Ka Wai Ola - Office of Hawaiian Affairs, Volume 10, Number 1, 1 January 1993 — Self-Determination [ARTICLE]

Self-Determination

Nations within a Nation

At present, there are approximately 300 dependent nations within the United States of America. These nations are not identified as states or other political subdivisions of the governmental system of the U.S. Rather. they are Native American entities that possess recognized sovereignty over their own affairs based on their status as Native Americans. This recognition is derived from "the most basic principle" of all Native Ameriean lav. . and has been supported by a host of U.S. court decisions (see "The Scope of Tribal Self Government, " FelixS. Cohen 's Handbtx>k of Federal Indian Law, University of New Mexico Press, Albequerque, page 122-126 — hereinafter "Cohen"). This piineiple holds that "the powers whieh are lawfully vested in an Indian tribe (read "Native American tribe or nahon") are not. in general. delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty whieh has ne ver been extinguished." (Emphasis added. ) Cohen states (p. 122) that "eaeh lndian tribe begins its relationship with the Federal Government as a sovereign power, recognized as such in treaty and legislation." lt notes further that "the powers of sovereignty have been limited from time to time by special treaties and laws ... (but) What is not expressly limited remains within the domain of tribal sovereignty."

According to Cohen. court decisions have included the following as part of this self-government: 1."The power of an Indian tribe to adopt and operate under a form of govemment of the Indian's choosing, 2. to define conditions of tribal membership, 3. to regulate domestic relations of members. 4. to prescribe rules of inheritance. 5. to levy taxes, 6. to regulate property within the jurisdiction of the tribe, 7. to control the conduct of members by munieipal legislation,

8. and to administer justice." (Enumeration added for emphasis). It is important to note that these powers derive from the unique status as Native Americans, not from any expressed granting of rights and powers by Congress. Indeed. Cohen states that the statutes of Congress "must be examined to determine the limitationson tribal sovereigntvratherthan to determine its sources or its positive eontent." (Emphasis added.) This recognition of Native American sovereignty does not mean that Native Americans are not subject to the Constitution of the United States. According to Cohen. "it remains true that an Indian tribe is subject to the Federal Constitution in the same sense that the city of New Orleans, for instance, is subjeci to the Federal Constitution." As an example, Cohen notes that "the

Federal Constitution prohibits slavery absolutely. This absolute prohibition applies to an Indian tribe (read Native American tribe or nation) as well as to a munieipal government..."

However, Cohen is quick to point out that the reverse is NOT true — Constitutional restraints directed at specific legislative bodies of the governmental system of the United States do not necessarily pertain to those same bodies of a Native American tribe or nation. Specifically. Cohen states (p. 124) that Wheie ... the United States Constitution

levies particular restraints upon federal courts or upon Congress, these restraints do not apply to the courts or legislatures of Indian tribes. Likewise, particular restraints upon the states are inapplieahle to" Native Ameiiean tribes or nations. The extensive legal history of Native Ameiiean rights has provided the basis for re-establishment of sovereign governments throughout the American Indian population. On the other hand, Native Alaskans were unable to take advantage of the same legal framework because their relationship with the U.S. government was not previously documented by extensive treaties. That legal gap was bridged by Congress in 1971 when it passed the Alaskan Native Claims Settlement Act. This legislation would be based on the unique rights whieh accrue to Native Hawaiians as Native Americans, and the substantial legal record in support of that status (see p. 12). ®

U.S. courts consistently have recognized and protected the right of self-determination among Native American tribes and nations.

The Office of Hawaiians Affairs is leading efforts to pursue legislation that would accomplish similar recognition for Native Hawaiians.