Re: what are thoughts on native self government?

Robert N. Clinton (rclinton@lawnet-po.law.uiowa.edu)
Thu, 9 Apr 1992 08:06:00 CST

Daniel Ammon response to Ellen Kemper on tribal government was very
interesting. In setting forth his points, however, he used a term that
all of us are proned to use in discussing Indian tribal governance --
self-government. Increasingly, we need to be more self-critical about
the terms that we are applying to Indian governance since they are
beginning to have clear legal implications.

Traditionally, the term sovereignty has been applied to describe Indian
tribal political authority. Sovereignty traditionally had a territorial
connotation, suggesting that the tribe had political and legal authority
over all persons and property in Indian country. Thus, a truly sovereign
tribe should be able to govern non-members and non-Indians within their
reservation boundaries, including activities taking place on non-Indian
owned land within the reservation.

Picking up on the theme of SELF-government, the United States Supreme
Court recently has aggressively sought to legally limit tribal
sovereignty to eliminate much (but not all) of the tribal authority over
non-member activities, particularly on non-Indian owned lands in Indian
country. Examples of such limiting decisions include Oliphant (tribes
have no inherent criminal jurisdiction over non-Indian crimes within
their reservation), Brendale (tribes could not and countries could zone
non-Indian owned parcels of land lying within open areas of the
reservation where large non-Indian populations lives, but tribes could
zone nonmember land on closed portions of the reservation), and most
recently Duro (tribes lacked inherent criminal jurisdiction over
nonmember Indians who commit crimes on the reservation). The analysis
in Duro treated tribal authority as based on consent, rather than
inherent sovereignty. I would submit that the increased loss of tribal
authority over non-members is facilitated to the extent that we discuss
tribal political authority as SELF-government, rather than as
sovereignty or some other term. While I know that the prior messages had
not intended to raise this concern, I thought I would surface it for
whatever value it has in these discussions.

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Robert N. Clinton INTERNET: rclinton@lawnet-po.law.uiowa.edu
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