Iroquois “passports”

by Walter Olson on July 14, 2010

According to news reports in recent days, some members of Iroquois Indian tribes are claiming a right to travel internationally on tribal “passports”, and U.S. officials — including Secretary of State Hillary Clinton, at the request of upstate Rep. Louise Slaughter and other New York politicos — have leaned over backwards to let them do so. As I relate in my forthcoming book, some Indian tribes in the U.S. have been getting louder in asserting that they have the rights and perquisites of actual state sovereignty — something U.S. Supreme Court precedent makes very clear they do not have — and have been invoking international human rights law, and its precepts in defense of the rights of indigenous peoples, in support of those vain claims. That seems to be going on to some extent here too.

The State Department has long accepted some casual use of tribal “passports” given a number of tribes’ geographic sprawl across the U.S.-Canada border (where until recently the paperwork burdens for travelers were minimal anyway). If it is now beginning to play along with bogus assertions of a right to use Indian passports in travel around the world, that would be big news. Let’s hope that’s not what the new reports mean.

{ 22 comments }

1 Kimball Bighorse 07.14.10 at 5:06 pm

Dear Sir:

Your assessment of the situation reflects an unfortunate unfamiliarity with the historical dealings between the United States and Native Nations. The nations of the Haudenosaunee Confederacy, in particular, have treaty relationships with the United States that date back to a time when a strategic alliance was coveted by Revolutionary War England and American colonies alike and later when the Federal Government feared to enforce their own Congressional statues for fear of the more powerful State of New York.

Further, an informed opinion of Supreme Court precedent requires more than a casual scanning of even the past 50 years of activity: indeed, any number of contradictory positions can be supported by Supreme Court precedent, as well as Federal policy, which has evolved significantly since the 18th Century. The Constitution names tribes as sovereigns in the Commerce Clause along with the states and foreign nations, and the Supreme Court declared tribes “domestic dependent nations” in a brave attempt to do the right thing generations ago, and these principles still stand. To say that the sovereignty of tribal nations is a matter of settled law is sadly ignorant of the facts.

An informed opinion would recognize that the real problem here is of self-governance, if Haudenosaunee people want to be recognized as sovereigns, they need to keep up with international self-identification requirements, something that handwritten passports fail to do. The right of indigenous people to self-identify is not at issue here, the responsibility to reliably identify themselves to other nations is.

Cordially,

Kimball Bighorse
Turtle Clan, Cayuga Nation, Haudenosaunee Confederacy
Yucca Fruit-Strung-Out-In-A-Line Clan, Dine’ (Navajo) Nation
Wolf Clan, Seneca Nation, Haudenosaunee Confederacy
Towering House Clan, Dine’ (Navajo) Nation
Palo Alto, CA

2 Doug 07.14.10 at 6:04 pm

I politely disagree. I don’t think you should have this kind of sovereignty. You should use the same passports like the rest of us. It simplifies the issue. I understand that you may have separate court system and such, but when it comes to anything related to travel to another country, you said it, “domestic dependent nations”. I think that sums it up.

3 Dennis 07.14.10 at 6:30 pm

If the Indian Nations want to assert sovereignty vs the US, then their citizens should be ineligible for any benefits of US Citizenship, including travel in the US without a visa.

You can’t have it both ways.

4 Bill Alexander 07.14.10 at 8:07 pm

Then they should also pay foreign tuition at schools.

5 Justin 07.14.10 at 8:12 pm

If various tribes want to become their own, independent nations I’m cool with that. But you’re either a separate nation or you’re part of the US, not both. This super citizen stuff is bull.

I’m guessing that after weighing the benefits of being a part of the US versus being a sovereign nation, not many tribes would want to be sovereign.

6 Mark 07.14.10 at 10:31 pm

Well, of course the option for tribes of becoming independent is unlikely to look attractive – because such independence would be in a position of extreme disadvantage, with only a small portion of their historical tribal territory, only a small portion of their historical tribal population, etc. The history here must be born in mind, viz. that the United States has benefited tremendously – indeed essentially owes its existence to – the depredation and expropriation of native peoples over centuries that have precisely put these peoples in a ‘dependent’ position. I think this history calls for a little latitude to say the least in assessing the bureaucratic costs of allowing mixed forms of sovereignty.

