The world is moving forward on Indigenous Rights, yet the Supreme Court of the United States is moving backward. In 2010, the United States joined the United Nations in supporting the Declaration on the Rights of Indigenous Peoples, which declares:
Indigenous peoples have the right to self-determination … the right to autonomy or self-government in matters relating to their internal and local affairs … the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions [and] the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired….
Meanwhile, the Supreme Court has ruled against Indian nations and tribes in 9 out of 10 cases that have been before it in the past 25 years.
The Constitution’s Treaty and Supremacy Clauses recognize Indian nations and tribes as sovereign treaty partners. From 1776 through 1871, the United States entered into 370 treaties with Indian nations and tribes. In Indian treaties, the United States recognized Indian nations and tribes as distinct polities, vested with the inherent sovereign power of war and peace, the right of self-government, and guaranteed Indian lands as permanent homes for Indian peoples. The United States gave friendship and protection, and pledged its honor to preserve the peace. The Commerce Clause acknowledges Indian tribes as governments and laws regulating “Commerce … with the Indian Tribes” have been in place since 1790.
After the Civil War, the 14th Amendment (1868) affirmed Indian sovereignty by once again treating our Native peoples as “Indians not taxed,” citizens of Indian nations, not subject to the “jurisdiction” of the United States. From 1866 to 1869, Congress established the Indian Peace Policy and more than 70 Indian treaties were made. When Indian treaty-making ended in 1871, existing Indian treaties continued in full force and effect, and Congress made statutory agreements with Indian tribes.
In 1983, President Reagan issued his American Indian Policy Statement, explaining:
When European colonial powers began to explore and colonize this land, they entered into treaties with sovereign Indian nations. Our new nation continued to make treaties and to deal with Indian tribes on a government-to-government basis…. Our policy is to reaffirm dealing with Indian tribes on a government-to-government basis and … self-government for Indian tribes….
In 2000, President Clinton issued Executive Order 13175 that declares:
Our Nation, under the law of the United States, in accordance with treaties, statutes, Executive Orders, and judicial decisions, has recognized the right of Indian tribes to self-government. As domestic dependent nations, Indian tribes exercise inherent sovereign powers over their members and territory. The United States continues to work with Indian tribes on a government-to-government basis….
In 2004, President Bush and in 20013, President Obama affirmed the Clinton Order. Yet, the Supreme Court ignores this history and U.S. Policy.
In the oral argument of the Bay Mills case (where Michigan challenged tribal sovereign immunity) Justice Scalia asked: “Who made these Indian tribes sovereign, was it Congress?” The Solicitor General answered: “The Constitution.” Scalia asked, “Who decided that Indian tribes are sovereign?” and the Solicitor General folded, “The Court … but there are treaties and statutes.” Scalia replied, “So I assume that this Court could also determine the scope of their sovereignty.”
Justice Scalia’s erroneous view that the Supreme Court “decided” Indian nations are sovereign is discriminatory. Just as the Constitution recites that “We, the People” are the source of U.S. Sovereign power—We, the Native Peoples, are the source of Indian sovereignty. Just powers of government flow from the consent of the governed, and as Native peoples, we consent to self-government.
Indian sovereignty, treaty rights, and self-government are our “unalienable rights” and the United States has no legitimate authority to take them from us. The United States violates our inherent human rights when it overrides Indian sovereignty or the Supreme Court redefines sovereign immunity.
Scalia’s position is a denial of our humanity as Native peoples, a denigration of our treaties, and a whitewash of America’s history. Given Justice Scalia’s discriminatory views, the Supreme Court is a biased forum for Indian sovereignty, Indian treaties, and Native peoples.
Consent is the original model for our Indian treaties established by Natural Law, the Constitution, implemented by George Washington, affirmed by Thomas Jefferson, and kept alive in the hearts of our Native peoples. Our treaties were negotiated nation-to-nation under the principle of mutual consent.
We call upon the President and Congress to agree with Indian nations to jointly establish an Indian Nations—U.S. Treaty Commission composed of three U.S. delegates from the White House Council on Native American Affairs (Secretary of the Interior, Attorney General, and Secretary of State) and 12 tribal government and traditional leaders. The Indian Nations—U.S. Treaty Commission must be charged with resolving disputes concerning Indian treaties, Indian sovereignty and tribal self-government through “mutual consent” between Indian nations and the United States.
Bryan Brewer is the president of the Oglala Sioux Tribe.