Jonah Patel
The recognition of American Indian sovereignty has been a long and complex process, with the concept of sovereignty itself being ambiguous and disputed. The legal history of tribal sovereignty in the United States is rooted in colonialism, with colonizing powers asserting sovereignty over indigenous peoples based on theological-legal theories of divine right. The federal U.S. government has been the entity making treaties with Indian tribes, not individual states, and the United States Constitution mentions Native American tribes three times, recognizing their inherent authority and right to self-government. However, the Supreme Court has also played a role in interpreting and shaping the understanding of tribal sovereignty, and in United States v. Kagama in 1886, the Court's decision significantly reduced indigenous sovereignty. Today, the understanding of tribal sovereignty is often summarized in three principles of U.S. Indian law, including territorial sovereignty, plenary power doctrine, and the trust relationship between the federal government and tribes.
| Characteristics | Values |
|---|---|
| Tribal sovereignty | The right to tribal sovereignty, or the power of self-government |
| U.S. recognition of tribal nations | 574 tribal nations recognized, 229 of which are in Alaska |
| U.S. Constitution mentions of Native American tribes | Three times: Article I, Section 2, Clause 3; Article I, Section 8; and Article 1, Section 8 |
| Tribal authority | Organic authority on Indian land, not granted by the states in which Indian lands are located |
| Congressional power | Congress has the power to limit tribal sovereignty unless a treaty or federal statute removes that power |
| Federal policy | Recognizes tribal sovereignty and stresses government-to-government relations between the U.S. and Federally recognized tribes |
| Supreme Court interpretations | Summarized in three principles: Territorial sovereignty, Plenary power doctrine, and Trust relationship |
| Indigenous sovereignty | Surfaced internationally in the Draft United Nations Declaration on the Rights of Indigenous Peoples |
| Federal Indian law | Ambiguous, with sovereignty classically defined as supreme legal authority |
Explore related products
What You'll Learn
Tribal sovereignty and the US government
The concept of sovereignty is classically defined as supreme legal authority. In the context of tribal sovereignty, this means that Native American tribes have the right to determine their own form of government, define citizenship, make and enforce laws through their own police force and courts, collect taxes, and regulate property use. The United States Constitution mentions Native American tribes three times, recognising their inherent rights and a political relationship with the US government that does not derive from race or ethnicity.
The legal history of tribal sovereignty in the US starts with colonialism. From the earliest contacts with the "new world", colonising powers asserted sovereignty over indigenous peoples based on a theological-legal theory built on "divine right". This resulted in indigenous nations being legally stripped of their independent status and their lands being treated as legally vacant.
In the US, the federal government has always been the entity that makes treaties with Indian tribes, not individual states. The US Constitution states that "Congress shall have the power to regulate commerce with foreign nations and among the several states, and with the Indian tribes". This determined that Indian tribes were separate from federal or state governments and that states did not have the power to regulate commerce with the tribes.
The sovereignty of tribal nations has been reaffirmed in several court cases. In the 1832 case Worcester v. Georgia, the US Supreme Court affirmed that the Cherokee Nation was not subject to state regulation. In the 1978 case of Oliphant v. Suquamish Indian Tribe, the Supreme Court concluded that tribal courts do not have jurisdiction over non-Indians. However, the case left some questions unanswered, including whether tribal courts could use criminal contempt powers against non-Indians or subpoena them.
In the 1970s, Native American self-determination replaced Indian termination policy as the official US policy towards Native Americans. Self-determination promoted the ability of tribes to self-govern and make decisions concerning their people. The federal government has special obligations to protect tribal lands and resources, defend tribal rights to self-government, and provide services necessary for tribal survival. While tribal nations do not enjoy direct access to US courts to bring cases against individual states, they do enjoy immunity against many lawsuits as sovereign nations.
