The titles from Sandra Day O’Connor’s speech “Lessons from the Third Sovereign: Indian Tribal Courts” and the final chapter subheadings of Jill Norgren’s The Cherokee Cases: Two Landmark Federal Decisions in the Fight for Sovereignty, including the phrases “The Life of Landmark Litigation” and “A Decision on Indian Sovereignty” belie the extraconstitutional nature of American Indian law and its being “exempt from external standards and immune from judicial review.” Verbiage including a “third sovereign”, and “landmark litigation” on “Indian sovereignty” directly finger the international nature of the discussion surrounding the “rights and resources” of indigenous people the world over.

The case history of Indian law in the United States points to “Indians hav[ing] been constantly buffeted along [the] dimensions…[of] two major axes…the state/federal axis and the separation of powers axis.” Norgren notes the devastating effects of United States v Kagama (1886) and Lone Wolf v Hitchcock (1903), where Congress’ complete plenary power of Indians is codified in American law, contrast sharply with more recent decisions such as Santa Clara Pueblo v Martinez, where, occasionally, aspects of sovereignty are upheld.  Nevertheless, the trend to restrict Indian sovereignty and encourage assimilation continues coincidentally in cases such as Oliphant and Vermont v Elliot. There is no respite from the “constant buffeting” of indigenous people to be found in American courts.

In response, a regular theme that emerges in discussion surrounding American Indian law revolves around appeals to international bodies, such as the United Nations, to generate admonishment of the United States government by the international community over the violation of the human rights of American Indians.  In one example, Mary and Carrie Dann of the Western Shoshone, illegally displaced from their land by the Federal government, petitioned and were granted relief in the UN.  While the government summarily ignored this missive from the world’s nations, it is a continual and ever-growing list of these that will spur the Federal executive or judicial branch to act where the Congress won’t. 

O’Connor and other intellectuals, such as Robert Yazzie of the Navajo, have noted the unique nature of American Indian tribal courts, which are often communal and mediating in their approach to delivering justice.  The fusion of Anglo-American “adversarial, common law” with The Navajo Peacemaker Court represents for O’Connor and others a model for a judiciary under the “third sovereigns,” or indigenous people and their nations.  O’Connor notes that in some cases these traditions lack “access to an effective appeal and…independence of the judiciary,” and that the court’s best serve legal issues that arise “where tradition provides a critical guidance for social behavior.” Similarly, Norgren, while arguing that the United States should “decolonize its federal law” on the same page couches her argument, unconsciously, in a colonialist mindset by reflecting on why “the law governing relations between other minorities and the American government” has changed so dramatically compared to American Indian law.  Indians are not minorities, they are indigenous people, people of the land – the First Nations, and can be either sovereign or “wards” on the world stage, but not both.

As long as scholars and others couch their language in the verbiage and constructs of colonialist and Euro-American legal tradition, the conversation about American Indian sovereignty will always really be about assimilation – the indigenous people acquiring Western legal customs or Western legal institutions incorporating indigenous people’s legal customs, or some combination thereof – leaving the Indian nations not as sovereigns but as continuing to be buffeted between the state/federal axis and the separation of powers axis.

References

Mcsloy, Steven Paul. "The 'Miner's Canary': A Bird's Eye View of American Indian Law and Its Future." New England Law Review. vol. 37, ed. 3. 2002.

Norgren, Jill. The Cherokee Cases: Two Landmark Federal Decisions in the Fight for Sovereignty. Norman, Oklahoma. University of Oklahoma Press. 2004.

O'Connor, Sandra Day. "Lessons from the Third Sovereign: Indian Tribal Courts." Tulsa Law Review. 1st ser., vol. 33, ed. 1. 1997.