Native American sovereignty and the Supreme Court

DESCRIPTION: 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.

SIGNIFICANCE: Native American tribes and the US government maintain a complex and unique legal relationship. Like the fifty states, the tribes exercise sovereignty within their recognized spheres of control. Although tribal sovereignty is almost total in regard to the states, it is limited in regard to Congress, which has the final authority to determine issues such as tribal status and the continuation of treaty rights. The ambiguities and tensions relating to this limited sovereignty have elicited numerous decisions by the Supreme Court.

The US Constitution does not specifically mention Native American sovereignty, and it offers relatively little guidance regarding the relationships among the tribal governments, the federal government, and the state governments. The Constitution expressly refers to Native Americans in only three places. Both Article I and the Fourteenth Amendment indicate that the “Indians not taxed” are not to be counted as part of the population for purposes of congressional representation. Article I, section 8, stipulates that Congress has the authority to “regulate commerce…with the Indian tribes.”

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 and other constitutional restrictions are not directly binding on Native American governments, although in 1968 Congress codified the Indian Bill of Rights, which theoretically requires the tribal courts to follow most of the provisions in the first eight amendments.

Removal and Segregation, 1800-1879

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: Johnson and Graham’s Lessee v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832). In the first two of these decisions, Chief Justice John Marshall emphasized that the tribes “were under the sovereignty and dominion of the United States.” Referring to their status as “domestic dependent nations,” he wrote that “their rights to complete sovereignty, as independent nations, are necessarily diminished.” More specifically, the tribes were not allowed to make agreements with other countries or to sell their land to any party other than the United States government.

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 Native American affairs, the Court had no occasion to become involved in the Indian Removal Act of 1830 or the hardships that Native Americans endured in the Trail of Tears. The justices generally viewed the coercive movement of Native Americans westward as a question of legislative prerogative, not susceptible to judicial review. Moreover, the justices appeared to assume that they had no jurisdiction to supervise the laws and legal processes conducted by the tribes.

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 (1865) and United States v. Forty-three Gallons of Whiskey (1876), for example, the Court held that Congress had the authority to regulate the sale and consumption of alcohol on reservations through its commerce powers, thus allowing Congress to exercise expansive police powers involving the health, safety, and morality of Native Americans. In the words of the Court in Forty-three Gallons of Whiskey, the federal government had the authority, “to secure Indian communities against the debasing influence of spirituous liquors” and also “to promote the welfare of the Indians, as well as our political interests.” At the same time, the Court consistently held that the state governments’ supervisory powers over Native American affairs were severely limited. In the case of In re Kansas Indians (1866), for example, the Court ruled that because Native Americans were a “distinct” people not under the jurisdiction of the states, Kansas had no power to tax their incomes.

An important development during the late nineteenth century was the Native Americans’ loss of symbolic negotiating power with the United States as a result of congressional enactment of the Appropriations Act of 1871. That statute effectively terminated the practice of treaty making between the federal government and the tribes. Most commentators agree that the central reason for this termination was the desire of the House of Representatives to play a more instrumental role in deciding Native American policies, especially policies involving expenditures of public funds. The statute recognized the continued validity of the treaties already concluded. Since agreements with the tribes had to be approved by Congress, the end of treaty making had little practical impact on issues of congressional prerogatives and tribal sovereignty.

Age of Assimilation, 1880-1933

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 (1883). After Crow Dog murdered Sioux chief Spotted Tail on a Dakota Territory reservation, the aggrieved family agreed to forgive the offense with a payment of six hundred dollars and eight horses. Federal officials, believing the agreement to be unjust, tried and convicted Crow Dog in federal court. The Supreme Court, however, overturned the court’s verdict and held that crimes committed “by Indians against each other were to be dealt with by each tribe for itself, according to its local customs.” The decision recognized that their status as sovereign nations encompassed an inherent right to be governed by their own laws.

In 1885, outraged by the Court’s decision, Congress passed the Major Crimes Act, which made it a federal offense for Native Americans to commit murder and other serious crimes on the reservations. In United States v. Kagama (1886), the Court upheld the constitutionality of the statute and articulated the “plenary power doctrine” of Congress’s authority over Native American affairs. In a further attempt to promote greater assimilation two years later, Congress passed the Dawes General Allotment Act (1887), which was designed to end communal ownership by tribes and encourage private ownership. Native American children were taken from their homes to be educated at boarding schools in the East.

