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Tribal sovereignty in the United States is the concept of the inherent authority of indigenous tribes to govern themselves within the borders of the United States. Originally, the
U.S. federal government The federal government of the United States (U.S. federal government or U.S. government) is the national government of the United States, a federal republic located primarily in North America, composed of 50 states, a city within a f ...
recognized American Indian tribes as independent nations, and came to policy agreements with them via
treaties A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal pers ...
. As the U.S. accelerated its
westward expansion The United States of America was created on July 4, 1776, with the U.S. Declaration of Independence of thirteen British colonies in North America. In the Lee Resolution two days prior, the colonies resolved that they were free and independent ...
, internal political pressure grew for "
Indian removal Indian removal was the United States government policy of forced displacement of self-governing tribes of Native Americans from their ancestral homelands in the eastern United States to lands west of the Mississippi Riverspecifically, to a ...
", but the pace of treaty-making grew nevertheless. The
Civil War A civil war or intrastate war is a war between organized groups within the same state (or country). The aim of one side may be to take control of the country or a region, to achieve independence for a region, or to change government polici ...
forged the U.S. into a more centralized and nationalistic country, fueling a "full bore assault on tribal culture and institutions", and pressure for Native Americans to assimilate. In the Indian Appropriations Act of 1871, Congress prohibited any future treaties. This move was steadfastly opposed by Native Americans. Currently, the U.S. recognizes tribal nations as "domestic dependent nations" and uses its own legal system to define the relationship between the federal, state, and tribal governments.


Native American sovereignty and the Constitution

The
United States Constitution The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the natio ...
mentions Native American tribes three times: * Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed." According to Story's ''Commentaries on the U.S. Constitution'', "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." * Article I, Section 8 of the Constitution states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes",American Indian Policy Center. 2005. St. Paul, MN. 4 October 2008 determining that Indian tribes were separate from the federal government, the states, and foreign nations; and * The Fourteenth Amendment, Section 2 amends the apportionment of representatives in Article I, Section 2 above. These constitutional provisions, and subsequent interpretations by the Supreme Court (see below), are today often summarized in three principles of U.S. Indian law:Conference of Western Attorneys General, American Indian Law Deskbook, University Press of Colorado, 2004 * Territorial sovereignty: Tribal authority on Indian land is
organic Organic may refer to: * Organic, of or relating to an organism, a living entity * Organic, of or relating to an anatomical organ Chemistry * Organic matter, matter that has come from a once-living organism, is capable of decay or is the product ...
and is not granted by the states in which Indian lands are located. * Plenary power doctrine: Congress, and not the
Executive Branch The Executive, also referred as the Executive branch or Executive power, is the term commonly used to describe that part of government which enforces the law, and has overall responsibility for the governance of a state. In political systems ...
or
Judicial Branch The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...
, has ultimate authority with regard to matters affecting the Indian tribes. Federal courts give greater deference to Congress on Indian matters than on other subjects. * Trust relationship: The federal government has a "duty to protect" the tribes, implying (courts have found) the necessary legislative and executive authorities to effect that duty.


Early history


The Marshall Trilogy, 1823–1832

The Marshall Trilogy is a set of three Supreme Court decisions in the early nineteenth century affirming the legal and political standing of Indian nations. * ''
Johnson v. M'Intosh ''Johnson v. M'Intosh'', 21 U.S. (7 Wheat.) 543 (1823), is a landmark decision of the U.S. Supreme Court that held that private citizens could not purchase lands from Native Americans. As the facts were recited by Chief Justice John Marshall, th ...
'' (1823), holding that private citizens could not purchase lands from Native Americans. * ''
Cherokee Nation v. Georgia ''Cherokee Nation v. Georgia'', 30 U.S. (5 Pet.) 1 (1831), was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the U.S. state of Georgia depriving them of rights within its boundaries, but ...
'' (1831), holding the Cherokee nation dependent, with a relationship to the United States like that of a "ward to its guardian". * ''
Worcester v. Georgia ''Worcester v. Georgia'', 31 U.S. (6 Pet.) 515 (1832), was a landmark case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Native Americans from bei ...
'' (1832), which laid out the relationship between tribes and the state and federal governments, stating that the federal government was the sole authority to deal with Indian nations.


Indian Appropriations Act of 1871

Originally, the United States had recognized the Indian Tribes as independent nations, but after the Civil War, the U.S. suddenly changed its approach. The Indian Appropriations Act of 1871 had two significant sections. First, the Act ended United States recognition of additional Native American tribes or independent nations, and prohibited additional treaties. Thus it required the federal government no longer interact with the various tribes through treaties, but rather through statutes: The 1871 Act also made it a federal crime to commit murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny within any Territory of the United States.


Empowerment of tribal courts, 1883

On April 10, 1883, five years after establishing Indian police powers throughout the various reservations, the Indian Commissioner approved rules for a "court of Indian offenses". The court provided a venue for prosecuting criminal charges, but afforded no relief for tribes seeking to resolve civil matters. The new courts' rules specifically targeted tribal religious practices which it called "heathenish rites" and the commissioner urged courts to "destroy the tribal relations as fast as possible". Another five years later, Congress began providing funds to operate the Indian courts. While U.S. courts clarified some of the rights and responsibilities of states and the federal government toward the Indian nations within the new nation's first century, it was almost another century before United States courts determined what powers remained vested in the tribal nations. In the interim, as a trustee charged with protecting their interests and property, the federal government was legally entrusted with ownership and administration of the assets, land, water, and treaty rights of the tribal nations.


