On October 23, 2018, UNM School of Law’s chapter of The Federalist Society hosted Dr. Rossum of Claremont McKenna College to debate with our own Professor Wolfley on the topic of tribal sovereignty. Because this event was advertised as a “debate”, the students that planned to attend all anticipated heated, passionate discourse between the experts. So, when the result of this “debate” ended up being an amicable, constructive discussion, the students and staff in attendance were all pleasantly surprised at the geniality of the two debaters.
Dr. Ralph Rossum is a professor of American Constitutionalism at Claremont McKenna college. He earned his M.A. and Ph.D. from the University of Chicago and is best known for his work as a “Scalia Scholar.” He has co-authored 12 textbooks relating to American constitutional law and Justice Antonin Scalia. He identifies as an “originalist” in regard to Constitutional interpretation. Constitutional originalism is based on the belief that the U.S. Constitution should be interpreted in a way that is consistent with what was meant by the original Framers of the Constitution. Those who are originalists believe that the text of the Constitution is meant to unite the peoples of the country and that we are all one nation, one people.
Professor Jeanette Wolfley of UNM School of Law teaches federal Indian Law, Indian water rights, federal jurisdiction, and Tribal natural resources. Before coming to teach at UNM, she represented Tribal clients and served as General and Special Counsel for the Shoshone-Bannock Tribes from 1988 to 1996. Within her academic career, she focuses on Indian voting rights and natural and cultural resource protection. She explains to us that tribal sovereignty is a result of the peace treaties entered into between the U.S. government and Indian Country; the U.S. government will provide for the tribes in the ways dictated by the treaties, while recognizing that tribes function under their own government.
Dr. Rossum brings up a ward/caretaker analogy to describe the relationship between the U.S. Federal Government and Indian nation. In doing so, he states that a caretaker is obligated to do what is in the ward’s best interest. The Indian nation is dependent on the United States in a number of ways, and it is the responsibility of the U.S. government to provide for and protect Indian nation as required by treaties made between the two nations. Dr. Rossum also states that the key element to tribal sovereignty and a nation’s self-determination is its ability to administer both criminal and civil justice to its citizens. Furthermore, Dr. Rossum admits that this power has been diminished within Indian country.
When it was Professor Wolfley’s turn to take the podium, she agrees with Dr. Rossum, and more importantly, adds that the main issue tribes face in administering justice to its people in the actors in the cases. Oftentimes, when administering justice is problematic, it is because the case is between the tribal government and a non-Indian. Most importantly, Professor Wolfley strategically uses Dr. Rossum’s ward/caretaker analogy to argue that it is the responsibility of the U.S. government to help in these cases to bring non-Indian actors to justice within Indian court.
The debate did not give concrete solutions to this complex problem of Tribal governments being able to effectively administer justice within their own justice system. However, it was encouraging to see that there are people, like Dr. Rossum, that hold originalist beliefs, but also recognize this issue that Indian country faces. Tribal sovereignty has been established by treaties, and any argument that seeks to diminish the tribal nation’s authority to govern themselves is in opposition to treaties that the United States has entered into. To me, it seems counterintuitive to identify as an originalist when it comes to constitutional interpretation and be opposed to the notion of tribal sovereignty. Article II, § 2 of the Constitution gives the President to make treaties with independent nations, provided that two-thirds of the Senate agrees. The Supremacy Clause of the Constitutions establishes such treaties as the “supreme law of the land.” With this understanding of Constitutional law, it would seem that denying tribes sovereignty is in complete opposition of what it means to truly be an originalist.
At this point in our history, the U.S. government’s stance on tribal sovereignty has been less than consistent. Justice Thomas Clarence, writing separately, but concurring in the case of U.S. v. Lara states, “In my view, the tribes either are or are not separate sovereigns, and our federal Indian law cases untenably hold both positions simultaneously.” 541 U.S. 193, at 215 (2004). It seems that the U.S. government picks and chooses when it wants to recognize tribal sovereignty, depending on how the situation will benefit the U.S. However, in order for tribal sovereignty to be fully respected and recognized, uniformity in how tribal government applies this authority and how the U.S. recognizes this authority must be firmly established.
The inconsistency in how the U.S. government recognizes tribal sovereignty is an issue that must be addressed immediately. Not only does the U.S. Constitution recognize tribes as independent nations, the United Nations Declaration on the Rights of Indigenous People further establishes that tribal nations have the inherent authority to govern themselves. Article 8 of the UN Declaration on the Rights of Indigenous People is as follows:
- Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.
- States shall provide effective mechanisms for prevention of, and redress for:
(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.
By demanding that tribes assimilate into one nation with the United States in order to people united as one people violates this right established by the UN. It seems clear that both national and international authorities have spoken on the matter of tribal sovereignty, and that it is time the United States government come into compliance.
This blog was written by Sammi Kao.