Monday, April 16, 2001, is Navajo Nation Sovereignty Day. On that day, unlike in past years, Navajo Nation employees will carry out the activities that are critical to the Navajo Nation’s exercise of sovereignty as the first day of the Navajo Nation Council’s Spring Session gets underway. Pursuant to Government Services Committee action, Navajo Nation employees will be given a day off on April 23, 2001 to commemorate Navajo Nation Sovereignty Day
What is Navajo Nation Sovereignty Day? By Resolution CMY-35-85, the Navajo Tribal Council declared April 16th to be henceforth known as “Navajo Nation Sovereignty Day” within the Navajo Nation. The Navajo Tribal Council declared April 16th as Navajo Nation Sovereignty Day to commemorate the date on which the United States Supreme Court decided unanimously in favor of the Navajo Nation in the case, Kerr McGee Corp. v. Navajo Tribe of Indians, 471 U.S. 195 (1985). In Kerr McGee, the Kerr McGee Corporation challenged the Navajo Nation’s authority to impose its possessory interest tax and business activity tax on Kerr McGee on the assertion that the Navajo Nation was not an independently legitimate tribal government since it had never adopted an Indian Reorganization Act constitution and did not have Secretary of Interior approval to impose the taxes. The Navajo Nation’s Department of Justice attorneys were successful in establishing through the Kerr McGee decision that the Navajo Nation is a legitimate government without an IRA constitution with the inherent power to exercise its sovereign authority without Secretary of Interior approval.
The Navajo Nation reflects on this important victory on April 16th of each year.
The word Sovereignty is a popular word among American Indian people, especially the Navajo. But what is Sovereignty? The U.S. Supreme Court in the important case of Williams v. Lee indicated that sovereignty is, “...the right of reservation Indians to make their own laws and be ruled by them...” I would go further and say that it also includes the right of our government to make laws which apply to all people within the Navajo Nation.
Indian Nations, including the Navajo Nation, are sovereign nations that predate the United States Constitution. The source of an Indian Nation’s sovereignty is from the Indian Nation itself, as a distinct political community, and not from any delegation from the United States government. However, the European invasion of what is now called North America and the subsequent formation of the United States dramatically limited the sovereignty of Indian Nations primarily by force, conquest and domination. But we have endured and remain a sovereign Nation.
As a practical matter, sovereignty is always limited and never absolute. There are many external limitations and obstacles to the Navajo Nation’s exercise of sovereignty. A largely unrecognized limitation on the Navajo Nation’s sovereignty actually comes from the various treaties, including the Treaty of 1868. Although it is an extremely important document that formally establishes the government-to-government relationship between the Navajo Nation and the United States, has been the primary source identifying what the trust responsibilities of the U.S. government are, and has served to bolster our assertions of sovereignty, it cannot be ignored that the Navajo Nation made concessions to the United States in the Treaty of 1868. The fact is: We were sovereign well before we entered into the Treaty of 1868.
U.S. Congressional action does not bestow sovereignty on the Navajo Nation. Like I’ve said before, the Navajo Nation was sovereign before the United States even existed. U.S. Congressional action can recognize the sovereignty of Indian Nations, but Congress can also limit our sovereignty, as can the federal courts. For example, the Navajo-Hopi Settlement Act imposed restrictions on territory and placed tremendous financial and human burdens on the Navajo Nation for what are U.S. created problems.
The Indian Gaming Regulatory Act is another Congressional act which has limited Indian Nation sovereignty because it essentially forces Indian Nations to seek state approval to engage in casino style gaming activities conducted entirely within Indian lands.