San Juan Star, Viewpoint, August 18, 2006, p. 14

“Dependent sovereign” status no solution

Dr. William Cleary

In the course of the political status debate in Puerto Rico, it has been suggested that U.S. citizens in Puerto Rico look to the political status of the American Indian tribes to address Puerto Rico’s current undemocratic status under the sovereignty of Congress.

It would be hard to imagine a worse fate for a U.S. territory than to adopt a “special dependent sovereign” model based on the federal relations with native tribes, only to end up living on a self-imposed “reservation” under federal power and still without equal civil rights.

The status of Indian tribes under the Indian Commerce and Treaty Clauses of the U.S. Constitution is subject to the same kind of unrestrained Congressional power as unincorporated territory status under the Territorial Clause. However, there are obvious reasons Indian tribe status is not a model for territories to emulate, and vice versa.

For example, individually Native Americans have the option of full democratic participation and equal citizenship under the federal constitution, rights not available in the territories. On the other hand, unincorporated territories have the options of independence, free association or statehood to end dependent status, choices not available to Indian nations.

So while both territories and Indian nations exist in conditions of encumbered sovereignty, trading places is no solution for territories or the Indian peoples.

Ignoring these realities, it has been argued that the concept of Indian sovereignty can be a model for a so-called “permanent autonomic covenant”. This is really just a variation of the “enhanced commonwealth” formula, pretending commonwealth can be made non-territorial by an irrevocable gift of autonomy from Congress.

Advocates of this status theory cite the 2004 U.S. Supreme Court ruling in U.S. v. Lara to support the “dependent sovereign” theory of autonomy. Unfortunately, this misinterprets the case as a clarion call for all “special dependent sovereigns” under the U.S. flag to rejoice in the plenary power of Congress to benevolently determine their destiny.

The flawed assumption is that Congress can use its powers to confer a permanent form of autonomy that makes commonwealth democratic and non-territorial. The hard truth is that Congress can not selectively or partially cede federal sovereign power over territories, or Indian tribes.

Rather than refuting this, the Lara case recognizes the power of Congress to grant autonomy, and to modify it, expand or reduce it, or take it away! The one thing the ruling in Lara makes clear is that Congress can not dispose of its plenary power over such dependencies by statute or agreement, unless it also disposes of U.S. sovereignty.

The Lara ruling specifically states that earlier decisions defining the degree of local autonomy and sovereignty for tribes “…did not set forth constitutional limits that prohibit Congress from…taking actions that modify or adjust the tribe’s status.”

Based on a misreading of the Lara case, it has been argued that dependent sovereign status, with autonomy subject to Congressional supremacy, is the best Puerto Rico can do.

The defeated Indian nations had no choice but to accept that fate, but Indian nation sovereignty is not a triumph of democracy and self-determination.

Asking your conqueror or colonial master to bestow symbolic sovereignty is a position of weakness, not strength.

In Puerto Rico’s own colonial experience, Spain granted the so-called Charter of Autonomy, only to cede Puerto Rico to the United States without local consent! So much for autonomy bestowed on “dependent sovereigns” at the pleasure of a supreme sovereign power.

The U.S. citizens of Puerto Rico deserve the sovereign rights of a state or nation, not a revocable “gift” of local self-government.

Puerto Rico was annexed in 1899, and the issue is when annexation will end based on full government by consent. That can come through statehood, as it did for Hawaii; independence, as in the case of the Philippines; or free association, as in the case of Micronesia.

Puerto Rico should reject the call to return to the “reservation”, or the plantation, or whatever else may be proposed other than full and equal national citizenship.

Dr. William Cleary has a Ph.D. and an LL.M from Hokkaido University, and he is a member of the bar in California, New York, Federated States of Micronesia and Guam

The San Juan Star is no longer in publication.



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