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 Sovereignty
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Sovereignty is the exclusive right to control a government, a country, a people, or oneself. A Sovereign is the supreme lawmaking authority.
Lassa Oppenheim, an authority on international law, has written that "There exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning which was universally agreed upon."[1]
An important attribute of sovereignty is its degree of absoluteness. A sovereign power (whether an individual or an assembly such as a parliament) has absolute sovereignty if it has the unlimited right to control everything and every kind of activity in its territory. This means that it is not restricted by a constitution, by the laws of its predecessors, or by custom, and no areas of law or behaviour are reserved as being outside its control; for example, parents are not guaranteed the right to decide some matters in the upbringing of their children independently of the sovereign power, municipalities are not guaranteed freedom from its interference in some local matters, etc. Theorists have diverged over the necessity or desirability of absoluteness. Historically, it is doubtful whether a sovereign power has ever claimed complete absoluteness, let alone had the power to actually enforce it. This last point raises, in passing, the important distinction between de jure and de facto sovereignty. De jure, or legal, sovereignty is the theoretical right to exercise exclusive control over one's subjects. De facto, or actual, sovereignty is concerned with whether control in fact exists. It can be approached in two ways:
1. Does the governing power have sufficient strength (police, etc.) to compel its subjects to obey it? (If so, a type of de facto sovereignty called coercive sovereignty exists.)
2. Are the subjects of the governing power in the habit of obeying it?
Another distinction is between external and internal sovereignty. External sovereignty concerns the relationship between a sovereign power and political bodies outside itself, such as other nation states. The central question is, under what conditions do nation states recognise a political entity as having sovereignty over some territory? The following criteria, used by Britain in regarding other powers, are typical:
“ "Sovereignty." A government which exercises de facto administrative control over a country and is not subordinate to any other government in that country is a foreign sovereign state.
(The Arantzazu Mendi, [1939] A.C. 256) ”
— Strouds Judicial Dictionary
External sovereignty is connected with questions of international law, such as: when, if ever, is intervention by one country onto another's territory permissible?
Internal sovereignty is the relationship between a sovereign power and its own subjects. A central concern is legitimacy: by what right does a political body (or individual) exercise authority over its subjects? Possible answers are, by divine right, by natural right, or — the consentual or contractarian hypothesis — that each of its subjects has actually or tacitly transferred to it that right.
History
Classic
Ideas about sovereignty have changed over time. The Roman jurist Ulpian observed that:
• The imperium of the people is transferred to the Emperor,
• The Emperor is not bound by the law,
• The Emperor's word is law.
Ulpian was expressing — although he did not use the term — the idea that the Emperor exercised a rather absolute form of sovereignty. Ulpian's statements were known in medieval Europe but sovereignty was not an important concept in medieval times. Medieval monarchs were not sovereign, at least not strongly so, because they were constrained by, and shared power with, their feudal aristocracy. Furthermore, both were strongly constrained by custom.
Medieval
During the medieval period, sovereignty existed as the de jure rights of nobility and royalty, and in the de facto right and capability of an individual to make their own choices in life.
Around c. 1380-1400, the issue of feminine sovereignty was addressed in Geoffrey Chaucer's Middle English collection of Canterbury Tales, specifically in The Wife of Bath's Tale.[2]
A later English Arthurian romance, The Wedding of Sir Gawain and Dame Ragnell (c. 1450)[3], uses much of the same elements of the Wife of Bath's tale, yet changes the setting to the court of King Arthur and the Knights of the Round Table. The story revolves around the knight Sir Gawain granting to Dame Ragnell, his new bride, what is purported to be wanted most by women: sovereignty.
We desire most from men,
From men both rich and poor,
To have sovereignty without lies.
For where we have sovereignty, all is ours,
Though a knight be ever so fierce,
And ever win mastery.
It is our desire to have master
Over such a sir.
Such is our purpose.
—The Wedding of Sir Gawain and Dame Ragnell (c. 1450), [3]
Reformation
Sovereignty reemerged as a concept in the late 1500s, a time when civil wars had created a craving for stronger central authority, when monarchs had begun to gather power into their own hands at the expense of the nobility, and the modern nation state was emerging. Jean Bodin, partly in reaction to the chaos of the French wars of religion; and Thomas Hobbes, partly in reaction to the English Civil War, both presented theories of sovereignty calling for strong central authority in the form of absolute monarchy. In his 1576 treatise Six livres de la république ("Six Books of the Republic") Bodin argued that it is inherent in the nature of the state that sovereignty must be:
a) Absolute. On this point he said that the sovereign must not be hedged in with obligations and conditions, must be able to legislate without his (or its) subjects' consent, must not be bound by the laws of his predecessors, and could not, because it is illogical, be bound by his own laws.
b) Perpetual, not temporarily delegated as to a strong leader in an emergency or to a state employee such as a magistrate. He held that sovereignty must be perpetual because anyone with the power to enforce a time limit on the governing power must be above the governing power: impossible if the governing power is absolute.
