Native American sovereignty

Tribes affected: Pantribal

Significance: The rights and obligations of Native Americans according to US law have been shaped by the concept of domestic sovereignty, which differs radically from traditional European conceptions of sovereignty

The European concept of sovereignty, evolving over many centuries, found a unique expression in American constitutional law. This American system of sovereignty came to intermesh in a novel way with the special status of domestic sovereignty which was recognized as adhering in Native American nations.

European Concept

In the Middle Ages, the concept of sovereignty was attenuated and confused by the intricacies of feudalism and the independent claims of papal legislative authority. With the end of the High Middle Ages and the coming of the Renaissance, European legal and political philosophers such as Niccolò Machiavelli, Marsilius of Padua, and Thomas Hobbes rediscovered the ancient concept that sovereignty is at once illimitable and indivisible. Sovereignty can place limits upon itself, but only so long as it wishes to enforce those limits upon itself.

In the English system, for example, the King-/Queen-in-Parliament is legally omnipotent, and no rights granted in the English Bill of Rights, in the Magna Carta, or in any other document can stand against an act passed by Parliament and signed by the monarch. In addition to the illimitability and indivisibility of sovereignty, the European notion of sovereignty necessitated a monopoly of authority by one sovereignty over a given territory.

By the eighteenth century, the European conception of sovereignty had become dogma. British Tories “refuted” the demands of the American colonies for greater self-government under Parliament with the maxim that one cannot have an imperium in imperio—a sovereignty within a sovereignty.

In the aftermath of the American Revolutionary War, the framers of the US Constitution elaborated an intricate system of checks and balances within the national government and a scheme of federalism with reserved powers to states and reserved rights to individual citizens. Although this constitutional order preserved an unlimited and undivided extraordinary sovereignty in the amendment process, its ordinary sovereignty was both limited and divided. Within this system, the problem which Native American nationhood presented was addressed by crafting a unique type of sovereignty—a domestic, dependent sovereignty—for the tribal nations.

Native American Domestic Sovereignty

In the American constitutional order, the domestic sovereignty of the Native American nations bears certain similarities and certain dissimilarities to the sovereignty of the states within the Union. The Constitution specifically recognized the existence of the Native American nations, permitting the courts to view Native American sovereignty as a residual sovereignty which the Constitution was recognizing rather than creating.

In Johnson and Graham’s Lessee v. William McIntosh (1823), the Supreme Court under Chief Justice John Marshall recognized the residual Native American sovereignty: “[D]iscovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise.” The inherent limits of this sovereignty were made clear, however: “[T]he Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in possession of their lands, but to be deemed incapable of transferring the absolute title to others.” Furthermore, in his famous opinion in Cherokee Nation v. Georgia (1831), Marshall rejected utterly the notion that the Native American nations constitute foreign nations, holding rather that they were “domestic dependent nations.”

Until 1871, agreements between the United States government and Native Americans took the forms of treaties. Treaties, however, provided little security to the Native American nations, for a later act of Congress can invalidate part or all of any treaty, as was made clear in the Cherokee Tobacco case (Boudinot v. United States, 1870). The lands over which Native American tribes exercise a domestic sovereignty, furthermore, remain under the superseding sovereignty of the United States.

After the 1870’s

From the 1880’s onward, a seesaw effect was produced by, on the one hand, court decisions that recognized serious and far-ranging implications inherent in Native American sovereignty, and by, on the other hand, legislative enactments and subsequent court decisions restricting those implications and even moving toward eliminating such sovereignty totally.

In Ex parte Crow Dog (1883), the Supreme Court freed the Brule Sioux Chief Crow Dog, who had been sentenced to death by a federal district court for the murder of Spotted Tail on Native American territory. Federal law, the Court held, does not automatically apply to Native American lands unless so extended by Congress. Two years later the Major Crimes Act (1885), upheld by the Court in United States v. Kagama (1886), sought to overcome the problem posed by Ex parte Crow Dog by placing several categories of serious crimes on Native American land under the jurisdiction of the federal courts.

In the General Allotment Act (or Dawes Act, 1887), Congress moved to eliminate all Native American sovereignty eventually by transforming Native American tribal land into land held individually as ordinary, privately owned US land; Native Americans were to receive US citizenship. The Curtis Act (1898) went on to attempt to impose that which Congress had attempted to achieve by negotiation under the auspices of the Dawes Act, and in Stephens v. Cherokee Nation (1899), the court upheld the Curtis Act. In Lone Wolf v. Hitchcock (1903), furthermore, the court recognized a plenary power to reside in Congress concerning Native American relations.

