🏛️Native American Tribal Governments Unit 2 – Tribal Sovereignty: Historical Foundations

Key Concepts and Definitions

• Tribal sovereignty refers to the inherent right of Native American tribes to govern themselves, manage their internal affairs, and control their territories
• Tribes are recognized as domestic dependent nations, meaning they have a unique government-to-government relationship with the United States federal government
  • This relationship is based on the U.S. Constitution, treaties, federal statutes, and Supreme Court decisions
• Tribal self-determination is the principle that tribes have the right to determine their own future and make decisions regarding their governance, economic development, and cultural preservation
• Plenary power is the authority of Congress to legislate on matters affecting Native American tribes, derived from the Commerce Clause and the Treaty Clause of the U.S. Constitution
• Trust responsibility is the legal obligation of the federal government to protect tribal lands, resources, and the well-being of Native American tribes and their members
  • Stems from treaties and the unique relationship between tribes and the U.S. government
• Tribal jurisdiction refers to the authority of tribal governments to make and enforce laws within their territories, including over both tribal members and non-members in certain circumstances

Historical Background

• Native American tribes have existed as sovereign nations long before the formation of the United States, with their own distinct cultures, languages, and systems of governance
• European colonization and the doctrine of discovery led to the displacement and dispossession of Native American tribes from their ancestral lands
  • This doctrine, based on the idea that European nations could claim lands they "discovered," disregarded the pre-existing rights and sovereignty of indigenous peoples
• The U.S. Constitution, ratified in 1788, recognized tribes as distinct political entities, separate from states and foreign nations
  • Article I, Section 8 grants Congress the power to regulate commerce with foreign nations, states, and Indian tribes
• Early U.S. Supreme Court decisions, such as Johnson v. McIntosh (1823) and Cherokee Nation v. Georgia (1831), established the legal framework for tribal sovereignty and the federal-tribal relationship
• The Indian Removal Act of 1830 authorized the forced relocation of Native American tribes from their ancestral lands to areas west of the Mississippi River (Trail of Tears)
• The General Allotment Act of 1887 (Dawes Act) aimed to break up tribal lands into individual allotments, leading to significant land loss and the erosion of tribal sovereignty

Legal Foundations of Tribal Sovereignty

• The Marshall Trilogy, a series of U.S. Supreme Court decisions authored by Chief Justice John Marshall, laid the groundwork for the legal understanding of tribal sovereignty
  • Johnson v. McIntosh (1823) recognized tribal rights to occupy and use their lands but denied their ability to sell land to private parties without federal consent
  • Cherokee Nation v. Georgia (1831) defined tribes as "domestic dependent nations," establishing the trust relationship between the federal government and tribes
  • Worcester v. Georgia (1832) affirmed tribal sovereignty and held that state laws generally do not apply within tribal territories
• The U.S. Constitution, treaties, federal statutes, and Supreme Court decisions form the basis for the unique legal and political status of Native American tribes
• The Commerce Clause (Article I, Section 8) and the Treaty Clause (Article II, Section 2) of the U.S. Constitution grant Congress the authority to regulate trade and make treaties with tribes
• The Supremacy Clause (Article VI) establishes federal law, including treaties, as the supreme law of the land, preempting conflicting state laws
• The trust doctrine, derived from treaties and the historical relationship between tribes and the federal government, obligates the U.S. to protect tribal lands, resources, and the well-being of tribal members
• Tribal sovereignty is inherent and pre-dates the formation of the United States, rather than being granted by the federal government

Treaties and Federal Indian Law

• Treaties between the U.S. government and Native American tribes are binding legal agreements that establish the rights, obligations, and relationships between the parties
  • These treaties often involved the cession of tribal lands in exchange for promises of protection, services, and the recognition of tribal sovereignty
• The Supremacy Clause of the U.S. Constitution ensures that treaties are the supreme law of the land, overriding conflicting state laws
• The Indian Appropriations Act of 1871 ended the practice of treaty-making with tribes but affirmed that pre-existing treaties would remain in force
• Federal Indian law encompasses the body of law that governs the relationship between the federal government and Native American tribes
  • Includes statutes, regulations, executive orders, and court decisions that address issues such as tribal jurisdiction, land rights, and the provision of services to tribal members
• The Indian Reorganization Act of 1934 (IRA) aimed to strengthen tribal governments and promote tribal self-determination
  • Encouraged tribes to adopt constitutions and establish tribal business entities
• The Indian Self-Determination and Education Assistance Act of 1975 (ISDEAA) allowed tribes to assume control over federal programs and services intended for their benefit, furthering tribal self-governance

