2.1 Concepts of Tribal Sovereignty and Self-Governance

Tribal sovereignty and self-governance are fundamental to Native American law. These concepts recognize tribes' inherent authority to govern themselves, stemming from their status as independent political entities predating the U.S. Constitution.

The federal-tribal relationship is complex, balancing tribal sovereignty with federal oversight. This dynamic shapes how tribes exercise their inherent powers, manage their affairs, and interact with the U.S. government in a unique government-to-government relationship.

Tribal Sovereignty and Inherent Powers

The Concept of Tribal Sovereignty

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• Tribal sovereignty refers to the inherent authority of Indigenous tribes to govern themselves
• Tribes possess all powers of self-government except those relinquished under treaty with the United States, those that Congress has expressly extinguished, and those that federal courts have ruled are subject to existing federal law or are inconsistent with overriding national policies
• Tribal sovereignty ensures that any decisions about the tribes with regard to their property and citizens are made with their participation and consent
• Tribes have the power to determine their own governance structures, pass laws, and enforce those laws

The Scope of Inherent Powers

• Inherent powers are those that a tribe has by virtue of its existence as an independent political entity
• These powers predate the U.S. Constitution and are not granted by the federal government
• Examples of inherent powers include the power to determine tribal membership, regulate domestic relations among members, prescribe rules of inheritance, levy taxes, regulate property within tribal jurisdiction, and control the conduct of members by tribal legislation
• Inherent powers cannot be divested by treaty or statute, unless Congress clearly expresses its intent to do so

Tribes as Domestic Dependent Nations

• In Cherokee Nation v. Georgia (1831), Chief Justice John Marshall described tribes as "domestic dependent nations"
• This concept recognizes the sovereignty of tribes while also acknowledging their relationship with and reliance on the federal government
• As domestic dependent nations, tribes are distinct political entities with inherent powers of self-government, but their external sovereignty is limited by their relationship with the United States
• The federal government has a trust responsibility to protect tribal lands, resources, and interests

The Reserved Rights Doctrine

• The reserved rights doctrine holds that tribes retain all rights that have not been explicitly extinguished by treaty or federal statute
• This doctrine is based on the principle that tribes are sovereign entities that predate the U.S. Constitution
• Treaties between tribes and the federal government are interpreted as reserving to the tribes all rights not expressly relinquished
• The reserved rights doctrine has been applied to various contexts, including water rights (Winters v. United States, 1908) and hunting and fishing rights (United States v. Winans, 1905)

Federal-Tribal Relationships

The Trust Relationship

• The trust relationship between the federal government and tribes is a legal and moral obligation rooted in treaties, statutes, and court decisions
• Under the trust doctrine, the federal government has a fiduciary duty to protect tribal lands, resources, and interests
• The trust responsibility includes managing tribal assets, providing essential services (healthcare, education, housing), and representing tribes in legal matters
• The federal government's trust obligations are enforceable through lawsuits filed by tribes against the United States for breach of trust

Congressional Plenary Power

• Congress has plenary power over Indian affairs, meaning it has complete and absolute authority to legislate on matters affecting tribes
• This power is derived from the Indian Commerce Clause (Article I, Section 8, Clause 3) and the Treaty Clause (Article II, Section 2, Clause 2) of the U.S. Constitution
• Congress can exercise its plenary power to enact legislation that affects tribes, such as terminating the federal-tribal relationship, abrogating treaties, or extending federal criminal jurisdiction over tribal lands
• However, the Supreme Court has held that Congress' plenary power is not absolute and must be exercised in a manner consistent with the federal trust responsibility (United States v. Sioux Nation, 1980)

The Government-to-Government Relationship

• The relationship between the federal government and tribes is a government-to-government relationship, recognizing tribes as sovereign entities
• This relationship is based on the principle of self-determination, which affirms the right of tribes to govern themselves and make decisions about their own affairs
• Executive Order 13175 (2000) requires federal agencies to consult with tribal governments when developing policies that have tribal implications
• The government-to-government relationship is reflected in various federal laws and policies, such as the Indian Self-Determination and Education Assistance Act (1975) and the Tribal Law and Order Act (2010)

Landmark Supreme Court Cases

• Cherokee Nation v. Georgia (1831): The Supreme Court held that tribes are "domestic dependent nations" and that the relationship between the federal government and tribes is similar to that of a ward to its guardian
• Worcester v. Georgia (1832): The Court ruled that the laws of Georgia had no force within the Cherokee Nation's territory and that only the federal government had authority over Indian affairs, affirming tribal sovereignty and the federal-tribal relationship

Self-Governance and Determination

The Concept of Self-Governance

• Self-governance refers to the right of tribes to govern themselves and make decisions about their own affairs
• It encompasses the inherent right of tribes to establish their own governments, determine their own membership, and exercise jurisdiction over their territories
• Self-governance is essential for tribes to preserve their unique cultures, traditions, and ways of life
• The Indian Self-Determination and Education Assistance Act (1975) and subsequent amendments have strengthened tribal self-governance by allowing tribes to assume control over federal programs and services

The Indian Reorganization Act

• The Indian Reorganization Act (IRA) of 1934, also known as the Wheeler-Howard Act, was a landmark legislation that aimed to promote tribal self-governance and economic development
• The IRA encouraged tribes to adopt constitutions and establish tribal governments, provided for the acquisition of additional land for tribes, and established a revolving credit fund for tribal economic development
• The act also prohibited further allotment of tribal lands and extended the trust status of existing allotments
• While the IRA had mixed results and was not universally embraced by all tribes, it marked a significant shift in federal Indian policy towards greater tribal autonomy and self-determination

Tribal Constitutions

• Many tribes have adopted constitutions as a means of formalizing their governmental structures and asserting their sovereignty
• Tribal constitutions typically outline the powers and responsibilities of tribal governments, define membership criteria, and establish procedures for decision-making and dispute resolution
• The process of drafting and adopting a tribal constitution is an exercise of self-governance and self-determination
• Tribal constitutions vary widely in their content and structure, reflecting the diverse cultures, traditions, and needs of individual tribes

The Principle of Self-Determination

• Self-determination is the principle that tribes have the right to freely determine their political status and pursue their economic, social, and cultural development
• This principle is enshrined in various international instruments, such as the United Nations Declaration on the Rights of Indigenous Peoples (2007)
• In the United States, the policy of self-determination has been affirmed through legislation such as the Indian Self-Determination and Education Assistance Act (1975) and the Tribal Self-Governance Act (1994)
• Self-determination empowers tribes to make decisions about their own affairs, from managing natural resources to providing essential services to their members
• The exercise of self-determination is crucial for tribes to maintain their distinct identities, preserve their cultures, and build sustainable communities for future generations