The background readings this week clarified a lot of confusion I had about the relationship between Indian tribes and the federal government.
Territorial sovereignty: Wilkins illustrates that Indian Country has always been a spatial concept but not necessarily tied to physical boundaries. In the past, it was an imagined West beyond the Mississippi where Indians could be relocated (Wilkins, 64). Now we consider it to mean tribes’ “sphere of influence,” an important but not physical distinction.
Termination is also spatial in nature, as it contributed to the urbanization of Indians more than any other period (Wilkins, 40).
Wilkins also clarified the relation between tribes and various different government branches. He identified the overarching trends of tribes being subject to changing definitions of federalism (how much state vs. federal power they deal with); the constitution that constantly excludes/works against tribes; and the tension between the trust obligation and tribal self-determination.
Unlike some of our past readings, Wilkins argued that tribes dealt much more with (and had been hurt more by) Congress than the Supreme Court. This is illustrated by the lack of a standing or select committee for so long, and the fact that such a small committee determines everything to do with tribes.
Wilkins faulted the Court for deferring to Congress when the Court is supposedly tasked with determining the constitutionality of Congress’s actions. While the Court has given important rulings such as the inherent sovereignty of tribes not derived from the U.S. and the validity of Indian treaties, it has also created the doctrine of discovery, the plenary doctrine, the idea of Indians as “wards,” and the political question (Wilkins, 98).
The analysis of the president as the “moral focus” of Indian policy is interesting (see the difference in policies enacted under Andrew Jackson vs. Bill Clinton). It is thus ironic that the Dept. of the Interior, theoretically an arm of the president, has so many internal struggles, where Indian interests are held at odds with other interests in the DoI. The Executive is also subject to the Court’s decisions and to Congress’s budget.
The reading in Pevar further complicated the picture of tribes’s relationships with the government by introducing the question of sovereign immunity.
The complexity of these tribe-government relations illuminated why we see such contradictory decisions today. It sheds light on the ruling in Lone Wolf and its successors as outlined in Leeds’s article. In this case:
- An individual Indian (Principal Chief Lone Wolf of the Kiowa Nation), with other tribal officials, served as a plaintiff
- The tension between arms of the federal government are on display: Congress violated a treaty and the tribe’s inherent sovereignty, and rather than addressing the constitutionality or validity of its act, the Court deferred to Congress, presuming that it acted in good faith.
- The Court used plenary power as a justification.
- This case is another example of the Court using bad precedent as justification for its ruling, supporting the use of plenary power because it “has been exercised by Congress from the beginning” (Leeds, 77). Illegal actions are used as justification for the ruling at hand.
- Along that same vein, the Court chooses its precedent selectively: “the Court manipulates its recent precedents to reach its results while ignoring precedents that support tribal authority” (Leeds, 82).
Importantly, this article also questioned the idea that justices and the Court are bound by the prevailing attitudes of the time. Even after the Termination Era, during the era of self-determination, the Court continued(s) “not only to rely on precedent from the Lone Wolf era, but also to perpetuate racist rationales by employing new versions of racial justifications” (79). Decisions as late as Tee-Hi-Ton relied on the doctrine of discovery, and Oliphant relied on paternalistic and ethnocentric notions of tribal inferiority (81), which were used even before Lone Wolf.
Finally, I think the contradictions and injustices presented by the U.S. government’s bureaucracy and historical precedent constitute a form of slow violence. “Slow violence, defined as an understated violence with delayed repercussions,” is usually used in the context of environmental justice. While that definition is definitely applicable here, I think it can be used to describe the blows to tribal sovereignty today in the broadest sense. We don’t see the immediate violence of genocide or the termination era today, but even those images aren’t very present in the American psyche (Leeds, 85-86). Because tribe-government relations aren’t dramatized, spectacle-ized, or highly publicized, they receive less attention as inherently violent acts.