''United States v. Kagama'' (1886)

The 1871 Act was affirmed in 1886 by the U.S. Supreme Court, in ''
United States v. Kagama ''United States v. Kagama'', 118 U.S. 375 (1886), was a United States Supreme Court case that upheld the constitutionality of the Major Crimes Act of 1885. This Congressional act gave the federal courts jurisdiction in certain Indian-on-Indian ...
'', which affirmed that the Congress has
plenary power A plenary power or plenary authority is a complete and absolute power to take action on a particular issue, with no limitations. It is derived from the Latin term ''plenus'' ("full"). United States In United States constitutional law, plenary p ...
over all Native American tribes within its borders by rationalization that "The power of the general government over these remnants of a race once powerful ... is necessary to their protection as well as to the safety of those among whom they dwell". 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 United States. ... The Indians owe no allegiance to a State within which their reservation may be established, and the State gives them no protection."


The General Allotment Act (Dawes Act), 1887

Passed by Congress in 1887, the "Dawes Act" was named for Senator Henry L. Dawes of Massachusetts, Chairman of the Senate's Indian Affairs Committee. It came as another crucial step in attacking the tribal aspect of the Indians of the time. In essence, the act broke up the land of most all tribes into modest parcels to be distributed to Indian families, and those remaining were auctioned off to white purchasers. Indians who accepted the farmland and became "civilized" were made American citizens. But the Act itself proved disastrous for Indians, as much tribal land was lost and cultural traditions destroyed. Whites benefited the most; for example, when the government made of Indian lands available in Oklahoma, 50,000 white settlers poured in almost instantly to claim it all (in a period of one day, April 22, 1889). Evolution of relationships: The evolution of the relationship between tribal governments and federal governments has been glued together through partnerships and agreements. Also running into problems of course such as finances which also led to not being able to have a stable social and political structure at the helm of these tribes or states.


Twentieth-century developments


Revenue and Indian Citizenship acts, 1924

The
Revenue Act of 1924 The United States Revenue Act of 1924 () (June 2, 1924), also known as the Mellon tax bill (after U.S. Secretary of the Treasury Andrew Mellon) cut federal tax rates for 1924 income. The bottom rate, on income under $4,000, fell from 1.5% to 1 ...
(), also known as the Mellon tax bill after U.S. Secretary of the Treasury
Andrew Mellon Andrew William Mellon (; March 24, 1855 – August 26, 1937), sometimes A. W. Mellon, was an American banker, businessman, industrialist, philanthropist, art collector, and politician. From the wealthy Mellon family of Pittsburgh, Pennsylv ...
, cut federal tax rates and established the
U.S. Board of Tax Appeals The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, which was later renamed the
United States Tax Court The United States Tax Court (in case citations, T.C.) is a federal trial court of record established by Congress under Article I of the U.S. Constitution, section 8 of which provides (in part) that the Congress has the power to "constitute Tr ...
in 1942. The Revenue Act was applicable to incomes for 1924. The bottom rate, on income under $4,000, fell from 1.5% to 1.125% (both rates are after reduction by the " earned income credit"). A parallel act, the Indian Citizenship Act of 1924 (), granted all non-citizen resident Indians citizenship. Thus the Revenue Act declared that there were no longer any "Indians, not taxed" to be not counted for purposes of
United States congressional apportionment United States congressional apportionment is the process by which seats in the United States House of Representatives are distributed among the 50 states according to the most recent decennial census mandated by the United States Constitution ...
. President
Calvin Coolidge Calvin Coolidge (born John Calvin Coolidge Jr.; ; July 4, 1872January 5, 1933) was the 30th president of the United States from 1923 to 1929. Born in Vermont, Coolidge was a Republican lawyer from New England who climbed up the ladder of Ma ...
signed the bill into law.


Indian Reorganization Act, 1934

In 1934 the ''
Indian Reorganization Act The Indian Reorganization Act (IRA) of June 18, 1934, or the Wheeler–Howard Act, was U.S. federal legislation that dealt with the status of American Indians in the United States. It was the centerpiece of what has been often called the "Indian ...
'', 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. Though the Act did not specifically recognize the Courts of Indian Offenses, 1934 is widely considered to be the year when tribal authority, rather than United States authority, gave the tribal courts legitimacy.


