Cultural Sovereignty And Their Own Culture And Community Without Having Someone Decide How They Live

Amanda Cobb (2005) defines sovereignty as “a nation’s power to self-govern, to determine its own way of life, and to live that life---to whatever extent possible---free from interference.” If tribal sovereignty falls under Cobb’s definition, Native American tribes in the United States are not completely sovereign, for some aspects of their lives are still under the control of the federal government. Tribal councils are still regarded as having tribal sovereignty, but they are limited by federal funding and authority.

Instead of the government respecting the right of the Indians to maintain their religious places, it invokes its power as the custodian of the public land by claiming that it has the mandate of utilizing any piece of public land for the benefit of the entire

In Chapter 6, Wilkins discusses how the disclaimer clauses. These clauses keep states from exercising authority on Indian land (180). They are an “important but often overlooked tool in the arsenal available to tribes to assert their own sovereignty against state threats” (177). A specific example of a disclaimer clause is Wisconsin’s territorial disclaimer of 1836 which prohibited territories or states from having any authority on Indian land (180). In Native American Church v. Navajo Tribal Council (1959) it was declared that Indian tribes actually have a higher status than states (179). This was a major victory for Indians in their fight for sovereignty. United States v. Rickert (1903) was also a win for sovereignty in that the Court prohibited South Dakota from taxing Indian land (185).After the verdict in Seminole Tribe v. Florida (1996), the balance of power between state and federal government leaned towards the states. Before this, negotiations with tribes had been conducted at the federal level and not with states (187). This was against the idea of sovereignty because now the states had more power over the tribes and could abuse that power for personal gain.

A policy of self-governance would end treaty violation, justly compensate tribes for land, prevent bureaucrats from obstructing the ability of Native Americans to participate in their religion, and prevent the serious cultural loss that may occur if the government continues to use Native American land for self-interested purposes. Arguments that these objectives are unattainable and unfounded do not hold up to analysis. Therefore, to provide a remedy for the ongoing infringement of Native American constitutional rights, Congress should both return non-privately owned land taken in violation of treaties and abolish federal plenary power over tribes, permitting greater self-governance.

In 1823, in the case of Johnson v. M'Instosh, the argument was between two men who both held titles to the same piece of land. M'Intosh's was sold to him by the government while Johnson's was sold to him by the Plankeshaw tribe. Chief Justice Marshall ruled the land did not belong to the tribe in the first place, so they did not have the right to sell it to Johnson. The law stated that the Native Americans did not actually own the land, only the rights to live on it, and that the discovering nation was the only one allowed to sell the land. This law is not only demeaning, but outrageously inconsiderate towards the Native American tribes who should have been given full rights to the land in the first place.

filed with the U.S. Supreme Court an action challenging the authority of Georgia's laws. The Cherokees disputed that the laws desecrated their chief rights as a nation and criminally interfered into their treaty relationship with the United States. In Cherokee Nation v. Georgia (1831), the court held that it did not have the authority to strike down Georgia's laws. In dicta that became particularly important in American Indian law, Chief Justice John Marshall wrote that the Cherokees constituted a "private, dependent nation" that existed under the custody of the United States.

The Market Revolution adversely affected the liberty of Native Americans residing within the United States because they were seen as an obstacle to the country’s economic progress. As the Market Revolution ideas of commerce and expansion took hold in the minds of the people, these white citizens shared the view that Native Americans were hindering the goal of expansion. The citizens believed it was their God-sanctioned right to settle the West (Manifest Destiny) and the Native Americans stood in the way. Conflicts with Native Americans have existed in America since the first settlers, but with the increased emphasis on commerce and development brought by the Market Revolution, the relations worsened. In 1823, during the case of Johnson v M’Intosh, the Supreme Court claimed that Native Americans only had the “right of occupancy” on their land, and that they did not own it. In 1830, under Jackson’s administration, the Indian Removal Act was created which tried to move the 5 Civilized Tribes out of their lands.

     In Georgia, the Cherokee Indians had developed a lifestyle that included schools, mills, and turnpikes. In the 1820's, under pressure from the state to give up their lands, they wrote a constitution, hired lawyers, and sued in the Supreme Court. Chief Justice John Marshall upheld the rights of the Cherokee against Georgia. However, Jackson refused to carry out the decision that ordered Georgia to return Cherokee lands. He is quoted as to have said, "Marshall has made his opinion, now let him enforce it."

