Within the context of the American constitutional system, Native American sovereignty constitutes the retained rights of Native American nations to self-determination not extinguished by treaty or by congressional statute.
The U.S. Constitution
In addition to the legislative powers expressly mentioned, the Constitution provides the federal government with several implicit powers to deal with Native Americans. The property clause in Article IV allows Congress to dispose of and make all rules regarding federal property and tribal lands. The necessary and proper clause in Article I, section 8, authorizes Congress to enforce its enumerated powers. The war powers clause in the same article gave the federal government authority to conduct military operations against hostile tribes. Article VI recognizes that both federal statutes and treaties, when consistent with the United States Constitution, are equally part of the “supreme law of the land”; therefore they take precedence over laws of the states. The Bill of Rights
Although the Constitution offered a rough outline of the federal government’s authority over Native American affairs, the Supreme Court, in dialogue with Congress and the executive branch, clarified the parameters of these powers. Of particular significance was the so-called Marshall Trilogy
Although Marshall never repudiated his statements in these two opinions, he used his Worcester opinion to emphasize nationhood more than dependency, recognizing that the tribes remained “distinct independent political communities,” possessing their own territory and substantial elements of sovereignty. In addition, his Court ruled that the state governments had no authority to regulate tribal affairs. Future generations of Supreme Court justices would time and again refer to the alternative perspectives within the Marshall Trilogy.
Over the next four decades, few Native American cases came before the Supreme Court. With its acknowledgment of Congress’s authority over Indian affairs, the Court had no occasion to become involved in the Indian Removal Act of 1830
Following the Civil War, the Court expanded on the key principles enunciated in Marshall’s McIntosh and Cherokee Nation opinions, reaffirming the nearly absolute power of the federal government to regulate tribal affairs. In United States v. Holliday
An important development during the late nineteenth century was the Indians’ loss of symbolic negotiating power with the United States as a result of congressional enactment of the Appropriations Act of 1871
During the 1880’s, the federal government switched from a policy of removal and separation to one of attempted assimilation. The central goal of assimilation was to dismantle tribal culture and absorb Native Americans into mainstream society. The movement was encouraged by the public’s angry reaction to the Supreme Court’s decision in Ex parte Crow Dog
In 1885, outraged by the Court’s decision, Congress passed the Major Crimes Act,
Despite the Dawes Act, the Court continued to recognize the limited sovereignty of the tribes. The important case of Talton v. Mayes
Most of the justices apparently did not see any major contradiction between the tribes’ retained sovereignty and Congress’s plenary powers to determine their rights and organization. They unanimously emphasized the latter idea in Lone Wolf v. Hitchcock
An ongoing controversy was whether Native Americans were citizens
During the period of the so-called Indian New Deal of the mid-1930’s, there was a new enthusiasm for Native American autonomy and a departure from earlier assimilationist policies. The Indian Reorganization Act (1934)
Federal support for tribal autonomy, however, turned out to be short-lived. In the late 1940’s and 1950’s, Congress adopted a termination policy that the Eisenhower administration enthusiastically endorsed. The goal of the policy was to end the trust relationship between Native Americans and the federal government, thereby eliminating the reservations, tribal government, and most federal subsidies. The states naturally supported the termination policy
During the 1950’s, the Warren Court’s decisions sometimes appeared to encourage the termination policy. Reaffirming that the federal government’s plenary power over Native American interests in Tee-Hit-Ton Indians v. United States
During the termination
By the late 1960’s, the idea of termination
Tribal lawyers, therefore, were generally pleased with the Court’s decision in the gender-discrimination suit Santa Clara Pueblo v. Martinez
Rather than following general doctrines, the Supreme Court has tended to opt for a case-by-case approach when deciding issues of Native American sovereignty. In White Mountain Apache v. Bracker
This case-by-case approach in federal Indian law sometimes has led to apparent inconsistencies and provided little guidance for lower courts. In United States v. Wheeler
Native American lawyers tended to view Chief Justice William H. Rehnquist
The Rehnquist Court’s decision in Cabazon Band of Mission Indians v. California
The 1988 statute required the states to negotiate with the tribes in “good faith” in order to establish “tribal-state compacts” for the creation and regulation of gambling casinos. When the governor of Florida refused to negotiate such a compact, the Seminole tribe brought suit in federal court. In the resulting case of Seminole Tribe of Florida v. Florida (1996), the Court ruled five to four that the tribes were unable to sue a state without its consent. The five-member majority based its decision on the sovereign immunity of the states under the Eleventh Amendment
The justices entered into an interesting debate about ambiguity of Native American sovereignty in the case of United States v. Lara (2004), when the Supreme Court ruled that the tribal courts could render a criminal penalty against a visiting Indian belonging to another tribe. Writing the opinion for the majority, Justice Stephen F. Breyer
For a basic understanding of Native American law and sovereignty, readers should consult Stephen Pevar’s The Rights of Indians and Tribes (3d ed. Carbondale: Southern Illinois University Press, 2002) and Vine Deloria, Jr. and Clifford M. Lytle’s American Indians, American Justice (Austin: University of Texas Press, 1983). A detailed pro-Indian analysis of the sovereignty issue can be found in David Wilkins and K. Tsianina Lomawaima’s Uneven Ground: American Indian Sovereignty and Federal Law (Norman: University of Oklahoma Press, 2001). For a provocative pro-Indian account of the relationship between the tribes and constitutional rights, visit John R. Wunder’s “Retained by the People”: A History of American Indians and the Bill of Rights (New York: Oxford University Press, 1994). Sidney Harring has written a fascinating book that combines cultural and legal materials: Crow Dog’s Case (New York: Cambridge University Press, 1994). For an extensive evaluation of the fifteen Court cases that had the most adverse influence on Native American sovereignty, consult David Eugene Wilkins’s American Indian Sovereignty and the United States Supreme Court: The Masking of Justice (Austin: University of Texas Press, 1997). Robert Williams Jr. has written a somewhat extreme but interesting analysis: Like a Loaded Weapon: The Rehnquist Court, Indian Rights and the Legal History of Racism in America (Minneapolis: University of Minnesota Press, 2005).
Johnson and Graham’s Lessee v. McIntosh
Marshall, John
Native American treaties
Worcester v. Georgia