Public Law 280, 1953

In 1953, Congress enacted Public Law 280, which gave some states extensive jurisdiction over the criminal and civil controversies involving Indians on Indian lands. Many, especially Indians, continue to believe the law unfair because it imposed a system of laws on the tribal nations without their approval. In 1965 the
United States Court of Appeals for the Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...
concluded that no law had ever extended provisions of the U.S. Constitution, including the right of
habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, ...
, to tribal members brought before tribal courts. Still, the court concluded, "it is pure fiction to say that the Indian courts functioning in the Fort Belknap Indian community are not in part, at least, arms of the federal government. Originally they were created by federal executive and imposed upon the Indian community, and to this day the federal government still maintains a partial control over them." In the end however, the Ninth Circuit limited its decision to the particular reservation in question and stated, "it does not follow from our decision that the tribal court must comply with every constitutional restriction that is applicable to federal or state courts." While many modern courts in Indian nations today have established full faith and credit with state courts, the nations still have no direct access to U.S. courts. When an Indian nation files suit against a state in U.S. court, they do so with the approval of the
Bureau of Indian Affairs The Bureau of Indian Affairs (BIA), also known as Indian Affairs (IA), is a United States federal agency within the Department of the Interior. It is responsible for implementing federal laws and policies related to American Indians and A ...
. In the modern legal era, the courts and Congress have, however, further refined the often competing jurisdictions of tribal nations, states and the United States in regard to Indian law. In the 1978 case of ''
Oliphant v. Suquamish Indian Tribe ''Oliphant v. Suquamish Indian Tribe'', 435 U.S. 191 (1978), is a United States Supreme Court case deciding that Indian tribal courts have no criminal jurisdiction over non-Indians.. The case was decided on March 6, 1978 with a 6–2 majority. Th ...
'', the Supreme Court, in a 6–2 opinion authored by Justice
William Rehnquist William Hubbs Rehnquist ( ; October 1, 1924 – September 3, 2005) was an American attorney and jurist who served on the U.S. Supreme Court for 33 years, first as an associate justice from 1972 to 1986 and then as the 16th chief justice from ...
, concluded that tribal courts do not have jurisdiction over non-Indians (the Chief Justice of the Supreme Court at that time,
Warren Burger Warren Earl Burger (September 17, 1907 – June 25, 1995) was an American attorney and jurist who served as the 15th chief justice of the United States from 1969 to 1986. Born in Saint Paul, Minnesota, Burger graduated from the St. Paul Colleg ...
, and Justice
Thurgood Marshall Thurgood Marshall (July 2, 1908 – January 24, 1993) was an American civil rights lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme Court's first African-A ...
filed a dissenting opinion). But the case left unanswered some questions, including whether tribal courts could use criminal contempt powers against non-Indians to maintain decorum in the courtroom, or whether tribal courts could subpoena non-Indians. A 1981 case, ''
Montana v. United States ''Montana v. United States'', 450 U.S. 544 (1981), was a Supreme Court case that addressed two issues: (1) Whether the title of the Big Horn Riverbed rested with the United States, in trust for the Crow Nation or passed to the State of Montana upo ...
'', clarified that tribal nations possess inherent power over their internal affairs, and civil authority over non-members on
fee-simple In English law, a fee simple or fee simple absolute is an estate in land, a form of freehold ownership. A "fee" is a vested, inheritable, present possessory interest in land. A "fee simple" is real property held without limit of time (i.e., per ...
lands within its reservation when their "conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Other cases of those years precluded states from interfering with tribal nations' sovereignty. Tribal sovereignty is dependent on, and subordinate to, only the federal government, not states, under ''Washington v. Confederated Tribes of Colville Indian Reservation'' (1980). Tribes are sovereign over tribal members and tribal land, under ''United States v. Mazurie'' (1975). In '' Duro v. Reina'', , the Supreme Court held that a tribal court does not have criminal jurisdiction over a non-member Indian, but that tribes "also possess their traditional and undisputed power to exclude persons who they deem to be undesirable from tribal lands. ... Tribal law enforcement authorities have the power if necessary, to eject them. Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain and transport him to the proper authorities." In response to this decision, Congress passed the Duro'' Fix', which recognizes the power of tribes to exercise criminal jurisdiction within their reservations over all Indians, including non-members. The ''Duro'' Fix was upheld by the Supreme Court in ''
United States v. Lara ''United States v. Lara'', 541 U.S. 193 (2004), was a United States Supreme Court landmark case which held that both the United States and a Native American (Indian) tribe could prosecute an Indian for the same acts that constituted crimes in bo ...
'', .


''Iron Crow v. Oglala Sioux Tribe'' (1956)

In '' Iron Crow v. Oglala Sioux Tribe'', the United States Supreme Court concluded that two
Oglala Sioux The Oglala (pronounced , meaning "to scatter one's own" in Lakota language) are one of the seven subtribes of the Lakota people who, along with the Dakota, make up the Očhéthi Šakówiŋ (Seven Council Fires). A majority of the Oglala live o ...
defendants convicted of adultery under tribal laws, and another challenging a tax from the tribe, were not exempted from the tribal justice system because they had been granted U.S. citizenship. It found that tribes "still possess their inherent sovereignty excepting only when it has been specifically taken from them by treaty or Congressional Act". This means American Indians do not have exactly the same rights of citizenship as other American citizens. The court cited case law from a pre-1924 case that said, "when Indians are prepared to exercise the privileges and bear the burdens of" ''
sui iuris ''Sui iuris'' ( or ) also spelled ''sui juris'', is a Latin phrase that literally means "of one's own right". It is used in both secular law and the Catholic Church's canon law. The term church ''sui iuris'' is used in the Catholic '' Code of Ca ...
'', i.e. of one's own right and not under the power of someone else, "the tribal relation may be dissolved and the national guardianship brought to an end, but it rests with Congress to determine when and how this shall be done, and whether the emancipation shall be complete or only partial" (''U.S. v. Nice'', 1916). The court further determined, based on the earlier ''
Lone Wolf v. Hitchcock ''Lone Wolf v. Hitchcock'', 187 U.S. 553 (1903), was a United States Supreme Court case brought against the US government by the Kiowa chief Lone Wolf, who charged that Native American tribes under the Medicine Lodge Treaty had been defrauded of ...
'' case, that "It is thoroughly established that Congress has plenary authority over Indians." The court held that, "the granting of citizenship in itself did not destroy ... jurisdiction of the Indian tribal courts and ... there was no intention on the part of Congress to do so." The adultery conviction and the power of tribal courts were upheld. Further, the court held that whilst no law had directly established tribal courts, federal funding "including pay and other expenses of judges of Indian courts" implied that they were legitimate courts.


