Reclaiming Rights speech, self-determination rights for indigenous people are prominent. There are two possible motivations for this rhetoric: that it is an honest representation of Senator Johnson’s motivations around issues of indigenous autonomy, and that it is a rhetorically persuasive face for a different agenda. If his motivations are different from the rhetoric of self-determination he uses, then he is reacting to what he believes his constituents will find appealing. This explanation makes sense in light of census data for South Dakota. In 2000, just two years before Johnson passed NAHASDA, the Indian population in South Dakota was 8.3% of the general population, over one hundred and thirty eight times the ratio of Indians to non-Indians in the entire United States.39 Electoral pressures, then, provide a partial explanation of why Congress acts in favor of indigenous sovereignty at times. However, this picture is incomplete. While it is understandable that Johnson would be moved by electoral pressures in his home state to enact proindigenous sovereignty legislation, it does not fully explain his use of the rhetoric of sovereignty. Take, as an example, the discussion of Indian sovereign immunity that occurred in the Senate in 1996 during a discussion of tribal immunity, the inability of Native American Tribes to be sued: [Senator Daniel K.] Inouye asked: Mr. [Robert T.] Anderson, would you agree that an integral part of the Federal Government’s trust responsibility to the tribes is to protect their sovereignty…? Anderson replied: Yes; I would, Mr. Chairman…it’s critical that tribal immunity be preserved.40 This direct exchange indicates that there is at least some measure of true belief in the justice or rightness of Indian sovereignty. Thus, these members
of Congress demonstrate that there is at least some level of normative and strategic motivation in the preservation and perpetuation of Indian sovereignty rights.
“Congressional action around indigenous rights claims focuses on Indian rights that do not link to sovereignty rights.” Yet Congress’s willingness to yield to electoral and executive pressures and normative moral obligations stands in interesting contrast to their unique plenary power, which grants Congress the position as ultimate arbiter of how much sovereignty and self-determination indigenous peoples have. Plenary power is “exclusive, preemptive, absolute, and unlimited power…over tribes, their resources, and the field of Indian affairs.”41 It is also “the exclusive power of Congress.”42 As Thurman Less Hester puts it, “the power of Indian nations is neither supreme nor absolute if Congress has plenary power.”43 In fact, many scholars describe this plenary power as absolute.44 Congress has been unwilling, historically, to limit its own plenary power, even when they are faced with scholarly and political opposition to it.45 Thus, a pattern begins to emerge: Congressional action around indigenous rights claims focuses on Indian rights that do not link to sovereignty rights. In this way, Congress can placate the electorate and act in the way viewed as morally correct, without actually limiting its own power as result. Thus, beginning in the 1970s, Congress passed a series of acts aimed at recognizing the equal status of Indians, and easing the economic burdens on Native Americans, without
“American FactFinder - Results.”American FactFinder. <http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk>. 40 Quoted in Wilkins, David E., and K. Tsianina Lomawaima. Uneven ground: American Indian sovereignty and federal law. [Okla.: University of Oklahoma Press, 2001), 232-233. 41 Ibid., 99. 42 Ibid., 99. 43 Hester, Thurman Lee. Political Principles & Indian Sovereignty. (London: New York ; 2001), 94. 44 Wilkins and Lomawaima, 100. 45 Ibid, 112. 39
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Williams College Law Journal