Bodin rejected the notion of transference of sovereignty from people to sovereign ; natural law and divine law confer upon the sovereign the right to rule. And the sovereign is not above divine law or natural law. He is above (ie. not bound by) only positive law, that is, laws made by humans. The fact that the sovereign must obey divine and natural law imposes ethical constraints on him. Bodin also held that the lois royales, the fundamental laws of the French monarchy which regulated matters such as succession, are natural laws and are binding on the French sovereign. How divine and natural law could in practice be enforced on the sovereign is a problematic feature of Bodin's philosophy: any person capable of enforcing them on him would be above him.
Despite his commitment to absolutism, Bodin held some moderate opinions an how government should in practice be carried out. He held that although the sovereign is not obliged to, it is advisable for him, as a practical expedient, to convene a senate from whom he can obtain advice, to delegate some power to magistrates for the practical administration of the law, and to use the Estates as a means of communicating with the people.
With his doctrine that sovereignty is conferred by divine law, Bodin predefined the scope of the divine right of kings.
Age of Enlightenment
Hobbes, in Leviathan (1651) introduced an early version of the social contract (or contractarian) theory, arguing that to overcome the "nasty, brutish and short" quality of life without the cooperation of other human beings, people must join in a "commonwealth" and submit to a "Soveraigne Power" that is able to compel them to act in the common good. This expediency argument attracted many of the early proponents of sovereignty. Hobbes deduced from the definition of sovereignty that it must be:
a) Absolute, because conditions could only be imposed on a sovereign if there were some outside arbitrator to determine when he had violated them, in which case the sovereign would not be the final authority.
b) Indivisible: that is, the sovereign is the only final authority in his territory; he does not share final authority with any other entity. Hobbes held this to be true because otherwise there would be no way of resolving a disagreement between the multiple authorities.
Hobbes' hypothesis that the ruler's sovereignty is contracted to him by the people in return for his maintaining their safety, led him to conclude that if the ruler fails to do this, the people are released from their obligation to obey him.
Bodin's and Hobbes's theories would decisively shape the concept of sovereignty, which we can find again in the social contract theories, for example, in Rousseau's (1712-1778) definition of popular sovereignty (with early antecedents in Francisco Suárez's theory of the origin of power), which only differs in that he considers the people to be the legitimate sovereign. Likewise, it is inalienable – Rousseau condemned the distinction between the origin and the exercise of sovereignty, a distinction upon which constitutional monarchy or representative democracy are founded. Niccolò Machiavelli, Thomas Hobbes, John Locke and Montesquieu are also key figures in the unfolding of the concept of sovereignty.
The second book of Jean-Jacques Rousseau's Du Contrat Social, ou Principes du droit politique (1762) deals with sovereignty and its rights. Sovereignty, or the general will, is inalienable, for the will cannot be transmitted; it is indivisible, since it is essentially general; it is infallible and always right, determined and limited in its power by the common interest; it acts through laws. Law is the decision of the general will in regard to some object of common interest, but though the general will is always right and desires only good, its judgment is not always enlightened, and consequently does not always see wherein the common good lies; hence the necessity of the legislator. But the legislator has, of himself, no authority; he is only a guide who drafts and proposes laws, but the people alone (that is, the sovereign or general will) has authority to make and impose them.
Rousseau, in his 1763 treatise Of the Social Contract[4] argued, "the growth of the State giving the trustees of public authority more and means to abuse their power, the more the Government has to have force to contain the people, the more force the Sovereign should have in turn in order to contain the Government," with the understanding that the Sovereign is "a collective being of wonder" (Book II, Chapter I) resulting from "the general will" of the people, and that "what any man, whoever he may be, orders on his own, is not a law" (Book II, Chapter VI) – and furthermore predicated on the assumption that the people have an unbiased means by which to ascertain the general will. Thus the legal maxim, "there is no law without a sovereign."
The 1789 French Revolution shifted the possession of sovereignty from the sovereign ruler to the nation and its people.
Carl Schmitt (1888-1985) defined sovereignty as "the power to decide the state of exception", in an attempt, argues Giorgio Agamben, to counter Walter Benjamin's theory of violence as radically disjoint from law. Georges Bataille's heterodox conception of sovereignty, which may be said to be an "anti-sovereignty", also inspired many thinkers, such as Jacques Derrida, Agamben or Jean-Luc Nancy.
Different Views
There exist vastly differing views on the moral bases of sovereignty. These views translate into various bases for legal systems:
A fundamental polarity is between theories that assert that sovereignty is vested directly in the sovereign by divine right or natural right ; and theories that assert it is vested in the people. In the latter case there is a further division into those that assert that the people transfer their sovereignty to the sovereign (Hobbes), and those that assert that the people retain their sovereignty (Rousseau).
The European theorists of the 1500-1750 period generally insisted that sovereignty must be absolute, perpetual, and indivisible (or exclusive). Their definitions of absoluteness, however are not always the most stringent possible. Later theorists have often held that absoluteness may be considerably limited, for example by a constitution. The above points are treated more fully in the History section of this article.
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Re: Sovereignty (Re: Seif Elyazal Burae)
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• Democracy is based on the concept of popular sovereignty. Representative democracies permit (against Rousseau's thought) a transfer of the exercise of sovereignty from the people to the parliament or the government. Parliamentary sovereignty refers to a representative democracy where the Parliament is, ultimately, the source of sovereignty, and not the executive power.
