Tribal sovereignty in the United States
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.
The U.S. federal government recognized American Indian tribes as independent nations and came to policy agreements with them via treaties. As the U.S. accelerated its westward expansion, internal political pressure grew for "Indian removal", but the pace of treaty-making grew regardless. The Civil War 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. The U.S. recognizes 574 tribal nations, 227 of which are in Alaska. The National Congress of American Indians explains, "Native peoples and governments have inherent rights and a political relationship with the U.S. government that does not derive from race or ethnicity."
Native American sovereignty and the Constitution
The United States Constitution 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 Joseph 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", 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.
- Territorial sovereignty: Tribal authority on Indian land is organic and is not granted by the states in which Indian lands are located.
- Plenary power doctrine: Congress, and not the Executive Branch or Judicial Branch, 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 the necessary legislative and executive authorities to effect that duty.
Early history
Pre Independence
The first treaty signed between the United States and a Native American tribe was with the Delaware Indians in 1783. This treaty borrowed heavily from British Indian policies from before the Revolutionary War.Early America
Native Americans in the Recently formed United States often had to convince new citizens of the country to allow them to continue their existence within their lands. How this was done varied, but the most often used strategy was assimilation, converting to Christianity and leaving their former way of life to embrace the way the "Ideal American" would do things, this course of action was often forced on the Native Americans with the alternative being expulsion from their lands or even death.Some Native Americans concluded that the only way to be accepted was to embrace Christianity and to atone for their perceived sins. By embracing Christianity along with what was considered the moral way of life observed by white settlers, Native Americans hoped to be accepted and to have a place in the new country. However this was far from enough as Native American had to often implore Americans to not exterminate their people, even after they had been assimilated. Preachers, such as Elias Boudinot, "took to the pulpit on behalf of Cherokee Nation and appealed to the consciences of whites.". These attempts and pleas fell on deaf ears even though many Native Americans were conforming to the white way of life and as such wanted to live among the white Americans. Many settlers believed that " were inherently incapable of integrating peacefully into white society", despite the attempts of some Native Americans to do just that.
Even after some Native Americans began to conform to new ways of life, many were still pushed off their lands. This was often done to make room for white settlers, with the most famous example of this being the forced removal of the Cherokee Nation, which despite the pleas to the conscience of the people, were forced to leave in what has become known as the Trail of Tears.
There were some exceptions of Native Nations being given some amount of compensation for their land, such as the Chickasaw Nation. With good investment, this money soon made the Nation a large shareholder in the State Bank of Alabama, a fact that was largely hidden from investors. In an ironic way "Chickasaw funds became capital for the very banking system that provided credit and liquidity to speculators in their ceded lands". But this was the exception and not the rule as many Nations were given no compensation and were simply relocated to the far away frontier.
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. McIntosh, holding that private citizens could not purchase lands from Native Americans.
- Cherokee Nation v. Georgia, holding the Cherokee nation dependent, with a relationship to the United States like that of a "ward to its guardian".
- Worcester v. Georgia, 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
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. 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 and the 1886 Major Crimes Act were tested in 1886 before the U.S. Supreme Court, in United States v. Kagama, which affirmed that the Congress has plenary power 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. However, 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.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.