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Introduction

James Robert Allison

in Sovereignty For Survival: American Energy Development and Indian Self-Determination

The Introduction lays out the book’s central claim that, in the 1970s, energy tribes expanded their capacity to govern reservation resources and thus secured a belated recognition of their legal ... More

The Introduction lays out the book’s central claim that, in the 1970s, energy tribes expanded their capacity to govern reservation resources and thus secured a belated recognition of their legal authority to develop these assets. After first describing the antiquated legal structure that prevented tribes from controlling reservation development, the introduction highlights the transformative role the Northern Cheyenne played in halting mining projects threatening its community. This tribe also spearheaded a national movement to prepare similarly situated tribes to control energy development and to demand changes in federal law that recognized tribal sovereignty over reservation resources. The Introduction situates this story of expanding tribal sovereignty within American Indian historiography on the Indian self-determination policy, but shows how it provides a surprisingly missing explanation for how tribes reclaimed control over their resources. In addition, this work contributes to the literature in energy and environmental history by demonstrating how local actions to shape development emanated out to affect global resource flows and the national legal structures governing those resources.Less

Coming Full Circle: (Re)Building Institutions to Advance the Ethos of Legal Pluralism

N. Bruce Duthu

in Shadow Nations: Tribal Sovereignty and the Limits of Legal Pluralism

The political theorist Duncan Ivison urged nation-states and indigenous groups to pursue what he called an “institutional design approach” to encourage dialogue between the parties on matters of ... More

The political theorist Duncan Ivison urged nation-states and indigenous groups to pursue what he called an “institutional design approach” to encourage dialogue between the parties on matters of mutual interest and concern. For Ivison, the intent is to facilitate the “circulation of power between authorities, rather than allowing its systematic unequal accumulation.” This chapter examines several of the most prominent legal and political institutional arrangements that have been or might be employed to mediate the varied and sometimes conflicting interests of the nation/state and tribal groups. These include continued reliance on (federal) statutory protections, amendments to the national constitution, and the revival of treaty making. Ultimately, this chapter rejects all of those models and urges the pursuit of a form of bilateral nation-building called conventions on tribal sovereignty, a mode of intergovernmental discourse founded on mutual respect and peaceful coexistence. This arrangement offers the best hope for redirecting the trajectory of tribal-federal relations to better reflect the formative ethos of legal pluralism.Less

At the Mercy of the State: Linking Rape to Federal Indian Law

Sarah Deer

in The Beginning and End of Rape: Confronting Sexual Violence in Native America

This chapter briefly reviews the history of Indian law and describes the complicated matrix of criminal jurisdiction in Indian country. From a perspective that privileges tribal sovereignty, it ... More

This chapter briefly reviews the history of Indian law and describes the complicated matrix of criminal jurisdiction in Indian country. From a perspective that privileges tribal sovereignty, it explains how mechanical intrusions into the realm of tribal authority and the resulting jurisdictional complexity has created real, practical gaps in the formal systems of justice, gaps that have allowed perpetrators to assault Native women with impunity. This chapter looks at how jurisdiction over criminal matters in regards to Native American has been switched between the Federal and state level. Neither of which succeeding in protecting Native women against violence.Less

Introduction

N. Bruce Duthu

in Shadow Nations: Tribal Sovereignty and the Limits of Legal Pluralism

Situating the claims of tribal governments for more robust forms of inherent sovereign authority within the discourse of legal pluralism necessarily requires us to address fundamental questions about ... More

Situating the claims of tribal governments for more robust forms of inherent sovereign authority within the discourse of legal pluralism necessarily requires us to address fundamental questions about the nature of legitimate government, about political power and about respect for differences amongst societies and individuals. The answers to those fundamental questions will help determine whether we can manage to create and respect the juridical space for legally plural societies to operate effectively within a shared territory or whether we continue to force segments of our plural society - the Indian tribal nations - to subsist within the shadows of the omnipresent and dominant nation-state.Less