• Anarchists and some libertarians deny the sovereignty of states and governments. Anarchists often argue for a specific individual kind of sovereignty, such as the Anarch as a sovereign individual. Salvador Dalí, for instance, talked of "anarcho-monarchist" (as usual for him, tongue in cheek); Antonin Artaud of Heliogabalus: Or, The Crowned Anarchist; Max Stirner of The Ego and Its Own; Georges Bataille and Jacques Derrida of a kind of "antisovereignty". Therefore, anarchists join a classical conception of the individual as sovereign of himself, which forms the basis of political consciousness. The unified consciousness is sovereignty over one's own body, as Nietzsche demonstrated (see also Pierre Klossowski's book on Nietzsche and the Vicious Circle). See also self-ownership and Sovereignty of the individual.
• The republican form of government acknowledges that the sovereign power is founded in the people, individually, not in the collective or whole body of free citizens, as in a democratic form. Thus no majority can deprive a minority of their sovereign rights and powers.
• Imperialists hold a view of sovereignty where power rightfully exists with those states that hold the greatest ability to impose the will of said state, by force or threat of force, over the populace or other states with weaker military or political will. They effectively deny the sovereignty of the individual in deference to either the 'good' of the whole, or to divine right.
The key element of sovereignty in the legalistic sense is that of exclusivity of jurisdiction. Specifically, when a decision is made by a sovereign entity, it cannot generally be overruled by a higher authority.
It is generally held that sovereignty requires not only the legal right to exercise power, but the actual exercise of such power. ("No de jure sovereignty without de facto sovereignty.") In other words, neither claiming/being proclaimed Sovereign, nor merely exercising the power of a Sovereign is sufficient; sovereignty requires both elements.
In constitutional law, sovereignty may pertain in some contexts to various organs possessing legal jurisdiction in their own chief, rather than by mandate or under supervision
Another topic is whether the law is held to be sovereign, that is, whether it is above political or other interference. Sovereign law constitutes a true state of law, meaning the letter of the law (if constitutionally correct) is applicable and enforceable, even when against the political will of the nation, as long as not formally changed following the constitutional procedure. Strictly speaking, any deviation from this principle constitutes a revolution or a coup d'état, regardless of the intentions.
External sovereignty
Following the Thirty Years' War, a European religious conflict that embroiled much of the continent, the Peace of Westphalia in 1648 established the notion of territorial sovereignty as a doctrine of noninterference in the affairs of other nations. This resulted as a natural extension of the principle of cuius regio, eius religio (Whose realm, his religion), leaving the Roman Catholic Church with little ability to interfere with the internal affairs of many European states.
In international law, sovereignty means that a government possesses full control over its own affairs within a territorial or geographical area or limit. Determining whether a specific entity is sovereign is not an exact science, but often a matter of diplomatic dispute. There is usually an expectation that de jure and de facto sovereignty exist at the place and time of concern, and rest in the same organisation. Foreign governments recognize the sovereignty of a state over a territory, or refuse to do so.
For instance, in theory, both the People's Republic of China and the Republic of China considered themselves sovereign governments over the whole territory of mainland China and Taiwan. Though some foreign governments recognize the Republic of China as the valid state, most now recognize the People's Republic of China. However, de facto, the People's Republic of China has jurisdiction only over mainland China but not Taiwan, while the Republic of China has jurisdiction only over Taiwan and some outlying islands but not mainland China. Since ambassadors are only exchanged between sovereign high parties, the countries recognizing the People's Republic often entertain de facto but not de jure diplomatic relationships with the Republic by maintaining 'offices of representation', such as the American Institute in Taiwan, rather than embassies there.
Sovereignty may be recognized even when the sovereign body possesses no territory or its territory is under partial or total occupation by another power. The Holy See was in this position between the annexation in 1870 of the Papal States by Italy and the signing of the Lateran Treaties in 1929, when it was recognised as sovereign by many (mostly Roman Catholic) states despite possessing no territory – a situation resolved when the Lateran Treaties granted the Holy See sovereignty over the Vatican City. The Sovereign Military Order of Malta is likewise a non-territorial body that claims to be a sovereign entity, though it is not universally recognized as such.
Similarly, the governments-in-exile of many European states (for instance, Norway, Netherlands or Czechoslovakia) during the Second World War were regarded as sovereign despite their territories being under foreign occupation; their governance resumed as soon as the occupation had ended. The government of Kuwait was in a similar situation vis-à-vis the Iraqi occupation of its country during 1990-1991.