Understanding Prohibition in the Indian Constitution
You may want to see also
Treaties between the US and Native American tribes
Treaties, or solemn agreements between sovereign nations, are central to the relationship between Native American tribes and the United States. Treaties between the two parties can be traced back to 1783, when the first treaty was signed with the Delaware Indians. This treaty was heavily influenced by pre-existing British Indian policies. Between 1778 and 1871, hundreds of treaties were entered into between Native American tribes and the United States. Treaties were made between tribes and the executive branch, with the advice and consent of the Senate. Treaties often defined mutual obligations, such as land boundaries, hunting and fishing rights, and guarantees of peace.
The National Archives and Records Administration (NARA) houses original treaties, as well as instructions issued to treaty commissioners, minutes of treaty councils, and other related records. Researchers can access treaties and agreements in various publications, including Charles Kappler's Indian Affairs: Laws and Treaties, a seven-volume compilation of treaties, statutes, and executive documents related to Native American tribes.
In 1871, the House of Representatives ceased to recognize individual tribes within the US as independent nations capable of contracting through treaties. This brought an end to the century-old practice of treaty-making between the US and Native American tribes. However, the law did not nullify or alter any obligations outlined in treaties made before March 3, 1871. Since then, federal and state governments have continued to enter into agreements with tribes, which are memorialized through acts of Congress, land claims settlement acts, and executive orders.
The idea of tribal sovereignty, or the inherent right of tribes to govern themselves, is foundational to the constitutional status of Native Americans. The United States Constitution mentions Native American tribes three times. While Congress can limit tribal sovereignty, unless a treaty or federal statute removes a power, the tribe is assumed to possess it. Current federal policy in the United States recognizes this sovereignty and emphasizes government-to-government relations with federally recognized tribes.
Civil Code: India's Uniform Law and the Constitution
You may want to see also
The Indian Reorganization Act
The Act was a key initiative of John Collier, who served as President Franklin D. Roosevelt's Commissioner of the Bureau of Indian Affairs (BIA) from 1933 to 1945. Collier had a long-standing interest in Indian issues and sought to reverse the assimilationist policies that had harmed American Indian cultures. He intended to provide a pathway for American Indians to reclaim sovereignty and self-governance, mitigate the loss of reservation lands, and foster economic self-sufficiency. Collier's belief in the superiority of traditional Indian culture over modern American culture influenced his efforts.
The Act was not without its critics, and some anthropologists took issue with Collier's failure to acknowledge the diverse lifestyles of Native Americans. Collier's emphasis on Northern Pueblo arts and crafts, as well as his uniform approach to all tribes, drew scrutiny. Nevertheless, he was recognized for his efforts to empower tribes, promote education, and enhance tribal well-being.
The Making of India's Constitution: A Timely Affair
You may want to see also
Explore related products
The US Constitution and Native American tribes
The relationship between the US Constitution and Native American tribes is a complex and often contentious issue. The US Constitution mentions Native American tribes three times, and these references have been interpreted in various ways over the years, with several key principles emerging.
Firstly, the US Constitution recognises the inherent authority of Native American tribes to govern themselves. Article I, Section 8, Clause 3 (also known as the Indian Commerce Clause) states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian Tribes". This clause has been interpreted to mean that while tribes have the right to self-government, their sovereignty is ultimately subject to federal authority. This interpretation is in line with the principle of plenary power doctrine, which holds that Congress has ultimate authority over matters concerning Native American tribes.
However, it's important to note that the idea of tribal sovereignty is not without its ambiguities and controversies. From the earliest days of colonisation, theological-legal theories and doctrines of "divine right" were used to assert sovereignty over indigenous peoples, stripping them of their independent status and treating their lands as legally "vacant". This historical context has inevitably informed the ongoing debate around tribal sovereignty and the interpretation of relevant clauses in the US Constitution.
