Maybe Joe Bob should be taken with a grain of salt. He is the deliberately provocative persona of a well-educated writer named John Bloom, a redneck version of Borat. But his evolving aversion to the “S-word” is a serious symptom of a problem in communication.
Indian country has grasped the word “sovereignty” to express its deepest instincts for survival. It tries to explain rights of self-determination and cultural, religious and linguistic preservation that ultimately derive from the Creator. The “S-word” used to have the legal connotations to do the job, but it has been greatly eroded in the Supreme Court. And now there is growing popular resistance to this somewhat arcane, foreign-sounding term. Leading Indian lawyers have even begun talking about finding a new rhetoric to defend these bedrock convictions.
We think there is a terminology at hand that will serve this purpose. It doesn’t supplant the legal theory of sovereignty, which still needs the most vigorous defense. Instead, it supplements this principle nicely, in a way that resonates strongly with the dominant culture. This is the language of the social compact.
The word “sovereignty” traces back to 16th century lawyers for the French monarchy, but the term “social compact” lies at the heart of the Declaration of Independence, the U.S. Constitution and the Bill of Rights. These, despite all the sins of the U.S. government, are still remarkable human achievements. It is closely associated with the 17th century English theorist John Locke. Many Indians understandably see Locke as The Enemy. Some of his doctrines of economic individualism have done great harm to tribal life, and provided an excuse to seize Indian lands. But it can be a powerful maneuver to use the weapons of your enemy for your own defense.
Here is how it works. Locke and his colleagues argued that government derived its authority from an original social compact. Men who lived in a state of anarchy agreed to accept the constraints of a rule of law in return for a political system that would acknowledge and protect their basic rights.
The American system claimed its legitimacy from a series of compacts that produced state governments, their national federation and ultimately the U.S. Constitution. This theory echoes in the preamble to the Constitution: “We the People of the United States … do ordain and establish this Constitution.” Every citizen of the United States bases his claim to political rights on his theoretical participation in this original compact.
True, there was a long debate in American history, up to the Civil War, about whether the central government derived from a compact directly with the individual citizens or from a federation of the state governments. (The “states’ rights” position holds that the individual social compact produced the state governments, which reserve what the constitutional lawyers call the “police powers.” This term derives from the Greek word polis, meaning the city-state, the basic political unit in ancient political theory. It refers not just to the men in blue but to the inherent governmental powers of a sovereign unit. The states, according to this federalist theory, were the primary parties agreeing to form a central government with limited powers.)
The Civil War decisively tipped the balance toward the individual. The post-war 14th Amendment made it crystal clear that the federal government claimed a direct relationship with each citizen and protected their rights against interference by the separate states.
But Indian tribes have always dealt separately with the federal government. It’s a basic principle of the Constitution that they are not under state jurisdiction and weren’t represented by state governments in the formation of the union. This is the purport of the “Indian commerce clause” in Article I, Section 8 of the Constitution, which lists “the Indian Tribes” on equal footing with “foreign Nations” and “the several States.” Indian tribes have a definite role in the federal union. But unlike all the other ethnicities and races in the country, they joined the American social compact as political units, not as individuals.
The courts have repeatedly acknowledged as much. There have been a number of lawsuits claiming that tribal sovereignty is an illegal racial preference. Each time, the courts have rejected the charge out of hand on the basic principle that the tribe is a political unit, not a racial designation. This principle is a basic assumption of Indian country. From earliest times to the most modern wave of militancy, tribes have insisted they have a contractual and reciprocal “government-to-government” relationship to Washington, D.C.
This relationship was expressed primarily through treaties. The dominant culture regards Indian treaties as antiquarian curiosities, but for Indian country they are living, breathing entities, even if the message they most frequently whisper is a reproach to the bad faith of the United States. Indian militancy in the ’70s erupted in the Trail of Broken Treaties. The roots of that movement stretch back to the Northwest tribal protests for treaty fishing rights and the marches of the Indian Defense League of America to uphold the Haudenosaunee border-crossing rights guaranteed in Jay’s Treaty. Those marches started in the 1920s and go on annually to this day. The social compact in Locke might have been an abstract theory, but for Indian tribes it was a concrete historical event, and they have the treaty documents to prove it.
This basic point is just the start of a long and involved discussion. Some are bound to object that the “treaty era” is over. Congress expressly prohibited further treaty-making with Indian tribes in the 1870s, arrogating to itself a “plenary power” over tribal sovereignty. This act deserves renewed scrutiny. It seems to have been a rather thoughtless product of a rivalry between the House of Representatives and the Senate over the appropriations power. The House has the power of appropriations in the Constitution and it resented the budgetary commitments the Senate had made to tribes through its treaty-making power. Supreme Court Justice Clarence Thomas recently made the explosive suggestion, in his concurrence in the Lara case, that this act was unconstitutional.
Another objection might state that if tribal relations are based on treaties, then tribal rights are limited to their literal terms. These rights would vary in dizzying array from treaty to treaty, making Indian law extraordinarily complicated. The thousands of treaties, laws and judicial decisions implementing them, filled 46 volumes when Felix Cohen and his associates at the Department of the Interior compiled them in the 1930s.
But these objections lose their force when one returns to the basic principles of the social compact. In this theory, individuals retained their basic human rights when they formed a political society; the limitations and enumerations of powers applied to the government. Likewise, the states in the federal union retained the inherent powers of self-government not delegated to Washington. This political theory is still vital, and it applies with equal coherence to tribal governments.
As parties to a social compact with the United States, the tribes retain their inherent sovereign rights of government, just as states do; and they retain the rights of self-preservation (including culture, religion and language retention), just as individuals do. Even though treaties included a wide variety of specific provisions, ranging from hunting and gathering rights to annual deliveries of bolts of cloth, Cohen managed to distill from them a classic statement of tribal rights in his famous “Handbook of Federal Indian Law.”
These principles are not radical new discoveries. Like the language of sovereignty itself, they just restate what tribes have always known in their hearts about their relations to the federal government as it extended its sway across the continent. They provide a defense of tribal rights based on consent and reciprocity. These principles make far more sense than the discredited doctrines of Christian discovery and conquest and guardian/ward pupilage that still hold sway in the Supreme Court. Even more important, they resonate powerfully with the American public.
It would be well worth launching a sustained discussion of tribal rights as an integral part of the federal social compact. These are terms that even Joe Bob Briggs would understand.
