There are three kinds of sovereign governments in the United States. Under the Constitution, the federal government is the “supreme sovereign,” and federal laws can pre-empt state laws. State governments also are sovereign; they retain any powers not specifically given to the federal government under the Constitution.
The third kind of sovereignty is inherent. That means the authority to govern is not granted by another government, but by the consent of the people who are governed. Indian tribal governments, which existed long before Europeans arrived on the North American continent, have inherent sovereignty.
There are several generally accepted criteria for inherent sovereignty:
• There must be a distinct group of people, with a distinct language, a distinct religious or moral structure, and a distinct culture.
• The group must control and regulate a distinct geographic area, with commonly understood and accepted boundaries.
• The group must have its own governmental structure, formed by its own people, with typical governmental authority to create and enforce laws.
• The government must be recognized by another sovereign. For example, the United States recognizes the governments of Canada, Mexico, Great Britain, France, China, etc., as well as the governments of more than 500 Indian nations.
Centuries before the Europeans arrived in North America, Indian tribes had satisfied these criteria and dealt with each other on a government-to-government basis. By making treaties with the tribes, the European governments and later the U.S. government recognized their inherent sovereignty, which predates the federal and state governments.
Therefore, tribal sovereignty is not bestowed upon Indian governments by treaty. Rather, it is recognized by those treaties, and powers not explicitly addressed by treaty or by act of Congress are reserved to the Indian tribe. This “reserved rights doctrine” was spelled out in U.S. v. Winans (1905), involving treaty-recognized off-reservation fishing rights. The Supreme Court said that treaties represent “not a grant of rights to the Indians, but a grant of rights from them – a reservation of those not granted.”
Several court rulings have recognized and affirmed the existence of inherent sovereignty for Indian tribes. In Worcester v. Georgia (1832), Chief Justice Marshall wrote: “The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties.” Nearly 150 years later, in United States v. Wheeler (1978), the U.S. Supreme Court reaffirmed inherent tribal sovereignty: “Although physically within the territory of the United States and subject to ultimate federal control, they nonetheless remain a separate people, with the power of regulating their internal and social relations… The powers of Indian tribes are, in general, ‘inherent powers of a limited sovereignty which has never been extinguished.’” (Emphasis in original)
And in a 1982 tax case, Justice Thurgood Marshall wrote that Indian tribal sovereignty, though different from the sovereignty enjoyed by federal and state governments, should be judged by the same principles: “Without regard to its source, sovereign power, even when unexercised, is an enduring presence … and will remain intact unless surrendered in unmistakable terms.”¹
Only Congress can limit tribal sovereign authority; in the absence of congressional action, tribes are, in the words of the Supreme Court, “domestic dependent nations,’ which exercise inherent sovereign authority over their members and territories.”²
1 Merrion v. Jicarilla Apache Tribe, 455 U.S. 148 (1982).
2 Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509 (1991).
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