Cheryl L. Daytec has published “Fraternal Twins with Different Mothers: Explaining Differences between Self-Determination and Self-Government Using the Indian Tribal Sovereignty Model as Context” in the Minnesota Journal of International Law; also on SSRN.
Here is the abstract:
There are various legislative and judicial rhetorical flourishes on the sovereignty of at least 565 federally recognized American Indian tribes in the United States. Several legislative enactments, executive orders, policy statements, and federal opinions textually recognize the right of American Indians to self-determination. However, self-determination with its entitlements under international law particularly the International Covenant on Civil and Political Rights is not equivalent to tribal self-determination or sovereignty expressed in the United States statutes, policy statements, and judicial decisions.
The negative vote of the United States on the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), despite the presence of a plenitude of federal policy statements and laws using the term self-determination, surfaced the fact that indigenous self-determination under international law is the same as self-determination under federal Indian policies. Despite claims that Indian tribes are a third form of government in the United States aside from the federal and state governments with a nation-to-nation relationship with Washington, the words ‘sovereignty’ and ‘self-determination’ affirmed in laws, policies, and jurisprudence of the United States are in reality substitutes for participation in decision-making processes at the minimum or self-government or autonomy at the maximum. In Montana v. United States and its derivative cases, it is asseverated that the exercise of inherent tribal sovereignty is limited to what is necessary for self-government or to control internal relations, and this has been re-echoed in Montana’s derivative cases.
While sharing the same gene pool, self-determination and self-government or autonomy do not have identical DNA. This paper advances four reasons: First, self-determination is an inherent right, whereas self-government is a grant. Clearly, the Supreme Court has since abandoned the doctrine that Indian tribes possessed inherent rights of sovereignty which they may exercise unless curtailed by a treaty or by Congress. Lone Wolf v. Hitcock, Oliphant v. Suquamish Indian Tribe and their derivative cases stand for the doctrine that Indian tribes may exercise only those powers federally granted unto them via the exercise of congressional plenary power. Second, self-determination is explicitly recognized under international law as a right of peoples, with the status of a jus cogens norm. Although self-government is the political aspect of self-determination, it is not – by itself – the self-determination which States are obliged to recognize as a right of peoples within their polities. In fact, the term does not appear in any of the provisions of the ICCPR. It is a gift that that flows from the liberality of the grantor. Third, self-government is a democratic entitlement to participate in the processes of the majority who rule the democratic space, which can operate against self-determination. Self-determination on the other hand is the shelter of indigenous peoples from the rule of the majority which might harm their interest as minorities. In the United States, self-determination policies are profuse with Indian participation in planning of policies but ultimately decisions are made by the federal government acting for the majority that rules. Fourth, self-government does not necessary entitle the self-governing entity sovereignty over natural resources whereas self-determination protects the people’s right to its natural resources. Indian tribes are not actually owners of their ancestral lands. The United States is, and they are mere usufructuaries. Exercising plenary powers, the government may sell or condemn tribal lands in favor of outsiders.
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