“Sovereignty” is perhaps the most ubiquitous term in American Indian writing today—but its meaning and function are anything but universally understood. This is as it should be, David J. Carlson suggests, for a concept frequently at the center of various—and often competing—claims to authority. In Imagining Sovereignty, Carlson explores sovereignty as a discursive middle ground between tribal communities and the United States as a settler-colonial power. His work reveals the complementary ways in which legal and literary texts have generated politically significant representations of the world, which in turn have produced particular effects on readers and advanced the cause of tribal self-determination.
Drawing on western legal historical sources and American Indian texts, Carlson traces a dual genealogy of sovereignty. Imagining Sovereignty identifies the concept as a marker, one that allows both the colonizing power of the United States and the resisting powers of various American Indian nations to organize themselves and their various claims to authority. In the process, sovereignty also functions as a point of exchange where these claims compete with and complicate one another. To this end, Carlson analyzes how several contemporary American Indian writers and critics have sought to fuse literary practices and legal structures into fully formed discourses of self-determination. After charting the development of the concept of sovereignty in natural law and its permutations in federal Indian policy, Carlson maps out the nature and function of sovereignty discourses in the work of contemporary Native scholars such as Russel Barsh, Gerald Taiaiake Alfred, D’Arcy McNickle, and Vine Deloria, and in the work of more expressly literary American Indian writers such as Craig Womack, Elizabeth Cook-Lynn, Gerald Vizenor, and Francisco Patencio.
Often read in opposition, the writings of these indigenous authors emerge in Imagining Sovereignty as a coherent literary and political tradition—one whose varied discourse of sovereignty aptly reflects American Indian people’s diverse political contexts.
|Publisher:||University of Oklahoma Press|
|Series:||American Indian Literature and Critical Studies Series , #66|
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Self-Determination in American Indian Law and Literature
By David J. Carlson
UNIVERSITY OF OKLAHOMA PRESSCopyright © 2016 University of Oklahoma Press
All rights reserved.
Tribal Sovereignty in Westernand U.S. Indian Law
On Wednesday, June 24, 2009, Indian Country Today ran a lead editorial titled "Renew Sovereignty Lessons for a New Generation." The same editorial had run one decade earlier with the title "Let's Learn about Sovereignty." What had clearly not changed over the course of ten years was the editorial board's view that the concept of sovereignty stands at the heart of the political and legal future of Indian tribes in the United States. The editorial notes that a proper understanding of not just Indian tribal sovereignty, but sovereignty in general, is lacking in most of the American public; even among Native peoples there is a wide range of definitions. In the editors' view, Indian print culture has a vital role to play in addressing this problem; they point out that Indian Country Today has aimed to encourage a broad conversation regarding the definition and significance of sovereignty in Indian people's lives. A key pragmatic goal underlying their journalism, then, has been to address the following question: What are the bases of Indian arguments for tribal sovereignty considering the realities of living in a modern North American society? In the editors' view every Native student should know the main pillars of Indian sovereignty in legal-historical terms. Developing such an awareness of the arguments that buttress sovereignty claims, they suggest, serves both an aspirational imperative (allowing tribal members to reflect on what ought to be in terms of fundamental justice and to imagine decolonized futures) and a realistic one (helping them to develop effective, pragmatic strategies to confront present conditions and to cope with the diverse challenges confronting them). The editors conclude by noting that within the frameworks of both American democracy and international law the correlation between sovereignty and the concept of self-government is clear. The challenge for American Indian peoples today, then, is to employ every available strategy both to vigorously maintain and to exercise the right of self-determination while also coping with the reality that small nations must depend on larger ones to keep covenants and respect their autonomy.
The primary goal of this chapter is to lay out the complexity of the pillars of sovereignty and to begin to address the question of the utility of the term as a threshold concept. It is probably necessary to begin that inquiry with some kind of general gloss of the basic term. The following working definition, taken from a 1977 report on Indian sovereignty prepared by the Institute for the Development of Indian Law, strikes me as a reasonable starting point. Sovereignty is "the supreme power from which all specific political powers are derived" (Wunder 1). Taking up this idea of "supreme power" in an American Indian context, of course, requires a breadth of perspective and close attention to context. As the writers of the report note, sovereignty is an abstraction that cannot be seen in a direct sense. Rather, we recognize sovereignty by perceiving it being exercised. And the history of contact between settler colonizers and Native Americans can certainly be viewed as a long struggle, on one side, to limit the exercise of power on the part of indigenous peoples, and on the other, to resist those limitations or to reassert powers that have been taken away.
With this idea of struggle in mind, it is clear that developing a sense of how the language of sovereignty informs contemporary American Indian writing requires us to trace competing understandings of the term. Chapters 2 and 3 will focus on tribal engagements with that language. To understand how and why many Indian people employ the idea of sovereignty in the context of decolonization, though, it strikes me as important to first develop a clear sense of how the concept has been employed in the U.S. legal system. This is a nod toward the term's centrality as a threshold concept. As understood from a Western/colonial perspective, sovereignty has been employed, albeit unevenly and inconsistently, as a tool for domination and for the limitation of Indian authority and autonomy. Not surprisingly, this has led some contemporary Indian writers to legitimately question whether it can be employed at all as a vehicle for self-determination. When looked at closely, however, it seems to me that sovereignty reveals itself to be a more complicated and potentially flexible idea than it might first appear.
