American Indian Sovereignty and the U.S. Supreme Court by David E. Wilkins

American Indian Sovereignty and the U.S. Supreme Court by David E. Wilkins

Author:David E. Wilkins
Language: eng
Format: epub
Publisher: University of Texas Press


CHAPTER 6

The Era of the Imperial Judiciary

Since the late 1980s, the federal government’s executive, legislative, and judicial branches—along with that unwieldy and unyielding mass known simply as the “bureaucracy”—have produced a dizzying crop of laws, policies, proclamations, regulations, and court decisions which have served, ironically, to (1) reaffirm tribal sovereignty; (2) permit and encourage greater state interference within Indian country; (3) enhance federal legislative authority over tribes; and (4) deny constitutional “free exercise” religious protections both to individual Indians and tribal nations.

In 1988, Congress established the experimental Tribal Self-Governance Demonstration Project (TSGDP),1 which was made permanent on October 25, 1994.2 Potentially, this was an important step towards the restoration of the tribal right to self-determination. The TSGDP and accompanying policy discussions had been preceded by two 1987 congressional resolutions—one joint, the other a Senate concurrent resolution—which reaffirmed the political nature of the tribal-federal relationship.

Public Law 100–67,3 enacted July 10, 1987, was a joint resolution commemorating the bicentennial of the Northwest Ordinance of 1787 and reaffirming the ordinance as one of the fundamental legal documents of the United States. The ordinance, the articles of which were to “forever remain unalterable, unless by common consent,”4 provided a civil government for the Northwest Territory and included a declaration by the federal government that it would adhere to “democratic principles, religious freedom, and individual rights.”5 Moreover, the ordinance enunciated the fundamental political premise—consent—on which subsequent federal Indian policy was to be based:

The utmost good faith shall always be observed toward the Indians, their lands and their property shall never be taken from them without their consent; and in their property, rights and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them and for preserving peace and friendship with them. . . .6

About two months later, Senator Daniel Inouye (D., Hawaii), along with eighteen of his colleagues, introduced Senate Concurrent Resolution 75, which acknowledged (1) the democratic traditions of the Iroquois Confederacy and other tribal nations and the role that these nations played in the formation of the United States Constitution; (2) the “government-to-government” relationship between tribes and the federal government; (3) the federal government’s continuing legal obligations to tribal nations in the areas of health, education, economic assistance, and cultural identity; and (4) a statement reaffirming the government’s goal to exercise “utmost good faith” in upholding its treaties with tribal nations, as stated in the provisions of the Northwest Ordinance.

The year 1987 was also noteworthy in that it signaled the start of yet another congressional investigation7 of the alleged corruption, fraud, incompetence, and mismanagement lacing the Bureau of Indian Affairs (BIA) and other federal agencies that deal with tribes and individual Indians in several areas. Included in the survey and analysis were issues relating to tribal economic development, Indian preference contracting, Indian child sexual abuse, natural resource issues, health issues, housing concerns, and tribal elite corruption.



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