Eventually, after much destructive interference with Native American sovereignty, Congress relented and attempted to reverse direction with the Indian Reorganization Act (Wheeler-Howard Act, 1934), which undid much of the Dawes Act and actively encouraged tribal organizations.

In a further shift of position by the federal government in the 1950’s, Native American sovereignty again came under assault. By Public Law 280 (1953), Congress extended state criminal jurisdiction to Native American territory, and in 1954, under the so-called termination policy, Congress provided for the withdrawal of federal jurisdiction from the Menominee Tribe and for their holding of land as an ordinary association or corporation. (Nearly twenty years later, in a full swing of policy, the termination of the Menominee Tribe was reversed by the Menominee Restoration Act.)

In Native American Church v. Navajo Tribal Council (1959), the US Court of Appeals held that the First Amendment did not bind tribal councils, although in Colliflower v. Garland (1965), the US Court of Appeals held that a federal court had the authority to issue a writ of habeas corpus to determine the validity of the detention of a person by a tribal court.

The American Indian Civil Rights Act of 1968 applied the Bill of Rights to the relations of Native Americans to their tribal governments and required the consent of tribes to the imposition of state jurisdiction over Native American territory. That law represented an elaborate compromise regarding Native American sovereignty. Extending the Bill of Rights to individual Native Americans in their relations with Native American tribal authorities involves a serious interference with Native American sovereignty. However, this interference was addressed by undoing the interference of Public Law 280 through making any application of state law the free choice of the tribal government.

In Oliphant v. Suquamish Indian Tribe (1978), the Supreme Court upheld the claim of Mark Oliphant, a non-Native American residing on a reservation who was charged with a crime, not to be subject to the tribal courts. Native Americans protested what they saw as a reduction of their sovereignty, but the decision was in line with prior precedent and practice.

The inherent sovereignty of Native American nations was upheld in United States v. Wheeler (1978), in which a claim of double jeopardy was rejected because one of the trials involved had been under the separate sovereignty of a Native American nation. Again, in Santa Clara Pueblo v. Martinez (1978), the federal courts held that in the Civil Rights Act of 1968, Congress had provided habeas corpus petitions as the sole remedy, with all other suits against the tribe prevented by its sovereign immunity.

The concept of domestic sovereignty has served as the basis for the legal relations of tribal nations with the US government since the adoption of the Constitution, but the plenary power of Congress over that sovereignty has led to a history of shifts swinging alternately from attempts to maintain conditions suitable for the preservation of the unique Native American cultures to periods of forced assimilation with a concomitant attempt to destroy domestic sovereignty and its implications.

In McGirt v. Oklahoma (2020), the Supreme Court ruled that a large section of disputed land in eastern Oklahoma belonged to the Muscogee (Creek) Nation under prior acts that established it as an American Indian reservation. As such, the Supreme Court ruled that prosecution of crimes on this section of land, which the state of Oklahoma argued was returned to the state's jurisdiction under the Oklahoma Enabling Act of 1906, was under the jurisdiction of tribal and federal courts as established in the Major Crimes Act of 1885. This decision was seen by many as greatly expanding the autonomy of Native American tribes by limiting state power on tribal land. However, the Supreme Court's decision in Oklahoma v. Castro-Huerta (2022) undermined the previous decision reached in McGirt v. Oklahoma by ruling that federal, tribal, and state law enforcement agencies all have joint jurisdiction on Native American land when prosecuting crimes committed by non-Native Americans against Native Americans. After the verdict was reached, many perceived it to be a precedent that could allow the federal government to further weaken tribal authority and autonomy by lessening the capacity for tribal self-governance through allocating more power over local affairs to the state.

Bibliography

Brewer, Graham Lee. "The Supreme Court Gave States More Power over Tribal Land. Tribes Say That Undermines Their Autonomy." NBC News, 30 Jun. 2022, www.nbcnews.com/news/us-news/supreme-court-oklahoma-castro-huerta-decision-tribal-sovereignty-rcna35872. Accessed 28 Sept. 2022.

Healy, Jack, and Adam Liptak. "Landmark Supreme Court Ruling Affirms Native American Rights in Oklahoma." The New York Times, 9 Jul. 2020, www.nytimes.com/2020/07/09/us/supreme-court-oklahoma-mcgirt-creek-nation.html. Accessed 28 Sept. 2022.

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