A. Native (Cultural) Sovereignty Framework
1. Cultural Sovereignty
In their groundbreaking article, Rethinking the Tribal Sovereignty Doctrine: Cultural Sovereignty and the Collective Future of Indian Nations, Professor Rebecca Tsosie and former Comanche Nation of Oklahoma Chairman Wallace Coffey articulate a concept of Native sovereignty that looks to the core of Native communities for its meaning. Observing that externally defined political sovereignty is only one aspect of Native sovereignty-- and a highly controversial one at that--Professor Tsosie and former Chairman Coffey challenge Native peoples, their leaders, attorneys, and citizens to conceptualize Native sovereignty more organically. According to Professor Tsosie and former Chairman Coffey, this account of sovereignty should embody cultural sovereignty, which they describe as the effort of Native polities and Native people to exercise their own norms and values in structuring their collective futures. Cultural sovereignty is not dependent upon any grant, gift or acknowledgment by the federal government because it preexists the arrival of the European people and the formation of the United States and is inherent in every sense of that word.
2. The Role of Political Sovereignty
Notably, Professor Tsosie and former Chairman Coffey do not contend that political sovereignty is irrelevant or that it does not have a real impact on Native peoples. Professor Tsosie and former Chairman Coffey acknowledge a notion that Sam Deloria, Director of the American Indian Graduate Center and a member of the Standing Rock Sioux Tribe, astutely articulated during a panel discussion on cultural sovereignty:
[T]here's no sovereignty on this earth that is unlimited. The United States at its most powerful does not have unlimited sovereignty. It has a constitution that limits its sovereignty and structures it, but more important than that, it has political and economic reality that limits its sovereignty.
Part of the political and economic reality that limits the sovereignty of Native peoples is the fact that the United States interacts with them pursuant to its own definition of Native political sovereignty, which characterizes Native peoples as dependent nations possessing limited sovereignty that exists only at the sufferance of Congress and is subject to complete defeasance. Therefore, regardless of what a Native polity knows to be true about its own identity, autonomy, and power, it must still address the United States' competing understandings in order to protect its interests.
Accordingly, Professor Tsosie and former Chairman Coffey do not suggest that externally defined political sovereignty be completely ignored in Native sovereignty analyses. Rather, they propose that political sovereignty be taken for what it is: a unilaterally imposed notion that Native peoples are forced to contend with, not the primary source of Native sovereignty. Cultural sovereignty is the bedrock of Native peoples' self-determination .... But we can and must resist the dispossession of Native political autonomy ....
3. The Native Sovereignty Framework
Taking both cultural sovereignty and political sovereignty into consideration, Professor Tsosie and former Chairman Coffey propose that attempts to understand and define Native sovereignty in specific contexts should include at least three foundational inquiries: (1) where is cultural sovereignty located within the Native polity's existing social structures and order; (2) what does the philosophical core of the relevant Native belief system reveal about what sovereignty means, what autonomy means, and what rights, duties, and responsibilities are entailed in [the Native polity's] relationships; and (3) how should the relationship between the Native polity's cultural and political sovereignty be conceptualized. Applying these inquiries to the question at hand, the following framework emerges for evaluating the authority of the Native Hawaiian people to organize according to common descent and the authority of the United States government to extend recognition to a Native Hawaiian polity so organized:
(1) Where is cultural sovereignty located within the Native Hawaiian community's existing social structures and order?
(2) What does the philosophical core of the Native Hawaiian community's belief system reveal about what sovereignty and autonomy mean; and what rights, duties, and responsibilities are entailed in the relationships of the Native Hawaiian people?
(3) How should the relationship between the Native Hawaiian community's cultural and political sovereignty be conceptualized?
Pursuant to this Native sovereignty framework, the Native Hawaiian community's own understanding of its authority to organize according to common descent is the primary consideration; the expectations of neighboring sovereigns, such as the state and federal governments, are a secondary consideration; and an understanding of the nature and extent of Native Hawaiian sovereignty with respect to defining membership emerges from the reconciliation of these considerations.