Little Bit Sovereign

January 25, 2018
This is an image of the front cover of the June issue of the Journal of american History

Gregory Evans Dowd’s article appeared in the June issue of the Journal of American History.

Gregory Ablavsky, among the leading historians of Federal Indian law in the early republic, does not disappoint in his carefully worded treatment of my article, “Indigenous Peoples without the Republic.” He writes: “Dowd takes issue with a scholarly narrative that depicts the rise of Herrenvolk democracy in the early United States as producing uniquely bad outcomes for Native peoples.” True, and note especially the word, “uniquely.” My essay indeed questions the widespread assumption that the American Revolution unleashed land-hungry settlers previously restrained by Britain upon indigenous Americans. I argue instead that British restraint did not inhibit indigenous dispossession in North America in the decade before the revolution, nor would it do much against indigenous dispossession in South Africa, New Zealand, Australia, or Canada in the nineteenth century.

In the substance of his sensitive critique, Ablavsky accurately represents my argument that “the U.S. Constitution, particularly its embrace of an idea of divisible sovereignty, created space for indigenous sovereignty that Native peoples were able to seize on to preserve some modicum of rights under federal law up through the present.” As I stated, this created only “some modicum.” And do not mistake “up through the present” for “continuously.” My essay overall supports Ablavsky’s reflection that “the relationship between legal text and ideas on the one hand and outcomes on the other is ambiguous.” Republicanism, I suggest, makes some aspects of Federal Indian Law possible that would be harder to come by under the Crown. Republicanism does not make those aspects inevitable; nor does legal thought translate unmediated into “outcomes.”

That said, I urge readers to embrace Ablavsky’s most critical and important observation that “ideas of divisible sovereignty and federalism, abstractly a boon for tribes, in practice empowered the states.” No serious student of the nineteenth century could disagree; state power definitely bears the emphasis he gives it. Still, given the rise of indigenous power in the second half of the twentieth century it might be better to say that these notions “in practice usually empowered the states,” because the “tribal” rights have, in important instances, trumped the states’ powers. Ablavsky correctly points, too, to my (admitted) neglect of the doctrine of congressional plenary power. This powerful and highly important doctrine in his view erases the uniqueness of federal Indian sovereignty. Here I disagree, for the doctrine of plenary power in critical instances underscores that of diminished sovereignty. Take for example the United States v. Wheeler decision (1978), which Ablavsky quotes to rightly remind us of the U.S. Supreme Court’s opinion that “tribal sovereignty” survived only at Congressional sufferance. Yet somehow, even in Wheeler, such sovereignty emphatically did survive. The Supreme Court called it sovereignty and splashed the very words sovereign and sovereignty all over its decision; more than sixty occurrences in fewer than 6,500 words of text. What is more, the court in Wheeler referred to indigenous sovereign powers, not as having been delegated by the federal government, but as “inherent” and “primeval.” The court observed that those powers not only preexisted colonization but continued to exist, however diminished by treaty and statute, in 1978. Quoting Felix Cohen, the court recognized in American Indian nations the inherent powers of a limited sovereignty which has never been extinguished. In short, sovereignty remains sovereignty however diminished. My argument surrounds that peculiar Americanism. It depends largely on the fictions of republicanism and the facts of Indian struggle. It allows some recognition of preexisting, enduring, tribal sovereignty; simultaneously, it threatens indigenous sovereignty with demise. In the United States, Indian sovereignty rises and falls in ways not possible in political systems that place a more unitary sovereignty with the Crown in Parliament. Republicanism has not determined U.S. Indian relations, but it has configured them.

In spite of my relative inattentiveness to state power and to congressional plenary power in the short section that my essay devoted to legal thought, the essay suggests neither that the notion of Indian sovereignty meant good “outcomes” for indigenous Americans nor that it meant better outcomes for American Indians than for the indigenous peoples in the other former British claims. The application of indigenous sovereignty has been, I say, “sporadic” in the courts. I cite examples of its failure to protect American Indian rights before the federal courts in recent decades. Like Ablavsky, I observe that some scholars are washing their hands of it. I continue to find it oddly American that tribal sovereignty remains sovereignty while nonetheless falling subject to federal power. I stand by my argument: “the achievements and albeit-partial gains that Indian nations won in the late twentieth century through sovereignty claims remain important today. Even in this century, the fraught word is no dead letter.”

Gregory Evans Dowd is a professor of history and American culture at the University of Michigan.