AP Photo/The Guardian
Edward Snowden seeking asylum, and how tribal sovereignty comes into play.

Could Edward Snowden Seek Asylum with an American Indian Tribe?

Rob Capriccioso
7/2/13

 

Edward Snowden, former National Security Agency (NSA) contractor turned privacy activist and leaker of government documents, is currently seeking asylum from several sovereign nations—without much luck so far. Could an American Indian tribe offer assistance if so inclined?

Stranded in Moscow's Sheremetyevo Airport after flying there from Hong Kong on June 23, he’s had his American passport revoked for detailing domestic and international spying techniques of the American government in various news reports. The U.S. government wants him returned to American soil to be arrested as a spy.

To date, Snowden has sought asylum with Ecuador, which was initially open to the idea, but reportedly became less enthusiastic after a call from Vice President Joe Biden over the past weekend.

Russian President Vladimir Putin has said Snowden could stay there, but the condition is that he has to stop publicly spilling American secrets. Snowden has said that’s not an option, so he’s turned in applications for asylum to 20 other countries. Several have already turned him down, but Venezuela and European nations concerned about U.S. spying remain strong possibilities, according to news reports.

So, what about tribal nations? Could one of the Indian sovereign nations (as they have long been referred to by American politicians, U.S. law, Supreme Court decisions and tribal citizens) offer asylum to Snowden?

Sure, one could, Indian legal scholars agree, but Snowden would be arrested as soon as he stepped foot on any such reservation, and the tenuous nature of tribal sovereignty would be highlighted for all the world to see.

“Practical asylum requires assurance that the U.S. can't just snatch you up and spirit you away,” says Robert Warrior, director of American Indian Studies at the University of Illinois. “That said, a robust perspective on sovereignty suggests that asylum is something tribal nations could claim.

“Political theater would no doubt govern things, as it does with Ecuador, Cuba, Russia, and the rest. What would the world think of the U.S. barging into a building in Window Rock to take custody of Snowden?” Warrior asks. “Not that Ben Shelly [Navajo Nation president] would ever buck the system!”

Matthew Fletcher, director of the Indigenous Law & Policy Center at Michigan State University, notes the legal complexities here, saying, “Indian tribes, generally speaking, signed away their powers to external sovereignty in entering a treaty relationship with the United States, which is considered the so-called ‘superior sovereign’ in court cases. So tribes don't retain immunity from suit by the federal government, for example. Moreover, in instances where the ‘overriding interests of the national government’ (to quote the Supreme Court) are in play, tribal sovereignty doesn't do much.”

Fletcher’s hunch is that “rightly or wrongly, the federal government's interest in Snowden is ‘overriding.’”

Complicating matters, says Robert Williams, director of the Indigenous Peoples Law and Policy Program at the University of Arizona, is that “most tribes accept their diminished sovereign status, and wouldn't know what to do or how to protect themselves in a world of sovereign nation states and a country of sovereign state governments.

“The few tribes that do choose to oppose the paradigm have enough bad things happen to them (lawsuits, and an over-bearing [Bureau of Indian Affairs]) that their radicalized leadership soon finds itself displaced by the citizens who had no idea of the costs associated with such a position,” Williams adds.

Why do tribes and the American government officials, Presidents of the United States included, talk so much about tribal sovereignty, if, in practice, it has some big limitations in real-world application?

In response to that question, Williams says he wishes that Indians, at least, would stop using what he calls the “s-word” (sovereignty). “It's a medieval French-Norman term derived from the idea the king can do no wrong and the subject holds his life and property at the will of the king,” he says, calling it “a crazy Euro idea with no connection whatsoever to north American indigenous political and legal theory.

“If you read books like Gong’s The Standard of Civilization in International Society, it's clear that by definition, ‘sovereigns’ were defined by Western international law, up until the 1940s, as those entities whose political and legal structure met a test for ‘civilization’ that was intended specifically to exclude tribal societies,” Williams says. “It's an oxymoron…to link tribes and sovereignty given the historical context of the term. Most important, tribal peoples have no human right to sovereignty—they do have such a right to self-determination.”

In short, Indian legal experts agree, it wouldn’t do Snowden or tribes, for that matter, any good for him to seek tribal asylum. But the situation does open up a whole field of possibilities for talking about sovereignty in the 21st Century.

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