Abstract
Excerpted From: Vaughan Carter, Charlotte Ku and Andrew P. Morriss, Evolving Sovereignty Relationships Between Affiliated Jurisdictions: Lessons for Native American Jurisdictions, 40 Arizona Journal of International and Comparative Law 411 (2024) (341 Footnotes) (Full Document)
“Poverty is not part of our cultural heritage,” Chairman of the Crow Nation Carl Venne declared at the 2008 signing ceremony for the Joint Sovereign Uniform Commercial Code (UCC) Filing Compact between the Crow Nation and the State of Montana. The compact was a critical step in the implementation of the Model Tribal Secured Transactions Act to enable the flow of credit to the Crow Reservation--vital for economic development. The ceremony took place nearly 180 years after the Crow Nation signed the 1825 Friendship Treaty accepting the supremacy of the United States over its territory. Despite the devastating impacts such treaties have had on Native American tribes' ability to exist as a people and to thrive, the United States has long recognized that Indian tribes maintain a degree of sovereignty, even if heavily constrained. In 1932, Chief Justice John Marshall addressed the tribes' status in the majority opinion of Worcester v. Georgia:
The Indian nations had always been considered as distinct independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception ... which excluded them from intercourse with any other European potentate than the first discoverer .... The very term “nation,” so generally applied to them, means “a people distinct from others.”
Giving substance to Worcester's recognition of tribal sovereignty, however, has proven difficult. In the absence of the parties directly negotiating within this unique arrangement, a “maze of Indian statutes and case law tracing back [over] 100 years” has defined the contours of the relationship. This relationship has been characterized as “oscillat[ing] between two poles, with the Supreme Court sometimes applying foundation principles that view tribes as sovereigns 'retaining all their original natural rights,’ and at other times treating tribes as mere 'wards subject to a [self-imposed] guardian.”’
Although tribal sovereignty is most often compared to relations between other post-colonial settler states and their indigenous communities (e.g., Australia, Canada, and New Zealand), these are not the only relationships where the division of sovereignty is not well defined and subject to change. Scattered across the globe are jurisdictions that continue to maintain a constitutional relationship with another power, often a former colonial ruler. In this article, we argue that the evolving relationships between various jurisdictions associated with Britain, France, and the Netherlands offer potential lessons for Native American jurisdictions in managing their relationships with the United States. We draw attention to possible similarities (and differences) from a range of European-associated jurisdictions as these relationships have developed and suggest where tribal governments might derive both positive and negative insights from the experiences.
While the histories and potential trajectories of jurisdictions associated with Europe differ from those of tribal governments, their relationships are similar to those of tribal governments with the United States. Unlike Native American jurisdictions, many (but not all) of the jurisdictions in this case study were once colonies of European powers and most have at least the theoretical prospect of independence. The jurisdictions in this study are also all island jurisdictions and do not have immediate neighbors (except for St. Martin and Sint Maarten, which occupy the same island with a land boundary between them). Native American jurisdictions may share the sense of isolation felt by many island communities, and they also contend with the added complications and limitations of sharing physical land boundaries. Comparing the tribes' relationships with the relationships of their European-associated counterparts is nonetheless appropriate as international standards of good governance place greater emphasis on self-determination and economic development. Understanding how less-than-fully-sovereign jurisdictions worked with these standards to strengthen their political and economic development could provide tribal governments with strategies for shaping their ongoing relationships with both federal and state governments in the United States, notwithstanding their differences with the island case studies.
To overcome a complicated array of names used for these jurisdictions, we have largely opted to use generic designations in this article. Within these designations, we use subsets to differentiate status, some of which overlap with each other. British jurisdictions, for example, include all territories with a British or United Kingdom connection including what are now called United Kingdom Overseas Territories (UKOTs) and Crown Dependencies (CDs). In a similar fashion, French and Dutch jurisdictions are designated as such even though we are tracking changes both in governing structures and relationships for each area over time.
We have also opted to avoid referring to these jurisdictions as “dependent” unless describing a specific form of dependency or discussing a historical context where this terminology more accurately characterized the relationship. This follows the United Kingdom's practice seen in the 1999 Government White Paper, noting a change in preferred terminology from what had previously been referred to as “Crown Colonies” or “Dependent Territories” to “UKOTs.” While some may dispute the substantive significance of these word changes, they do seem to capture policy shifts in the relationship between the United Kingdom and its overseas territories. UKOTs are therefore “former colonies,” which, strictly speaking, is a term that encompasses independent states that were formerly part of the British Empire. At times, we also refer to “remaining overseas jurisdictions” as a generic term for what is now left of the jurisdictions that were formerly part of the British, French, and Dutch colonial empires: namely the UKOTs, the French jurisdictions, and the Dutch jurisdictions.