Tribal governments today


Tribal courts

At the dawn of the 21st century, the powers of tribal courts across the United States varied, depending on whether the tribe was in a Public Law 280 (PL280) state (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin). The U.S. Supreme Court ruled in the 1978 decision ''
Oliphant v. Suquamish Indian Tribe ''Oliphant v. Suquamish Indian Tribe'', 435 U.S. 191 (1978), is a United States Supreme Court case deciding that Indian tribal courts have no criminal jurisdiction over non-Indians.. The case was decided on March 6, 1978 with a 6–2 majority. Th ...
'' that tribes have no jurisdiction over non-Indians. Tribal courts maintain much criminal jurisdiction over their members, and because of the ''Duro'' fix, also over non-member Indians regarding crime on tribal land. The
Violence Against Women Reauthorization Act of 2013 The Violence Against Women Act of 1994 (VAWA) is a United States federal law (Title IV of the Violent Crime Control and Law Enforcement Act, ) signed by President Bill Clinton on September 13, 1994. The Act provided $1.6 billion toward inves ...
expanded the criminal jurisdiction of tribes over non-Indian perpetrators of domestic violence that occur in Indian Country when the victim is Indian. The 1968 Indian Civil Rights Act limited tribal punishment to one year in jail and a $5,000 fine, but this was expanded by the Tribal Law and Order Act of 2010. In PL280 states, the state has been granted criminal and civil adjudicatory jurisdiction over activities in Indian country. In non-PL280 states, Indian-on-Indian crime in Indian country may be prosecuted in federal court if the crime is one of those listed in the Major Crimes Act (18 USC §1153; MCA). Indian on non-Indian crime in Indian country will be prosecuted in federal court, either from the MCA or the Indian Country Crimes Act (ICCA; §1152), unless the Indian was punished by the tribe. Non-Indian on Indian crime in Indian country is prosecuted in federal court under the ICCA. Non-Indian on non-Indian crime in Indian country is prosecuted by the state. While tribal nations do not enjoy direct access to U.S. courts to bring cases against individual states, as sovereign nations they do enjoy
immunity Immunity may refer to: Medicine * Immunity (medical), resistance of an organism to infection or disease * ''Immunity'' (journal), a scientific journal published by Cell Press Biology * Immune system Engineering * Radiofrequence immunity de ...
against many lawsuits,'' Santa Clara Pueblo v. Martinez'', unless a plaintiff is granted a waiver by the tribe or by congressional abrogation. The sovereignty extends to tribal enterprises and tribal casinos or gaming commissions. The Indian Civil Rights Act does not allow actions against an Indian tribe in federal court for deprivation of substantive rights, except for
habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, ...
proceedings. Tribal and pueblo governments today launch far-reaching economic ventures, operate growing law enforcement agencies, and adopt codes to govern conduct within their jurisdiction, while the United States retains control over the scope of tribal law making. Laws adopted by Native American governments must also pass the
Secretarial Review Secretarial Review is a part of the Indian Reorganization Act of 1934 (IRA). According to this law, Native American tribes were expected to write constitutions loosely resembling the United States Constitution. These IRA constitutions provided ...
of the Department of Interior through the Bureau of Indian Affairs. With crime twice as high on Indian lands, federal funding of tribal courts has been criticized by the
United States Commission on Civil Rights The U.S. Commission on Civil Rights (CCR) is a bipartisan, independent commission of the United States federal government, created by the Civil Rights Act of 1957 during the Eisenhower administration, that is charged with the responsibility fo ...
and the
Government Accountability Office The U.S. Government Accountability Office (GAO) is a legislative branch government agency that provides auditing, evaluative, and investigative services for the United States Congress. It is the supreme audit institution of the federal gover ...
as inadequate to allow them to perform necessary judicial functions, such as hiring officials trained in law, and prosecuting cases neglected by the federal government.


