Political Authority and Indigenous Sovereignty

Those of us who are non-indigenous usually take it for granted that American Indian nations are subject to the political authority of the United States, even if we have no determinate or fixed account of why this should be true. It may seem obvious to us that Indian nations are "within" the territorial boundaries of the United States, or that they are functionally integrated into American political institutions, or that they have by now consented to their current political status, or something else that leads to a similar conclusion. Often we see no reason to think about the issue in any deep or systematic way. In this essay, which draws in a highly compressed way on my recent book on the subject,¹ I want to call this casual assumption into question.

Original Contracts and Lockean Theories

For those of us trained in political theory, some loose version of social contract theory probably comes most naturally to mind when we think about how to justify political authority over any particular set of persons. After all, we teach the social contract in our courses, we read and reread the works of its classic theorists, we invoke contractual notions in evaluating the fairness of specific policies within our countries, and so on. In short, it remains our fallback position for thinking about state power and authority. But as we all recognize by now (or at least should), we have to be wary of this easy familiarity, especially given the protean character of the notion—just because the idea feels familiar does not mean that it is coherent as a whole, or that it is useful for thinking clearly about any particular moral puzzle.

Consider, then, the central question of why (or whether) the United States might have moral title to rule the set of territories and persons over which it currently claims authority. Why might we think it has such rights? If we are particularly incautious, we might turn first to a historical account of its territorial authority, since the official narrative of American territorial expansion has been repeated again and again across a spectrum of social locations. Our school textbooks doubtless told an easy and vivid story about the Louisiana Purchase, for example—that Jefferson as President purchased all the lands draining into the Mississippi River from France for a bargain price, and afterward sent Lewis and Clark westward to see precisely what those lands included. If our textbooks had included more detail, they might similarly have recited the territorial cessions included in the treaty of Guadalupe Hidalgo, or the final disposition of the Oregon territory between the United States and Great Britain, or the purchase of Alaska from Russia. It is not just schoolbooks that give this account of American expansion, of course—maps provided by the American government continue to show the territorial growth of the United States in exactly this way, and this historical account still provides the core narrative structure for American legal institutions.² But this is a strange way to envision a country and the bounds of its basic political authority, whether we commonly take note of this or not.

We too rarely bring ourselves to ask the more basic question: why might a country be permitted to purchase or otherwise acquire territory in the first place? What gave the United States as a political organization the right to spend funds on the Louisiana Purchase, and to claim control over the territories that those funds bought? Its authority under the Constitution, one might answer. But such an answer only puts the question off a further step, because now we must ask: what authorized the Constitution in a moral sense? If we've read our John Locke, we may want to answer (perhaps slyly) with references to an original contract among the founding generation. But the implausibility of this notion is patent, if it is meant seriously: in Locke's theoretical framework, any founding contract would have to have been agreed to unanimously, because no person can be ruled without his or her consent,³ and this is clearly not the case in the American founding.^4...