In 1831, the Cherokee nation went to court against the state of Georgia. They were disputing the state’s attempt to hold jurisdiction over their territory. Unfortunately, because they are not under the laws of the constitution, the Indian’s right to court was denied. It was not until 1835 that the Cherokee finally agreed to sign the treaty, giving up their Georgia land for that of Oklahoma.

The Market Revolution adversely affected the liberty of Native Americans residing within the United States because they were seen as an obstacle to the country’s economic progress. As the Market Revolution ideas of commerce and expansion took hold in the minds of the people, these white citizens shared the view that Native Americans were hindering the goal of expansion. It was the United State’s God-ordained right to occupy and settle the land westward (Manifest Destiny), and the Native Americans were in the way. The conflicts with Native Americans has existed in America since the first settlers, but with the increased emphasis on commerce and development brought by the Market Revolution, the relations worsened. In 1823, during the case of Johnson v M’Intosh, the Supreme Court claimed that Native Americans only had the “right of occupancy” on their land, and that they did not own it. In 1830, under Jackson’s administration, the Indian Removal Act was created which tried to move the 5 Civilized Tribes out of their lands. Finally, in the Trail of Tears during 1838-1839, 18,000 Cherokee men, women, and children were forcibly removed from their lands and relocated to Oklahoma by federal soldiers. Soon

In the year of 1827 the Cherokee Indians declared themselves a nation by drafting a constitution. “The discovery of gold was made just after the creation and passage of the original Cherokee Constitution” (“A Brief History of the Trail of Tears 1”). Aware that the native Indian land was in danger of being encroached upon by new settlers, the Indians went to the government to create an arrangement to protect their lands. “The Cherokees signed treaties ceding portions of their land to the United States” (Bjornlund 8).

The United States Supreme Court ruled all Native American tribes had full legal rights to internally govern themselves, manage their affairs, as well as to engage in political and legal relationships with the federal government in the 1830s. Currently the United States Constitution Article I, Section 8, guarantees sovereign rights to the 566 federally recognized Indian nations and federal government laws require that the individual states that have Native Tribes living

The first serious attempt by the Court to define the federal government's relationship to Indian nations was Johnson v. Mclntosh in 1823. Chief Justice Marshall developed the theory of Indian subservience to the federal government while keeping the notion of continued Indian autonomy, also reasoning that conquest gave the white man ownership and title to Indian lands. (S 66) This created a relationship that held the Native Americans in a lesser role under the supervision of the federal government. This was a power not to be abused but rather to help regulate the interactions between Native Americans and the United States. The next case challenged the actions of Georgia involving George Corn Tassels, who claimed that the state had no authority over him in the murder trial in Georgia. Usually the Native tribes had some jurisdiction over its own people and their action. They turned to the President and the Supreme Court for protection against the state’s claim of complete control over the Indian tribes. However, Georgia was not going to allow any interference by the

. . regulate commerce with foreign nations and among the several states, and with the Indian tribes.” The Constitution further enumerates these powers denied to the states in Article I section x. The state of Georgia challenged the federal government’s power over states rights, a precursor to the Civil War, when it challenged the trust relationship and the autonomy of the Cherokee. Supreme Court Justice John Marshall in three decisions (Marshall Trilogy) upheld the United States’ federal power, defined the responsibility of the doctrine of federal trust, and clarified the sovereignty of Indian nations: Johnson v McIntosh 1823, Cherokee v Georgia 1831, Worcester v Georgia 1832.

One major reading that contests this idea of sovereignty is the book Mohawk Interruptus by Audra Simpson, which discusses the trials of Native American populations and their efforts to reclaim their own sovereignty. Within Mohawk Interruptus, the people of the Kahnawá:ke tribe struggle against the colonial idea of American or Canadian sovereignty lorded over them, and through refusal of such “gifts” regain their sovereignty. “… Kahnawa’kehró:non had refused the authority of the state at almost every turn and in so doing reinstated a different political authority” (Simpson, 2014, 106). Through these rejections, the people of Kahnawá:ke and Kahnawa’kehró:non established that the current system of sovereignty does not work for them, as it is colonially based to oppress the Native American communities. Simpson uses these examples to make a larger point on the Western systems of governance and understandings of authority. Though this idea of sovereignty, Simpson argues, was a way to appropriate land and incorporate or destroy opposing cultures.