Navajo teachers in the Denver area for a summer institute devoted their last day to the study of power, or sovereignty, in some of its practical applications and limitations.
“I don’t have an expectation the federal government will come in and do anything,” said Janelle Doughty, a member of the Southern Ute Indian Tribe and director of social services for a sister tribe, the Ute Mountain Ute Tribe, who was a speaker for the institute held at the University of Colorado-Boulder.
At the same time, she acknowledged, the federal government can exert its authority over tribes, despite their inherent sovereignty, in terms of allowing members to acquire private property, exert control over law enforcement, and determine the disciplinary system to which youth will be sent.
The program on sovereignty and federalism in theory and practice marked the end of an institute held June 6-11 for Navajo teachers and other educators conducted by the University of Northern Colorado’s (UNC) Presidential Academy in American History and Civics Education.
“Two ways of seeing government, through tribal and federal viewpoints, particularly regarding questions of law, are not answered in today’s conventional textbooks,” said Michael Welsh, history faculty at UNC and Presidential Academy director.
Noting the duality in sovereignty and federalism, Welsh reminded the teachers, “You work for the children already affected by these laws.”
Former U.S. Attorney Troy Eid, with Greenberg Traurig LLC, who co-led the discussion with Doughty, reiterated that Indian tribes are sovereign, but they are domestic dependent sovereigns whose inherent powers are subject to the ultimate authority of the federal government.
The four pillars of federal jurisdiction are that, first, tribes are subject to the plenary power of the U.S. government, and second, the Major Crimes Act allows federal intrusion into the traditional power of tribes even to punish their own members, Eid said, noting that only seven percent of non-Native children are tried as adults compared to about one-third of Native youth for whom transfer to federal custody is mandatory.
The third area of federal jurisdiction is that states generally lack power over tribes, though areas of contention remain, and the fourth is that federal Indian law is confusing because attitudes toward Indians and their rights shift over time, he said.
“Can Congress change a treaty?” Eid challenged the assembled teachers, and then pointed out that a 1903 Supreme Court ruling gave Congress plenary, or absolute, power over treaties and other Native rights.
Changing policies toward Indians and Indian nations have led to changes in Native resources, both Eid and Doughty pointed out, citing as an example the Klamath Tribe which was terminated and then reinstated but which, in the process, lost most of a land base that was formerly about two percent of Oregon state.
They also traced the history of federal Indian policy from the 1700s to 1850 a period marked by diplomacy between U.S. and tribal nations, into eras characterized by the reservation system, allotment, boarding schools, and termination efforts. Though more benign self-determination approaches came into favor from 1968 to the present, they have been marred by 20 years of Supreme Court rulings that have been “particularly difficult,” Eid noted.