7 Luis 07.14.10 at 10:51 pm

Wrong, wrong, all wrong. Different nations and territories (actually, different States as well) have different legal relationships with the U.S. Federal Government. It’s not “super citizenship,” it’s a matter of how they were incorporated into the Union. For example, Puerto Rico has a different tax relationship with the U.S., no right to vote in Presidential elections, and the use of a U.S. passport. This is a product of their particular historical treaties, amendments, and bills. The numerous Native American tribes have similarly complex relationships in terms of rights over land, voting, and other rights depending on their relationship with their State, the U.S. Federal Government, and the Canadian Provincial or Federal governments in cases of tribes that straddle the border like the Iroquois tribes do. Certain tribes, like the Iroquois and Navajo, even have some established rights to self-governance. As has been stated by both the U.S. and U.K. governments, this issue is mainly about the quality of the Iroquois passports, which lack the sophisticated RFID chips now expected by many countries, rather than a question of their right to carry passports.

8 Frank 07.15.10 at 8:42 am

“”Domestic dependent nations”.

That may sound like a powerful endorsement to some.

Of course in that very decision, the Supreme Court aslo explicitly stated:

“Indian tribes are, of course, no longer “possessed of the full attributes of sovereignty.” United States v. Kagama, supra, at 381.Their incorporation within the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty which they had previously exercised. By specific treaty provision they yielded up other sovereign powers; by statute, in the exercise of its plenary control, Congress has removed still others.”

If the US Congress has decided and may decide in the future what sovereignity Indian tribes hold, then it is no real sovereignity. Not facetiously, perhaps comparison to a teenager’s room in the family home is apt.

9 Bryan C 07.15.10 at 10:18 am

“The history here must be born in mind, viz. that the United States has benefited tremendously – indeed essentially owes its existence to – the depredation and expropriation of native peoples over centuries that have precisely put these peoples in a ‘dependent’ position.”

But the exact same thing could be said of those “historical” tribal lands and populations. Both in regards to the original indigenous peoples of those areas and to other contemporary Indian tribes. The way the Europeans and Americans treated the various Indian tribes is nothing to be proud of, but it’s nothing uniquely evil, either. When it came to war, as I’ve heard it put, the white man just happened to be a better Indian.

Indian tribal lands are not sovereign nations. They can’t be, legally, and I don’t think they really want to be.

10 Akwirente 07.15.10 at 11:08 am

The white people have broken EVERY TREATY made to us native people. And have also changed the interpretation of most agreements made. So that said, all the negative comments written here about our rights and legalities bear NO MERIT !! The people have always come to the aid of the USA from the Revolutionary war to the wars in Iraq and Afghanistan. We don’t ask for accolade’s, just to be left alone in peace in some of the most inhospitable lands they put us on !! If you have read a tiny amount of history you’d be aware that the USA would not be here if not for the “noble savage”. We are sovereign nation’s in this nation whether you all believe it or not and one day will have our own passports.

11 John Rohan 07.15.10 at 11:10 am

Someone please explain to me how the Federal government can sue Arizona over it’s recent illegal immigrant law claiming it “violates the supremacy clause” and that “states shouldn’t decide immigration policy”, yet here they are allowing Indian tribes to do the very same thing? (even much more so)

12 Le Mur 07.15.10 at 11:56 am

Can I be a black Indian too? If so, will my Sovereign Nation get more money or less money from regular US citizen taxpayers?

13 Justin 07.16.10 at 3:08 am

Well, gee, I’m sorry that your ancestor that you never knew suffered at the hands of my ancestor who I never knew (well, my ancestors weren’t in the country yet, but you get the idea). And now, the way history worked out, you live in the wealthiest and most powerful nation in the world. You have it better than 99.9% of all humans who have walked the planet. You have every right of a normal American citizen and more while being at the top of the affirmative action hierarchy. So, wait a second, what are you complaining about again? Does your great-great-great grandfather come and haunt you in your dreams or something? Stop living your life in history that never involved you.

14 DDNY 07.16.10 at 9:49 am

History of what was done to them across North America since the beginning cannot be ignored. They were removed from their land, told where to live and how they will be defined. They are constantly being challenged over and over. They are expected to give up more and more. Every time they negotiate before the ink is dry, another politician wants more from them. This is being played out full speed in New York. Now that NY needs more revenue they start making laws and enforce more taxes and much more from them ie casino revenue. Yet NY can hardly get a dime from Wall street.

