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Mni Wiconi1: A Discussion of Tribal Lands, Media Representation of Native Peoples, and Federal Environmental Policy Vivian Mellon Snyder
“T
he Standing Rock Sioux, the Cherokee, the Sayisi Dene, the Navajo, the Crow, the Cocopah…”
Federal environmental policy, however broad that term may be, has very specific implications for the many tribal nations located throughout the United States. These sovereign nations are distinct in their interactions with the federal government, in the land on which they are located, and in the ways which they are connected to the land. To acknowledge the sovereignty and diversity of Native American peoples, I shall structure this paper around the effects of federal water policy on each tribe, rather than to divide this paper into environmental topics such as climate change, wildfire, and irrigation. Necessarily, this paper addresses only a few of the countless environmental injustices faced by Indigenous Nations. Rather than serving as an explanation of legislative bills, statutes, and warrants for reparation, then, this piece serves to introduce a discussion of those policies as they affect the sovereignty and cultures of those who live within Indian Nation. Vital documents, such as the Clean Water Act, are introduced in the context of the living history of Indian Nation. To preface the arguments made hereafter, however, I will establish the significance of three legal concepts which are necessary to understand the complicated legal interactions between the United States Government and sovereign Indian nations: tribal territorial sovereignty, the plenary power doctrine, and the trust relationship. In tandem, these three concepts reveal the pervasive momentum of legal ideologies which had themselves formed before the United States Government formally existed. Today, they continue to serve as the foundation of the federal government’s intervention in tribal sovereignty.
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ribal territorial sovereignty might be loosely defined as the notion of a tribe’s right to self government. The same legislation which grants “state’s’ rights” under the United States Constitution grants rights these rights to Indigenous nations. Legally, then, Indian Nations could fun1 “Water is Life.” This is the rally of the Standing Rock Sioux, who today fight in federal courts for their right to clean water.
damentally be considered as States. Territorial sovereignty, however, mandates the acquisition of territory. These territories are legally defined by borders, and the political rights of sovereignty and jurisdiction are confined within that state’s territory. Territorial acquisition occurs through terra nullius, a notion which traces its roots to Roman law. Land that has not been previously owned, or land which has been exchanged from one state to another, is considered to be eligible for acquisition. Borders might be defined through two broad processes: original acquisition (occupation) and derivative acquisition (prescription, cession, and conquest & annexation). Original acquisition, or occupation, is the process of claiming land which is not owned by another state. Occupation typically occurs when land has either been abandoned, or has been newly discovered. Prescription is the second means of land acquisition, denoted by the establishment of a state’s right to land through time. Over period of use, a territory may be said to have been peacefully acquired through a de facto exchange. Cession, alternatively, is the willing exchange of land from one state to another, often through an agreement that benefits both parties in some manner. Land may be sold, borders willingly redrawn, or exchanged through treaties. Cession may also occur as a result of active compulsion, following or under threat of war. Conquest is the final means of acquisition. Through the defeat of another state in war, the exchange of a territory is forced. The land must first be occupied by military forces, and thereafter annexed, for a state to have legal claim to it (Abdulrahim). The legal process of land acquisition is critical to the definition of a state. The present ownership of land creates socially constructed terms of sovereignty. Today, the Indian Commerce Clause of the Constitution (Article I, 8, Clause 3) largely determines how the federal government and Indian nations interact with one another. In 1824, Chief Justice John Marshall ruled that Congress should be held responsible for determining the federal government’s role in intervention with tribal law. The Supreme Court reviews the actions of the executive and legislative bodies of government, as they impact the sovereignty of Indian nations.
Fifth World
