The Myth of “Special Rights”: How Present Discourse Delegitimizes Indigenous Sovereignty Claims

By Mary Lindeblad-Fry

Mainstream media interpretations of American Indian sovereignty and the complex nature of tribal citizenship highlight the damaging effects of “special rights discourse”.

Pre-constitutional precedents and formal treaties have recognized that tribes are sovereign in relation to the federal government, which means that tribal nations are imbued with the authority to govern their people, land, and resources. However, popular discourse typically frames tribes as merely “special interest groups,” reflecting an assumption that tribal sovereignty and by extension, tribal citizenship, is inherently unfair and problematic. These rights are actively undermined through the current framing of equality principles in the United States. To demonstrate the negative ramifications of applying special rights discourse, it is insightful to consider the contentious issue of tribal fishing treaty rights in Washington state as a case study.

Case Study: Fishing Rights

The Judge Boldt ruling of 1974 upheld treaty-based fishing rights for several Washington state tribes, rights that had been previously established but ignored. Specifically, the Boldt decision upheld The Treaty of Medicine Creek, which established that 50% of the annual catch would be allocated to treaty tribes, who retained exclusive rights to fish in their usual accustomed areas along the Puyallup River. The ruling was powerfully symbolic because it reinforced the basis of the government-to-government relationship between the tribe and the state. The backlash against Boldt’s decision was swift; state officials resisted the ruling and asserted that “the existence of tribal rights was racially-based” and anachronistic to ideals of western democracy. Former Washington state Senator Slade Gorton actively worked to paint tribal fishermen and allied groups as so-called “supercitizens,” effectively casting this technically lawful, treaty-based claim as an affront to the current cultural and moral political norms in the United States. To many non-Indians, “tribal rights appear to blatantly violate core principles of US democracy as well as the symbolic racial order”. The uproar to the Boldt decision is a prime example of how opponents reframe the struggle for indigenous rights as attempts to assert “special rights.” In this case, state officials de-legitimized treaty-based claims to fish in ancestral territories because these rights did not extend to everyone.

Ultimately, the nature of dual citizenship, which refers to the fact that tribal members have citizenship status in both the United States and their tribal nation, “contradicts the rules on which nation-state membership is based”. Therefore “U.S. citizenship provides a normative framework through which tribal citizenship appears to be problematic,” which results in opposition to conceptions of tribal sovereignty for many U.S. citizens and key decision makers.

Minority Rights Framework

According to rights theorist Will Kymlicka, Rawls’ case for minority rights does not sufficiently account for the inherently “multicultural” nature of nation-states. Kymlicka, critical of Rawls, states that cultural membership is necessary because it establishes the foundation for “making meaningful personal choices.” For majority communities, “cultural membership is more or less guaranteed … while members of minority cultures are always at risk in losing their cultural membership.” Kymlicka further establishes the current contractual basis for successful minority rights claims: “by virtue of [contracts and treaties], minorities can hold the state accountable and demand their rights be fulfilled” under these contractual obligations. While these contractual obligations were typically made under coercive conditions and oftentimes broken in order to better serve the interests of the federal government, treaties currently serve as the legal basis for indigenous rights claims in the United States.

It is necessary to distinguish the need for overall stronger emphasis on indigenous rights specifically from minority rights. The current federal Indian policy of self-determination establishes the foundation of the political relationship between the United States and sovereign tribal nations on a “government-to-government” basis. As a result, the relationship between sovereign control over territory and a tribe’s political autonomy must be strong in order for indigenous communities to overcome “internal colonization,” the condition in which indigenous groups are simultaneously “deprived of the land used for their livelihoods and of their status as free peoples” due to the colonizing state.

Framing the assertion of previously-established treaty rights as the desire for “special rights” also played a heavy role in the narrative surrounding the Standing Rock Sioux Tribe’s fight against the North Dakota Access Pipeline (the #NoDAPL movement). It seems unlikely that the American public would accept that American Indians have distinctive legal rights under the Lockean principle of natural rights.  Since casting these claims as the desire for “special rights” effectively delegitimizes these claims, the theoretical basis of the claims must be considered through a different lens.

Implications for Property Rights

Additionally, because indigenous communities have not traditionally adhered to the Lockean theory of property rights, Weigard, echoing Kymlicka,  points out they are especially vulnerable to “other cultures that have developed such concepts … and subsequently may perceive indigenous peoples’ territories as no man’s land and thus unimpeded make use of that land for their own benefits.” The American frontier mentality of manifest destiny relies on this doctrine, and established the basis of the federal government’s policy towards treating indigenous territory as land that was “up for grabs” because Native peoples had failed to cultivate it.

Since land is central to the community identity for indigenous populations, any threat to indigenous territory should be considered tantamount to an existential threat against the group’s continued existence. The preservation of indigenous territory, and by extension indigenous rights, should be considered an intrinsic value of the state.

Implications for Policy

Looking Beyond Commensurability Techniques

Commensurability techniques such as cost-benefit analysis are inherently inappropriate for analyzing policies that impact the allocation or management of indigenous territory. These mechanisms are rooted in the idea that “different properties normally represented by different units can be measured with a single common, or standard unit” so that values can be measured and prioritized. But, for instance, the Yavapai tribe consider their land central to their identity, and therefore cannot be provided with any sufficient amount of payment in order to compensate for the loss of that land. More broadly, the continued existence of tribally-held territory is crucial to the continued cultural and political existence of tribal groups in the United States, and therefore their interest in the land cannot be abstracted to numbers or measured in dollars. The use of commensurate techniques to evaluate a policy that would impact indigenous groups invalidates not only the structure of self-determination but also the symbolic understanding of indigenous identity.  

Collective vs. Private Ownership

Additionally, policymakers should reconceptualize “just distribution” and entitlement justification regarding indigenous territory disputes by respecting the indigenous peoples as the original communities in their area. The indigenous “mode of possession” can be understood as a form of “collective ownership,” established “through the long and continuous use of the land”. The Lockean property framework,which necessitates that land be “mixed” with labor in order to effectively establish property rights, could incorporate indigenous ancestral domain and “use” of land.

Decolonizing Conservation & Land Management

Ultimately, those in power should incorporate principles of justice into land management and conservation policies, especially concerning indigenous territory. Prior to the Boldt ruling, the state argued that ignoring the Treaty of Medicine Creek was necessary for purposes of fish conservation. Conservation is often used as justification for limiting tribal fishing rights; for instance, in Puyallup Tribe v. Department of Game, the U.S. Supreme Court ruled that the traditional way of fishing for Puyallup, which entailed using large nets, must be banned for the sake of conservation, despite any substantial evidence of the relationship between tribal fishing practices and the reduction of available fish. The Boldt decision served to shift the conception of “conservation” as one of simultaneously affirming tribal sovereignty and accurately attributing the problem of overfishing to non-indigenous industrial development.

It is true that the use of commensurability procedures such as cost-benefit analysis has occasionally served the interests of indigenous communities (albeit, oftentimes as a “side effect” or a “happy accident” in pursuit of a different policy goal). However, policymakers who are interested in facilitating indigenous access to existing power structures must take active steps towards towards decolonizing current decision-making methodologies.

Mary Lindeblad-Fry is a Master of Public Policy candidate at the Goldman School of Public Policy. Prior to attending Goldman, she worked with tribes on developing and implementing comprehensive data collection projects and assisted them in building their statistical capacity.