Questions and Issues of Legality: Is the US a Country?

Noah Wheeler, December 2018

What may come to mind when someone thinks about United States of America? To some it is the land of the free and the home of the brave, the greatest bastion of democracy and capitalism, the strongest superpower the world has ever seen, a great country. To others it is a war mongering state, the greatest bastion of hypocrisy and lies, a threat that must be contained, a horrible country. No matter what side someone lands, or anywhere in the middle, they are wrong on one key point, that the United States of America is not a great country, it is not a horrible one either, by its own laws and treaties, the United States of America is not even a country. How can this be? How can I as the author deny the existence of a country that I myself live in and call home? I am not denying the fact that the United States of America exists, anyone with any contact to the outside world knows about the US. What will be argued is that the United States cannot be legally classified as a country. The Montevideo Convention will be used as the basis for this argument and from there the deconstruction of the United States as a country will be expanded using the laws of the states, and the Native American tribes. If the United States of America is not legally a country, then what is it? Additionally, why is it important to nullify the claim that the United States is a country?

Montevideo was home to a convention in 1933 that most North and South American countries attended, and they signed what is today known as the Montevideo Convention on the Rights and Duties of States. Essentially, the purpose of this convention was to establish rights and processes for states on the basis of international law. Twenty countries signed and upheld the convention, including the United States [1]. There is only one part of the Convention that is critical for this argument, the legal definition of a state, and it is within Article One that the United States legally discredited itself as a country. Article One states: “The state as a person of international law should possess the following qualifications: a permanent population; a defined territory; government; and capacity to enter relations with other states.” [2] This is the legal basis for a country according to the United States, and there are two parts of Article One that concern this argument. No one is denying a permanent population or the ability to enter foreign relations. The qualification of “government” and “defined territory” is what will be argued; that there is not one government within the US, and that the United States does not have a defined territory.

A question, if a theoretical person is at Four Corners, they have one foot in Arizona, one foot in New Mexico, they are holding a gun in Colorado, and they shoot a theoretical Navajo citizen in Utah, who has legal jurisdiction in this case? Arizona, New Mexico, Colorado, Utah, the Federal Government, or the Navajo Nation? This unlikely situation brings up an important question about government and legality. The fifty states all have their own state governments, and at the end of the day they all are subordinate to the federal government, they must follow all federal laws, adhere to the Constitution, and listen to the government in Washington D.C, however there are many exceptions. Look at Massachusetts, where it is completely legal to grow, sell, and recreationally use marijuana even if it is not for medical reasons, by state law MGL c.94G. This is in direct violation of the Controlled Substance Act which criminalized the growing, sale, and use of marijuana [3]. This is one example of many that show state and federal laws directly violate each other, therefore, the states and federal governments, while linked, are functionally separate since the states do not follow the federal government all the time.

Additionally, there are some areas of the United States that are sovereign land of another entity, the various tribal governments. The Constitution of the United States declares “The Congress shall have the power to…regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” [4] This statement in the constitution means two things, first that the Native Tribes are sovereign, and that the federal government can enter relations with them. Laws such as the 1830 Indian Removal Act, the 1934 Indian Reorganization Act, and other laws regarding Tribal Trust land define the reservations borders. Other treaties define Tribal Governments, and they also have permanent populations and citizens, therefore by the United States own definition in the Montevideo Convention the Native Tribes in Tribal Nations are legal states. However, due to the Supreme Court Case Cherokee Nation v. Georgia, the Supreme Court ruled that the Cherokee, and therefore all other tribes, were not foreign nations [5]. So, within the United States there are three sovereign governments, and therefore the United States is not a state, or using an interchangeable word, a country.