Northern Indians and Negro Slaves: Wash and the Politics of Reconstruction

Claudio Saunt

in Black, White, and Indian: Race and the Unmaking of an American Family

In the era of Reconstruction, the Creek Nation pursued a policy of states' rights in order to defend its sovereignty against the federal government. The Creeks' conflation of states' rights and ... More

In the era of Reconstruction, the Creek Nation pursued a policy of states' rights in order to defend its sovereignty against the federal government. The Creeks' conflation of states' rights and tribal sovereignty poisoned relations with ex-slaves, who were increasingly marginalized in Indian Territory.Less

Ethnocentric Curricula and the Politics of Difference

in Uncommon Schools: The Global Rise of Postsecondary Institutions for Indigenous Peoples

Ethnocentrism is a curricular orientation in which the experiences and perspectives, the culture, and the identity of a particular group are centered as the point of reference and development. This ... More

Ethnocentrism is a curricular orientation in which the experiences and perspectives, the culture, and the identity of a particular group are centered as the point of reference and development. This chapter presents results from a statistical analysis of tribal and black college curricula, focusing in particular on the institutional, political, and legal forces that shape the composition of formal curricula at tribal colleges and universities (TCUs) and historically black colleges and universities (HBCUs). The chapter presents evidence that TCUs incorporate distinctively American Indian traditions and worldviews into the formal curriculum much more extensively than HBCUs incorporate African American content or perspectives. Tribal sovereignty plays a central role in the efforts of American Indians tribes to infuse culturally distinctive curricula at their own colleges and universities. African Americans, who lack sovereignty, have been much less successful at doing so.Less

Second Opportunity: The Structure and Architecture of the Constitution

Frank Pommersheim

in Broken Landscape: Indians, Indian Tribes, and the Constitution

This chapter explores the need of the newly formed union to establish a functioning republic and how this affected Native American Indian tribal sovereignty. It examines how the Constitutional ... More

This chapter explores the need of the newly formed union to establish a functioning republic and how this affected Native American Indian tribal sovereignty. It examines how the Constitutional Convention of 1787 rethought the structure of the federal government in relation to states, which includes the Indian tribes. This chapter also looks at how the newly formed Constitution affected tribal sovereignty and India law. It discusses the Iroquois Confederacy which adopted rules of governance in what became known as the Haudenosaunee Constitution, or the Great Law of Peace.Less

Conclusion

N. Bruce Duthu

in Shadow Nations: Tribal Sovereignty and the Limits of Legal Pluralism

In situating tribal sovereignty within the discourse of legal pluralism, this book seeks to chart a pathway towards more respectful tribal-federal political relations that will acknowledge and ... More

In situating tribal sovereignty within the discourse of legal pluralism, this book seeks to chart a pathway towards more respectful tribal-federal political relations that will acknowledge and reaffirm a more robust and meaningful form of territorial sovereignty for Indian tribes. The examination identifies several potential obstacles - ideological, constitutional and institutional - that may stand in the way of this fuller expression of tribal sovereign power. Upon closer inspection, however, none of these potential obstacles were shown to be insuperable to this project. Ultimately, the book suggests that a form of bilateral nation-building - conventions on tribal sovereignty - offers the best hope for redirecting the trajectory of tribal-federal relations to better reflect the formative ethos of legal pluralism.Less

Indigenous Nations and Tribal Sovereignty

Lindsey N. Kingston

in Fully Human: Personhood, Citizenship, and Rights

The indigenous rights movement has embraced the idea of self-determination for framing their demands for economic, political, and cultural survival. Indeed, calls for tribal sovereignty problematize ... More

The indigenous rights movement has embraced the idea of self-determination for framing their demands for economic, political, and cultural survival. Indeed, calls for tribal sovereignty problematize the international community’s central focus on state governments for legitimizing human rights claimants. For communities such as the Onondaga Nation of Central New York, state membership comes second to the ties that bind one to an indigenous nation. (Indeed, the Onondaga Nation maintains a legally distinct territory just outside Syracuse, New York, and some members have rejected US citizenship in favor of tribe-issued passports.) While this chapter explores the historical trajectory leading to modern indigenous rights concerns—which include an ongoing process of cultural genocide—it focuses on how indigenous nations and tribal sovereignty challenge the reliance on state citizenship for recognizing personhood and claiming human rights. Calls for indigenous sovereignty offer alternative pathways for conceptualizing identification, legal status, and political membership.Less

The Marshall Trilogy: Foundational but Not Fully Constitutional?

