The sovereignty of American Indians has been an issue since Europeans landed on the American continent more than 500 years ago, and in all that time, Indian activists say, the terms of the dispute have not changed.
In the collective American conscience, Indian tribes have rarely been seen as having a legitimate claim to self-determination or even to existence, even though the Supreme Court recognized their sovereignty as early as the 1830s.
"It's really been a long series of negotiations, mostly through treaties and agreements with various tribes through which the government assured peace," said John Poupart, president of the American Indian Policy Center. "We're still negotiating that to some extent, since some of these treaties were not clear and some laws drawn up were not clear."
Three decisions written by Chief Justice John Marshall in cases involving the Cherokee Nation and the State of Georgia set the precedent for numerous Supreme Court decisions over the next 170 years reaffirming tribal sovereignty.
But to American Indians, their sovereignty does not spring from those decisions or any other action by the United States.
"Perhaps the most basic principle of all Indian law … is that those powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by expressed acts of Congress, but rather 'inherent powers of a limited sovereignty, which has never been extinguished,'" said Felix Cohen, author of the Tribal Handbook of Indian Law.
From Too Poor to Too Rich
Fueling disregard for the concerns of Indians is not only their scant numbers, but the stereotype of the contemporary Indian. Even the success of a few tribal casinos hasn't helped much, according to Indian rights supporters, who say the image of Indians as fat alcoholics looking for their next drink has only been replaced by the image of fat cats on the prowl for their next money-making scheme.
"It used to be Indians had to be poor and dumb to be Indians, now they're supposed to be rich and greedy," Native American Rights Fund staff attorney Melody McCoy said. "It's hard to get a balance."
The success of casinos such as the Mashantucket Pequots' in eastern Connecticut was not the first issue to strain whatever popular support has evolved for Indian causes over the last few decades, though.
After the FBI shoot out at Wounded Knee and the march on the Bureau of Indian Affairs in the early 1970s allowed white America to think of Indians once again on the warpath, cases such as the suit filed in the 1980s by tribes asserting rights to huge portions of Maine raised outrage that Indians could expect to use the courts to drive non-Indians out of their homes and off their lands.
In a current case, the Miami tribe has filed suit in federal court staking claim to land in 15 counties in Illinois.
Road to Freedom
But Indians have never looked to popular support or political action to help resolve their problems, and though a few tribes have gained some economic strength through casino operations, that power is not seen as the most effective weapon. Instead, they rely on the courts to decide.
"Tribes still don't have political clout, but tribal policy is recognized in federal law, and it's here to stay, though this U.S. Supreme Court continues to try to chip away at it," McCoy said.
Indian activists say it is a mistake to look for common threads throughout the various cases currently being fought — from the Passamaquoddy of Maine, who have refused to turn over tribal water quality reports to the state because they say federal authorities have jurisdiction, not the state; to the Miccosukee in Florida, who object to state prosecution of one of their members on murder charges; to the Pomo of California, who are facing a challenge of their right to open a casino less than a half hour from San Francisco.
Of course the specifics vary, including the groundwork laid out in the treaties each tribe signed with the government, but it is hard not to see them all in terms of sovereignty issues.
"The American Indian's only hope for sovereignty is Treaty Law," wrote Russell Means in a letter to the Navajo News last summer. "I want to take this one step further, all Nations with Treaties have to agree with the U.S. Government that they have broken the Treaties. The U.S. has not and will not live up to them. Therefore, we need to reassert our legal position in Constitutional Law and International Law. That position means, when one Nation who is a party to the Treaty unilaterally breaks that Treaty, the other Nations involved revert to the legal status they held prior to the Treaty. Welcome to FREEDOM!"