Sovereignty and United States federalism
In federal systems of government, such as that of the United States, sovereignty also refers to powers which a state government possesses independently of the federal government; this is called "clipped sovereignty."[citation needed]
The question whether the individual states, particularly the Confederate States of America, remained sovereign became a matter of debate in the U.S., especially in its first century of existence.[citation needed] This was not only one of the fundamental debates of the Civil War; the neo-Confederate movement and its opponents, along with debates over other secessionist and anti-federal political movements, have kept the controversy alive to the present day.[citation needed] Often overlooked in the heat of this battle is a highly relevant sentence from the original Constitution,[citation needed] Article VI, which states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Since federal law is supreme over state law (even over state constitutions), and since even state judges are required to strike down their states' laws if they conflict with federal law, it is clear that in ratifying the Constitution, the states gave up supreme sovereignty--unless the Constitution itself, or its ratification, is invalid.[citation needed] This doesn't mean states gave up all sovereignty. Congress' power to pass laws is limited by the Constitution, both by clauses specifically limiting its powers and by omission (Congress' lack of authorization to legislate beyond its enumerated powers).[citation needed] If Congress does legislate in a prohibited area, this legislation can be set aside by federal courts as unconstitutional, removing any barrier to conflicting state laws. In fact, the Tenth Amendment expressly guarantees that such areas remain within the realm of state sovereignty[citation needed]:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
However, according to the theory of Thomas Jefferson, James Madison and John C. Calhoun, the states had entered into an agreement from which they might withdraw if other parties broke the terms of agreement, and they remained sovereign.[citation needed] These individuals contributed to the theoretical basis for acts of secession, as occurred just before the American Civil War. Some proponents of this doctrine also propounded a general theory of "nullification," in which a state had the right to refuse to accept any Federal law that it found to be unconstitutional, regardless of judicial review.
Likewise, according to the theory put forth by James Madison in the Federalist Papers "each State, in ratifying the Constitution, was to be considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution [was to be] a federal, and not a national constitution." In the end, Madison likewise compromised with the Anti-federalists to modify the Constitution to protect state sovereignty: At the 1787 constitutional convention a proposal was made to allow the federal government to suppress a seceding state. James Madison rejected it saying, "A Union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound." Rives, William (1866). History of the Life and Times of James Madison. 2. http://books.google.com/books/pdf/History_of_the_Life_a...Times_of_James_M.pdf?.
In his Report on the Virginia Resolutions, James Madison wrote that, "The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.” Madison even made a dire prediction of what would happen if this was denied, stating that “If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognized under all the state constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared."
During the first half-century after the Constitution was ratified, the right of secession was asserted on several occasions, and various states considered secession (including, for example, the Hartford Convention after the War of 1812) in response.[citation needed] Andrew Jackson, Joseph Story, Daniel Webster and others published the theory that secession was illegal and that the United States was a supremely sovereign nation over the various member-states. These writers inspired Lincoln's later declaration that "no state may lawfully get out of the Union by its own mere motion", based on the premise that "the Union is older than the Constitution or the even states," in effect an assertion that the 1781 confederation had consolidated the states into a single nation.
Opponents of Lincoln's claim argue that the states, in forming the union of the Constitution, each seceded from the prior Confederated union of 1781, thereafter nine of them joined in Constitutional union on June 21, 1788 – when New Hampshire became the ninth state to ratify the Constitution, thereby establishing it among those nine states as per Article VII; meanwhile other states refused to ratify until various conditions were met – including the addition of the Bill of Rights, ultimately ratifying by 1790.[citation needed] Therefore, their argument proceeds, both unions continued to exist in perpetuity between 1788 and 1790 (whereupon the final state of Rhode Island likewise joined the Constitutional union, thus ending the original confederated union.[citation needed]For this reason, the United States could not have been a single sovereign nation at any time prior to the Constitution, if ever.[citation needed]
Miscellaneous
• Tribal sovereignty refers to the right of tribes or of federally recognized Native American nations to exercise limited jurisdiction within and sometimes beyond reservation boundaries.
• In some regions of the world, such as Quebec and Indian Kashmir, the word "sovereignty" has become the preferred synonym for national independence (referring in this case to "national sovereignty" or the right of national self-determination, as explicited by example in U.S. President Wilson's Fourteen Points - 1918). Compare the Māori term rangatiratanga, and the concept of self-determination.
• The Holy See is recognized as sovereign subject under international law (separate entity in international law vis-à-vis Vatican City, which has a very small amount of territory enclaved in the Italian capital Rome).
• A case sui generis, though often contested, is the Sovereign Military Order of Malta, the third sovereign mini-state based in an enclave in the Italian capital (since in 1869 the Palazzo di Malta and the Villa Malta receive extraterritorial rights, in this way becoming the only "sovereign" territorial possessions of the modern Order), which is the last existing heir to one of several once militarily significant, crusader states of sovereign military orders; in 1607 its Grand masters were also made by the Holy Roman Emperor Reichsfürst ('prince of the Holy Roman Empire', granting a seat in the Reichstag or Imperial Diet, at the time the closest permanent #####alent to a UN-type general assembly; confirmed 1620), the sovereign rights never deposed, only the territories lost; several modern states still maintain full diplomatic relations (100) with the order (now de facto 'the most prestigious service club'), and the UN awarded it observer status.
• Just like the office of Head of state (whether sovereignty is vested in it or not) can be vested jointly in several persons within a state, the sovereign jurisdiction over a single political territory can be shared jointly by two or more consenting powers, notably in the forms of a condominium or of (as still in Andorra) a co-principality
• Thomas Hobbes wrote that Sovereignty was the very soul of the Leviathan.
• Christianity and more specifically the systematic theology of Calvinism asserts that God is sovereign in all things, including salvation.
An underdeveloped aspect of sovereignty is individual sovereignty, meaning the ability of individuals to have effective control over their everyday lives. While it may appear that individuals are bound by laws, jobs, obligations, and such on a daily basis; in reality the only true and pure sovereignty is individual sovereignty.
Sovereign as a title
In some cases, the title sovereign is not just a generic term, but an actual (part of the) formal style of a Head of state.
