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Article

N. Bruce Duthu

United States law recognizes American Indian tribes as distinct political bodies with powers of self-government. Their status as sovereign entities predates the formation of the United States and they are enumerated in the U.S. Constitution as among the subjects (along with foreign nations and the several states) with whom Congress may engage in formal relations. And yet, despite this long-standing recognition, federal Indian law remains curiously ambivalent, even conflicted, about the legal and political status of Indian tribes within the U.S. constitutional structure. On the one hand, tribes are recognized as sovereign bodies with powers of self-government within their lands. On the other, long-standing precedents of the Supreme Court maintain that Congress possesses plenary power over Indian tribes, with authority to modify or even eliminate their powers of self-government. These two propositions are in tension with one another and are at the root of the challenges faced by political leaders and academics alike in trying to understand and accommodate the tribal rights to self-government. The body of laws that make up the field of federal Indian law include select provisions of the U.S. Constitution (notably the so-called Indian Commerce Clause), treaties between the United States and various Indian tribes, congressional statutes, executive orders, regulations, and a complex and rich body of court decisions dating back to the nation’s formative years. The noted legal scholar Felix Cohen brought much-needed coherence and order to this legal landscape in the 1940s when he led a team of scholars within the Office of the Solicitor in the Department of the Interior to produce a handbook on federal Indian law. The revised edition of Cohen’s Handbook of Federal Indian Law is still regarded as the seminal treatise in the field. Critically, however, this rich body of law only hints at the real story in federal Indian law. The laws themselves serve as historical and moral markers in the ongoing clash between indigenous and nonindigenous societies and cultures still seeking to establish systems of peaceful coexistence in shared territories. It is a story about the limits of legal pluralism and the willingness of a dominant society and nation to acknowledge and honor its promises to the first inhabitants and first sovereigns.

Article

In the years following the US Civil War, the federal government implemented a campaign to assimilate Native peoples into an expanding American nation and a modernizing American society. As policymakers and social reformers understood it, assimilation required a transformation in Native gender roles, and as a result, Native American women were the targets of several assimilationist initiatives. Native women navigated federal interventions strategically, embracing what was useful, accommodating what was necessary, and discarding what was not. As mothers, grandmothers, and healers, women provided stability for families and communities enduring disruption and coerced change. In the 20th century, Native women embraced new economic and political roles even as they adapted long-standing customs. Many began working for wages; although often confined to menial labor such as domestic service in other women’s homes, growing numbers of Native women also pursued white-collar occupations in the Bureau of Indian Affairs and later in tribal governments. As tribal governance evolved over the course of the century, some women obtained positions on tribal councils and tribal courts. Native women have also made intellectual contributions—as tribal members and ultimately as American citizens—to modern understandings of democracy, citizenship, sovereignty, and feminism. Since the late 20th century, Native women have been at the forefront of movements to revitalize Indigenous languages and cultures.

Article

Laurie Arnold

Indian gaming, also called Native American casino gaming or tribal gaming, is tribal government gaming. It is government gaming built on sovereignty and consequently is a corollary to state gambling such as lotteries rather than a corollary to corporate gaming. While the types of games offered in casinos might differ in format from ancestral indigenous games, gaming itself is a cultural tradition in many tribes, including those who operate casino gambling. Native American casino gaming is a $33.7 billion industry operated by nearly 250 distinct tribes in twenty-nine states in the United States. The Indian Gaming Regulatory Act (IGRA) of 1988 provides the framework for tribal gaming and the most important case law in Indian gaming remains Seminole Tribe of Florida v. Butterworth, in the US Fifth Circuit Court of Appeals, and the US Supreme Court decision over California v. Cabazon Band of Mission Indians.

Article

American Indian activism after 1945 was as much a part of the larger, global decolonization movement rooted in centuries of imperialism as it was a direct response to the ethos of civic nationalism and integration that had gained momentum in the United States following World War II. This ethos manifested itself in the disastrous federal policies of termination and relocation, which sought to end federal services to recognized Indian tribes and encourage Native people to leave reservations for cities. In response, tribal leaders from throughout Indian Country formed the National Congress of American Indians (NCAI) in 1944 to litigate and lobby for the collective well-being of Native peoples. The NCAI was the first intertribal organization to embrace the concepts of sovereignty, treaty rights, and cultural preservation—principles that continue to guide Native activists today. As American Indian activism grew increasingly militant in the late 1960s and 1970s, civil disobedience, demonstrations, and takeovers became the preferred tactics of “Red Power” organizations such as the National Indian Youth Council (NIYC), the Indians of All Tribes, and the American Indian Movement (AIM). At the same time, others established more focused efforts that employed less confrontational methods. For example, the Native American Rights Fund (NARF) served as a legal apparatus that represented Native nations, using the courts to protect treaty rights and expand sovereignty; the Council of Energy Resource Tribes (CERT) sought to secure greater returns on the mineral wealth found on tribal lands; and the American Indian Higher Education Consortium (AIHEC) brought Native educators together to work for greater self-determination and culturally rooted curricula in Indian schools. While the more militant of these organizations and efforts have withered, those that have exploited established channels have grown and flourished. Such efforts will no doubt continue into the unforeseeable future so long as the state of Native nations remains uncertain.