Despite the Dawes Act, the Court continued to recognize the limited sovereignty of the tribes. The important case of Talton v. Mayes (1896) arose when a member of the Cherokee Nation protested that his criminal trial in tribal court had not incorporated the grand jury requirement of the Fifth Amendment. In rejecting his appeal, the Supreme Court held that the provisions of the Bill of Rights did not apply to Native American governments, just as they did not apply at that time to the states. The Court recognized that the tribes retained the power to make their own laws, limited only by the provisions of federal legislation that were specifically applicable to the tribal governments.

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 (1903), which has been called the Indians’ Dred Scott decision. While upholding the forced sale of Native American land and the allotment process, the Court also recognized the power of Congress to terminate Indian treaties. Almost two decades later in Winton v. Amos (1921), the Court reaffirmed this perspective even more explicitly: “It is thoroughly established that Congress has plenary power over the Indians and their tribal relations, and full power to legislate concerning their tribal property.”

An ongoing controversy was whether Native Americans were citizens according to the literal words of the Fourteenth Amendment. In Elk v. Wilkins (1884), the Court determined that they were not automatically citizens because as tribal members they were not subject to the federal government’s jurisdiction. In 1924, however, Congress reversed the Court’s decision by extending citizenship and voting rights to Native Indians. The tribes viewed this development with great skepticism, for they feared that citizenship status could lead to a renewal of assimilationist policies and further dilute tribal sovereignty.

Termination vs. Autonomy, 1934-1967

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), in particular, repealed the Dawes General Allotment Act, and it encouraged a return to community ownership of land and tribal culture. In addition, the statute gave Native Americans preferential treatment for government positions in Indian service.

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 because it promised to increase their own prerogatives. Most tribes resisted entering into termination agreements, and only a few agreements were ever concluded. The termination movement hit full stride when Congress passed Public Law 280 in 1953. That legislation allowed five states—and encouraged others—to maintain criminal and civil jurisdiction over Native Americans.

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 (1955), the Court ruled that the Tlingit Nation did not have aboriginal land rights over southeastern Alaska, even though its members had occupied the land for many centuries. Critics of the decision said that it harkened back to the age of forced assimilation and the Lone Wolf ruling.

During the termination period, however, the Warren Court initiated a “new federalism” policy in US-Native American relations. The Court was especially strong in defending tribal sovereignty against the attempted encroachments by the states. In Williams v. Lee (1959), the Court quoted the Worcester precedent when ruling that the state courts were not the proper venue for the collection of debts when both parties lived on Native American land, even if one party was not an Native American. The Court held that the tribal courts had exclusive jurisdiction over such disputes. The Williams decision provided a precedent for several rulings that further recognized elements of Native American sovereignty, especially the right to tax, to regulate businesses, to police, and to exercise local self-government.

Sovereignty Issues After 1968

By the late 1960’s, the idea of termination had few supporters, and Congress was again ready to increase the self-determination of the tribes. The Civil Rights Act of 1968 contained provisions that prohibited the states from assuming most forms of jurisdiction on tribal lands (amending but not repealing Public Law 280). The statute also established the Indian Bill of Rights (IBR), which stipulated that most provisions in the Bill of Rights and the Fourteenth Amendment’s equal protection clause were binding on tribal governments. Tribal lawyers were happy that IBR excluded the religious establishment clause, for religion was an integral part of many Native American cultures. They nevertheless were opposed to enforcement of the IBR in federal courts, for they feared that non-Native American judges would disrespect principles of tribal law that had been handed down from generations immemorial.

Tribal lawyers, therefore, were generally pleased with the Court’s decision in the gender-discrimination suit Santa Clara Pueblo v. Martinez (1978), which held that the IBR did not authorize individuals to sue the tribes in federal courts because the Congress had not explicitly authorized such suits. The Court reasoned that the tribes, as “semi-sovereign nations,” retained their rights to sovereign immunity unless “unequivocally” removed by federal legislation. The decision strengthened tribal self-determination, but at the cost of allowing tribal courts, if so inclined, to ignore the individual rights enumerated in the IBR. As a result of the decision, the power of the federal courts to enforce the IBR has been limited to habeas corpus relief for persons held in tribal custody. Advocates of women’s rights have frequently expressed discontent with the outcome of the Martinez ruling.

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 (1980), the Court struck down state motor license and fuel-use taxes on a non-Native American corporation operating Indian country. Writing for the Court, Justice Thurgood Marshall acknowledged that federal Native American law “is not dependent upon mechanical or absolute conceptions of state or tribal sovereignty, but has called for a particularized inquiry into the nature of the state, federal, and tribal interests at stake.”