Nation to nation: tribes and the federal government

The United States Constitution specifically mentions American Indians three times. Article I, Section 2, Clause 3 and the Section 2 of the Fourteenth Amendment address the handling of "Indians not taxed" in the apportionment of the seats of the House of Representatives according to population and in so doing suggest that Indians need not ''be'' taxed. In Article I Section 8, Clause 3, Congress is empowered to "regulate commerce with foreign nations…states…and with the Indian tribes." Technically, Congress has no more power over Indian nations than it does over individual states. In the 1970s, Native American self-determination replaced
Indian termination policy Indian termination is a phrase describing United States policies relating to Native Americans from the mid-1940s to the mid-1960s. It was shaped by a series of laws and practices with the intent of assimilating Native Americans into mainstream ...
as the official United States policy towards Native Americans.
Self-determination The right of a people to self-determination is a cardinal principle in modern international law (commonly regarded as a '' jus cogens'' rule), binding, as such, on the United Nations as authoritative interpretation of the Charter's norms. It sta ...
promoted the ability of tribes to self-govern and make decisions concerning their people. In dealing with Indian policy, a separate agency, the
Bureau of Indian Affairs The Bureau of Indian Affairs (BIA), also known as Indian Affairs (IA), is a United States federal agency within the Department of the Interior. It is responsible for implementing federal laws and policies related to American Indians and A ...
has been in place since 1824. The idea that tribes have an inherent right to govern themselves is at the foundation of their constitutional status – 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. Current federal policy in the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
recognizes this sovereignty and stresses the government-to-government relations between the United States and
Federally recognized tribes This is a list of federally recognized tribes in the contiguous United States of America. There are also federally recognized Alaska Native tribes. , 574 Indian tribes were legally recognized by the Bureau of Indian Affairs (BIA) of the United ...
. However, most Native American land is held in trust by the United States, and federal law still regulates the economic rights of tribal governments and political rights. Tribal jurisdiction over persons and things within tribal borders are often at issue. While tribal criminal jurisdiction over Native Americans is reasonably well settled, tribes are still striving to achieve criminal jurisdiction over non-Native persons who commit crimes in Indian Country. This is largely due to the Supreme Court's ruling in 1978 in ''
Oliphant v. Suquamish Indian Tribe ''Oliphant v. Suquamish Indian Tribe'', 435 U.S. 191 (1978), is a United States Supreme Court case deciding that Indian tribal courts have no criminal jurisdiction over non-Indians.. The case was decided on March 6, 1978 with a 6–2 majority. Th ...
'' that tribes lack the inherent authority to arrest, try and convict non-Natives who commit crimes on their lands (see below for additional discussion on this point.) As a result of a pair of treaties in 1830s, two tribal nations (the
Cherokee The Cherokee (; chr, ᎠᏂᏴᏫᏯᎢ, translit=Aniyvwiyaʔi or Anigiduwagi, or chr, ᏣᎳᎩ, links=no, translit=Tsalagi) are one of the indigenous peoples of the Southeastern Woodlands of the United States. Prior to the 18th century, th ...
and
Choctaw The Choctaw (in the Choctaw language, Chahta) are a Native American people originally based in the Southeastern Woodlands, in what is now Alabama and Mississippi. Their Choctaw language is a Western Muskogean language. Today, Choctaw people are ...
) each have the right to send non-voting members to the United States House of Representatives (similar to a non-state U.S. territory or the
federal district A federal district is a type of administrative division of a federation, usually under the direct control of a federal government and organized sometimes with a single municipal body. Federal districts often include capital districts, and they ...
); the Choctaw have never exercised their right to do so since they were given the power and the Cherokee had not done so until appointing a delegate in 2019, though this delegate has not been accepted by Congress.


Tribal state relations: sovereign within a sovereign

Another dispute over American Indian government is its sovereignty versus that of the states. The federal U.S. government has always been the government that makes treaties with Indian tribes – not individual states. Article 1, Section 8 of the 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 the federal or state governments and that the states did not have power to regulate commerce with the tribes, much less regulate the tribes. The states and tribal nations have clashed over many issues such as Indian gaming, fishing, and hunting. American Indians believed that they had treaties between their ancestors and the United States government, protecting their right to fish, while non-Indians believed the states were responsible for regulating commercial and sports fishing. In the case ''
Menominee Tribe v. United States The Menominee (; mez, omǣqnomenēwak meaning ''"Menominee People"'', also spelled Menomini, derived from the Ojibwe language word for "Wild Rice People"; known as ''Mamaceqtaw'', "the people", in the Menominee language) are a federally recog ...
'' in 1968, it was ruled that "the establishment of a reservation by treaty, statute or agreement includes an implied right of Indians to hunt and fish on that reservation free of regulation by the state". States have tried to extend their power over the tribes in many other instances, but federal government ruling has continuously ruled in favor of tribal sovereignty. A seminal court case was ''
Worcester v. Georgia ''Worcester v. Georgia'', 31 U.S. (6 Pet.) 515 (1832), was a landmark case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Native Americans from bei ...
''. Chief Justice Marshall found that "England had treated the tribes as sovereign and negotiated treaties of alliance with them. The United States followed suit, thus continuing the practice of recognizing tribal sovereignty. When the United States assumed the role of protector of the tribes, it neither denied nor destroyed their sovereignty." As determined in the Supreme Court case ''
United States v. Nice ''United States v. Nice'', 241 U.S. 591 (1916), is a United States Supreme Court decision which declared that Congress still retains plenary power to protect Native American interests when Native Americans are granted citizenship. ''United Stat ...
'' (1916), U.S. citizens are subject to all U.S. laws even if they also have tribal citizenship. In July 2020, the U.S Supreme Court ruled in ''
McGirt v. Oklahoma ''McGirt v. Oklahoma'', 591 U.S. ___ (2020), was a landmark United States Supreme Court case which ruled that, as pertaining to the Major Crimes Act, much of the eastern portion of the state of Oklahoma remains as Native American lands of the prio ...
'' that the state of Oklahoma acted outside its jurisdiction when trying a member of the
Muscogee The Muscogee, also known as the Mvskoke, Muscogee Creek, and the Muscogee Creek Confederacy ( in the Muscogee language), are a group of related indigenous (Native American) peoples of the Southeastern WoodlandsUnited States House of Representatives The United States House of Representatives, often referred to as the House of Representatives, the U.S. House, or simply the House, is the lower chamber of the United States Congress, with the Senate being the upper chamber. Together they ...
, the
Maine House of Representatives The Maine House of Representatives is the lower house of the Maine Legislature. The House consists of 151 voting members and three nonvoting members. The voting members represent an equal number of districts across the state and are elected via ...
maintains three state-level non-voting seats for representatives of the
Passamaquoddy The Passamaquoddy ( Maliseet-Passamaquoddy: ''Peskotomuhkati'') are a Native American/First Nations people who live in northeastern North America. Their traditional homeland, Peskotomuhkatik'','' straddles the Canadian province of New Brunswick ...
,
Maliseet The Wəlastəkwewiyik, or Maliseet (, also spelled Malecite), are an Algonquian-speaking First Nation of the Wabanaki Confederacy. They are the indigenous people of the Wolastoq ( Saint John River) valley and its tributaries. Their territory ...
, and the
Penobscot The Penobscot ( Abenaki: ''Pαnawάhpskewi'') are an Indigenous people in North America from the Northeastern Woodlands region. They are organized as a federally recognized tribe in Maine and as a First Nations band government in the Atlantic ...
. Two of the seats are currently not filled in protest over issues of tribal sovereignty and rights.