Tribal Governance Structures

• Native American tribes have the inherent right to govern themselves and establish their own forms of government
• Traditional tribal governance structures vary widely among tribes, often reflecting their unique cultures, histories, and values
  • Examples include clan-based systems, hereditary chiefdoms, and consensus-based decision-making
• The Indian Reorganization Act of 1934 (IRA) encouraged tribes to adopt constitutions and establish elected tribal councils
  • Many tribes have since adopted IRA-style governments, while others have maintained or revived traditional governance structures
• Tribal governments typically consist of executive, legislative, and judicial branches, similar to the U.S. federal government
  • Executive branch is often led by a tribal chairperson, president, or chief, responsible for implementing laws and overseeing tribal administration
  • Legislative branch, such as a tribal council or general council, is responsible for enacting laws and making decisions on behalf of the tribe
  • Judicial branch, including tribal courts, enforces tribal laws and resolves disputes within the tribe's jurisdiction
• Tribal governments have the authority to make and enforce laws, manage tribal resources, provide services to tribal members, and engage in government-to-government relations with federal and state entities
• Tribal sovereignty allows tribes to determine their own membership criteria, which may be based on factors such as blood quantum, lineal descent, or cultural affiliation

Challenges to Tribal Sovereignty

• Throughout U.S. history, tribal sovereignty has faced numerous challenges and infringements from federal and state governments, as well as private interests
• The Allotment Era (1887-1934), marked by the General Allotment Act (Dawes Act), aimed to break up tribal lands into individual allotments
  • Led to significant land loss, as "surplus" lands were often sold to non-Native buyers, and the erosion of tribal sovereignty
• The Termination Era (1953-1968) was characterized by federal policies that sought to end the government-to-government relationship between the U.S. and tribes
  • Over 100 tribes were terminated, losing federal recognition and their land bases
• The Supreme Court's decision in Oliphant v. Suquamish Indian Tribe (1978) limited tribal criminal jurisdiction over non-Indians within tribal territories
• The Supreme Court's decision in Montana v. United States (1981) established the "Montana test," limiting tribal civil regulatory authority over non-members on non-Indian fee lands within reservations
• State governments have often sought to assert jurisdiction over tribal lands and members, challenging tribal sovereignty
  • Public Law 280 (1953) granted certain states criminal and civil jurisdiction over tribal lands, diminishing tribal authority
• Economic development efforts, such as natural resource extraction or gaming enterprises, have sometimes led to conflicts with neighboring communities and challenges to tribal sovereignty
• Inadequate funding and resources for tribal governments and services have hindered the effective exercise of tribal sovereignty and self-governance

Contemporary Issues and Developments

• The Indian Self-Determination Era (1968-present) has been marked by a renewed focus on tribal self-governance and the strengthening of tribal sovereignty
  • Passage of laws such as the Indian Self-Determination and Education Assistance Act (1975) and the Tribal Self-Governance Act (1994) have expanded tribal control over federal programs and services
• The federal government has taken steps to restore tribal lands and promote tribal economic development
  • Examples include the Indian Land Consolidation Act (1983) and the Native American Housing Assistance and Self-Determination Act (1996)
• Tribes have increasingly asserted their sovereignty through the development of tribal courts, law enforcement agencies, and regulatory bodies
  • Tribal courts play a crucial role in maintaining order, resolving disputes, and protecting the rights of tribal members
• The recognition of tribal treaty rights, such as hunting, fishing, and water rights, has been a ongoing issue, with tribes seeking to enforce these rights in the face of competing interests
• The federal government has acknowledged the importance of tribal consultation in decision-making processes that affect tribes and their resources
  • Executive Order 13175 (2000) requires federal agencies to consult with tribes on policies that have tribal implications
• Tribal-state relations have evolved, with some states entering into compacts and agreements with tribes to address issues such as gaming, taxation, and law enforcement
• The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007, has affirmed the rights of indigenous peoples to self-determination and self-governance
  • The U.S. initially voted against UNDRIP but later expressed support for the declaration in 2010

Case Studies and Examples

• The Navajo Nation, the largest Native American tribe in the U.S., has a robust tribal government with executive, legislative, and judicial branches
  • The Navajo Nation Council, the legislative branch, consists of 24 elected members representing 110 chapters (local government units)
  • The Navajo Nation Supreme Court, established in 1985, is the highest court of the Navajo Nation and plays a crucial role in interpreting Navajo law and protecting tribal sovereignty
• The Oneida Nation of Wisconsin has successfully asserted its sovereignty through the development of a thriving gaming enterprise, which has provided resources for tribal programs and services
  • The Oneida Nation has also engaged in land restoration efforts, reacquiring over 13,000 acres of its original reservation land
• The Yakama Nation, located in Washington state, has been at the forefront of asserting tribal treaty rights, particularly in the context of fishing and water rights
  • In the landmark case United States v. Washington (1974), also known as the Boldt Decision, the court affirmed the Yakama Nation's treaty-protected right to fish in its usual and accustomed places
• The Mashpee Wampanoag Tribe of Massachusetts, after a long struggle for federal recognition, gained recognition in 2007
  • The tribe's efforts to establish a reservation and build a gaming facility have faced legal challenges, highlighting the ongoing obstacles to tribal sovereignty and self-determination
• The Standing Rock Sioux Tribe's opposition to the Dakota Access Pipeline (DAPL) in 2016-2017 brought international attention to issues of tribal sovereignty, treaty rights, and environmental justice
  • The tribe asserted its right to protect its water resources and sacred sites, engaging in legal battles and grassroots activism to challenge the pipeline's construction