Chief Justice Marshall of the United States Supreme Court recognized early in the 19th century that the relationship between Indian tribes and the federal government is “perhaps unlike that of any other two people in existence.”¹ This special relationship is based not on race, but on the inherent sovereignty of Native American people. To understand what tribal sovereignty means today, one must understand the historical relationship between Indian tribes and other governments.

When the first Europeans arrived in North America, they claimed the newly discovered land in the name of their kings and declared ultimate sovereignty over both the land and the Native people they encountered. In doing this, however, they recognized Native “right of occupancy” of the land the Natives controlled. They also recognized the military necessity of cementing friendship between their governments and the Native governments. Until about 1800, the various Indian tribes far outnumbered Europeans and, if united, easily could have pushed the newcomers off the North American continent. Because of their numbers, the Indian tribes also could change the balance of power in the New World by allying themselves with different European powers. These realities led the Europeans to enter into treaties with the Indian tribes that declared friendship with the Native people, provided for trade relationships and recognized the “Indian right of occupancy” to the land. In so doing, the Europeans established legal recognition of tribes’ inherent sovereignty.²

When the new United States was formed, both the Articles of Confederation and the U.S. Constitution recognized Indian tribes as distinct political bodies, separate from the individual states and from other foreign nations. Under the Constitution, the federal government reserved to itself, as the supreme sovereign government, the right to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”³ Individual states are forbidden from making treaties ⁴; and any treaties made by the federal government “shall be the supreme Law of the Land.” ⁵

Because of those constitutional limitations, state governments have virtually no authority over Indian affairs unless Congress expressly designates such authority – despite several attempts by state governments to apply their laws and regulations to Indian Country. In a 1973 case, the Supreme Court noted that “the policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation’s history.” ⁶

It is widely believed that Congress has plenary – full and absolute – power over Indian governments. That isn’t quite true. Congress does have unusually broad powers over Indian governments, powers it doesn’t have over state governments. For example, while states have the authority to adopt their own health and safety laws, Congress has given itself the power to legislate such matters for Indian tribes when it so chooses. But several federal and Supreme Court rulings have affirmed that although Congress has broad powers, it is subject to constitutional restrictions in its dealings with Indians and Indian governments. For example, in a 1980 case, the Supreme Court ruled that Indian tribes whose land rights have been guaranteed by treaty are protected by the “just compensation” clause of the Fifth Amendment when Congress uses its eminent domain powers. ⁷

As a practical matter, the United States treats Indian governments in much the same way it treats U.S. possessions and territories, such as Puerto Rico. While Congress retains broad legislative authority, Indian governments are considered self-determining political bodies that are accountable only to their members and the federal government – not to state or local governments. Although U.S. policies have seesawed dramatically over the past two centuries, every presidential administration since 1968 has supported the concepts of self-government and self-determination for Indian tribes.

————

1 Cherokee Nation v. Georgia, 30 U.S. 1 at 16 (1831).
2 “Framework of Tribal Sovereignty,” American Indian Research and Policy Institute, copyright 1998.
3 U.S. Constitution, Article I, Section 8, clause 3.
4 U.S. Constitution, Article I, Section 10, clause 1.
5 U.S. Constitution, Article VI, Section 2.
6 McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973).
7 U.S. v. Sioux Nation of Indians, 448 U.S. 374 (1980).