rclinton@lawnet-po.law.uiowa.edu (Robert N. Clinton) writes:
>Daniel Ammon response to Ellen Kemper on tribal government was very
>interesting.
Thanks.
>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.
"Self-government" seems like a pretty good term to use when discussing
the Self-Governance Demonstration tribes.
>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.
OK. Did I use the term "self-government" in a legally incorrect way?
>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.
I think we agree on the term "sovereignty"... it's about laws/jurisdiction
within Indian country.
I may have said some confusing things because it seems to me like the
ideas of self-government and sovereignty should go together because
they are both things that Indians want.
But, they are different things and this was one concern I wanted to
raise about the implementation of Self-Governance: is the sovereignty
of a tribe changed in any way by opting to be a Self-Governance tribe?
I really don't know; does anybody?
>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).
So far, this sounds like court cases limiting the sovereignty of tribes,
and not about self-government.
>The analysis
>in Duro treated tribal authority as based on consent, rather than
>inherent sovereignty.
Maybe we're getting somewhere now... My understanding is that tribes
are not fully sovereign. There is no external sovereignty (i.e. tribes
cannot enter agreements with foreign sovereign powers) and there is
*limited* internal sovereignty. I would view Oliphant, Duro, ... as
further limiting the sovereignty of tribes.
>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.
Huh? Specifically, this is about loss of authority over non-members
*within reservation boundaries*. I don't understand why you call
this an issue of self-government. Can you please elaborate on this?
>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.
My comments here are not intended to be sarcastic in any way, and
I'd really like to understand the distinctions you're making. Thanks.
danny ammon