Now, consider this hypothetical question, if a person is standing at Canyon de Chelly National Monument, where are they? Are they on federal land, in the state of Arizona, or are they in the Navajo Nation? The question of territory usually comes up when dealing with international disputes, however, territory within the United States is often an issue. Native American reservations and tribes is the largest territorial anomaly within the US. Legally, the Native Tribes are in an unusual state of limbo, they part of the United States, and yet they are also sovereign nations and legal states, as defined in the previous paragraph. Returning to our hypothetical, put our theorized person in a random point in the Navajo Nation that is not Federal land, within the state of Arizona. That person is standing in Tribal Trust Land, land that was granted to the Navajo Nation from the Federal government via the Indian Reorganization Act [6] This legislation sought to undo the effects of various acts passed by congress, such as the Homestead Act, that took land away from Native reservations without compensation [7].

Additionally, the Tribal Law and Order Act allocated more legal and administrative powers to the tribes to more independently govern their lands, which helps to better define the border [8]. However, as clear as that border may be, the Navajo Nation, or any reservation’s land, is not the land of an independent nation, nor is it the land of whatever state the reservation is in, nor is it federal land. The land is part of that tribe, which is a sovereign nation, but also the land of the United States. This ultimately means, that there are parts of the United States, where the territory is not defined and violates yet another point of the Montevideo Convention.

Is the United States, by its own legal definition, a country? In regard to the Montevideo Convention, it certainly is not a country. This begs another question, if the United States of America is not a country, then what is it? Well simply put the United States are States that are United, mostly in the American continent. The United States is not a country, it is more like a deeply connected union of various sovereign nations, and yes that means the states themselves are defined by the Montevideo Convention as countries. If we look at Massachusetts again, it has a permanent population, a defined territory, a government, and routinely makes arrangements and deals with the other States of the Union, and since Article One of the Montevideo Conventions says nothing about independence, Massachusetts meets the definition of a country. In practice the United States federal government acts a union by creating laws that all states follow, by providing common defense for all states, by conducting trade and creating treaties with other foreign powers, and much more, all while being made up by members chosen by and sent to represent the various states. Therefore, it is just as acceptable to call the United States of America the Union of American States and Nations.

Ultimately, the last question, why does this matter and what is the point? Well there is no point in finding the United States is not a country, this is not a great discovery, nor is it the catalyst by which the federal government will be destroyed, and It does not mean that other nations will no longer recognize the US as a nation. I will not be going to the United Nations proudly waving the flag of Massachusetts and calling for the Commonwealth to be recognized as its own country and nation. This does, however, raise some interesting issues. It challenges the viewpoint that we have about the United States, and that there is no one linear way of thinking about it. Do we see ourselves in terms of the state or the nation, are the states proud nations adhering and being a part of a grand union or are they administrative regions created by a central government in Washington D.C. and earlier Great Britain? The entire concept of this work may seem stretched thin and made through nitpicking a specific part of a document, and in many ways, it is, but this is a practice used by many in the United States especially with the constitution, a document that daily is stretched and manipulated to fit any political theory. It does not matter if the reader believes my idea of a Union of American States, one could call it an idea, theory, axiom, flawed concept, or a tinfoil hat theory. What matters is that it ultimately challenges our idea of the United States of America.

Notes

[1] Montevideo Convention on the Rights and Duties of States, 26 December, 1933, O.A.S.

[2] Montevideo Convention on the Rights and Duties of States art. 1, 26 December, 1933, O.A.S.

[3] Controlled Substance Act, U.S.C. 13 § 801 (1971)

[4] U.S. Const. art. I §8

[5] Cherokee Nation v. Georgia (March 18, 1831).

[6] Indian Reorganization Act, U. S. C. (1934)

[7] -. “Trust Land.” Tribal Governance | NCAI. Accessed November 19, 2018. http://www.ncai.org/policy-issues/land-natural-resources/trust-land.

[8] Tribal Law and Order Act, U.S.C. (2010)

 

Further Reading

Bruce Duthu, Shadow Nations: Tribal Sovereignty and the Limits of Legal Pluralism

Colin Woodard, American Nations: A History of the Eleven Rival Regional Cultures of North America