Hutchins vs. Newcomb on sovereignty

Hutchins:  How to fix U.S. tribal policyThe 2008 campaigns of John McCain and Barack Obama finessed hard questions relating to tribes, for example endorsing tribal “sovereignty” while ignoring whether this meant supra-Constitutional inviolability or merely municipal-style local autonomy. But the results of the election have certainly made more imaginable a new approach to tribal issues. A revised tribal paradigm cannot become law any time soon. Numerous binding agreements remain in force, some of them treaties hundreds of years old, and other contracts negotiated within the past few years, including many for tax-exempt casinos. Goals can nonetheless be identified. Starting where President Washington left off, and reviving the Constitution’s functional, non-racial approach to separating responsibility for “Indian” regulation between states and the federal government, could set a course acceptable to tribes and wholly within the parameters of our still-evolving Constitution, the indispensable basis of a national community including all Americans on a basis of full legal equality.Newcomb:  How not to fix U.S. Indian policyAfter presenting the reader with his version of history, Mr. Hutchins says that the result of the 2008 election makes “more imaginable a new approach to tribal issues.” The approach he has in mind is “a revised tribal paradigm” that, he acknowledges, “cannot become law anytime soon.”

The alternative political framework that Mr. Hutchins advocates is one in which Indian nations (which he refers to as “tribes” and “groups”) become further subject to both state and federal regulation. His ideal scenario is one in which state-federal arrangements are made that separate “responsibility for ‘Indian’ regulation between states and the federal government.”

Such regulatory arrangements ought to be constructed, Mr. Hutchins suggests, “within the parameters of our still-evolving Constitution, the indispensable basis of a national community including all Americans on a basis of legal equality.” In this last sentence, we find the familiar phrasing and rhetoric of the Anti-Indian movement, one that claims that Indian rights must be the same as individual civil rights in order to be “equal.” The way he phrases this argument is by saying that Indian people ought to learn to exist as “Americans” on “a basis of legal equality.” Mr. Hutchins’ refusal to acknowledge the collective rights of Indian nations is an old Anti-Indian “melting pot” position that he is proposing as a new “fix.”Comment:  That Hutchins puts the word "sovereignty" in quotes is a good indicator of his position.

Regarding Hutchins's artificial dichotomy--"supra-Constitutional inviolability or merely municipal-style local autonomy"--I'd say tribal sovereignty isn't either. It definitely isn't "supra-Constitutional," since its basis is in the Constitution. It's inviolable in theory, but it's already been violated so often that inviolability is no longer an issue. Yet it remains much more than "merely municipal-style local autonomy."

Needless to say, the Indian wins another debate over the white man. For more on the subject, see Indian Rights = Special Rights.