Tribal sovereignty over land and natural resources

Following industrialization, the 1800s brought many challenges to tribal sovereignty over tribal members’ occupied lands in the United States. In 1831, ''
Cherokee Nation v. Georgia ''Cherokee Nation v. Georgia'', 30 U.S. (5 Pet.) 1 (1831), was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the U.S. state of Georgia depriving them of rights within its boundaries, but ...
'' established a trust relationship between the United States and tribal territories. This gave the U.S. federal government primary jurisdictional authority over tribal land use, while maintaining tribal members’ rights to reside on their land and access its resources. Similarly, in 1841, a treaty between the U.S. federal government and the Mole Lake Band of Sokaogon Chippewa resulted in the Chippewa ceding extensive lands to the U.S., but maintaining usufructuary rights to fishing, hunting, and gathering in perpetuity on all ceded land. Wartime industry of the early 1900s introduced
uranium mining Uranium mining is the process of extraction of uranium ore from the ground. Over 50 thousand tons of uranium were produced in 2019. Kazakhstan, Canada, and Australia were the top three uranium producers, respectively, and together account f ...
and the need for weapons testing sites, for which the U.S. federal government often selected former and current tribal territories in the southwestern deserts. Uranium mines were constructed upstream of
Navajo The Navajo (; British English: Navaho; nv, Diné or ') are a Native Americans in the United States, Native American people of the Southwestern United States. With more than 399,494 enrolled tribal members , the Navajo Nation is the largest fe ...
and
Hopi The Hopi are a Native American ethnic group who primarily live on the Hopi Reservation in northeastern Arizona, United States. As of the 2010 census, there are 19,338 Hopi in the country. The Hopi Tribe is a sovereign nation within the United ...
reservations in Arizona and Nevada, measurably contaminating Native American water supply through the 1940s and 1950s with lasting impacts to this day. The Nevada desert was also a common
nuclear testing Nuclear weapons tests are experiments carried out to determine nuclear weapons' effectiveness, yield, and explosive capability. Testing nuclear weapons offers practical information about how the weapons function, how detonations are affected by ...
site for the U.S. military through
World War II World War II or the Second World War, often abbreviated as WWII or WW2, was a world war that lasted from 1939 to 1945. It involved the World War II by country, vast majority of the world's countries—including all of the great power ...
and the
Cold War The Cold War is a term commonly used to refer to a period of geopolitical tension between the United States and the Soviet Union and their respective allies, the Western Bloc and the Eastern Bloc. The term '' cold war'' is used because t ...
, the closest residents being Navajo Nation members. In 1970, President
Richard Nixon Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 to 1974. A member of the Republican Party, he previously served as a representative and senator from California and was ...
established the federal government’s
Environmental Protection Agency A biophysical environment is a biotic and abiotic surrounding of an organism or population, and consequently includes the factors that have an influence in their survival, development, and evolution. A biophysical environment can vary in scale ...
(E.P.A.). In 1974, the E.P.A. became the first U.S. federal agency to release an Indian Policy, which established the model of environmental federalism operational today. Under this model, the federal E.P.A. sets water, air, and waste disposal standards, but delegates enforcement authority and the opportunity to design stricter environmental regulations to each state. Enforcement authority over Native American territory, however, remains under federal E.P.A. jurisdiction, unless a given tribe applies for and is granted Treatment as State (T.A.S.) status. With the emergence of
environmental justice Environmental justice is a social movement to address the unfair exposure of poor and marginalized communities to harms from hazardous waste, resource extraction, and other land uses.Schlosberg, David. (2007) ''Defining Environmental Justi ...
movements in the United States through the 1990s, President
Bill Clinton William Jefferson Clinton (né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and again ...
released executive orders 12898 (1994) and 13007 (1996). E.O. 12898 affirmed disparate impacts of
climate change In common usage, climate change describes global warming—the ongoing increase in global average temperature—and its effects on Earth's climate system. Climate change in a broader sense also includes previous long-term changes to ...
as stratified by socioeconomic status; E.O. 13007 ordered the protection of Native American cultural sites. Since the passage of E.O. 12898 and E.O. 13007, tribal prosecutors have litigated extensively against the federal government and industry polluters over land use and jurisdiction with varying degrees of success. In 2007, the U.N. adopted the Declaration on the Rights of Indigenous People ("The Declaration"), despite the
United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
voting against it along with
Australia Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands. With an area of , Australia is the largest country by ...
,
New Zealand New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island coun ...
, and
Canada Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by to ...
.UN adopts Declaration on Rights of Indigenous Peoples
United Nations News Centre, 13 September 2007.
In 2010, President
Barack Obama Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party (United States), Democratic Party, Obama was the first Af ...
revisited The Declaration and declared that the U.S. government now supported it; however, as of December 2022, the requirements of The Declaration have still not been adopted into U.S. law. As recently as 2015, the Gold King Mine contaminated three million gallons of water in the
Colorado River The Colorado River ( es, Río Colorado) is one of the principal rivers (along with the Rio Grande) in the Southwestern United States and northern Mexico. The river drains an expansive, arid watershed that encompasses parts of seven U.S. s ...
which serves as drinking water for the Navajo and Hopi downstream. The federal E.P.A. appropriated $156,000 in reparations for Gold King Mine, while the Flint, Michigan water crisis in 2014 received $80 million in federal funds.Examining EPA’s Unacceptable Response to Indian Tribes. Congressional Hearing, 2016-04-22, 2016. A recent challenge faced by Native Americans regarding land and natural resource sovereignty has been posed by the modern real estate market. While Native Nations have made substantial progress in land and resource sovereignty, such authority is limited to land classified as 'Native American owned.' In the private real estate market, however, big industry polluters and hopeful
miners A miner is a person who extracts ore, coal, chalk, clay, or other minerals from the earth through mining. There are two senses in which the term is used. In its narrowest sense, a miner is someone who works at the rock face; cutting, blasting, ...
have made a practice of buying out individual land owners in Native American residential areas, subsequently using that land to build mines or factories which increase local
pollution Pollution is the introduction of contaminants into the natural environment that cause adverse change. Pollution can take the form of any substance (solid, liquid, or gas) or energy (such as radioactivity, heat, sound, or light). Pollutants, th ...
. There is not regulation or legislation in place to sufficiently curb this practice at the rate necessary to preserve Native American land and natural resources.