Our starting point is that both the Native American jurisdictions and the jurisdictions in this study exercise some form or degree of sovereignty, notwithstanding their relationships with or within a sovereign state (France, the Netherlands, the United Kingdom, or the United States). The case study jurisdictions are all geographically smaller than the jurisdiction with which they share sovereignty. Further, the larger jurisdictions maintain shared sovereign relations with multiple other jurisdictions. Our focus is on how the jurisdictions have managed shared sovereignty to promote good governance and to support economic development. We examine both successes and failures to identify common factors and conditions across the jurisdictions to establish a basis for possible application by Native American tribes. In particular, we highlight how these relationships have shifted by varying degrees from hierarchy to partnership, which may be a framework for the future evolution of the tribes' relationships with federal and state governments in the United States.
To capture these relationships, we refer to the Native American jurisdictions and the jurisdictions connected to France, the Netherlands, and the United Kingdom as “micro-sovereigns”; and to France, the Netherlands, the United Kingdom, and the United States as “macro-sovereigns.” This is not simply to reference geographic size, but also to distinguish between jurisdictions that exercise powers across the full inter-jurisdictional scope of government responsibility--such as external security and defense, foreign relations, and trade--from those whose sovereignty may be primarily inward-looking or is constitutionally constrained in some manner.
Our key finding is the importance of creating opportunities for ongoing consultation and review of governing arrangements between macro- and micro- sovereigns, including the goals and objectives of each. Often triggered by a particular event, we found that the specific structure and formality of the consultations were less important than regularity and a framework that parties can comfortably use. Our case studies further revealed that the pursuit of priorities potentially carried trade-offs that each jurisdiction must resolve on their own through processes appropriate to their own populations and customs. As the priorities of the macro-sovereign may change, so may the priorities of the micro-sovereign; and processes, which can help flag those changes, would be beneficial to build resiliency into any governing partnership. A final insight is the non-linearity of developing a shared sovereignty relationship that will require the continuous balancing of interests, opportunities, and resources. Efforts to maintain effective balances may result in collaboration or cooperation with neighbors or like-minded jurisdictions for cost-sharing and capacity building.
Part II of this article analyzes the concept of sovereignty and explains what the historical experiences of our case study jurisdictions reveal about the exercise of sovereignty. To capture the multidimensional significance of these arrangements, we examine sovereignty over political, economic, and cultural issues and suggest how this tripartite conceptualization can provide a deeper understanding of sovereign relationships. Part III describes the evolving relationships between micro-and macro-sovereigns, grouped by macro-sovereign. These relationships reveal an evolution of approaches by macro-sovereigns in the management of their associated jurisdictions, with changes-- including inconsistent and contradictory ones-appearing over time in response to both internal and external events and pressures. Lastly, Part IV sets out the key insights for the tribes from these jurisdictions' experiences-both positive and negative.
[. . .]
Sovereignty is not absolute, despite many theoretical and rhetorical assertions to the contrary. A review of constitutional developments over time, whether in the U.S. or in other countries, reveals the evolutionary character of the attributes of sovereignty, including defining power, authority, and responsibility. Evolution further characterizes the relationship among the units within any sovereign association, however derived. We have examined this phenomenon through a selection of case studies. Through smaller jurisdictions, size has enabled a more comprehensive review of these evolutionary experiences, facilitating the ability to pinpoint significant factors that may be applicable both to larger jurisdictions and more complicated political dynamics. Even within the stories of these small jurisdictions, the capsule summaries above reveal the changing dynamics within governing relationships brought on by domestic pressures, either at the metropole or within the territories, or through forms of international pressure. We observed that these changing dynamics did not always result in better circumstances--broadly defined across political, economic, and cultural factors--for the lesser power within the relationship.
We further observed that policies and dynamics could be subject to change at the whim of the metropolitan power. Such changes could be precipitated by domestic politics within the metropole--for example, the Dutch desire to be rid of its territories leading to a desire for greater efficiency in the management of its territories that did not wish to be set free or the French desire to continue its mission of spreading French culture. A first step towards a beneficial relationship therefore cannot be assumed to start a straight line of progress towards productive levels of autonomy. Progress is therefore not necessarily linear and may be subject to various twists and turns, depending on pressures that can be exerted by the metropole; for example, in the area of international human rights, the acceptance of requirements to abolish the death penalty, and to allow for gay marriage and other rights for the LGBTQ+ community.
How metropolitan powers have used their associations with international fora is interesting, particularly in the case of the United Kingdom that has, from time to time, taken positions not consistent with its own either within the EU (when it was still a member) or in international financial regulatory bodies. Such advocacy serves as a means to set out the terms of responsibility between the macro-sovereign and a micro-sovereign by acknowledging the differing needs of the micro-sovereign and understanding the pursuit of that need as part of its responsibility as a macro-sovereign. Such advocacy can serve as an important opportunity to build trust and understanding between the parties.
