.

The declaration encourages indigenous peoples to work out political, land and cultural issues within the framework of nation-state law and political processes. International support of human rights and the declaration will support indigenous efforts to reclaim political, economic and cultural autonomy, and provide at least symbolic checks on nation-states. The human rights philosophy of the declaration suggests a pathway toward creating respect and agreement about universal human rights and encourages greater common ground for peaceful processes of conflict resolution. The international human rights movement represents the laudable task of creating world consensus and a possible basis for less conflict and perhaps future peace in the world.

The declaration and human rights initiative invite indigenous peoples to join in the international movement and offers some forms of protection and support. Nevertheless, the movement requires indigenous peoples to underplay their histories and claims to self-government and work within international human rights principles and nation-state laws and political processes. Indigenous peoples are invited to participate in nation-states and the international community as ethnic groups seeking equal rights and treatments. Most likely if there is any chance to build a peaceful world, groups and nations will need to make compromises so we call can live together. Ideally, we need to make consensual compromises, ones that peoples and nations can agree upon and uphold over the long run.

For indigenous peoples, forgoing rights to self-government in favor of ethnic group status is a major issue. The exchange of nation or self-government for ethnic group status is not a compromise that most indigenous peoples are willing to make. At least in the United States, ethnic groups do not have rights to self-government from time immemorial that precede the formation of the U.S. Constitution and do not control land. For indigenous peoples, the right to self-government is given in history and creation stories. The relations of land, religion, government and community are tightly interrelated and differ significantly from the American law and custom. Self-government is embedded deeply in the culture of indigenous communities, although it takes forms that are quite different from contemporary nation-state governments. Many traditional tribal governments, however, conform to a well-known definition of government or state given by German sociologist Max Weber. The state, or government, is the institution that controls the legitimate use of force. The legitimate use of force is often seen clearly in judicial actions. Can the community take action against wrongdoers?

Most indigenous nations had institutions that managed justice issues. For example, the Iroquois Confederacy was organized primarily around ceremonies and economic exchanges designed to provide restitution and condolence to nations and families who might have suffered from losses because of murder or other infractions. The Iroquois Confederacy maintained laws that were honored by the nations and clans. Other examples are the execution in 1805 of Doublehead, a chief among the Cherokee, for illegally selling land, and in 1825 the execution of William Macintosh, a chief among the Lower Creek villages, also for illegally selling land without permission of the Creek Council. Tribal communities exercised powers of government, and were active in trade, diplomatic and military alliances and treaties during the colonial period before the formation of the United States.

Most contemporary American Indians are quite comfortable living within the United States, and enjoy dual citizenship as an American and member of an Indian tribe. Nevertheless, American Indians prefer to maintain tribal communities and governments, and do not want to exchange tribal status for ethnic group status. Since tribal communities have exercised government from time immemorial, they have negotiated in treaties and participated in political processes to ensure the continuity of their governments and cultures.

Since self-government is deeply embedded in indigenous history, culture and religion, indigenous peoples are understandably reluctant to give up those powers. Taking on ethnic status, although with individual and collective rights, will not satisfy most indigenous peoples in the world. Most indigenous peoples will work within current international and nation-state relations, but they do want respect and recognition for their cultures, governments and land.

The Declaration on the Rights of Indigenous Peoples creates a basis for recognizing individual and collective interests among indigenous peoples, but the right to self-government is an issue that it avoids. This does not mean there is no possibility of future agreements and understandings between indigenous governments and nation-states. Indigenous nations and governments are of different forms than contemporary bureaucratic democratic states, and perform different activities. Creating competing nation-states is not the logical path for most indigenous peoples. Indigenous peoples are not demanding special rights, but do want their rights understood and respected. Efforts by nation-states to grant equal rights to all citizens, but overlook indigenous rights, will engender formal and informal confrontation from indigenous people who will demand recognition for political and cultural autonomy.

The rights of indigenous peoples will be a significant part of any universal human rights platform, and for the development of an international civil society in support of world peace. The issues of citizen equality and the inherent rights to self-government are still issues that indigenous peoples, nation-states and the international community need to give attention. The political processes of most indigenous communities emphasize respect, consensus and negotiation, and the vision of a peaceful world based on consensual rights and political processes are not outside the understandings of indigenous world views.