A Tribe Divided: The Threat of the Loss of Tribal Autonomy and Culture Facing Transnational Tribes on the Northern and Southern Borders of the United States.

• Author: Moeller, Jacob

TABLE OF CONTENTS I. INTRODUCTION 1258 II. THE BORDER ISSUE FOR NORTH AMERICAN TRIBES 1260 A. The Northern Border 1262 1. History 1262 2. Caselaw 1263 3. Internal Tribal Issues 1265 B. The Southern Border 1268 1. History 1268 2. Internal Tribal Issues 1270 III. CURRENT RESOLUTIONS FOR PRESERVING TRIBAL CULTURE AND AUTONOMY ON THE BORDER 1272 A. Tribe-Specific Legislation and ID Cards 1273 B. International Legislation and Agreements 1280 C. Litigation 1282 IV. THE CREATION OF A NEW, POLYCENTRIC INTERGOVERNMENTAL GOVERNING BODY TO PRESERVE THE RIGHTS OF THE BORDER TRIBES IN NORTH AMERICA 1285 A. Shortfalls of Other Proposals 1285 B. Polycentric Governance and its Potential Framework 1286 1. Polycentricity Defined 1286 2. Proposed Structure 1288 C. Feasibility Issues 1290 V. CONCLUSION 1292 I. INTRODUCTION

A.B., a Tohono O'odham member, was crossing the border with his tribal ID card, as he had countless times, when he was apprehended by border patrol. (1) When asked where he was born, A.B. responded that he was born in the United States, not thinking this answer would be flagged as a lie. (2) Tohono O'odham Nation stretches over the border from the United States to Mexico, and A.B. told the agents he believed this meant he was still born in the United States. After being handcuffed to a chair for three hours, A.B. was sent back to Mexico with a deportation order. (3) A.B.'s story is just one of many similar stories of those tribal members living on the United States-Mexico border (hereinafter "southern border").

The indigenous tribal members on the northern border face challenges of their own. Rick Desautel, a member of the Coville Tribes, and a descendent of the Sinixt Tribe, crossed the United States-Canada border in Washington while on an elk hunt, where he shot an elk in British Columbia without a permit. (4) When the province charged him for this illegal hunt, Desautel argued that his hunt was legal because it was on the traditional tribal hunting grounds of the Sinixt Tribe, from whom he descended. (5) The province, however, argued that those rights were abrogated when the Sinixt Tribe went extinct in 1956. (6) The Supreme Court of Canada ultimately ruled that people who are not Canadian and who do not reside in Canadian lands can still exercise the Aboriginal rights protected under the Canadian Constitution. (7) The majority concluded that "Aboriginal peoples of Canada" means "the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact," regardless of whether those societies currently exist beyond Canada's modern borders, and held that "[e]xcluding Aboriginal peoples who moved or were forced to move, or whose territory was divided by a border, would add to the injustice of colonialism." (8) This ruling is unique to the history of adversity tribes have faced on the United States-Canada border (hereinafter "northern border"). The history of the relationships between the United States, Canada, the northern tribes, and even England in the late-eighteenth to early-nineteenth century has complicated the legal battles the tribes face in maintaining any semblance of sovereignty on the northern border.

Immigration has been a hot topic for the past several presidential administrations, but the Trump administration's stance and policy regarding immigration brought the subject to the forefront of government policy and public opinion through his calls to "build a wall" along the southern border. (9) While the primary purpose for these walls, the Trump administration claimed, was to protect the people of the United States, (10) it appears that little thought was given to the very citizens of the United States that the wall would hurt. Indigenous nations are the oldest transnational communities, (11) and the United States has tribes on both the northern and southern borders whose ancestral lands were split by those borders. These borders have led to years of hardship for the tribe members, particularly those whose lands were cut in half by the borders.

