Tribal sovereignty

• SIGNIFICANCE: The rights and obligations of American 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 mesh in a novel way with the special status of domestic sovereignty which was recognized as adhering in American 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 unlimited and indivisibile nature 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 Revolution, 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 American 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 US constitutional order, the domestic sovereignty of 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 American Native American nations, permitting the courts to view tribal sovereignty as a residual sovereignty which the Constitution was recognizing rather than creating.

In Johnson and Graham’s Lessee v. William McIntosh (1823, known as Johnson v. McIntosh), the Supreme Court under Chief Justice John Marshall recognized the residual Native American sovereignty: “Discovery 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 Indigenous peoples and the US government took the forms of treaties. Treaties, however, provided little security to the Tribal 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 1870s

From the 1880s onward, a seesaw effect was produced by court decisions that recognized serious and far-ranging implications inherent in tribal sovereignty and by 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 tribal lands. Federal law, the Court held, does not automatically apply to Indigenous-held 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 tribal land under the jurisdiction of the federal courts.

In the General Allotment Act (or Dawes Severalty Act, 1887), Congress moved to eliminate all Native American sovereignty eventually by transforming 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 Indigenous sovereignty, Congress relented and attempted to reverse direction with the Indian Reorganization Act (also known as the 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 1950s, tribal 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 American Native Americans to their tribal governments and required the consent of tribes to the imposition of state jurisdiction over Indigenous territory. That law represented an elaborate compromise regarding tribal sovereignty. Extending the Bill of Rights to individual Native Americans in their relations with tribal authorities involves a serious interference with tribal sovereignty, although one that is arguably to the benefit of individuals in these communities. This interference was balanced 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-American Indigenous person residing on a reservation who was charged with a crime, not to be subject to the tribal courts. American Indigenous people 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 American Indigenous 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 an American tribal 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.

In the aftermath of Oliphant and Wheeler, US courts and legislatures continued to debate the powers and limits of tribal sovereignty. In Duro v. Reina (1990), the Supreme Court found that tribes did not have jurisdiction over crimes committed by Native Americans who were not members of that specific tribe or community. This provoked a backlash, as tribes argued that it undermined their ability to prosecuted anyone who was not a member of that specific tribe. To restore this power to tribal courts, Congress amended the 1968 Indian Civil Rights Act to empower tribal courts to "exercise criminal jurisdiction over all Indians."

New developments continued throughout the 2010s and into the 2020s. In 2010 President Barack Obama signed the Tribal Law and Order Act into law, which allowed tribal courts to pass down harsher sentences for crimes under their jurisdiction. Prior to 2010, tribal courts could only hand down a maximum penalty of one year in jail and a $5,000 fine.

While tribal courts continued to mostly lack the authority to prosecute people who are not members of Indigenous communities, the 2013 Violence Against Women Reauthorization Act restored the 1994 Violence Against Women Act and empowered tribal authorities to prosecute a range of crimes, including sexual assault and domestic violence, committed by non-affiliated individuals against enrolled members of Indigenous communities.

The early 21st century saw multiple Supreme Court cases which affected tribal sovereignty. In June 2021, the Court released its decision on United States v. Cooley, finding that if a tribal police officer suspects a non-tribe member is violating a state or federal law, that officer has legal authority to detain and search the suspect.

At the same time, two cases in the state of Oklahoma, which has a large portion of Native American land, also had wider implications for tribal jurisdiction nationwide. In McGirt v. Oklahoma (2020), tribal jurisdictions won a major legal victory when the Supreme Court ruled that only an act of Congress, and not the actions of a state government, could negate a treaty and disestablish a Native American reservation. However, amid efforts by the state of Oklahoma to overturn this decision, the Court ruled in Oklahoma v. Castro-Huerta (2022) that state governments, in addition to the federal government, have jurisdiction over tribal lands, breaking with the established precedent that only the tribes themselves and the federal government had jurisdiction in those territories.

Tribal sovereignty won another victory in June of 2023 when the Supreme Court, in the case of Haaland v. Brackeen, upheld the constitutionality of the 1978 Child Indian Welfare Act (ICWA). The court upheld the federal law that protects the rights of Indigenous children to remain connected to their families and tribes. The original 1978 ICWA was passed by Congress as an effort to limit the removal of Indigenous children from their families and tribes and support tribal autonomy.

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 between 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. Even into the twenty-first century, new laws and legal developments continued to shift the balance of legal power in Indigenous communities between the federal government, individual states, and these communities themselves.

Bibliography

Cuthu, N. Bruce. Shadow Nations: Tribal Sovereignty and the Limits of Legal Pluralism. Oxford UP, 2013.

Ducheneaux, Wayne L. "Oklahoma v. Castro-Huerta: Bad Facts Make Bad Law." Native Governance Center, 14 July 2022, nativegov.org/news/castro-huerta/. Accessed 9 Oct. 2024.

Gray, Christine K. The Tribal Moment in American Politics: The Struggle for Native American Sovereignty. Altamira, 2013.

“Haaland v. Brackeen.” United States Supreme Court, 15 Jun. 2023, www.supremecourt.gov/opinions/22pdf/21-376‗7l48.pdf. Accessed 9 Oct. 2024.

"McGirt v. Oklahoma." Oyez, www.oyez.org/cases/2019/18-9526. Accessed 9 Oct. 2024.

Ouden, Amy E. Den, and Jean M. O'Brien. Recognition, Sovereignty Struggles, and Indigenous Rights in the United States: A Sourcebook. U of North Carolina P, 2013.

Smith, Maylinn. "Jurisdiction in Indian Country: A Very Brief Overview." Indian Law Clinic, University of Montana School of Law, 2018, leg.mt.gov/content/Committees/Interim/2017-2018/Law-and-Justice/Meetings/Jan-2018/Exhibits/slides-criminal-jurisdiction-indian-country.pdf. Accessed 9 Oct. 2024.

"United States v. Cooley." Oyez, www.oyez.org/cases/2020/19-1414. Accessed 9 Oct. 2024.