Inherent Rights at Stake

Mike Myers

Anyone watching the American Supreme Court knew something was up because it was taking them so long to render a decision in the Dollar General v. Mississippi Band of Choctaw case. So it wasn’t too surprising that they deadlocked in a 4-4 split on the issues.

Regardless, this is the fourth Supreme Court decision in favor of Indigenous nations and governments and two of them were unanimous. Each has addressed some aspect of retained inherent rights.

Over the years I’ve come to understand that there is a huge difference between inherent rights and interests as opposed to what is often wrongly defined as “treaty rights”. Treaties create obligations and conditions between the parties through which there is an agreement that a new relationship now exists until something happens to change that relationship.

Treaties could impact inherent rights but only if the parties clearly decide to do this. What most commonly happens in treaty negotiations is that the parties create some sort of joint mechanism, process or protocol by which they will jointly exercise or put their inherent rights on hold. In any event, whatever is negotiated is not perpetual nor does it spell the end of these rights.

We have always known that we possess these rights. Often times they’re referred to as “god or creator given” and definitely something that has existed since “time immemorial”. This concept is expressed in the “Declaration of the Onyota’ a:ka Lotianeshu Concerning Our Ancestral Lands and Inherent Rights”:

From those early times we have always made it clear that we know that it was the intent of the Creation that all peoples were created in their ancestral places for the specific purpose of being the caretakers and custodians of those places. Through that deliberate placement of our nations and peoples on this part of Turtle Island we were conferred a never ending responsibility that in English we could equate to ‘sovereignty’”.

This is clearly not about laws or legalities because these rights are rooted in the spirituality, the fundamental beliefs a people have about their existence and why the Creation caused them to come into existence.

Dollar General and their allies tried to rely on the racist Oliphant Decision to argue that an Indigenous government or court cannot have jurisdiction over them. In watching the case evolve I was particularly interest in the amicus brief submitted by the Association of American Railroads (AAR) in support of Dollar General.

In declaring their interest in the case they stated: “The Association of American Railroads (AAR) is a non-profit national trade association whose members include America’s major railroads. AAR appears as amicus curiae because its members have a vital interest in ensuring that their property interests and activities within Indian reservations and across tribal lands are subject to clear and predictable rules governing tribal civil adjudicatory jurisdiction over nonmembers.” By trying to position themselves as “nonmembers” they are trying to tie themselves to Oliphant.

In 1978, Oliphant asserted the following:

(a) From the earliest treaties with Indian tribes, it was assumed that the tribes, few of which maintained any semblance of a formal court system, did not have such jurisdiction absent a congressional statute or treaty provision to that effect, and at least one court held that such jurisdiction did not exist.

(b) Congress' actions during the 19th century reflected that body's belief that Indian tribes do not have inherent criminal jurisdiction over non-Indians.

(c) The presumption, commonly shared by Congress, the Executive Branch, and lower federal courts, that tribal courts have no power to try non-Indians, carries considerable weight.

(d) By submitting to the overriding sovereignty of the United States, Indian tribes necessarily yield the power to try non-Indians except in a manner acceptable to Congress, a fact which seems to be recognized by the Treaty of Point Elliott, signed by the Suquamish Indian Tribe.

For the past 38 years an Indigenous nation’s inherent right to assert criminal jurisdiction over non-citizens has been thwarted by these racist and settler centric assertions. In delivering the court’s decision Justice Rehnquist made the following remarks:

Respondents do not contend that their exercise of criminal jurisdiction over non-Indians stems from affirmative congressional authorization or treaty provision. Instead, respondents [435 U.S. 191, 196] urge that such jurisdiction flows automatically from the "Tribe's retained inherent powers of government…”

The Suquamish Indian Tribe does not stand alone today in its assumption of criminal jurisdiction over non-Indians. Of the 127 reservation court systems that currently exercise criminal jurisdiction in the United States, 33 purport to extend that jurisdiction to non-Indians. Twelve other Indian tribes have enacted ordinances that would permit the assumption of criminal jurisdiction over non-Indians. Like the Suquamish these tribes claim authority to try non-Indians not on the basis of congressional statute or treaty provision but by reason of their retained national sovereignty.”

If we were indeed in an international relationship with the U.S. the assertion of “retained national sovereignty” is absolutely correct. Rehnquist continues by stating:

“The effort by Indian tribal courts to exercise criminal [435 U.S. 191, 197] jurisdiction over non-Indians, however, is a relatively new phenomenon. And where the effort has been made in the past, it has been held that the jurisdiction did not exist.

This is a statement completely devoid of any attempt to see and understand Indigenous nations and their institutions. As with any nation in the world, criminal and civil jurisdiction is inherent, it’s a given and it certainly does not need permission by any other nation to be exercised in whatever form it takes.

One source of the fundamental racism of American courts on the issue of Indigenous governments and their institutions having inherent jurisdictions arises in 1878, as Rehnquist noted: “In Ex parte Kenyon, 14 F. Cas. 353 (No. 7,720) [435 U.S. 191, 200] (WD Ark. 1878), Judge Isaac C. Parker, who as District Court Judge for the Western District of Arkansas was constantly exposed to the legal relationships between Indians and non-Indians, held that to give an Indian tribal court "jurisdiction of the person of an offender, such offender must be an Indian." 

You read this and you can’t help but ask – how in the hell did he come up with conclusion? And the answer is “just cuz, just cuz you’re Indians” – as we’ve heard for so many centuries.

AAR is scared to death of being brought before an Indigenous court. Of particular note are the following statements made in their brief:

“..some AAR member railroads operate on longstanding rights-of-way that cross Indian reserva- tions or tribal lands, and some lines also traverse areas located off reservations or tribal lands, but within areas over which tribal nations or groups may assert civil jurisdiction.

Railroads have a particular need to voice their concerns about the decisions below…Many railroads operate on rights-of-way through tribal lands, many of which are over a century old, and which cannot be abandoned without federal approval.

Congress has unambiguously insulated interstate railroads from certain state law based tort claims, but it has not directly addressed whether those protections apply to tribal law or in tribal courts. For these and other reasons, uncertainty as to whether tribal courts may have jurisdiction, or what laws and procedures may apply, is a persistent problem for AAR’s member railroads.”

Herein lies the challenge – every time we go before a settler court we are dealing with an entity quite incapable of seeing us as national entities possessing the same rights as any country in the world. Centuries of racist indoctrination rooted in the Doctrine of Discovery renders the majority of jurists and politicians unable to see or do anything else but uphold the invasion, occupation and subjugation of Indigenous nation. This time we lucked out and drew a 4-4 decision.

Remember, we lose our inherent rights only if we don’t defend them in every manner possible. To do less is to sell out the Seventh Generation.

Mike Myers is the founder and CEO of Network for Native Futures, a Native non-profit that works with Indigenous nations, communities and organizations internationally. The network's mission is to support sustainable development and nation re-building through providing of technical assistance, training and consulting.

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