Thus from 22 June 1934, to 29 May 1953, (the title "Emperor of India" was dropped as of 15 August 1947, by retroactive proclamation dated 22 June 1948), the King of South Africa was styled in the Dominion of South Africa: "By the Grace of God, of Great Britain, Ireland and of the British Dominions beyond the Seas King, Defender of the Faith, Emperor of India and Sovereign in and over the Union of South Africa." Upon the accession of Elizabeth II to the Throne of South Africa in 1952, the title was changed to Queen of South Africa and Her other Realms and Territories, Head of the Commonwealth, parallel to the style used in almost all the other Commonwealth Realms. The pope holds ex officio the title "Sovereign of the Vatican City State" in respect to Vatican City.
The adjective form can also be used in a Monarch's full style, as in pre-imperial Russia, 16 January 1547 – 22 November 1721: Bozhiyeyu Milostiyu Velikiy/Velikaya Gosudar'/Gosudarynya Tsar'/Tsaritsa i Velikiy/Velikaya Knyaz'/Knyaginya N.N. vseya Rossiy Samodyerzhets "By the Grace of God Great Sovereign Tsar/Tsarina and Grand Prince/Princess, N.N., of All Russia, Autocrat"
References
Notes
1. ^ 1 Lassa Oppenheim, International Law 66 (Sir Arnold D. McNair ed., 4th ed. 1928)
2. ^ "Chaucer's tale of the Wife of Bath.". http://www.dhushara.com/book/renewal/bath.htm. Retrieved on 2009-01-10.
3. ^ a b "The Wedding of Sir Gawain and Dame Ragnell". http://www.lone-star.net/mall/literature/gawain.htm. Retrieved on 2009-01-10.
4. ^ Of the Social Contract, Book II, Chapter III.
Tribal sovereignty in the United States
Tribal sovereignty map of the United States, with non-reservation land highlighted.
Tribal sovereignty refers to the inherent authority of indigenous tribes to govern themselves. At the foundation of the constitutional status of tribes is the idea that tribes have an inherent right to govern themselves—the power is not delegated by congressional acts. Congress can, however, limit tribal sovereignty. Unless a treaty or federal statute removes a power, however, the tribe is assumed to possess it.[1] Current federal policy in the United States recognizes this sovereignty and stresses the government-to-government relations between Washington, D.C. and the American Indian tribes.[2] However, most Indian land is held in trust by the United States,[3] and federal law still regulates the political and economic rights of tribal governments. Tribal jurisdiction over persons and things within tribal borders are often at issue. While tribal criminal jurisdiction over Indians is reasonably well settled, Tribes are still striving to achieve criminal jurisdiction over non-Indian persons who commit crimes in Indian Country. This is mostly due to the Supreme Court's ruling in 1978 in Oliphant v. Suquamish Indian Tribe that tribes lack the inherent authority to arrest, try and convict non-Indians who commit crimes on their lands (see below for additional discussion on this point.) The Oliphant decision remains controversial in Indian Country.
Wards of the United States
Before the American Revolution, tribes entered into treaties with the British Crown as sovereign governments. During the Revolution, the Continental Congress established three regional departments of Indian affairs, charged with negotiating treaties and alliances with native tribes, most of which sided with the British during the war. With the creation of the U.S. Constitution in 1789, the new Congress transferred those duties to the newly established United States Department of War.
While government to government treaties, like the 1785 Cherokee Treaty of Hopewell,[4] were still relied on to define rights for the tribes, the legal status of Indian Nations as sovereigns began to change in the early years of the new Republic. The U.S. Supreme Court recognized the rights of indigenous landholders for the first time in its 1823 decision, Johnson v. McIntosh, but the ruling did not answer the lingering questions of tribal sovereignty. Chief Justice John Marshall's decision was primarily concerned with establishing the doctrine that only the federal government had the authority to enter into land deals with the tribes. However, the Court did recognize an indigenous right to occupy and use the land, though the legal title was held by the U.S. government. Marshall explained that Indian lands in the U.S. were granted to the federal government through treaty with Great Britain and that "these grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy." The Court acknowledged that, despite the U.S. holding title to the lands, tribal rights to occupy an area could not be extinguished unless the tribe ceded its right to the government.
The question of the tribes' status as sovereign nations was ultimately decided by the Supreme Court's decision Cherokee Nation v. Georgia in 1831. In writing the majority opinion Chief Justice Marshall stated: "an Indian tribe or nation within the United States is not a foreign state in the sense of the constitution, and cannot maintain an action in the courts of the United States." Marshall characterized the tribes as "domestic dependent nations." He elaborated on this concept and determined that these domestic nations "are in a state of pupilage" and that "their relations to the US resemble that of a ward to his guardian." The next year, in Worcester v. Georgia, the Marshall court established the doctrine that only the national government of the United States—and not the individual states—had authority in Indian affairs.
For the time being, tribes were without access to U.S. Courts. A March 3, 1871 act of Congress established that tribes could no longer enter into treaties with the United States, but held the United States liable to honor all of the treaties it previously had signed with Indian Nations. In 1886, a U.S. District Court, asked to decide where two Indian murder suspects should stand trial, observed that "the constitution of the United States is almost silent in regard to the relations of the government which was established by it to the numerous tribes of Indians within its borders." The court concluded the Indian nations were wards of the United States.
