restricted access 179. Establishment of Assistant Secretary—Indian Affairs, September 26, 1977
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284 States and the States, rather than as a body politic which the United States, through its sovereign power, permits to govern itself and order its internal affairs, but not the affairs of others. The report seeks to convert a political notion into a legal doctrine. . . . In sum, the Commission has converted the doctrine of tribal self-government into a doctrine of general tribal government by taking a quantum leap forward without any adequate legal foundation. And, I might add, prescinding now from the legal issues involved , the Commission has not even explained why, for policy reasons, it would be a good thing for Indian tribes to exercise general governmental powers over the lands they occupy. The Commission has just assumed that because Indian tribes would like to exercise governmental powers over their territory, it would be wise to let them. There is no adequate discussion in the Commission report of the detriments of such a course of action, much less any weighing of the advantages and disadvantages. . . . Finally, there is no adequate theoretical basis for the assertion of inherent tribal sovereignty. The assertion of inherent tribal sovereignty proves too much. It would mean that whenever there is a group of American Indians living together on land which was allocated to them by the Federal Government , they would have the power to exercise general governmental powers. The source of those powers would then be some magical combination of their Indianness and their ownership of land. Governmental powers do not have as their source such magic. Governmental powers in these United States have as their source the State and Federal constitutions . It is clear that Indian tribes do not govern themselves under State power. It is equally clear, however, that they govern themselves under the Federal power, and like all Federal power, their powers are specifically limited and the limitation with respect to tribes is one of self-government rather than the government of others. It is one thing for the Congress to permit tribal Indians to make their own laws and be ruled by them without State interference. It is quite another for the Congress to permit tribes to exercise general governmental powers without general Federal supervision. War, conquest, treaties, statutes, cases, and history have extinguished the tribe as a general governmental entity. All that remains is a policy. And, that policy is that American Indian tribes may govern their own internal relations by the grace of Congress. General governmental powers exist in this country only in the United States and the States. Having missed this point, the Commission has missed the opportunity to address some of the major issues arising out of American Indian law and policy. What does it mean to be a citizen of a State and yet be immune to its laws? What is the basis for asserting that reservation Indians shall have representation in State government, but without taxation? On the other hand, what is the basis for asserting that non-Indian residents of Indian country shall not be represented in tribal government , yet be subject to tribal law, courts, and taxation? Is this obvious dual standard bothersome? And, if not, why not? What does it mean for a reservation to be within the boundaries of a State? . . . [American Indian Policy Review Commission , Final Report (Washington: Government Printing Office, 1977), pp. 3–4, 571–73, 579–81.] 179. Establishment of Assistant Secretary—Indian Affairs September 26, 1977 Because the commissioner of Indian affairs did not report directly to the secretary of the interior, there was agitation to raise the administration of Indian affairs to the level of an assistant secretary. President Nixon urged specific legislation, but the move was finally accomplished under President Carter by a department order. . . . . Sec. 2. Establishment of Position. An Assistant Secretary—Indian Affairs is hereby established to administer the laws, functions, responsibilities, and authorities related in In- 285 dian affairs matters. In addition to serving as an Assistant Secretary of the Department, the Assistant Secretary—Indian Affairs will assume all the authorities and responsibilities of the Commissioner of Indian Affairs pending subsequent organization and position realignments. . . . [Federal Register, 42:53682 (October 3, 1977).] 180. Oliphant v. Suquamish Indian Tribe March 6, 1978 Mark Oliphant, a non-Indian residing on the Port Madison Reservation in the State of Washington, was arrested by tribal police and charged with assaulting a tribal officer and resisting arrest. He claimed that he was not subject to tribal authority, and the Supreme...