This Note seeks to make sense of the issues faced by some tribes on both the northern and southern borders of the United States and to analyze potential solutions to these issues. The Note will first lay out a background of the most relevant histories of a few, select tribes in those regions and the treaties and laws which were instituted in connection to those tribes and the borders, as well as the issues these treaties and laws have created. The experiences of these tribes do not encompass the totality of border tribe experiences. Rather, they serve as a broad look at problems generally consistent with border tribes. In order to simplify and use these examples effectively, this overview will be broadly cabined into cultural, economic, and political issues, which will then be analyzed by looking at (1) various solutions proposed in previous scholarship, (2) solutions used with specific tribes, and (3) solutions used internationally. Finally, the Note will propose a polycentric governance counsel as the best solution to the issues the current geographic borders present to the northern and southern tribes and will analyze the impact of the proposed "Tribal Council" in light of the potential cultural, economic, and political implications of such a solution.

2. THE BORDER ISSUE FOR NORTH AMERICAN TRIBES

   Immigration and border control have been hot-button issues in the United States for years but have become increasingly poignant following the election of former president Donald Trump and his border security agenda. (12) Americans have also become increasingly aware of immigration issues and have become more actively willing to support positive reform of the immigration policies in place. (13) Growing public concern with immigration reform largely focuses on issues on the southern border and asylum seekers. (14)

   A 2020 Supreme Court decision in McGirt [upsilon]. Oklahoma may have implications in the immigration reform discussion for indigenous peoples in the United States and on its borders. (15) In the majority opinion, Justice Gorsuch stated, "we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word." (16) While this decision focuses primarily on the application of criminal law on Indian land, tribes have begun to test the implications of the parts of the decision that state that, barring an explicit rescission by Congress, tribal lands and treaties remain in force to this day, regardless of their treatment in years past. (17)

   The increasing public interest in border and immigration rights, paired with a ruling that may well make Native American sovereignty a relevant national topic, may create the optimal climate to promote real change on a border and tribal issue that has been hurting indigenous peoples on the American continent for decades.

   1. The Northern Border

      1. History

         The border between the United States and Canada bisects the homes of more than thirty tribes, including members of the "Wabanaki and Iroquois Confederacies, the Ojibwe, Ottawa, Lakota, Salish, Colville, several tribes of western Washington, and the Haida, Tlingit, and Tsimshian of Alaska and Canada." (18) The land itself has been governed by more than twenty treaties between the United States and England in attempts to define the boundary, and only two of those treaties mentioned the indigenous people that lived on the land at the time. (19) Those same treaties, the Jay Treaty and the Treaty of Ghent, are the most relevant sources of law for the purpose of this Note.

         The United States and Great Britain signed the Jay Treaty, formally termed the Treaty of Amity, Commerce, and Navigation, in 1794 and established rules to settle the boundaries, trade, and evacuations disputed after the Revolutionary War, recognizing some tribal rights on border-crossing. (20) Article III of this treaty stated that:

         It is agreed that it shall at all Times be free...to the Indians dwelling on either side of the said Boundary Line, freely to pass and repass by Land or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America... and freely to carry on trade and commerce with each other. ...[[NU]]or shall the Indians passing or repassing with their own proper Goods and Effects of whatever nature, pay for the same any Impost or Duty whatever. But Goods in Bales, or other large Packages unusual among Indians shall not be considered as Goods belonging bona fide to Indians. (21) This treaty essentially stated that the border was to have no impact on the Indians and their internal relationships. Following several legal disputes and contention on the matter, the border was confirmed to have no effect on the indigenous people in the region in 1796. (22) While the War of 1812 once again disrupted the rights of the indigenous people at the time, these border rights were restored and reaffirmed in the Treaty of Ghent, namely the right to freely pass through the United States-Canada border and the right to take goods across the border duty-free. (23) Since the ratification of those treaties, no other treaty or legislative action has changed the rights granted to the indigenous people on the northern border; however, both the United States and Canada have issued a number of judicial decisions since the Treaty of Ghent that have reshaped the law on northern tribal border rights in the region in recent years.

      2. Case Law

         In the United States, several cases have decided issues of transnational tribes on the northern border with Canada. In 1929, the Supreme Court of the United States decided whether Article III of the Jay Treaty was still in force in Karnuth [upsilon]. United States ex rel. Albro. (24) In this case, two British citizens seeking admission to the United States fought...