Empowerment of tribal courts
On April 10, 1883, five years after establishing Indian police powers throughout the various reservations, the Indian Commissioner approved rules for a "court of Indian offenses." The court provided a venue for prosecuting criminal charges, but afforded no relief for tribes seeking to resolve civil matters. The new courts' rules specifically targeted tribal religious practices which it called "heathenish rites" and the commissioner urged courts to "destroy the tribal relations as fast as possible." Another five years later, Congress began providing funds to operate the Indian courts.
While U.S. courts clarified some of the rights and responsibilities of states and the federal government toward the Indian nations within the new nation's first century, it was almost another century before United States courts determined what powers remained vested in the original nations of the continent now occupied by the US.
From the mid-19th Century, as a trustee charged with protecting their interests and property, the federal government was legally entrusted with ownership and administration of the assets, land, water, and treaty rights of the tribal nations. In 1934 the Indian Reorganization Act, codified as Title 25, Section 476 of the U.S. Code, allowed Indian nations to select from a catalogue of constitutional documents that enumerated powers for tribes and for tribal councils. Though the Act did not specifically recognize the Courts of Indian Offenses, 1934 is widely considered to be the year when tribal authority, rather than United States authority, gave the tribal courts legitimacy.
In 1956, a U.S. Court concluded no law had ever established tribal courts, but nonetheless, decades of federal funding implied that they were legitimate courts.
Defining jurisdiction
Though Congress on June 2, 1924, extended national citizenship to include members of enrolled tribes, the court concluded two Oglala Sioux defendants convicted of adultery under tribal laws did not enjoy legal protection afforded to other citizens by the US Constitution. The court cited case law from a pre-1924 case that said, "when Indians are prepared to exercise the privileges and bear the burdens of one sui juris (not under the power of another), the tribal relation may be dissolved and the national guardianship brought to an end, but it rests with Congress to determine when and how this shall be done, and whether the emancipation shall be complete or only partial ..." (U.S. v. Nice, 1916). The court further determined, based on the earlier Lone Wolf v. Hitchcock case, that, "It is thoroughly established that Congress has plenary authority over Indians." The court held that, "the granting of citizenship in itself did not destroy ... jurisdiction of the Indian tribal courts and ... there was no intention on the part of Congress to do so." The adultery conviction and the power of tribal courts were upheld.
In 1953, Congress enacted Public Law 280, which gave some states extensive jurisdiction over the criminal and civil controversies involving Indians on Indian lands. Many, especially Indians, continue to believe the law unfair because it imposed a system of laws on the tribal nations without their approval.
In 1965 the U.S. Court of Appeals, Ninth Circuit, concluded that no law had ever extended provisions of the US Constitution, including the right of habeas corpus, to tribal members brought before tribal courts. Still, the court concluded, "it is pure fiction to say that the Indian courts functioning in the Fort Belknap Indian community are not in part, at least, arms of the federal government. Originally they were created by federal executive and imposed upon the Indian community, and to this day the federal government still maintains a partial control over them." In the end however, the Ninth Circuit limited its decision to the particular reservation in question and stated, "it does not follow from our decision that the tribal court must comply with every constitutional restriction that is applicable to federal or state courts."
While many modern courts in Indian nations today have established full faith and credit with state courts, the nations still have no direct access to U.S. courts. When an Indian nation files suit against a state in U.S. court, they do so with the approval of the Bureau of Indian Affairs. In the modern legal era, courts and congress have, however, further refined the often competing jurisdictions of tribal nations, states and the United States in regard to Indian law.
In the 1978 case of Oliphant v. Suquamish Indian Tribe, the Supreme Court, in a 6-2 opinion authored by Justice William Rehnquist concluded that tribal courts do not have jurisdiction over non-Indians (the Chief Justice of the Supreme Court at that time, Warren Burger, and Justice Thurgood Marshall filed a dissenting opinion). But the case left unanswered some questions, including whether tribal courts could use criminal contempt powers against non-Indians to maintain decorum in the courtroom, or whether tribal courts could subpoena non-Indians.
A 1981 case, Montana v U.S., clarified that tribal nations possess inherent power over their internal affairs, and civil authority over non-members within tribal lands to the extent necessary to protect health, welfare, economic interests or political integrity of the tribal nation.
Other cases of those years precluded states from interfering with tribal nations' sovereignty. Tribal sovereignty is dependent on, and subordinate to, only the federal government, not states, under Washington v. Confederated Tribes of Colville Indian Reservation, (1980). Tribes are sovereign over tribal members and tribal land, under United States v. Mazurie (1975).
In Duro v. Reina, 495 U.S. 676 (1990), the Supreme Court held that a tribal court does not have criminal jurisdiction over a non-member Indian, but that tribes "also possess their traditional and undisputed power to exclude persons who they deem to be undesirable from tribal lands…. Tribal law enforcement authorities have the power if necessary, to eject them. Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain and transport him to the proper authorities." In response to this decision, Congress passed the 'Duro Fix', which recognizes the power of tribes to exercise criminal jurisdiction within their reservations over all Indians, including non-members. The Duro Fix was upheld by the Supreme Court in U.S. v. Lara [2004].
