• Michael Tozzi, Anne Lipsett

Legislated Disenfranchisement: America’s Failure to Respect Indigenous Autonomy

A fundamental barrier to equal representation in 21st century democracies with colonial histories is the legal status of indigenous nations. These historically sovereign groups are frequently sidelined and subject to abuse, especially in Oceania and the Americas, a sad irony given that these countries were founded upon democratic principles. In spite of legal progress in recent decades to advance other civil rights causes in the United States, there currently remains a distinct lack of public concern for the ongoing struggles faced by Native Americans.


Despite enduring their lands being seized and their authority overruled by settlers, indigenous groups gained automatic birthright citizenship as recently as 1924 and only secured the nationwide right to vote in 1958. The adversity faced by contemporary indigenous communities today is a direct result of the failure of the United States to create legislation delineating the extent of indigenous nations’ autonomy, as well as their relationship with federal and state governments. This lack of legal recognition or established rights has allowed indigenous groups to be subject to the exploitative whims of unscrupulous politicians, perpetuating patterns of federally-sanctioned abuses that persist today.


Legal Standing of Indigenous Nations


In the US, indigenous tribes (sometimes referred to as nations) are governed by councils and a chief. Unique laws and judiciary systems maintain order in their lands which are located in reservations. While ostensibly sovereign, this land is not owned outright by indigenous peoples and is instead held in a trust by the US Department of the Interior. National law considers the 574 federally-recognised tribes to be dependent nations, neither under the authority of individual states nor within a state government’s power.


The National Congress of American Indians, a civil rights representative organisation, states that “self-government is essential if tribal communities are to continue to protect their unique cultures and identities”. However, this right to self-government has often been ignored by the federal government and remains a matter of ongoing civil rights litigation.


Unlike the former British colonies which became individual states, organised indigenous nations had no part in the process of the Constitutional Convention; consequently, the exact extent of indigenous legal autonomy is obscured by a legal grey area. Disputes between federal and tribal authorities over areas of land are often decided by inconsistent federal judicial rulings. Even today, tribal sovereignty is hobbled by a lack of clear legislation devolving specific legal powers to particular indigenous groups.


Legal Contradictions Surrounding “Manifest Destiny”


The legal paradox of indigenous self-government originates in the text of the Constitution, which provides no legal rationale for the managerial role the federal government would later take concerning indigenous groups’ autonomy. In fact, Article I, Section 2 delineates indigenous tribes as separate legal bodies from the United States by stipulating that Congressional representatives and national taxes reflect the population of individual states “excluding Indians not taxed”. Section 8 further purports the legal sovereignty of tribes by explaining Congress’ power to regulate commerce between states, with foreign nations, and “with the Indian Tribes”. It is clear that at the time of writing, the US Constitution reflected an intention to respect indigenous legal sovereignty, yet the events of the 19th century would see these considerations illegally revoked, enabling disenfranchisement of indigenous authority over their own lands.


There has been an evolution from the Constitutional presumption of indigenous autonomy to aggressive territorial expansion in the 19th century, an era defined by notions of “Manifest Destiny”. This was a belief in the right of white settlers to subjugate North America as their own and resulted in forced removals of indigenous groups from their homelands. President Andrew Jackson was one of the worst offenders in enacting this process. His administration ignored the diplomatic precepts of the 1830 Indian Removal Act, which was designed to create peaceful and fair land trade with tribes, and instead acted unilaterally to force indigenous tribes off their land, thereby violating the rulings of the Supreme Court.


The Court’s evolved towards a reading of the Constitution which supports indigenous sovereignty; their ruling in the 1831 case Cherokee Nation v Georgia stipulated that indigenous nations must abide by the laws of the states overlapping their territory. This was followed by a contradictory ruling a year later in Worcester v Georgia. However, Jackson simply ignored the Court’s 1832 decision. His ordered displacement of tribes from their lands resulted in Trail of Tears, an act widely regarded as genocidal, which led to thousands of Cherokee deaths. Decades later, the process of making diplomatic treaties with indigenous tribes formally ended in 1871. The US Commissioner of Indian Affairs and the Grant Administration, as well as Congress and its Indian Peace Commission, made this decision on the basis of the presumption of the non-sovereignty of tribes.


