Honoring Nations: Joseph Singer: Sovereignty Today
Singer, Joseph. "Sovereignty Today." Honoring Nations symposium. Harvard Project on American Indian Economic Development. John F. Kennedy School of Government, Harvard University. Cambridge, Massachusetts. September 27-28, 2007. Presentation.
"We've got an amazing panel today, and we're going to be talking aboutsovereignty. And so I'd like to start it off by introducing Professor Joe Singer. He is the Bussey Professor of Law at Harvard School of Law at Harvard [University], and a contributing author to [Felix] Cohen's Handbook of Federal Indian Law.
"Thank you. It's an honor to be here and see all of you. I was asked to talk in ten minutes about sovereignty today, which is kind of a daunting thing to do. I was thinking about this and one of the issues is, when people think about this is, "˜What is sovereignty?' The thing that's crazy about that question is, to everyone in this room, it's not a problem to figure out what that means. Everyone here knows exactly what that means. It's other people that have trouble figuring out what that means -- other people meaning the Supreme Court, mainly, a little bit the [U.S.] Congress and some of the American people. So let me just say a couple of words about that.
The Supreme Court, in recent years, has ruled against Indian nations almost all the time. There've been a few times where they've --Indian nations that have been in lawsuits before their court have done okay, sometimes won, but more or less lost all their cases in recent years. And one of the things that is important to note about that is that almost all of those losses involve relations between Indian nations and non-members, usually non-Indians, sometimes Indians who are non-members. Those are the cases that the Supreme Court is very worried about. So one thing that's actually important about this record of Supreme Court case law is that the Supreme Court hasn't really been that bad in terms of interfering with internal relations in the tribes. So in terms of relations among tribal citizens and relations between tribes and their citizens, the Supreme Court has not been so bad over the last 25 years. And that's a pretty significant thing. Sometimes law professors -- we write articles criticizing the Court -- and we sometimes tend to exaggerate the extent of the Supreme Court's attack on tribal sovereignty because we focus on all the bad cases they're deciding, and we don't focus on what's left. And what's left is actually most of what all of you are actually doing and why you're getting honored here today.
The other thing I want to say about this is, is there any way to imagine some way to change the situation? To make the United States Supreme Court more friendly to Indian nations? And the answer is partly yes and partly no. In one sense, I can just say that the answer is no, they are not going to be friendly to tribes, and that is going to be the case for the next 30 years, given how young the people are on the court, and we're all just going to have to learn to live with it. On the other hand, I do think there is one thing that Indian nations can do to affect the way the Supreme Court views Indian nations. And that's what you're all doing. That's what you're being honored for.
My reading of the case law suggests that one of the major things that influences how judges see Indian nations is facts on the ground, what Indian nations are actually doing. And by creating institutions, creating governmental institutions, economic institutions, social institutions, engaging in good governance, and actually creating institutions which are thriving and create relationships with non-Indian governments and with the non-Indian public, actually creating those institutions and having them work well creates factual, what Joe Kalt calls de facto sovereignty, which then becomes very hard for the courts to say "˜can't or shouldn't exist.' Once you actually change the facts about how the world is working, the court has to live a little bit within those facts. So, the more Indian nations can actually exercise their sovereignty and do a good job of it -- that actually creates the best bulwark you can imagine against the Supreme Court limiting your rights.
So I think this is kind of an odd thing to say sometimes because I work with the Native American Rights Fund, and we consult on cases, and the main thing we do is to tell people not to appeal to the Supreme Court. In most cases we can look at the case and say, "˜Look, they're not going to think you should win this case. Don't appeal. We want to have them not making more bad law.' This actually then means being creative and figuring out if you can't do it that way, what's the way that you can do it? Because often, even if the Supreme Court says you can't do it one way, clever lawyers and policymakers can figure out a completely other way to achieve the same ends. I just think that's the things you're being honored for are really -- the best way to protect tribal sovereignty is actually to exercise it and do a good job of exercising it. And that's what you're all doing. So what you're all doing is actually the way to defend yourselves from the Supreme Court.
One last thing I'll say, and this is quite obvious to everybody, but -- and I have no idea and I'm not an expert in this and I don't know how to solve it as a problem -- but one of the big things I think needs to be done is to educate the non-Indian public about tribal sovereignty in a better way -- I think both the Supreme Court and Congress and the American public and then school children. I'm a parent of a 15-year-old daughter, and her third grade textbook in history -- she was joking with me and she laughs with me about this, but she knows how upset I get about her history books, because I read them and they're just wrong, they're just completely wrong. They say, "˜1776: the U.S. declares independence, and then there's a Treaty of Paris in 1783,' and then 1783 – wham! The book says, "˜The border of the United States went to the Mississippi River.' And I'm like, "˜Well, you know, there were millions of people out there. The border actually didn't go for another 50 or 60 years and it took all these treaties.' And the book just says, 'Wham, the border moves all the way out there.' And I want someone to write a different history book or somehow figure out -- we've got to educate kids when they're eight years old, nine years old about the history, and somehow figure out -- there's a big education project that needs to be done about the American public. And it's partly -- forget about the Supreme Court, we want to get them when they're eight or nine. And so I want someone to figure out how to do that -- and movies, and public relations, and there's just a lot of education things that need to be done to actually transform people's understanding of tribal sovereignty.
And again, this is the last thing I'll say. The things that you're doing that are good in terms of exercising sovereignty -- I see the other major thing is not just protecting yourself from the Supreme Court by creating facts on the ground, but that also has an added benefit of educating the non-Indian public because you create institutions, you run them well, that becomes facts that get in the newspaper -- it just becomes just something which actually then, other people learn from, "˜Oh, that's what tribal sovereignty is!' It's what you're all doing and what you're doing well. So, thank you."