This case-by-case approach in federal Native American law sometimes has led to apparent inconsistencies and provided little guidance for lower courts. In United States v. Wheeler (1978), the Court reaffirmed that the criminal trial of an Native American in federal court, after he had been convicted in a tribal court, did not amount to double jeopardy, because the tribes, like the states, were separate sovereign entities. The majority opinion noted that the tribes “still possess those aspects of sovereignty not withdrawn by treaty or statute.” However, in Washington v. Confederated Tribes (1980), the Court upheld the right of the states to collect sales taxes on cigarettes and other products sold to non-Native Americans on reservations. In Rice v. Rehner (1983), the Court further dealt tribal sovereignty a stunning blow when it upheld concurrent tribal and state regulations of alcoholic beverages. However, in Ramah Navajo School Board v. Board of Revenue (1982), the Court struck down a state tax on non-Native American corporation buildings located on tribal lands.

Native American lawyers tended to view Chief Justice William H. Rehnquist, a transplanted Arizonan, as a proponent of a western anti-Native American jurisprudence. They were particularly critical of his opinion in Oliphant v. Suquamish (1981), a case that involved a White man convicted of disorderly conduct by a tribal court. Overturning his conviction, the Rehnquist Court utilized a “balancing test” and held that the Native American nations, despite their sovereignty, had no criminal jurisdiction over non-Native Americans. The Oliphant ruling, which recognized the doctrine of “dependent sovereignty,” was extended to regulations of hunting and fishing in Montana v. United States (1981), and it was subsequently applied to cases involving other sovereignty-related issues, such as taxation and commerce.

The Rehnquist Court’s decision in Cabazon Band of Mission Indians v. California (1987), however, was largely responsible for bringing about Native American gaming casinos on a massive scale. In this case, a majority of the justices agreed that the doctrine of tribal sovereignty implied that the states could not prohibit high-stakes bingo games on the reservations. The decision was accompanied by an expansive opinion recognizing the right of the tribes to control their own economies within a national framework, so long as federal interests were not impaired. Responding to this seminal decision, Congress enacted the Indian Gaming Regulatory Act of 1988, which stipulates that the tribes have the right to offer any form of gambling permitted anywhere within the state where the tribal land is located. The statute has had tremendous financial consequences. By the beginning of the twenty-first century, the tribes were operating more than 150 casinos in half the states, generating an estimated six to eight billion dollars of business a year. A few tribes located near large cities, most notably in Minneapolis, became quite wealthy, although the casinos were of little benefit to those tribes that were located in isolated parts of the country.

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, a decision that demonstrated the inherent conflict between tribal sovereignty and the sovereignty of the fifty states. Clearly the majority of justices in the Rehnquist Court showed more concern for the latter than the former. In spite of this ruling, however, Native Americans often had the option of seeking permission from the Department of the Interior to open casinos.

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 Native American belonging to another tribe. Writing the opinion for the majority, Justice Stephen F. Breyer based the ruling on both a federal statute and the inherent sovereignty of the tribes. “The Constitution,” he declared, “grants Congress broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as ‘plenary and exclusive.’” Dissenting, Justice Clarence Thomas complained that the jurisprudence on Native American sovereignty was “schizophrenic,” insisting that the concepts of inherent tribal sovereignty and plenary congressional power were contradictory with each other. David H. Souter, on the other hand, emphasized the role of judicial precedents rather than abstract logic in Native American jurisprudence, and he commented that “conceptualizations of sovereignty and dependent sovereignty are largely rhetorical.”

The Supreme Court in McGirt v. Oklahoma (2020), by deciding that a large swathe of disputed land in Oklahoma belonged to the Muscogee (Creek) Nation under prior acts that designated the land as an Indian reservation (the state of Oklahoma unsuccessfully argued that the land was returned to the ownership of the state under the Oklahoma Enabling Act of 1906), further expanded tribal sovereignty by ruling that crimes committed by Native Americans on such land fell to the jurisdiction of tribal and federal agencies, not the state.

The decision reached in McGirt v. Oklahoma was later undermined in 2022 upon the Supreme Court's decision in Oklahoma v. Castro-Huerta, which revisited the decision reached in the prior case to establish that tribal, federal, and state agencies each had jurisdiction when prosecuting crimes committed against Native Americans by non-Native Americans when on Native American land. After the decision was reached, many felt it encroached on tribal sovereignty by allocating more power over affairs on Native American land to the state instead of the previous precedent of tribal and federal enforcement. As a result, Oklahoma v. Castro-Huerta was seen by many as a precedent that could allow for further encroachment of tribal sovereignty.

Bibliography

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