Indigenizing Agamben: Rethinking Sovereignty in Light of the "Peculiar" Status of Native Peoples

Abstract

Indigenizing AgambenRethinking Sovereignty in Light of the "Peculiar" Status of Native Peoples Mark Rifkin (bio) But the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else. …. Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy …; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. —Cherokee Nation v. Georgia (1831) The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States has always been an anomalous one and of a complex character. …. They were, and always have been, regarded … not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided. —U.S. v. Kagama (1886) Protection of territory within its external political boundaries is, of course, as central to the sovereign interests of the United States as it is to any other sovereign nation. But from the formation of the Union and the adoption of the Bill of Rights, the United States has manifested an equally great solicitude that its citizens be protected by the United States from unwarranted intrusions on their personal liberty…. By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress. —Oliphant v. Suquamish Indian Tribe et al. (1978) [End Page 88] What does "sovereignty" mean in the context of U.S. Indian policy? Looking at the statements above, all from U.S. Supreme Court decisions focused on the status of Native peoples, sovereignty at least touches on questions of jurisdiction, the drawing of national boundaries, and control over the legal status of persons and entities within those boundaries.1 While one could characterize the concept of sovereignty as a shorthand for the set of legal practices and principles that allow one to determine the rightful scope of U.S. authority, it seems to function in the decisions less as a way of designating a specific set of powers than as a negative presence, as what Native peoples categorically lack, or at the least only have in some radically diminished fashion managed by the United States. Further, the decisions cited seem less to extend existing legal categories and precedents than to indicate the absence of an appropriate legal framework in which to consider the political issues and dynamics at hand. Native peoples appear as a gap within U.S. legal discourse. These passages suggest that the available logics of U.S. jurisdiction are unable to incorporate Native peoples comfortably, and that continued Native presence pushes against the presumed coherence of the U.S. territorial and jurisdictional imaginary. While the decisions seem to be grasping to find language adequate to the disturbing legal limbo in which Native nations appear to sit, they also insist unequivocally that such peoples fall within the bounds of U.S. sovereignty, and the oddity attributed to U.S. Indian policy is offered as confirmation of that fact. Typifying "the relations of the Indians to the United States" as "peculiar" and "anomalous," while also consistently presenting Native peoples as unlike all other political entities in U.S. law and policy, indexes the failure of U.S. discourses to encompass them while speaking as if they were incorporated via their incommensurability. In Homo Sacer: Sovereign Power and Bare Life, Giorgio Agamben has described this kind of dialectic as the "state of exception," suggesting that it is at the core of what it means for a state to exert "sovereignty."2 He argues, "the sovereign decision on the exception is the originary juridico-political structure on the basis of which what is included in the juridical order and what...