Next year will mark 30 years since Vine Deloria Jr. published “Behind the Trail of Broken Treaties: An Indian Declaration of Independence.” Released in 1974, a year after the armed confrontation between the United States and American Indian activists at Wounded Knee on the Pine Ridge Indian Reservation, Deloria’s book was extremely influential. It made many of us see the political status of American Indian nations in a completely different light. After reading Deloria’s book when I was 19 years old, I remember the realization that independence is the rightful status of Indian nations.
Unfortunately, however, over the past three decades, Deloria’s arguments in “Behind the Trail of Broken Treaties” did not seem to catch on among many federal Indian law scholars and practitioners. In some ways when it comes to federal Indian law, we Indians seem to resemble hamsters running on a treadmill; there’s evidence of a lot of activity, but very little headway. If anything, given recent Supreme Court rulings such as Nevada vs. Hicks and Atkinson Trading Post v. Shirley we seem to be going backwards.
Part of the problem, as I see it, is that most presentations of federal Indian law start with one premise that is supposedly found in Cherokee Nation v. Georgia. Here’s a fairly typical summary of that decision as it is commonly characterized in federal Indian law circles: “The 1831 Cherokee Nation v. Georgia ruling held that Indian nations were not ‘foreign nations’ but rather, ‘domestic dependent nations.’”
But upon closer examination is this what the Court actually “held?” What Chief Justice Marshall actually said regarding this point in Cherokee Nation is: “They may, more correctly, perhaps, be denominated domestic dependent nations.” The word “may” is used to express “possibility.” The word “perhaps” means, “maybe” and “possibly.”
In other words, Marshall was saying that “domestic dependent” might or might not be the correct term to describe Indian nations and that it was just an analogy, not a final definition. On the basis of such ambiguity, it is certainly a stretch to say that this was what the Court “held” or “ruled.” Might, may, possibly are not words of definition; they are words of uncertainty. They are the words of a person casting about, searching for a way to express something.
Yet for some reason, federal Indian law scholars and practitioners, almost without exception, ignore the ambiguity in Cherokee Nation and create a hardened and mistaken impression in the minds of Indian people (and non-Indians) about the case.
Other language in Cherokee Nation receives much less attention. For example, the Court also stated that the attorneys for the Cherokee Nation had “in the opinion of a majority of the judges,” successfully proved “the character of the Cherokees as a state, as a distinct political society, separated from others capable of managing its own affairs and governing itself.” (emphasis mine)
Henry Wheaton, who was at one time the reporter of decisions for the Supreme Court, published a book in 1836 entitled, Elements of International Law. Referring to Cherokee Nation v. Georgia, Wheaton wrote: “The political relations of the Indian nations on this continent towards the United States is that of semi-sovereign States, under the exclusive protection of another Power?” The Supreme Court determined in 1831, said Wheaton, that “the Cherokees constituted a State.” (Wheaton’s emphasis). Notice how Wheaton used the terms “States” and “a State,” with regard to Indian nations.
Wheaton further clarified what he meant by the term “semi-sovereign States” when he pointed out that the Court had said in the 1832 decision Worcester v. Georgia: “A weak power does not surrender its independence and right to self-government, by associating with a stronger [power].” Thus, by “semi-sovereign” Wheaton did not mean “less than independent.” Indian nations, the Court acknowledged, were independent nations. Yet for some reason, we don’t hear much about this part of the Worcester v. Georgia decision.
By “semi-sovereign” Wheaton was referring to two points. First, by common agreement among the European nations, the Indians within the limits claimed by the United States were not able to enter into treaty relations with any nation other than the United States. Second, also by common agreement among the European nations, the Indian nations within the limits claimed by the United States were not able to cede their lands to any other nation than the United States. These were the only two ways in which their powers of sovereignty as independent nations were considered limited.
Importantly, these two limitations did not mean that Indian nations had lost their political independence, their right of self-government.
In Worcester v. Georgia the Supreme Court said that, “the laws of Georgia could not rightfully have any force” inside the boundaries of the Cherokee Nation “but with the assent of the Cherokees themselves, or in conformity with treaties, and acts of Congress.” I find it strange that we Indians have not applied this very same argument to the federal government of the United States.
Here’s how that argument would be expressed based on Worcester v. Georgia: The laws of the United States have no force inside the boundaries of any Indian nation but with the assent of the Indians themselves, or in conformity with treaties.
Certainly, such a doctrine would not be welcomed today by the United States because it presupposes that contemporary Indian nations still retain today the free and independent political status they possessed before the United States came into existence.
This doctrine would also not be welcomed by the United States today because it presupposes that the U.S. Supreme Court does not have the authority to simply erode the political rights of independent Indian nations by judicial fiat.
One possible knee-jerk reaction to the doctrine of Indian independence would be the argument that “everyone knows” that Indian nations are no longer free and independent political bodies. But if we ask upon what actual basis “everyone knows” this, what precise answer are we likely to get, especially given the acknowledgment of Indian independence in Worcester v. Georgia? Simply this: Indian nations are no longer independent because everyone has assumed they are no longer independent: a circular reasoning that closes back on the misreading of Justice Marshall’s words.
The nations of our ancestors were politically free and independent. By entering into treaties with the United States they did not freely consent to give up that political status. It’s now up to us to decide if we have the political will to assert our rightful status as independent nations as Vine Deloria Jr. urged Indian country to do three decades ago.
Steven Newcomb, Shawnee and Lenape, is Director of the Indigenous Law Institute, and Indigenous Research Coordinator at D-Q University at Sycuan, on the Reservation of the Sycuan Band of the Kumeyaay Nation and is a columnist for Indian Country Today.