The Native Americans in North America should have a pass port that is elusively theirs. The security clearance can be done by the US and Canada and call it a day. To force them, restrict them is just a waste of time and it makes no sense. It would be a huge legal mistake to give up a pass port and accept another countries as you own. The US is not their country/Nation. We invaded them and we won not because we were the better people but rather we had the guns. I can still see the Olympics held in Canada and all the references they made to the Native Americans. Just show, when it came to practice what you preach.

If they are not defined as sovereign here and now , then when? The Native Americans owe us nothing. If you don’t believe in history then this concept may be difficult for you to understand

15 Thunder Williams 07.16.10 at 11:19 am

If this was target practice, you win the expert marksman trophy. On point and to the point. In the book, “Savages and Scoundrels: The Untold Story of America’s Road To Empire,” author and journalist Paul VanDevelder with careful scholarship, great adventure and compassion, pulls the clothes off the Emperor. He details the deeply saddening American story and long history of the European takeover and unscrupulous exploitation of Native American homelands. Also, you may wish to check out his interview on TalkingFeatherRadio @ http://www.blogtalkradio.com/talkingfeather.

16 Kimball Bighorse 07.17.10 at 5:13 am

Seems like lots of commenters here have precious little capacity for nuance or complexity, no sense of history, and even less understanding of American law. The United States is duty-bound by treaty to fulfill its fiduciary responsibility for one thing, which includes health care and education among other things promised in exchange for land. Native nations didn’t even have a court in which to sue for illegal land claims from the 18th and 19th centuries until the 1970s at which point 30-year proceedings are only now being denied on joke legal grounds like laches, or in other words, “we can’t think of anything else”. The United States mishandled assets of Native people to the tune of the largest accounting scandal and largest audit in the history of the profession, see the Cobell case only now being sorted out. The fact is even in basic fulfillment of agreed-to obligations, the United States has completely written checks it can’t possibly afford to cash, let alone all the prosperity it has enjoyed at the expense of native people. It’s a continuation of a national disgrace.

17 Bill Alexander 07.17.10 at 9:51 am

In my opinion, the Iroquois have the right to create a passport, but no right or way to insist that other countries honor it.

18 Melvin H. 07.17.10 at 2:41 pm

Why not some form of a “dual-citizenship”, whereby the Native American/American Indians can have legally two passports; one Native, one U.S.? THe problem here seems to be that the non-U.S., non-Canada countries don’t recognize Native sovereignty (and, as far as I know; there are no Puerto Rican passports–nor for the Canal Zone, Guam, D. C., etc.). I realize there are Constitutional issues on dual-citizenship, but there must be some way (even if a special passport, U.S. and Native, can be issued).

19 Bernie S 07.17.10 at 5:48 pm

I am pleased to learn that the Iroquois never fought as allies with a nation state engaged in warfare against the United States, never committed unspeakable atrocities agains people who settled in the same general area as their villages, etc. etc.
If you are going to appeal to history, you have to appeal to all of it, not the one-sided version that makes martyrs of the Indians and devils of Europeans.

The bottom line is the Iroqois are no longer sovereign and have no rights proceeding from sovereignity.

There is a lot of money to be made from being a professional indian nowadays, as evidenced by the number of newly rediscovered tribes that have been reestablished for no discernable reason than to dodge taxes.

20 Walter Olson 07.19.10 at 9:26 am

KBH>joke legal grounds like laches

An 8-1 majority of the U.S. Supreme Court headed by Ruth Bader Ginsburg doesn’t consider laches a joke as regards tribal land claims: City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) (more).

For those still with us, I’ve got a chapter in my forthcoming book that goes into much more detail on Indian land and sovereignty claims, including the baffling enthusiasm on their behalf shown by some in legal academia.

21 Richard Nieporent 07.19.10 at 9:43 am

For those still with us, I’ve got a chapter in my forthcoming book that goes into much more detail on Indian land and sovereignty claims, including the baffling enthusiasm on their behalf shown by some in legal academia.

I got an idea. Let’s give the country back to the Indians and let them be stuck with our 13+ trillion national debt.

22 Kimball Bighorse 08.13.10 at 1:25 am

@Walter Olson

City of Sherrill is precisely the case to which I was referring and described as “30-year proceedings … only now being denied”. The Court clearly couldn’t deny the actual claim to the land, so had to pull the laches doctrine out of mothballs to circumvent justice. Further, the cited delay is only because there was no legal avenue in which the case could have been brought even one year sooner (see my earlier comment). Hence the joke, in my view.

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