Tribal governments today
At the dawn of the 21st Century, the powers of tribal courts across the United States varied, depending on whether the tribe was in a Public Law 280 state or not. Tribal courts maintain much criminal jurisdiction over their members, and because of the Duro Fix, over nonmember Indians regarding crime on tribal land. The Indian Civil Rights Act, however, limits tribal punishment to one year in jail and a $5,000 fine. Tribal Courts have no criminal jurisdiction over non-Indians. In PL280 states (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin), the state has been granted criminal and civil adjudicatory jurisdiction over activities in Indian Country. In non-PL280 states, Indian on Indian crime in Indian Country may be prosecuted in Federal Court if the crime is one of those listed in the Major Crimes Act (§1153). Indian on non-Indian crime in Indian Country will be prosecuted in Federal Court, either from the MCA, or the Indian Country Crimes Act (§1152) (unless the Indian was punished by the tribe). Non-Indian on Indian crime in Indian Country will be prosecuted in Federal court using ICCA. Non-Indian on non-Indian crime in Indian Country will be prosecuted by the state.
While tribal nations do not enjoy direct access to U.S. courts to bring cases against states, as sovereigns they do enjoy immunity against many lawsuits (Santa Clara Pueblo v. Martinez, 1980), unless a plaintiff is granted a waiver by the tribe or by congressional abrogation (Oklahoma Tax Comm. v. Citizen Band Potawatomi Indian Tribe, 1978). The sovereignty extends to tribal enterprises (Local IV-302 Int'l Woodworkers Union of Am. v. Menominee Tribal Enterprises 1984), and tribal casinos or gaming commissions (Barker v. Menominee Nation Casino, 1995). The Indian Civil Rights Act does not allow actions against an Indian tribe in federal court for deprivation of substantive rights, except for habeas corpus proceedings (Santa Clara Pueblo v. Martinez, 1978).
Tribal and pueblo governments today launch far-reaching economic ventures, operate growing law enforcement agencies and adopt codes to govern conduct within their jurisdiction but the United States retains control over the scope of tribal law making. Laws adopted by Native American governments must also pass the Secretarial Review of the Department of Interior through the Bureau of Indian Affairs.
Notes
1. ^ Light, Steven Andrew, and Kathyryn R.L. Rand. Indian Gaming and Tribal Sovereignty: The Casino Compromise. University Press of Kansas, 2005. (19)
2. ^ White House Press Release: "Memorandum for the ######### of Executive Departments and Agencies"
3. ^ Some tribal lands, most commonly in Oklahoma, are held by the tribe according to the original patent deed and thus are not trust property.
4. ^ Treaty With the Cherokee: 1785, The Avalon Project at Yale Law School.
References
• Macklem, Patrick, Distributing Sovereignty: Indian Nations and Equality of Peoples. 45 Stan. L. Rev. 1311 (1993)
Popular sovereignty
Popular sovereignty or the sovereignty of the people is the belief that the legitimacy of the state is created by the (true) will or consent of its people, who are the source of all political power. It is closely associated to the social contract philosophers, among whom are Thomas Hobbes, John Locke, and Jean-Jacques Rousseau. Popular sovereignty expresses a concept and does not necessarily reflect or describe a political reality.[1] It is often contrasted with the concept of parliamentary sovereignty. Benjamin Franklin expressed the concept when he wrote, "In free governments the rulers are the servants and the people their superiors and sovereigns."[2]
History
The Declaration of Arbroath of 1320 makes clear that the King of Scots at the time, Robert the Bruce, only held his position as monarch subject to him resisting English attempts to control Scotland and makes clear that another king would be chosen if he failed to live up to this responsibility. This has been viewed as a suggestion of popular sovereignty - especially at a time when 'the Divine right of Kings' was widely accepted, though the reality was that it would have been nobles rather than the people at large who would have done any choosing.[3]
Popular sovereignty is an idea that also dates to the social contract school (mid-1600s to mid 1700s), represented by Thomas Hobbes (1588-1679), John Locke (1632-1703), and Jean-Jacques Rousseau (1712-1778), author of The Social Contract, a prominent literary work that clearly highlighted the ideals of "general will" and further matured the idea of popular sovereignty. The central tenet is that legitimacy of rule or of law is based on the consent of the governed. Popular sovereignty is thus a basic tenet of most democracies. Hobbes and Rousseau were the most influential thinkers of this school, all postulating that individuals choose to enter into a social contract with one another, thus voluntarily giving up some rights in return for protection from the dangers.
A parallel development of a theory of popular sovereignty can be found among the School of Salamanca (see e.g. Francisco de Vitoria (1483–1546) or Eric Skrzyniarz (1548–1617)), who (like the theorists of the divine right of kings) saw sovereignty as emanating originally from God, but (unlike those theorists) passing from God to all people equally, not only to monarchs.
Republics and popular monarchies are theoretically based on popular sovereignty. However, a legalistic notion of popular sovereignty does not necessarily imply an effective, functioning democracy: a party or even an individual dictator may claim to represent the will of the people, and rule in its name, pretending to detain auctoritas.