Among both its strongest American Indian advocates and critics, it is generally acknowledged that the term sovereignty derives from Western European political history and legal tradition. In his often-cited essay "Self-Determination and the Concept of Sovereignty," Vine Deloria, Jr., notes that while sovereignty was an ancient idea, and originally a theological term, it was appropriated by European political thinkers after the Reformation to characterize the person of the king as head of state. In Deloria's formulation, by the seventeenth and eighteenth centuries a dominant meaning of sovereignty emerged whereby the term referred to "the absolute power of a nation to determine its own course of action with respect to other nations" ("Self-Determination" 118). This is broadly accurate, but Deloria leaves out some key elements of the intellectual history. Most significantly, he passes over the ways in which some thinkers have located sovereignty within a natural-law framework.
It is important to recall that the idea of sovereignty developed out of the practices of European politics and not in an abstract or purely theoretical context. This has important implications for understanding the diversity of meanings that are associated with the term today. Sovereignty has always been a fluid concept, capable of dialectical transformation, whose definitions and applications have been shaped by real-world political interests and power struggles. It is particularly interesting to note, in this regard, that sovereignty has some of its roots in acts of resistance; this oppositional pedigree also offers initial hints regarding the appeal of the concept as a tool for decolonization. As political theorist Robert Jackson has noted, the term sovereignty emerged, in part, as an expedient worked out in the early modern period by kings and their agents to challenge and repudiate the overarching authority of the pope. The assertion of sovereignty was originally an act of secession from the "respublica Christiana" (or Christian commonwealth) linking Europe together through the Catholic Church and the papacy. The respublica was the only uniform political and legal institution spanning Europe in the Middle Ages, which was otherwise made up of a bewildering array of overlapping and sometimes conflicting polities and systems of dependence (Jackson xi). As rival authorities both engaged in the act of asserting sovereignty (claiming to represent an alternative to the papacy for the legitimate exercise of political and legal power) and entered into relations with each other over jurisdiction, this led to the early formulation of what is now international law and, eventually, to the emergence of the nation-state system that remains dominant today.
Recognizing the connections between sovereignty and the emergence of international law can remind us of something else often forgotten in contemporary usage — the importance of natural law as part of the concept's DNA. In his still-classic study of the history of international law, J. L. Brierly illuminates these early links. The first explicit theorization of sovereignty, Brierly reminds us, was in Jean Bodin's 1576 work, De Republica, a book that emerged against the background of violent factionalism and civil war in France and the slow emergence of unified states in Europe. Bodin believed that a strong central authority was needed to address problems confronting the French polity, and thus he concluded that the essence of statehood was the unity of its government. But Bodin's specific understanding of the government of the state will likely look a bit odd to modern readers. A state, Bodin argued, may be defined as "a multitude of families and the possessions that they have in common ruled by a supreme power and by reason" (Brierly 8; emphasis added). The inclusion of reason as a coequal ruling element in the state represents a key contrast to the positivist understanding of sovereignty that would come to dominate Western legal discourse by the nineteenth century. For by invoking reason in this way, Bodin connects the concept of sovereignty with a tradition of natural law that (theoretically, at least) provided significant limiting checks on the ruling power of human lawgivers. Bodin's formulation of sovereignty mediates between the medieval respublica and the modern state in this respect.
Like many subsequent thinkers, Bodin understood the essential manifestation of sovereignty to be the power to make laws. Since the sovereign (Bodin would have been thinking primarily of the monarch here) makes the laws, though, he cannot truly be subordinated to the laws he makes. Nevertheless, Bodin's sovereign is not the unfettered authority of later positivist political theory. For in his view, the sovereign is bound by something — specifically by the divine law, or the law of nature or reason (which is common to all nations), as well as by what he calls the particular laws of the government. The latter would include the rules that decide in whom sovereign power is vested and determine the nature of succession. We would call such things today constitutional laws. In placing the law of nature in such a prominent role here, Bodin aligns himself with key elements of medieval political thought — specifically with the notion that legitimate power could never be purely arbitrary and secular. The natural law both constrains and legitimizes the ruler. Bodin's theorization of sovereignty posits a strong moral foundation and framework for sovereign power, which exists as a check on absolutism. And his work implies that a theory of sovereignty incorporating natural-law concepts would also buttress a stronger sense of legal obligation than we often find in contemporary contexts (where sovereignty is more typically associated with the mere possession by some entity of the positive power to impose its will on another).