List of cases

*''
Cherokee Nation v. Georgia ''Cherokee Nation v. Georgia'', 30 U.S. (5 Pet.) 1 (1831), was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the U.S. state of Georgia depriving them of rights within its boundaries, but ...
,'' 30 U.S. (5 Pet.) 1 (1831) (established trust relationship between Native American lands and the U.S. federal government) *''United States v. Holiday'', 70 U.S. 407 (1866) (holding that a congressional ban on selling liquor to the Indians was constitutional) *''Sarlls v. United States'', 152 U.S. 570 (1894) (holding that lager beer is not spiritous liquor nor wine within the meaning of those terms as used in Revised Statutes § 2139) *''In re Heff'', 197 U.S. 488 (1905) (holding that Congress has the power to place the Indians under state law if it chooses, and the ban on selling liquor does not apply to Indians subject to the Allotment acts) *''Iron Crow v. Ogallala Sioux Tribe'', 129 F. Supp. 15 (1955) (holding that tribes have power to create and change their court system and that power is limited only by Congress, not the courts) * ''
United States v. Washington ''United States v. Washington'', 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975), commonly known as the Boldt Decision (from the name of the trial court judge, George Hugo Boldt), was a legal case in 1974 heard in ...
'' (1974) also known as the Boldt Decision (concerning off-reservation fishing rights: holding that Indians had an easement to go through private property to their fishing locations, that the state could not charge Indians a fee to fish, that the state could not discriminate against the tribes in the method of fishing allowed, and that the Indians had a right to a fair and equitable share of the harvest) *''Wisconsin Potowatomies of Hannahville Indian Community v. Houston'', 393 F. Supp. 719 (holding that tribal law and not state law governs the custody of children domiciled on reservation land) *''
Oliphant v. Suquamish Indian Tribe ''Oliphant v. Suquamish Indian Tribe'', 435 U.S. 191 (1978), is a United States Supreme Court case deciding that Indian tribal courts have no criminal jurisdiction over non-Indians.. The case was decided on March 6, 1978 with a 6–2 majority. Th ...
'', 435 U.S. 191 (1978) (holding that Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized to do so by Congress.) *'' Merrion v. Jicarilla Apache Tribe'', 455 U.S. 130 (1982) (holding that Indian Nations have the power to tax Non-Native Americans based on their power as a nation and treaty rights to exclude others; this right can be curtailed only by Congress.) *''American Indian Agricultural Credit Consortium, Inc. v. Fredericks'', 551 F. Supp. 1020 (1982) (holding that federal, not state courts have jurisdiction over tribal members) *''Maynard v. Narrangansett Indian Tribe'', 798 F. Supp. 94 (1992) (holding that tribes have sovereign immunity against state tort claims) *''Venetie I.R.A. Council v. Alaska'', 798 F. Supp. 94 (holding that tribes have power to recognize and legislate adoptions) *''Native American Church v. Navajo Tribal Council'', 272 F.2d 131 (holding that the First Amendment does not apply to Indian nations unless it is applied by Congress) *''Teague v. Bad River Band'', 236 Wis. 2d 384 (2000) (holding that tribal courts deserve full faith and credit since they are the court of an independent sovereign; however, in order to end confusion, cases that are filed in state and tribal courts require consultation of both courts before they are decided.) *''
Inyo County v. Paiute-Shoshone Indians ''Inyo County v. Paiute-Shoshone Indians of the Bishop Community'', 538 U.S. 701 (2003), was a United States Supreme Court case. Background The Bishop Paiute Tribe of California owns and operates the Paiute Palace Casino. The Inyo County Dist ...
'' (U.S. 2003) (holding that tribal sovereignty may override the search and seizure powers of a state) *''
Sharp v. Murphy ''Sharp v. Murphy'', 591 U.S. ___ (2020), was a Supreme Court of the United States case of whether Congress disestablished the Muscogee (Creek) Nation reservation. After holding the case from the 2018 term, the case was decided on July 9, 2020, in ...
'' 591 U.S. ___ (2020), and ''
McGirt v. Oklahoma ''McGirt v. Oklahoma'', 591 U.S. ___ (2020), was a landmark United States Supreme Court case which ruled that, as pertaining to the Major Crimes Act, much of the eastern portion of the state of Oklahoma remains as Native American lands of the prio ...
'' 591 U.S. ___ (2020) (holding that if Congress did not expressly disestablish a reservation, the state wherein the reservation lies has no jurisdiction to prosecute crimes involving Indian defendants or Indian victims under the Major Crimes Act)


