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.Yet these difficulties ought not detract or undermine theconclusion 307vitality of the general constitutional endeavor as a whole.It appears that this isa most propitious time to reinvigorate thinking about the status of tribal sov-ereignty within the structure of the Constitution.As tribes move forward toactualize more and more sovereignty in the modern era, the moribund think-ing of plenary power both congressional and judicial is no more than adoctrine of containment, a domestic branch of continuing colonialism.Thereis a better way.The proposed constitutional amendment drafted by Henderson andBarsh, while no doubt comprehensive, is quite unwieldy and even poten-tially unworkable.It provides too much detail and threatens to collapseunder its own weight.Its model of statelike constitutional status also lackssufficient textual connection to inherent tribal sovereignty.I propose a muchsimpler version, which emphasizes dignity, essential sovereignty, and dura-ble inclusion.Proposed Amendment to the United States ConstitutionThe inherent sovereignty of Indian tribes within these UnitedStates shall not be infringed, except by powers expressly delegatedto the United States by the Constitution.The Congress shall have power to enforce, by appropriate leg-islation, the provisions of this Article.This proposed amendment draws on language from both the Tenth andFourteenth Amendments.Its goal is to provide respectful and durable consti-tutional recognition of inherent tribal sovereignty, which harks back to theoriginal text of the Constitution, with a new sense of respect and inclusion; itfurther recognizes congressional authority to enact (necessary) legislation toenforce its basic guarantees.Such a constitutional amendment would not dis-place treaties as the cornerstone of tribal sovereignty.Rather, such an amend-ment would build on that sturdy foundation to create a modern structure thatsynthesizes the best of the old and the new to create, as it were, a modernarchitecture of sovereignty that is best capable of preserving the past andadvancing the future.In the earlier era of modern Indian law, tribes were essentially engaged indeploying a kind of defensive sovereignty, seeking to use treaties and the heftof the Marshall trilogy to keep states at bay.Constitutional status was not key,and tribes were often successful.Yet, as tribes have moved further in the morerecent modern era to realize tribal sovereignty on the ground in a mode ofoffensive sovereignty, especially involving non-Indians, the Supreme Courthas been adamant in saying no.67 Constitutional status is paramount to wardoff the notions of dependency and  implied divestiture, which hold tribal308 the modern encountersovereignty hostage to the whims and sufferance of a Congress and SupremeCourt untethered to the Constitution.Although some might regard this constitutional project as far-fetched, oth-ers might regard it as ill conceived, preferring instead, for example, a return totreaty making as the best way to reestablish meaningful government-to-govern-ment relationships.68 Yet, despite the strong (cultural) attraction for many ofreturning to a literal past of treaty making, such an approach is conceptually andpractically problematic for several reasons.Because Indian people are now fed-eral (and state) citizens, there is the basic problem of making a treaty betweenthe citizens of the same country, which trenches on a basic tenet of treaty mak-ing: It is an agreement between separate sovereigns, who each represent sepa-rate and distinct groups of citizens.It is also important to note that a constitutionalamendment would not in any way abrogate existing treaties and their mutualobligations.There is also the statutory bar that has existed since 1871 against treatymaking with Indian tribes.69 Despite the good argument that can be made thatthe statute is unconstitutional as an improper Article I enactment that violatesthe Article II powers of the president, the statute is now 137 years old andunlikely to be struck down.A more likely vehicle in this vein might be agree-ments between the federal government and the tribes.Agreements differ fromtreaties legally (if not culturally) only as to the manner of federal ratification.Treaties must be approved by two thirds of the Senate,70 whereas agreementsrequire only majority approval by both houses of Congress.71Agreements remain viable even with perhaps especially withconstitutional amendment, to forge important joint efforts similar to suchagreements that exist between the federal government and states.They cansupplement, rather than supplant, constitutional amendment [ Pobierz całość w formacie PDF ]