Reservations and their Catastrophic Side Effects


After this transition period, the Department of the Interior and its subsidiary Bureau of Indian Affairs was legally considered to own indigenous land in a trust; these lands became reservations upon which indigenous groups were confined. These reservations were often far from their ancestral lands and were areas where they possessed limited rights to self-governance. The 1887 Dawes Act further attacked tribal sovereignty by allocating tribal land to individual members of tribes, while selling other tracts to white settlers.


Reservations, historically and currently, perpetuate socio-economic problems for indigenous communities, ranging from poorly-established individual property rights on recognised indigenous lands to underfunded healthcare and education provisions and barriers to establishing commercial enterprises on land belonging to their tribe.


To this day, harsh conditions remain the norm. Native Americans on reservations have been disproportionately affected by the COVID-19 outbreak the Navajo Nation in New Mexico makes up about 10 percent of the population of the state but accounts for 55 percent of the Coronavirus cases recorded. The negative repercussions of forced displacement are not new; the 1928 Meriam Report highlighted the abysmal failure of the government to serve the tribes. Census data collected in 1925 compared the death rate of the Indian population to that of the US population outside reservations, finding that per capita deaths on reservations were more than double those outside reservations.


Tenuous Rights to Legal Autonomy


The century-long process that cemented socio-economic obstacles into daily life for indigenous Americans stemmed from the failure to legislate or adhere to a meaningful separation of powers or delineation of rights for tribal groups in North America. Some federal policy in recent years has improved the standing of tribal legal sovereignty, but not decisively. To date there have been no constitutional amendments about the legal status of tribes or their relationship with federal and state governments.


However, the 1975 Indian Self Determination and Education Assistance Act granted a measure of autonomy for tribes to direct and administer federal aid funds, a notable step away from paternalistic attitudes inherent in federal policies in prior decades. The Act’s provisions mirror the way state governments have the authority to administer federal programs such as Medicare and Medicaid. The 1979 Supreme Court case Bryan v Itasca County, established the right of tribes to regulate commercial development on their land.


This landmark ruling would lead to the emergence of casinos as a source of revenue for indigenous tribes as most states have internal licensing laws of varying severity surrounding gambling. However, such victories hardly represent a universal positive trend towards commercially enriching indigenous communities. Earlier this year, controversy emerged around federal neglect of indigenous commercial enterprises in Coronavirus aid programs.


Despite the election of Charles Curtis (who grew up as a member of a tribe on a reservation in Kansas) as US Vice President in 1928, the federal government’s denial of full legal autonomy persisted through much of the 20th century. Public Law 280, implemented in 1953, eroded tribal sovereignty by asserting the supremacy of state courts for civil and criminal cases over that of tribal courts. Today, tribal governments require federal permission to extract and commercially develop natural resources from their land, yet are denied resources to bar federal efforts to develop, transport, and extract resources on their ostensibly sovereign land.


The South Dakota pipeline protests, in particular, have been a visible source of controversy surrounding this issue of unequal sovereignty over physical territory. The de facto primacy of the US federal government’s sovereignty over land within the borders of the United States has not been decisively challenged, perpetuating an imbalanced power relationship despite vague references by federal agencies to indigenous sovereignty.


Unlawful Federal Interference


While certain laws provide for land and court sovereignty, such as the 1934 Indian Reorganisation Act, the ability to govern and manage land is inhibited by interference from the federal government. While the Department of the Interior Bureau of Land Management describes "tribal consultation", “collaborative action, and dispute resolution” as key responsibilities that it performs on behalf of the federal government, these are rarely adhered to consistently. A key example of the continued failings of the federal government with regard to respecting indigenous sovereignty can be found in the recent controversy over attempts by the Trump administration to dis-establish the land of the Wampanoag Nation.