Notwithstanding these early links to a tradition of natural law, it is true that the trajectory of sovereignty theory has taken it in another direction — the absolutist one noted by Deloria. Over time, sovereignty came to be identified with a power that exists above (or prior to) the law. In addition, the sovereign power that was originally seen as an attribute of a personal ruler inside of the state has come to be seen as an attribute of the state itself. The latter conjunction emerged gradually during the sixteenth and seventeenth centuries, and as a result of this historical process the general concept of sovereignty is now synonymous with "state sovereignty" for most Western legal and political theorists. The natural-law roots are largely ignored. As Jackson rightly points out, as a foundational idea in modern Western politics and law, sovereignty typically connotes (1) the idea that supreme legislative and political authority is located in the nation-state and (2) the idea that these nation-states are legally independent, formally autonomous, and geographically separate and are thus entitled to be free from interference by other states in their internal governance (Jackson x). In this respect, for most Western thinkers today sovereignty simultaneously encompasses the constitutional idea that national governments have legitimate and clearly delineated powers (and duties) vis-á-vis their citizens and the international idea that nation-states represented by these governments relate to one another as autonomous entities. As such, "when the government of a state is said to be sovereign, it holds supreme authority domestically and independent authority internationally, at one and the same time" (6). If it does not hold that supreme authority, the collective (even if it designates itself a state or nation) is not sovereign.
Under this definition, of course, American Indian nations within the borders of the United States would not be seen as sovereign states. However, the United States has also never formally designated them as colonies (even during the long period before colonialism was made illegal under international law, when it would have been technically possible to do so). Instead, under U.S. Indian law, the term sovereignty has regularly been associated with Indian tribal nations, but in an alternate sense to full state sovereignty. Right from the start, then, we can see that tribal sovereignty represents an interesting historical and structural anomaly. This is a crucial element to consider, I would argue, in considering sovereignty's potential as a threshold concept in a U.S. context. The somewhat surprising presence of the idea of tribal sovereignty in U.S. Indian law certainly suggests something about its potential as a fluid and evolving signifier. Assessing this potential requires a closer consideration of that American tradition.
The foundations of U.S. Indian law in relation to the concept of tribal sovereignty were laid in the late eighteenth and early nineteenth centuries during the period of the founding and the early decades of the new American Republic. The larger context for understanding this history, however, especially for the purposes of the present discussion, is the transatlantic development of the political theory of the sovereign state and of empire. By the end of the eighteenth century the concept of (state) sovereignty in Europe had evolved to contain a series of basic elements. Europe was seen to be composed of a collective of sovereign nation-states, each of which was deemed to have existed, constitutionally, prior to any treaties or international organizations they might arrange between themselves. In other words, by this point the historical origins of the modern state system, which had arguably been created though a relatively recent series of wars and legal innovations, had been mythologized and naturalized into a set of universally accepted legal fictions. At the same time, European sovereign states were seen as entitled to mutual recognition, enjoying legal rights (expressed in the positive law of nations or international law) and possessing legitimate interests (addressed and acknowledged through diplomacy). These state sovereigns were expected to use their own military and economic power responsibly, but the vitally important states (which would eventually be termed the "great powers") were deemed to play particularly important roles, employing military, economic, and political power to preserve the system. Internally, states were understood as having the legitimate right to create almost any kind of political/legal systems of governance, all of which would be viewed as legitimate expressions of state sovereignty. Significantly, though, in external terms, clear distinctions were made between Western/European contexts, where imperial relations between states were largely delegitimized, and conditions outside of Europe, where they were further elaborated.
It would not be until the mid-twentieth century, with the creation of the United Nations, that a post-Westphalian system of state sovereignty would be universalized into a global system. Today, as Jackson reminds us, there is no terrestrial territory that is formally deemed outside of the authority/jurisdiction of a sovereign nation-state. However, in the eighteenth and nineteenth centuries in the Americas (and elsewhere) European powers were really only beginning this process of incorporation. During the era of discovery and colonization, European nation-states extended their own sovereign authority over other territories and populations, justifying this through ethnocentric claims that non-European peoples had not evolved politically and socially to the point of exercising sovereignty, and further, that they would not be capable of doing so for the foreseeable future. Ironically, of course, in the New World the European conquest of indigenous peoples had initially been sanctioned under the authority of the respublica Christiana. The papal bull, Inter Caetera, issued by Pope Alexander VI in May 1493, and the 1494 Treaty of Tordesillas, which divided New World territories between Spain and Portugal, are generally cited as key inaugural legal documents in this context. With the decline of papal authority and the emergence of the new system of European state sovereignty, though, the legal logic of imperialism shifted in important ways.
Excerpted from Imagining Sovereignty by David J. Carlson. Copyright © 2016 University of Oklahoma Press. Excerpted by permission of UNIVERSITY OF OKLAHOMA PRESS.
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Table of Contents
PART I: GROUNDING SOVEREIGNTY DISCOURSE,
1. Colonial Contexts: Tribal Sovereignty in Western and U.S. Indian Law,
2. The Indian Vox Populi,
3. Collective Politics and Legal Interpretation,
PART II: LITERARY DISCOURSES OF SELF-DETERMINATION,
4. The Pragmatics of Literary Nationalism,
5. Elizabeth Cook-Lynn and Treaty Reading,
6. Gerald Vizenor's Constitutional Praxis,
7. Critical Prospects: Sovereignty in the Cahuilla Storyway,