The concept of tribal sovereignty is further complicated by the trust relationship between the federal government and Native American tribes. The federal government has a "duty to protect" the tribes, which has been interpreted by courts as implying the necessary legislative and executive authorities to fulfil that duty. This interpretation gives the federal government significant influence over matters concerning Native American tribes, even though their sovereignty is meant to be respected.
Despite these complexities and ambiguities, the current federal policy in the United States recognises the sovereignty of Native American tribes and emphasises the government-to-government relations between the federal government and federally recognised tribes. This recognition of tribal sovereignty replaced the previous Indian termination policy in the 1970s, marking a shift towards supporting the ability of tribes to self-govern and make decisions for their people.
The Lengthy Indian Constitution: A Comprehensive Document
You may want to see also
Tribal sovereignty and state laws
The concept of tribal sovereignty in the United States is based on the inherent authority of Indigenous tribes to govern themselves within the country's borders. The U.S. federal government recognizes American Indian tribes as sovereign nations, distinct from federal or state governments, and deals with them through treaties. This recognition of tribal sovereignty is reflected in the U.S. Constitution, which mentions Native American tribes three times. Article I, Section 8 states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes."
The history of tribal sovereignty in the U.S. is marked by continuous struggles over boundaries, jurisdiction, and property rights. While tribes are considered self-governing entities, their sovereignty is subordinate to the federal government, not individual states. This relationship is encapsulated in the principle of "domestic dependent nations," which grants the federal government the duty to protect tribal lands, defend tribal rights to self-government, and provide necessary services for tribal survival.
The evolution of tribal sovereignty has been influenced by various factors, including the westward expansion of the U.S., which led to increased pressure for "Indian removal" and assimilation. The Indian Appropriations Act of 1871 prohibited future treaties, marking a significant opposition to Native American interests. The Indian Reorganization Act of 1934, interpreted by John Collier and Nathan Margold, affirmed tribal sovereignty except where restricted by Congress.
Despite these challenges, tribal sovereignty has endured and evolved. The 1970s saw a shift in policy towards Native American self-determination, promoting tribal self-governance and decision-making. The Indian Civil Rights Act of 1968 and the Tribal Law and Order Act of 2010 have also shaped the legal framework surrounding tribal sovereignty. Additionally, the Violence Against Women Act (VAWA) reauthorizations in 2013 and 2022 created a pathway for tribal justice systems to exercise criminal jurisdiction in certain cases involving non-Indians.
The complexities of tribal sovereignty and state laws continue to be navigated by tribal governments, with cases like Castro-Huerta impacting the understanding of state jurisdiction in Indian country. The Supreme Court's interpretation of tribal sovereignty remains a work in progress, as seen in the struggle to define the doctrine of American Indian tribal sovereignty. Nonetheless, tribal sovereignty remains an important aspect of federal Indian law, influencing various aspects of tribal life, including gaming, fishing, and criminal law.
Spirit of Indian Constitution: Democracy, Liberty, Equality
You may want to see also
Frequently asked questions
American Indian sovereignty has been constitutionally recognized since 1783, when the first treaty was signed between the United States and a Native American tribe, the Delaware Indians.
Tribal sovereignty refers to the right of Native American tribes to self-govern and make decisions concerning their people.
The legal basis for tribal sovereignty is found in Article 1, Section 8 of the United States Constitution, also known as the Indian Commerce Clause. This clause provides Congress with the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes".
The concept of tribal sovereignty has evolved significantly since the early days of colonialism, when indigenous nations were legally stripped of their independent status. In the 1970s, Native American self-determination replaced Indian termination policy as the official United States policy towards Native Americans, promoting the ability of tribes to self-govern.
The key principles of tribal sovereignty in the United States include territorial sovereignty, plenary power doctrine, and the trust relationship between the federal government and tribal nations. Territorial sovereignty refers to the idea that tribal authority on Indian land is inherent and not granted by the states. Plenary power doctrine states that Congress has ultimate authority over matters affecting Indian tribes. The trust relationship asserts that the federal government has a "duty to protect" tribal nations.