Located in southern Massachusetts (MA), Martha’s Vineyard, Nantucket, and Rhode Island, the Wampanoag nation are now composed of multiple regional groups, like the Mashpee Wampanoag, yet only two federally-recognised tribes: one in Mashpee, MA, and another in Martha’s Vineyard, MA. However, there are additional state-recognised Wampanoag tribes in Massachusetts which demonstrates inconsistencies with federal policy concerning the management of indigenous tribes.


It is important to stress that federal recognition of a tribe is different from the establishment of its trust, which concerns its land and status as a sovereign state. Earlier this year, the Boston federal court ruled that the Mashpee reservation land was to be removed from their federal trust. The basis for their ruling was that the federal government was not authorised to take the land into trust due to semantics surrounding the aforementioned Reorganisation Act which formally recognised tribes as “Indian”. However, litigation is pending because of another federal court case concerning the protection of their rights. The land remains in a trust as t there has been no court order to remove it.


Alhough no final ruling had been made, the dis-establishment went ahead under the order of Secretary of the Interior David Bernhardt, who made his decision based on the 2009 ruling Carcieri v. Salazar, which dictated that any tribe federally-recognised after 1934 cannot have land taken into trust. This ruling is an example of the federal government refusing to make accommodations for tribal sovereignty. Due to renewed activism in the late 20th century, many tribes were recognised after the ratification of this law such as the Mashpee tribe which was federally-recognised in 2007 but according to the Act, are not considered “Indian”.


As a result of the dis-establishment, the tribe has lost their autonomy and ability to direct commercial development such as casinos. It is not purely speculative to draw connections between the Trump Administration’s Department of the Interior decision and pro-Trump lobbyists attempting to advance the cause of privately owned casino construction in the immediate vicinity of the Wampanoag land. This decision is a cause of worry for indigenous groups nationwide, as many fear future repeats of such actions since the fate of their federal trust rests solely in the hands of the Secretary of the Interior, rather than a legislative or legal body.


Many tribes, such as the Mashpee, believed they were granted lands and autonomy at the time of their federal trust’s establishment, but now risk losing everything. There is a renewed movement to have Reaffirmation Acts passed in Congress that would ensure the protection of lands and sovereignty for tribes recognised post-1934.


A Time for Change: Options for Rectifying Past Legal Failings


Ultimately, it is inevitable that these tensions persist given the vague and inadequately defined laws and precedents defining the relationship of the US government to Native American groups. While the Cherokee and Choctaw nations possess, through treaties, the right to a non-voting representative in the US Congress, with equal status to Puerto Rico and the District of Columbia, it hardly represents meaningful legal autonomy. They also only represent two groups of indigenous nations out of 574 officially recognised tribes. It is especially jarring to consider the failings of the US government compared to the ways in which native sovereignty is respected in New Zealand.


In New Zealand, the Maori Representation Act has been in effect for 150 years. This law guarantees Maori electorates based around communally-held indigenous land, as well as a quota for Maori-specific seats in the unicameral New Zealand Parliament. Indigenous Maori can choose whether to vote as part of the general population or as part of Maori electorates; this affects the number of Maori seats in Parliament. While this system has not been without controversy, it has remained a part of New Zealand’s unique electoral landscape. Although Pacific Islanders continue to face disadvantages in the country, their legal autonomy, representation, and general welfare is relatively strong compared to indigenous counterparts around the world. The New Zealand-Maori legal representation system can prove a source of inspiration to legislators in the US.


The federal government is facing a reckoning concerning their involvement in this one-sided, parasitic relationship in which indigenous tribes are neglected and trampled upon. Perhaps it is time for a new Constitutional Convention to address these issues and create a roadmap for a mutually-beneficial relationship between these two legal bodies.