Our case studies reveal the role historic circumstances can play in a jurisdiction's development. Several of our case study jurisdictions served specific strategic purposes with military installations around the world. This created some infrastructure, some governance, and a connection to the metropole that could be turned into another industry--tourism, for example. Even in the financial services sector, where there was some tie with the metropole's legal and financial systems, facilitated access to markets and the development of products that could readily and credibly meet global standards. The Crown Dependencies provide a unique example of constitutional ties to the British Crown that they effectively leveraged (pre-Brexit) to serve as a gateway to the EU for non-EU based enterprises. Indeed, during the withdrawal phase, Crown Dependency officials were called on to advise elements of the British government on the implications of no longer functioning within the EU. During its thirty-year membership within the EU, more than a generation of British officials had passed without any experience working outside of the EU.
The key challenge and question to our study was how did jurisdictions that managed to find effective ways to leverage their statuses do so? Creating opportunities for ongoing consultation and review of arrangements including goals and objectives of both of the metropole and its territories is key. These consultations developed over time initiated by some particular action or individual and gaining structure and formality. Specific structure and formality are less important than regularity and a framework that parties will comfortably use. The challenge is to maintain the delicate balance of interests and responsibilities between entities of unequal power. But, as the British discovered through the evolution of its practices, liabilities and annoyances could be reduced if it engaged with its territories in meaningful ways to allow for appropriate burden sharing and autonomy. However, even the best structures will be subject to stress as issues arise or interests change. Parties within these relationships therefore must be watchful and able to invite discussion as matters arise and guard against the erosion of trust, which may be hard to win but easily lost.
Our case studies further revealed that the pursuit of priorities potentially carried trade-offs where, for example, economic success might bring in more non-natives with implications for the maintenance of local language and custom. These are trade-offs that each jurisdiction must resolve on its own through processes appropriate to their own populations and customs. As the priorities of the macro-sovereign may change, so may the priorities of the micro-sovereign and processes which can help flag those changes would be beneficial to build resiliency into any governing partnership.
Non-linearity appeared as a feature throughout our studies. This may apply as well to identifying and building like-minded or similarly situated interests and jurisdictions outside of the immediate macro/micro governing relationship. The key consultation is between the relevant macro- and micro-sovereigns. However, the pursuit of common interests across jurisdictions, and even the establishment of trans-tribal institutions, might also be effective for sharing costs, capacity building, and maximizing political clout.
From an academic perspective, wading through these histories and experiences has been a fascinating exercise in observing change in governing relationships. We see that this is not static and subject to change--precipitated possibly not quite in equal measure, but with comparable significance by either the larger or the smaller entity. We see that the dynamism can be harnessed for development and positive change if managed by partners committed to seeking a mutually beneficial outcome. It can also be used to create less productive conditions on the scale of political and economic development. The important policy finding is that there is opportunity for choice by all in a governing relationship. Creating the best conditions and developing appropriate capacities over time for the best outcomes across multiple dimensions is the key.
For tribal jurisdictions, this might mean generating means to determine a community's priorities within maintaining cultural heritage, political autonomy, economic development, and a good working relationship with the macro-sovereign. For tribes, the political landscape is complicated by having to navigate the agendas and politics of the federal government and increasingly state governments keen to generate revenue from tribal lands and enterprises and to consolidate control over territories within their jurisdictions. Lessons drawn from the case study surveys are that situations and conditions can change to shape the interests, positions, and objectives of both macro and micro-sovereigns. These need to be understood and managed to create the greatest level of opportunity and benefit for the tribes. To do so requires an internal political coherence and structure to support negotiation and bargaining with the macro-sovereign. Internal good governance, leadership, and reliability can go a long way to equalize an inherently unequal relationship. The sovereign of today, however, is not the free agent of history, but one subject to higher levels of accountability and scrutiny. For the micro-sovereign, this provides an opportunity to craft a path towards a more productive shared sovereign relationship worthy of further consideration.
LL.B., University of Kent; LL.M. (Human Rights and Civil Liberties), University of Leicester; Attorney-at-Law (Cayman Islands).
B.A., American University; Ph.D., M.A.L.D., M.A., Fletcher School of Law and Diplomacy, Tufts University; Professor, School of Law, Texas A&M University.
A.B., Princeton; J.D., M.Pub.Aff, University of Texas at Austin; Ph.D. (Economics), M.I.T.; M.Ed.Pysch, Texas A&M University. Professor, Bush School of Government and Public Service & School of Law, Texas A&M University.
