Recognition of Native American tribal sovereignty is centuries-old

In his book review " 'Wampum' exposes the dark side of Indian reservation gambling" (ADN March 26), author Chuck Gray makes a rather surprising statement about the "invention" of the doctrine of tribal sovereignty. Gray should certainly be forgiven for this "alternative" historical fact since he read it in a book written by someone whose credentials he clearly respects and who he believes to be a nationally recognized expert on Indian law. I suspect however that there are many prominent scholars of Indian law, including judges, lawyers, historians and politicians who would disagree with Donald Mitchell, the author of "Wampum." I have yet to read the book myself, but am very concerned that if Gray is taking Mitchell's understanding of how tribal sovereignty came into being as fact, then other readers of the book will do so as well.

Let me be clear: Tribal sovereignty and its incorporation into the American legal system long predates Felix Cohen and the Handbook of Federal Indian Law, first published in 1941. It predates the birth of the United States and indeed the arrival of any Europeans on American soil. Tribes in the Americas were sovereign self-governing political entities, some powerful with very complex systems of governance, with whom the arriving Europeans either fought wars or signed treaties or both. The existence of those treaties today, signed with different European nations, is a clear indication of fully recognized tribal sovereignty. Nations negotiate treaties with other nations and sovereignty is a requirement for those negotiations to take place.

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Sovereignty was recognized in treaties with tribes as early as 1632 with a peace agreement that ended the second Anglo-Powhatan War. Numerous other treaties followed and it was not until 1871 that the United States ceased the practice of treaty-making with tribes. The Royal Proclamation of 1763 contains language that recognizes tribal rights to land; an obvious attribute of sovereignty. The United States Supreme Court clearly recognized the sovereignty of Indian tribes in the 1823 Johnson v. McIntosh case in the following language: "That at the time of granting these letters patent, and of the discovery of the continent of North America by the Europeans, and during the whole intermediate time, the whole of the territory, in the letters patent described, except a small district on James River, where a settlement of Europeans had previously been made, was held, occupied, and possessed, in full sovereignty, by various independent tribes or nations of Indians, who were the sovereigns of their respective portions of the territory, and the absolute owners and proprietors of the soil …" The decision in Johnson placed the first limitation on tribal sovereignty, stating that under the rules of the Doctrine of Christian Discovery, the tribes could only dispose of the lands they owned to the "discovering sovereign," in this case the United States. Subsequent U.S. Supreme Court decisions placed further limits on the exercise of tribal sovereignty, but tribes, including tribes that never negotiated any treaties with the United States, continue to retain sovereignty today.

If court decisions, treaties and legislation are insufficient proof, we can also visit our Constitution which addresses relations with tribes in Article I Section 8 (3) and Article VI (2) discussing commerce and treaties respectively. Treaties, including those negotiated with sovereign tribes are the supreme law of the land.

All of this information is something that a first-year student of Indian law would cover, so it is certainly information that Mitchell would be aware of. He is of course entitled to his own interpretation of the law regarding tribal sovereignty but if, as Gray states, he is saying that Felix Cohen "invented" the doctrine in 1938 he is, in my opinion, taking that entitlement too far. Several recent court decisions in Alaska have also disagreed with Mitchell's position on sovereignty, and prominent Indian law experts all across the country do too. I would immediately and firmly correct any student who suggested that tribal sovereignty was invented in the 1930s.

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It sounds as though Mitchell is presenting a rather one-sided view of the Indian gaming industry but I will reserve further comment on that until I have read the book myself. I will say though that Gray is somewhat misstating the facts about Indian casinos in Alaska at the end of his piece; we actually will not see Indian casinos in Alaska at all unless the state changes its laws on gambling. The placing of lands into trust by Alaska tribes will not automatically result in casinos, and several recent trust land agreements in California have included "no gaming" clauses so, even in states where gaming is legal, obtaining trust land status is not an automatic route to a casino.

Regarding Gray's concern about the sale of cigarettes, booze and pot from trailers I must point out that all three items are currently legal in Alaska so there is no reason why a tribally owned business that met the state's requirements could not currently market them. If a tribal business chose to open a store on trust land this might relieve them of certain tax obligations, but not of any rules imposed by the tribe itself. Given the health concerns with these items, tribal rules would likely be stringent. If a trailer was chosen as a place of business rather than a brick-and-mortar building, this would be the prerogative of the tribal owner just as it would be for any business anywhere else if zoning laws allowed it.

Using a review of a book that presents a negative view of Indian gaming to scare Alaskans about tribal trust lands ignores realities and suggests that Alaska tribes are not capable of making responsible business decisions. We do not assume that other entities that go into business will act irresponsibly; we should not make that assumption about tribes.

Jenny Bell-Jones is chair emeritus of the Department of Alaska Native Studies and Rural Development at the University of Alaska Fairbanks, where she taught federal Indian law. The views expressed here are her own and do not represent those of the department or of UAF.

The views expressed here are the writer's and are not necessarily endorsed by Alaska Dispatch News, which welcomes a broad range of viewpoints. To submit a piece for consideration, email commentary@alaskadispatch.com. Send submissions shorter than 200 words to letters@alaskadispatch.com.