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Letter: Federal Indian law is a myth

Peter d’Errico, a professor emeritus of legal studies for the University of Massachusetts Amherst, writes, "March 10, 2023, will be the 200th anniversary of the U.S. Supreme Court decision that started the watered-down idea of 'tribal sovereignty' as the basis for a U.S. claim of domination over Indigenous nations. Johnson v. McIntosh, an 1823 property law decision written by Chief Justice John Marshall, said the United States owns Indigenous lands 'discovered' by Christian colonizers!"

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In response to “ Has tribal sovereignty become a myth ?” by Lloyd Omdahl:

When Lloyd Omdahl referred to “tribal sovereignty” as “an idea that is over 200 years old,” he was talking about a U.S. legal concept, not the status of Indigenous nations based on their existence in these lands for millennia. The concept of “tribal sovereignty” is a denial of the free existence of Indigenous nations.

March 10, 2023, will be the 200th anniversary of the U.S. Supreme Court decision that started the watered-down idea of “tribal sovereignty” as the basis for a U.S. claim of domination over Indigenous nations. Johnson v. McIntosh, an 1823 property law decision written by Chief Justice John Marshall, said the United States owns Indigenous lands “discovered” by Christian colonizers! Since the U.S. claims ownership of Indigenous lands, the court added, it has a right of “ultimate dominion” over Indigenous peoples living in these lands. It said Indigenous nations had only a kind of “occupancy,” not ownership. That “occupancy” was the basis for the very limited concept of “tribal sovereignty,” which was supposedly under U.S. “guardianship.”

The “discovery” doctrine is still alive in what I call federal anti-Indian law. For example, in 2005, Justice Ruth Bader Ginsburg’s opinion in City of Sherrill v. Oneida Nation denied Oneida land rights, saying, “Under the ‘doctrine of discovery,’ . . . fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States.”

The crucial difference between free Indigenous existence and the watered-down idea of “tribal sovereignty” is that the latter says Indigenous nations do not own their lands. You can see why I titled my recent book Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples .

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Prof. Omdahl didn’t look at the legal mess of land title, but he did point to another way that U.S. law has trapped Indigenous nations—the 1924 “Indian Citizenship Act.” As he puts it, that act “struck the death knell for tribal sovereignty. By accepting citizenship in another sovereignty, Native Americans have become involved in the affairs of another nation.” This is a fair characterization, though it runs counter to the popular notion that Native participation in American elections is a good thing, an affirmation of Indigenous civil rights.

The Indian Citizenship Act was part and parcel of the overall U.S. program to assimilate Indigenous people as individuals into American society, paving the way for the termination of Indigenous peoples as separate nations. Citizenship followed the blueprint laid down by Richard Henry Pratt’s infamous boarding school motto: “Kill the Indian and save the man.” In the same speech where he made that remark in 1892, he lamented the lack of progress in “citizenizing and absorbing them” into American society.

Many Indigenous leaders understood this. The Onondaga Nation to this day maintains the stance it took in a letter to President Calvin Coolidge in December 1924, calling the Act “a destructive and an injurious weapon” that attacked the 1794 Treaty between the United States and the Six Nations.

The Onondaga view has been drowned out by campaigns for “Native American Voting Rights,” such as those run by organizations including Native American Rights Fund, Four Directions, and the National Congress of American Indians. NCAI President Jefferson Keel's 10th annual State of Indian Nations address in 2012, entitled “Our America,” is a clear example. It opened with thanks to “Native service members serving today to protect the sovereignty of the United States and the tribal nations of North America” and called for “the highest Native turnout ever” in the upcoming U.S. elections. The deep paradox of all this was missed. But that doesn’t mean the paradox doesn’t exist.

The paradox is coming to a head in the Indian Child Welfare Act case now in the Supreme Court. Suspicions are that the court will decide somehow to limit ICWA. The court could do this retail, so to speak, by limiting the effect of ICWA on state courts and agencies; but the greatest fear is that the court will do this wholesale, by deciding the time has come to upend the notion of “tribal sovereignty” altogether. It could do this by deciding that “Indian” is not a “political” category that allows Congress to “guard” their interests, as through ICWA, but rather a “racial” category that is prohibited by the US Constitution. That would be the final triumph of a process set in motion by the court in 1823.

What Omdahl says is that the civil rights theory of “Indian voting rights” is short-circuiting “tribal sovereignty.” But in the final analysis, Indigenous rights are completely different from civil rights and the limited concept of “tribal sovereignty.” Indigenous rights arise from the original free existence of Indigenous nations, here long before the US was even dreamed of.

Peter d’Errico is a 1961 graduate of Fargo Central High School and professor emeritus of legal studies for the University of Massachusetts Amherst.

This letter does not necessarily reflect the opinion of The Forum's editorial board nor Forum ownership.

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