What is Native American sovereignty?
Most Americans do not realize that what defines Native Americans is not race, but the concept of sovereignty. This should not come as a surprise considering a survey conducted in 2018 found that an unbelievable 40% of Americans believe that Native Americans no longer exist.¹ This in turn gives rise to the biggest issue facing all Native Americans in the United States today: invisibility in society.²
Because Native Americans are invisible to American society and are not part of the public consciousness, the manner in which contemporary Americans perceive Native Americans is driven solely by the past. The resultant effect is to reduce Native Americans to little more than lifeless representations only found at the very beginning of the long arc of American history. The problem is further compounded by the fact that Native American history is compartmentalized and segregated from American history in schools. Americans today are wholly ignorant of any realistic historical narrative pertaining to Native Americans due to curriculum erasure in public schools. According to a survey conducted in 2019 by the Woodrow Wilson Institute, only 40 percent of Americans display a basic understanding of American history.³ Considering nearly half of Americans think Native Americans are extinct and just as many lack even the most rudimentary understanding of American history, it is easy to see the inevitable end result: contemporary Americans fail to perceive Native Americans as anything other than a historical people forever locked in the remote past.
As a result, American students learn some of the most damaging misconceptions and biases toward Native Americans in secondary schools (K-12) across the country. In fact, according to a 2014 study on academic standards, 87 percent of history books in the United States portray Native Americans as a population existing before the 20th century.⁴
This raises the question as to how historical Native Americans are portrayed in America today. The answer is sobering: Native Americans of the past are seen as an uneducated tribal people who were scattered about an otherwise vast continent of pristine wilderness until white people came from Europe to civilize an empty continent. Consequently, what defines Native Americans to Americans today according to stereotype is the concept of race. This misconception contributes to the erasure of Native American identity because Native Americans in the United States are defined by sovereignty, not race. Before Europeans landed in the Americas, race was a foreign concept to Native Americans. Instead, Native Americans defined themselves by their own nationality in the exact same way as the men aboard Christopher Columbus' ships were defined as being from Spain. These nations had their own laws, customs, cultures, and territories.
Sovereignty is defined as the authority of a state to govern itself or another state. When the Europeans decided that they wanted to colonize the Americas, they did not simply remove or conquer all the Native Americans, they viewed them as nations under international law. This explains the treaties. Under principles of international law, treaties are formal agreements that can only be made by two or more sovereign nations. A nation cannot enter into a treaty with a race of people or individuals. That would be nothing more than a mere contract executed outside the scope of international law. Therefore, the reason why Native Americans are the only "race" in the United States that has a government to government treaty relationship with the federal government is because Native Americans — like all nations — are defined by the concept of sovereignty, not the concept of race.
For all nations, the concept of sovereignty means the ability to manage their own internal affairs and control their own destiny however they see fit. This was true of Native American nations before the first European ever set foot in the Americas and still holds true today. Unfortunately, Native American nations were severely weakened due to centuries of European colonization and the atrocities that accompanied it. By the time the United States achieved independence from Great Britain, individual Native American nations lacked the ability to resist the United States on their own. Various efforts were made by strong political and military leaders like Tecumseh to create a confederacy of Native American nations to oppose further territorial expansion of the United States, but the effort failed at the end of the War of 1812 when they lost European allies to help them counter American influence in North America.
When conceptualizing sovereignty, the non-Indian should consider that everything in American history originates from land, for without land, there is no nation. How did the United States acquire its land? From European nations? From the Louisiana Purchase? No. European nations merely transferred a land claim to the United States under the racist and medieval Doctrine of Discovery. Instead, the United States acquired all of its land from Native American nations over the course of the first century or so of its existence by way of treaties. Due to the unequal bargaining power between individual Native American nations and the United States, these treaties were one-sided and required vast cessions of territory along with an acknowledgment of American supremacy over internal Native American affairs. Ultimately, the United States entered into more than 500 treaties with nearly as many sovereign Native American nations to acquire its territory.
Today, the American government still recognizes that Native Americans are defined by sovereignty and nationhood, but has taken it upon itself to limit the definition of tribal sovereignty to an arbitrary definition of “domestic dependent nations” that exist within the borders of the United States. The federal government currently recognizes 573 Native American nations. These nations still fight to regain the complete sovereignty over their internal affairs they enjoyed prior to entering into United States treaties.
One of the most important contemporary examples of the relevance of tribal sovereignty is in the case of Carpenter v. Murphy currently pending before the Supreme Court. In Carpenter, the Supreme Court justices will determine whether an 1866 treaty between the United States and the Muscogee Creek Nation pertaining to land in the former Indian Territory of eastern Oklahoma constitutes an “Indian reservation” today under federal law. The case has the potential to revolutionize Native American sovereignty going forward. Depending on how the Supreme Court rules, jurisdiction over a significant portion of Oklahoma may be restored to the Creek Nation over lands they were dispossessed of well over a century ago.
The Carpenter case is one of the most important Supreme Court cases on tribal sovereignty in the 21st century and I have spoken on the importance of affirming tribal sovereignty in the media as a favorable ruling for the Creek Nation would be revolutionary to all 573 Native American nations in their fight for the restoration of sovereignty and lands.⁵
"Brett Chapman, a criminal defense attorney and member of the Pawnee Nation argues this case affirms the tribe’s sovereignty. 'What I've got to say to is America has to honor our treaty promises I mean that's what this goes back to. It's unfortunate that this may create an inconvenience for oil and gas companies and local law enforcement, but at the end of the day, Andrew Jackson in 1832 when they come over here they signed a treaty to have this land as long as the grass grows and it's still growing,' said Chapman"
The Supreme Court will hear arguments in the case in the upcoming October 2019 term. A decision is expected to be handed down at the end of the term.
"Survey: 40 Percent Of People Didn't Think Native Americans Still Exist," Kristen Inbody, Bismarck Tribune (Aug. 10, 2018)
"Invisibility is the Modern Form of Racism Against Native Americans," Rebecca Nagle, Teen Vogue (Oct. 23, 2018)
"Who did we fight in the Cold War again? New Yorkers flunk history survey," Gary Stern, Rockland/Westchester Journal News (Feb. 18, 2019)
"Schools Teach Children That Native Americans Are History," Lisa Wade, Pacific Standard Magazine (Dec. 3, 2014)
"SCOTUS will hear Oklahoma case Tuesday," KJRH-TV, (Nov. 26, 2018)