Another Such Victory and We are Undone: A Call to an American Indian Declaration of Independence

Abstract

U.S. v. Lara, hailed as a rare victory by proponents of Indian self-determination, is, under closer scrutiny, a Pyrrhic victory. Although the opinion upheld the essential power of Indian tribes to exercise criminal jurisdiction over non-member Indians, in so doing it granted opportunities and ammunition to opponents of the centuries-long struggle to defend what remains of Indian sovereignty against colonialism. Read with a jaundiced eye, Lara simply reaffirms contemporary judicial understandings of the doctrine of plenary power, long since remolded to connote not merely immunity from judicial review but rather absolute authority over Indian tribes, while telegraphing a message reminding readers that the radical readjustment of the metes and bounds of tribal sovereignty, to include the legislative disappearance of each and every Indian tribe and the abrogation of all four hundred plus Indian treaties, requires only that Congress choose to wield its unbridled legislative authority. If the right to make and enforce law is the most fundamental constituent of sovereignty, the sovereignty of Indian tribes, even post-Lara, survives at the sufferance of Congress, and history suggests that its future is grim.

Non-Indians, contemplating the political and legal enormity of the task of doing justice by the subjects of their policies of conquest, genocide, expropriation, legal assaults on tribal land and sovereignty, and forced political and economic dependency, have long bemoaned their Indian problem. At least it is a problem of their own making: Indians, by contrast, have been saddled with a Euro-American problem created, maintained, and, as Lara reveals, as yet unacknowledged by the political and legal system imposed and preserved by the might of the conqueror. Federal Indian law, not just willfully blind to crucial questions of agency and responsibility for past wrongs but often overtly racist, is the current instrument-of-choice whereby a non-Indian majority thwarts the assertion of sovereign tribal rights to engage in economic development projects resulting in the transborder movement of goods and persons, the production of significant wealth, or the expression of religious or cultural difference. Simply put, Lara, albeit a win for the good guys, offers nothing to contradict the lesson of more than two centuries of practice: federal Indian law, and in particular the doctrines of plenary power and stare decisis, is the thinnest of veneers for de facto rule over both tribes and individual Indians without restraint and across all manner of human affairs.

Even if federal Indian law was not already structurally incompatible with the self-determination of Indian nations and ready-made for exploitation by foes of sovereign governments within the external borders of the U.S., its interpretation, guided by the dominant philosophies of Western liberal jurisprudence and modern international legal positivism - the former distrustful of the Indian normative universe and thus bent upon remaking tribes to comport with a secular, individualist model of governance; the latter unwilling to recognize tribes as subjects of law and as bearers of natural legal rights actionable in domestic and international courts - would prove hostile, and perhaps fatal, to territorially-based Indian sovereignty. Even under the moderating influence of the most sympathetic members of the non-political branch, judicial review of questions of federal Indian law, on balance, has been an engine of the destruction of tribal self-determination since the founding of the United States. Plenary power and Indian sovereignty are mutually exclusive, and Lara only partially and temporarily obscures the existential reality that, for Indians, federal Indian law is an evil legal system. Rather than celebrate Lara, Indians should probe deeper and ask themselves how long before Congress fixes it and divests tribes of non-member Indian criminal jurisdiction, whether they intend to mount an effective defense against the last vestiges of their judicial sovereignty, what instruments of power - legal, political, and moral - they can marshal in support of this mission, and whether their right to self-determine can be meaningfully exercised in continued association with the United States.

Part I of this Article briefly sketches the ongoing historical process whereby tribal sovereignty, once accorded great deference by the international community, has been incrementally denatured and corroded by federal Indian law. Part II situates Lara within this history and reframes the decision as a Pyrrhic victory for Indian tribal sovereignty. Part III defends the premise that federal Indian law and its interpretation and application in courts of the United States is an irremediably evil legal system utterly inconsistent with contemporary understandings of the natural right to self-determination. Part IV propounds an alternative legal theory, rooted in natural law and partly reflected in the international indigenous rights regime, that substantiates the right of Indian tribes to a quantum of self-determination incompatible with continued political association with the United States. Part V elaborates and defends an American Indian Declaration of Independence as the legitimate expression of the natural legal right of Indian peoples to self-determination and as a rejoinder to Lara and the philosophical and historical foundation upon which it rests. Finally, Part VI examines and rejects alternate proposals for the realization of Indian self-determination that stop short of secession.

Keywords: Federal Indian law, indigenous rights, natural law, self-determination, secession