See also

*
Aboriginal title in the United States The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title (also known as "original Indian title" or "Indian right of occupancy"). Native American tribes and nations establish aboriginal title by act ...
*
Dawes Act The Dawes Act of 1887 (also known as the General Allotment Act or the Dawes Severalty Act of 1887) regulated land rights on tribal territories within the United States. Named after Senator Henry L. Dawes of Massachusetts, it authorized the Pres ...
*
Diplomatic recognition Diplomatic recognition in international law is a unilateral declarative political act of a state that acknowledges an act or status of another state or government in control of a state (may be also a recognized state). Recognition can be accor ...
**
List of historical unrecognized states and dependencies These lists of historical unrecognized or partially recognized ''states'' or ''governments'' give an overview of extinct geopolitical entities that wished to be recognized as sovereign states, but did not enjoy worldwide diplomatic recognition. ...
**
List of states with limited recognition A number of polities have declared independence and sought diplomatic recognition from the international community as sovereign states, but have not been universally recognised as such. These entities often have ''de facto'' control of thei ...
* Indian country jurisdiction *
Indigenous rights Indigenous rights are those rights that exist in recognition of the specific condition of the Indigenous peoples. This includes not only the most basic human rights of physical survival and integrity, but also the rights over their land (includ ...
**
Indigenous land rights in Australia Indigenous land rights in Australia, also known as Aboriginal land rights in Australia, relate to the rights and interests in land of Aboriginal and Torres Strait Islander people in Australia, and the term may also include the struggle for thos ...
*
Indigenous self-government in Canada Indigenous or Aboriginal self-government refers to proposals to give governments representing the Indigenous peoples in Canada greater powers of government. These proposals range from giving Aboriginal governments powers similar to that of local ...
*
List of Alaska Native tribal entities This list of Alaska Native tribal entities names the federally recognized tribes in the state of Alaska. The Alaska Native Claims Settlement Act of 1971 explains how these Alaska Native villages came to be tracked this way. This version was upd ...
*
List of federally recognized tribes in the United States This is a list of federally recognized tribes in the contiguous United States of America. There are also federally recognized Alaska Native tribes. , 574 Indian tribes were legally recognized by the Bureau of Indian Affairs (BIA) of the United ...
* List of national legal systems * Māori protest movement in New Zealand * Native American reservation politics * Native American self-determination *
Off-reservation trust land In the United States, off-reservation trust land refers to real estate outside an Indian reservation that is held by the Interior Department for the benefit of a Native American tribe or a member of a tribe. Typical uses of off-reservation trust ...
*
Political divisions of the United States The United States of America is a federal republic consisting of 50 states, a federal district ( Washington, D.C., the capital city of the United States), five major territories, and various minor islands. Both the states and the United ...
*
Sovereignty Sovereignty is the defining authority within individual consciousness, social construct, or territory. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the perso ...
** List of unrecognized tribes in the United States **
State-recognized tribes in the United States State-recognized tribes in the United States are organizations that identify as Native American tribes or heritage groups that do not meet the criteria for federally recognized Indian tribes but have been recognized by a process established und ...
* Special district (United States) * United States federal recognition of Native Hawaiians ** Legal status of Hawaii


Notes


References

* * Hays, Joel Stanford. "Twisting the Law: Legal Inconsistencies in Andrew Jackson's Treatment of Native-American Sovereignty and State Sovereignty." ''Journal of Southern Legal History,'' 21 (no. 1, 2013), 157–92. *


External links

* Kussel, Wm. F. Jr
Tribal Sovereignty and Jurisdiction (It’s a Matter of Trust)


* ttp://www.mtholyoke.edu/acad/intrel/cherokee.htm ''Cherokee Nation v. the State of Georgia'' 1831 * Prygoski, Philip J
From Marshall to Marshall: The Supreme Court's Changing Stance on Tribal Sovereignty


* NiiSka, Clara, Indian Courts, A Brief History, part

an



* – details racism and attack on tribal sovereignty regarding eagle feathers * ''San Diego Union Tribune'', 17 December 2007

(Tort cases tried in tribal courts)
Sovereignty Revisited: International Law and Parallel Sovereignty of Indigenous Peoples
{{DEFAULTSORT:Tribal Sovereignty In The United States Legal systems Indigenous politics in North America Native American law Sovereignty