Sovereignty

Introduction to Native American Tribal Sovereignty

Below is an overview of Tribal sovereignty. Included are citations spread throughout U.S. history and modern day about what sovereignty means to Tribes, as well as how sovereignty pertains to Tribal state and federal relationships, as well as the evolution of Tribal sovereignty over time. Sovereignty entails the right to self-governance including freedom from a state’s ability to assert authority over a Tribe. The Bureau of Indian Affairs FAQ is a bountiful resource to seek more information about Tribes and Tribal matters.

Tribal sovereignty in the U.S refers to the inherent authority of indigenous tribes (Native Americans or Indians) to govern themselves within the borders of the U.S. The federal government recognizes tribal nations as “domestic dependent nations” and has established a number of laws attempting to clarify the relationship between the federal, state, and tribal governments. The Constitution and, later, federal laws grant local sovereignty to tribal nations, yet do not grant full sovereignty equivalent to foreign nations, hence the term “domestic dependent nations.” This limitation to tribal nations’ sovereignty became federal law in 1832 after a U.S. Supreme Court opinion delivered by Chief Justice John Marshall in the case of Worcester v. Georgia.

Native American Tribal Sovereignty and the Constitution

The U.S. Constitution specifically mentions the relationship between the U.S. federal government and Native American tribes three times:

  1. Article I, Section 2, Clause 3, states “Representatives and direct Taxes shall be apportioned among the several States. excluding Indians not taxed.” According to Associate Justice of the Supreme Court Joseph Story in his 1833 Commentaries on the Constitution of the U.S., “There were Indians, also, in several, and probably in most, of the states at that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states.”
  2. Amendment XIV, Section 2, which amends the apportionment of representatives to grant representation to Indians. Since the birth of the nation, Indians have been recognized as sovereigns who exercise their rights within the boundaries of the states.
  3. Article I, Section 8, which states: “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes,” a determination that Indian tribes were separate from the federal government, the states, and foreign nations.

These basic provisions have been changed and/or clarified by various federal laws over time. Regulate, historically, means facilitate. (Black’s Law Dictionary) Therefore, Congress was to be the facilitator of commerce between the states and the tribes.

Early Victories for Tribal Sovereignty

The Supreme Court of the U.S. has determined many times that states have no authority in Indian affairs and that tribes possess the power of self-determination:

  1. Johnson v. M’Intosh (1823). The opinion in this case holds that aboriginal title is inalienable, a principle that remains well-established law in nearly all common law jurisdictions.
  2. Worcester v. Georgia (1832). This case established the doctrine that the national government of the U.S., and not individual states, had authority in American Indian affairs.
  3. U.S. v. Kagama (1886). Before 1871, the U.S. had previously recognized Indian Tribes as semi-independent. The Supreme Court affirmed that the U.S. Government “has the right and authority, instead of controlling them by treaties, to govern them by acts of Congress, they being within the geographical limit of the U.S. The Indians owe no allegiance to a State within which their reservation may be established, and the State gives them no protection.”

Tribal Governments Today

In 1934, the Indian Reorganization Act, codified as Title 25, Section 476 of the U.S. Code, allowed Indian nations to select from a catalogue of constitutional documents that enumerated powers for tribes and for tribal councils. The net effect was a legal and political normalization between tribal governments and the states.

Two main principles of U.S. Indian law guide current practices: 1) Territorial Sovereignty, and 2) Trust Relationship. (Les F. Wilkinson, Indian tribes as Sovereign Governments: A Sourcebook on Federal-Tribal History, Law, and Policy, AIRI Press, 1988; Conference of Western Attorneys General, American Indian Law Deskbook, University Press of Colorado, 2004; N. Bruce Duthu, American Indians and the Law, Penguin/Viking, 2008)

  1. Territorial Sovereignty. Tribal authority on Indian land is organic and is not granted by the states in which Indian lands are located. A 1981 case, Montana v U.S., clarified that tribal nations possess inherent power over their internal affairs and civil authority over non-members within tribal lands to the extent necessary to protect health, welfare, economic interests, or political integrity of the tribal nation.
  2. Trust Relationship. The federal Indian trust responsibility is a legal obligation under which the U.S. “has charged itself with moral obligations of the highest responsibility and trust” toward Indian tribes (Seminole Nation v. U.S., 1942). Over the years, the trust doctrine has been at the center of numerous other Supreme Court cases, thus making it one of the most important principles in federal Indian law.

The federal Indian trust responsibility is also a legally enforceable fiduciary obligation on the part of the U.S. to protect tribal treaty rights, lands, assets, and resources, as well as a duty to carry out the mandates of federal law with respect to American Indian and Alaska Native tribes and villages. (Robert J. McCarthy, The Bureau of Indian Affairs and the Federal Trust Obligation to American Indians, 19 BYU J. PUB. L. 1, December, 2004) In several cases discussing the trust responsibility, the Supreme Court has used language suggesting that it entails legal duties, moral obligations, and the fulfillment of understandings and expectations that have arisen over the entire course of the relationship between the U.S. and the federally recognized tribes. This obligation was first discussed by Chief Justice John Marshall in Cherokee Nation v. Georgia (1831).

Nation to Nation: Tribes and the Federal Government

At the foundation of the constitutional status of tribes is the idea that tribes have an inherent right to govern themselves—the power is not delegated by congressional acts. Congress can, however, limit tribal sovereignty. Unless a treaty or federal statute removes a power, however, the tribe is assumed to possess it. (Light, Steven Andrew, and Kathryn R.L. Rand. Indian Gaming and Tribal Sovereignty: The Casino Compromise. University Press of Kansas, 2005). Current federal policy in the U.S. recognizes this sovereignty and stresses the government-to-government relations between Washington, D.C. and the American Indian tribes. (The White House, Office of the Press Secretary. (2004). Government-to-Government Relationship with Tribal Governments. [Press release]) However, most Indian land is held in trust by the U.S., and federal law still regulates the political and economic rights of tribal governments.

Tribal State Relations: Sovereign within a Sovereign

The federal government has always been the entity that makes treaties with Indian tribes – not the states. As stated previously, the U.S. Constitution, Article 1, Section 8 states that Congress has the power to regulate commerce with Indian tribes. Indian tribes are separate from the federal or state governments, and the states do not have power to regulate commerce with the tribes, much less regulate the tribes. (American Indian Policy Center, 2005. St. Paul, MN. 4 Oct. 2008) While federally recognized tribes generally are not subordinate to states, they can have a government-to-government relationship with these other sovereigns, as well. (Bureau of Indian Affairs, FAQs)