Popular sovereignty in the United States
The application of the doctrine of popular sovereignty receives particular emphasis in American history, notes historian Christian G. Fritz's American Sovereigns: The People and America's Constitutional Tradition Before the Civil War, a study of the early history of American constitutionalism.[4] In describing how Americans attempted to apply this doctrine prior to the territorial struggle over slavery that led to the Civil War, political scientist Donald S. Lutz noted the variety of American applications:
To speak of popular sovereignty is to place ultimate authority in the people. There are a variety of ways in which sovereignty may be expressed. It may be immediate in the sense that the people make the law themselves, or mediated through representatives who are subject to election and recall; it may be ultimate in the sense that the people have a negative or veto over legislation, or it may be something much less dramatic. In short, popular sovereignty covers a multitude of institutional possibilities. In each case, however, popular sovereignty assumes the existence of some form of popular consent, and it is for this reason that every definition of republican government implies a theory of consent.—[5]
The American Revolution marked a departure in the concept of popular sovereignty as it had been discussed and employed in the European historical context. With their Revolution, Americans substituted the sovereignty in the person of King George III, with a collective sovereign—composed of the people. Henceforth, American revolutionaries by and large agreed and were committed to the principle that governments were legitimate only if they rested on popular sovereignty – that is, the sovereignty of the people. [6] This idea—often linked with the notion of the consent of the governed—was not invented by the American revolutionaries. Rather, the consent of the governed and the idea of the people as a sovereign had clear 17th and 18th century intellectual roots in English history. [7]
Notes
1. ^ Leonard Levy, ed., Encyclopedia of the American Constitution (Nathan Tarcov, “Popular Sovereignty (in Democratic Political Theory), vol 3, p. 1426, 1426 (1986) ISBN 9780028648804 (Noting of the "doctrine" of popular sovereignty that it "relates primarily not to the Constitution's [actual] operation but to its source of authority and supremacy, ratification, amendment, and possible abolition.")
2. ^ [1]
3. ^ The Declaration of Arbroath: Pedigree of a Nation?, Dauvit Broun, University of Glasgow, Conference on Declaration of Arbroath, 20 October 2001: The declaration of Arbroath: pedigree of a nation? In Barrow, G. (Eds) The Declaration of Arbroath: History, Significance, Setting, Chap 1, pages pp. 1-12. First published in The Declaration of Arbroath: History, Significance, Setting: Society of Antiquaries of Scotland (2003)
4. ^ Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge University Press, 2008) at p. 290, 400 [ISBN 978-0-521-88188-3
5. ^ Donald S. Lutz, Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions (Louisiana State Univ. Press, 1980) at p. 38 ISBN 978-0807105962 Additional support for the centrality of popular sovereignty include: Ronald M. Peters, Jr., The Massachusetts Constitution of 1780: A Social Compact (Univ. of Massachusetts Press, 1978) at p.1 ISBN 978-0807115060 (suggests the following as embodying the meaning of popular sovereignty for Americans - "The concept of popular sovereignty holds simply that in a society organized for political action, the will of the people as a whole is the only right standard of political action."); Donald S. Lutz, The Origins of American Constitutionalism (Louisiana State Univ. Press, 1988) at p. 10 ISBN 978-0807115060 (suggests that popular sovereignty came to have meaning in “the way Americans viewed themselves as a people. They firmly believed that on their own authority they could form themselves into a community, create or replace a government to order their community, select and replace those who hold government office, determine which values bind them as a community and thus which values should guide them those in government when making decisions for the community, and replace political institutions at variance with these values."); Joel H. Silbey, ed., Encyclopedia of the American Legislative System (3 vols., Charles Scribner's Sons, 1994) Vol. I, p. 37 ISBN 978-0684192437 (entry for "Constitutional Conventions," states "The justification of the American Revolution and republican government--as opposed to the monarchical forms of government in Europe--rested on the theory of popular sovereignty. In essence, that theory established the basic premise of American political life: the ultimate and sole legitimacy of government rests on the consent of 'the people.' Defining 'the people' became one of the central issues in the development of the American experience, but soon after declaring independence, American revolutionaries came to agree that popular sovereignty underlay America's republican governments. If identifying 'the people' and their role in changing government took many decades, the problem of how to locate popular sovereignty was solved relatively quickly by the institutional device of the constitutional convention.")
6. ^ Paul K. Conkin, Self-Evident Truths: Being a Discourse on the Origins & Development of the First Principles of American Government—Popular Sovereignty, Natural Rights, and Balance & Separation of Powers (Indiana Univ. Press, 1974), at p. 52 ISBN 9780253201980 (describing “the almost unanimous acceptance of popular sovereignty at the level of abstract principle”); Edmund S. Morgan, “The Problem of Popular Sovereignty,” in Aspects of American Liberty: Philosophical, Historical and Political (The American Philosophical Society, 1977), at p. 101 (concluding the American Revolution “confirmed and completed the subordination of government to the will of the people”); Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (University of North Carolina Press, 1980), at p. 137 ISBN 978-0742520691 (asserting that statements of the “principle” of the people’s sovereignty “expressed the very heart of the consensus among the victors of 1776”).
7. ^ On the English origins of the sovereignty of the people and consent as the basis of government, see John Phillip Reid, Constitutional History of the American Revolution (4 vols., University of Wisconsin Press, 1986-1993), Vol. III:97-101, 107-10 ISBN 0-299-13070-3 ; Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (W.W. Norton and Company, 1988) ISBN 0393306232
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