Article

From its inception as a nation in 1789, the United States has engaged in an environmental diplomacy that has included attempts to gain control of resources, as well as formal diplomatic efforts to regulate the use of resources shared with other nations and peoples. American environmental diplomacy has sought to gain control of natural resources, to conserve those resources for the future, and to protect environmental amenities from destruction. As an acquirer of natural resources, the United States has focused on arable land as well as on ocean fisheries, although around 1900, the focus on ocean fisheries turned into a desire to conserve marine resources from unregulated harvesting. The main 20th-century U.S. goal was to extend beyond its borders its Progressive-era desire to utilize resources efficiently, meaning the greatest good for the greatest number for the longest time. For most of the 20th century, the United States was the leader in promoting global environmental protection through the best science, especially emphasizing wildlife. Near the end of the century, U.S. government science policy was increasingly out of step with global environmental thinking, and the United States often found itself on the outside. Most notably, the attempts to address climate change moved ahead with almost every country in the world except the United States. While a few monographs focus squarely on environmental diplomacy, it is safe to say that historians have not come close to tapping the potential of the intersection of the environmental and diplomatic history of the United States.

Article

Alison L. LaCroix

Federalism refers to the constitutional and political structure of the United States of America, according to which political power is divided among multiple levels of government: the national level of government (also referred to as the “federal” or “general” government) and that of the states. It is a multilayered system of government that reserves some powers to component entities while also establishing an overarching level of government with a specified domain of authority. The structures of federalism are set forth in the Constitution of the United States, although some related ideas and practices predated the founding period and others have developed since. The balance between federal and state power has shifted throughout U.S. history, with assertions of broad national power meeting challenges from supporters of states’ rights and state sovereignty. Federalism is a fundamental value of the American political system, and it has been a controversial political and legal question since the founding period.

Article

Euro-Americans existed firmly on the periphery of an Indigenous North America in 1763, hubristic claims of continental sovereignty notwithstanding. Nowhere is this reality more clear than in the Ohio Valley and Illinois Country. Try as it might, the post-1763 British Empire could not assume jurisdictional control over this space. Even to begin to try was a task requiring significant investment—both in terms of more systematic Indigenous diplomacy and in terms of reforming colonial political structures unfit to accommodate imperial western policy. North American officials understood the problems quite well and were willing to spearhead reform. Between 1763 and 1775 they supported increased investment to defray North American expenses. They called for programs that would end colonial corruption, something they feared undermined Indigenous diplomacy and made a mockery of the rule of law. Ultimately, they concluded that centralizing Indian affairs offered the best means by which to stabilize North America. Colonials (generally) and speculators and their surveyor corps (specifically) powerfully disagreed, however, seeing Indian country as an untapped resource and imperial restraints as threats to local autonomy. They rejected the idea of centralizing power over Indigenous affairs and used the rhetoric of British constitutional liberty to reframe corrupt behavior into something it emphatically was not.

Article

The United States has engaged with Indigenous nations on a government-to-government basis via federal treaties representing substantial international commitments since the origins of the republic. The first treaties sent to the Senate for ratification under the Constitution of 1789 were treaties with Indigenous nations. Treaties with Indigenous nations provided the means by which approximately one billion acres of land entered the national domain of the United States prior to 1900, at an average price of seventy-five cents per acre – the United States confiscated or claimed another billion acres of Indigenous land without compensation. Despite subsequent efforts of American federal authorities to alter these arrangements, the weight of evidence indicates that the relationship remains primarily one of a nation-to-nation association. Integration of the history of federal relations with Indigenous nations with American foreign relations history sheds important new light on the fundamental linkages between these seemingly distinct state practices from the beginnings of the American republic.

Article

C. Joseph Genetin-Pilawa

As the Civil War ended and U.S. leaders sought ways to reconstruct a devastated nation, many turned to westward expansion as a mechanism to give northerners and southerners a shared goal. Simultaneously, though, the abolitionists and activists who had fought long and hard for an end to slavery saw this moment as one for a new racial politics in the postwar nation, and their ideas extended to include Native communities as well. These two competing agendas came together in a series of debates and contestations in the late 19th century to shape the way the federal government developed policies related to Native landholding and assimilation. Far from a unified and direct movement across the 19th century, from removal to reservations to land allotment, Indian policy after the Civil War was characterized by intense battles over tribal sovereignty, the assimilation goals, citizenship, landholding and land use, and state development. During this era, the Office of Indian Affairs (OIA) became a meeting ground where policymakers and reformers debated the relationship between the federal government and its citizens and wards.