The Long Road to 'Free and Independent' for Indian Nations

Steve Russell

Because traditional Cherokee people taught me a profound insight that I’ve claimed for my own, “the spirit world takes care of its own business,” I understand arguments about religion to be for amusement only. I still like to win, and any advocate knows that anger is the enemy of clear thought.

So I come out of the chute describing what theologians call “the Abrahamic faiths” (Judaism, Christianity, Islam) as “monotheistic, patriarchal desert cults.” This serves nicely to place the burden of proof where it belongs, on anybody who maintains that the rich mythos of Mesopotamia and Northern Africa has anything to do with peoples who already own their rich indigenous mythos.

When they finish sputtering, my first question is “Which part of my definition do you dispute?”

So it is in the realm of politics with “domestic, dependent nations,” but we are the ones sputtering.

I have written both in my book and in these pages about the extra-constitutional nature of this supposedly constitutional definition of the status of American Indians in US law. It’s not in the Constitution. John Marshall made it up.

John Marshall was nobody’s fool, so which part of his definition do we dispute? In the beginning, all three parts.

The original 13 colonies each made land claims that could only be described as fantastical, and none today exists in their originally imagined borders. The occupants to the west were Indians, and who was “domestic” compared to whom was a fair argument.

At the edges of colonial settlements, we were interdependent. Indians never took up gunsmithing or large scale smelting or making textiles by machine, but we considered firearms and metal and cloth as necessary then as we consider the Internet now. We usually had plenty to trade with the colonists.

“Nations” were units of social organization that most historians date from the Peace of Westphalia in 1648, which ratified the division of the Holy Roman Empire among European warlords. The colonization of the Americas was already under way in 1648, but by the time Marshall wrote about us 150 years later, nations were as dominant as transnational corporations are today.

From Marshall’s point of view, we needed to be domestic so we could not pursue an independent foreign policy, playing the US, Canada, England, Spain, France, and Russia against each other. We did it anyway, of course.

We had to be nations to sign the treaties that provided the legal fig leaf for acquisition of our property.

Dependent was the keystone concept that enforced all the rest, and so it remains. We were made dependent on purpose. It makes me grind my teeth when I hear our political enemies hold forth about the squalor on some reservations or the casino riches on others. Who forced us to live in squalor? Who gambles in Indian casinos?

In modern times, North America is the story of two behemoths, the US and Canada. Mexico gets considered part of Latin America, a triumph of culture over geography that, if carried to its logical conclusion, would split off much of the southwestern US. Indian nations are physically located within these behemoths, making us “domestic” from the point of view of colonists who no longer remember colonization.

“Nations” are a kind of cosmic joke of the 21st century, as transnational corporations have slipped their national moorings to thumb their noses at political control. The US, which recognizes “sovereignty” in the several states, is in a particularly strange place, with the principles of “federalism” splitting authority between state and federal governments. These principles provide a ready mooring for a robust understanding of Indian sovereignty if we could ever break loose from the web woven by John Marshall.

The fly in the ointment remains “dependent.” No entity can ever assert sovereignty from a condition of dependence. Anybody who has raised a teenager knows the feelings that arise in the people who pay the bills when told they don’t get to call the shots.

My ICTMN colleagues are fond of “free and independent” as a description of the once and future status of Indian nations. Indian individuals were certainly freer than the colonists, and our governments were also more independent until taught to want things they could not produce.

In modern times, Indians living under Indian governments are wont to compare their degree of “freedom” to colonial aspirations set out in the Bill of Rights and find freedom elusive. “Independent” has little meaning for nation-states in the age of globalization. A fortiori, there’s little independent about the state of Texas in Gov. Rick Perry’s secessionist fantasies or the recent referendum in Colorado over seceding not from the US, but from Colorado. Do they really intend to give up the Broncos?

Seriously, our political future is at functional fork in the road, and neither fork leads to a restoration of mythical American Indian kings who could sit beside European kings as political power personified, sovereigns.

In one direction, we have a legal status roughly comparable to labor unions, less powerful than corporations in that “members”—not “citizens”---have legal rights enforceable against tribal government and guaranteed by the colonial powers.

In the other direction, we have a governmental role in a federal system that we define for ourselves by direct action because John Marshall’s made up structure no longer fits the realities on the ground. The first step to shaping our own realities on the ground is putting an end to imposed dependence. Some tribal governments are better fixed than others to accomplish as much self-sufficiency as states, but those that fail are destined for the path of glorified social clubs.

As long as we remain dependent in fact, discussions of sovereignty are for amusement only.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.