Frank Pommersheim

in Broken Landscape: Indians, Indian Tribes, and the Constitution

This chapter analyzes the following cases: Johnson v. McIntosh, Cherokee Nation v. Georgia, and Worcester v. Georgia. It examines how they established some of the basic principles of Indian law and ... More

This chapter analyzes the following cases: Johnson v. McIntosh, Cherokee Nation v. Georgia, and Worcester v. Georgia. It examines how they established some of the basic principles of Indian law and their enduring legacy and challenges to the modern application of Indian law. It focuses on the issue of land acquisition and how this affects Indian tribal territory and sovereignty. It also discusses the role of cartography and translation in the possibility of harming and dispossessing indigenous people by comparing the situation of the Indian tribes to Ireland and the Middle East, both lands with indigenous people who were powerfully attached to landscape.Less

Introduction: A New Challenge to Old Assumptions

Frank Pommersheim

in Broken Landscape: Indians, Indian Tribes, and the Constitution

This introductory chapter briefly discusses the interactions between the Native American Indian tribes and the United States of America. It analyzes these encounters through the lens of four primary ... More

This introductory chapter briefly discusses the interactions between the Native American Indian tribes and the United States of America. It analyzes these encounters through the lens of four primary themes: commerce and land acquisition, diplomacy and war, cultural difference, and physical separation. The chapter also looks at how the United States Congress reacted to this increased cooperation by enacting laws to recognize tribal sovereignty, and how it disregarded this through the judiciary by citing landmark cases such as Lone Wolf v. Hitchcock. In addition, this chapter examines the role of past historical events in Indian law and affairs concerning the issue of tribal sovereignty, and looks into how these could help present matters.Less

Early Contact: From Colonial Encounters to the Articles of Confederation

Frank Pommersheim

in Broken Landscape: Indians, Indian Tribes, and the Constitution

This chapter examines the early contact between European settlers and the Native American Indian tribes, and how these encounters played a role in establishing the foundation and early development of ... More

This chapter examines the early contact between European settlers and the Native American Indian tribes, and how these encounters played a role in establishing the foundation and early development of Indian law and sovereignty. It enumerates the general legal and policy rationales that brought the Europeans into North America in the first place: papal edict, first discovery, sustained possession, voluntary self-subjection of native people, and armed conquest. It discusses the role of commerce and trade in colonization. It also compares the idea of ownership between the two communities and how this led to conflict. Additionally, the chapter describes how the Articles of Confederation of the colonies further strained relations with the tribes.Less

Freedom

Tiya Miles

in Ties That Bind: The Story of an Afro-Cherokee Family in Slavery and Freedom

This chapter traces the rebuilding of communities by the Shoeboots and other Cherokee families in the West, and the eventual disruption of the American Civil War that decimated Cherokee towns even ... More

This chapter traces the rebuilding of communities by the Shoeboots and other Cherokee families in the West, and the eventual disruption of the American Civil War that decimated Cherokee towns even while emancipating black slaves among Cherokees. The 1850s are often called the “Golden Age” of Cherokee history. In this period after removal and the political turmoil of its immediate aftermath, Cherokees managed to rebuild shining communities in the West, studded with farms, plantations, schools, salt mines, ferries, and mercantile shops. However, an ideological civil war soon erupted in Cherokee country, between pro-Confederate Cherokees and proneutrality Cherokees, who would soon redefine themselves as pro-Unionists. The Cherokee elite who had adopted slavery to demonstrate their level of civilization lost nearly all in their fight to maintain it. Enslaving people of African descent proved a miserable and ineffectual strategy for protecting tribal sovereignty.Less