2.1 Concepts of Tribal Sovereignty and Self-Governance
5 min read•august 12, 2024
and are fundamental to Native American law. These concepts recognize tribes' inherent authority to govern themselves, stemming from their status as independent political entities predating the U.S. Constitution.
The federal-tribal relationship is complex, balancing tribal sovereignty with federal oversight. This dynamic shapes how tribes exercise their , manage their affairs, and interact with the U.S. government in a unique .
Tribal Sovereignty and Inherent Powers
The Concept of Tribal Sovereignty
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Tribal sovereignty refers to the inherent authority of Indigenous tribes to govern themselves
Tribes possess all powers of self-government except those relinquished under treaty with the United States, those that Congress has expressly extinguished, and those that federal courts have ruled are subject to existing federal law or are inconsistent with overriding national policies
Tribal sovereignty ensures that any decisions about the tribes with regard to their property and citizens are made with their participation and consent
Tribes have the power to determine their own governance structures, pass laws, and enforce those laws
The Scope of Inherent Powers
Inherent powers are those that a tribe has by virtue of its existence as an independent political entity
These powers predate the U.S. Constitution and are not granted by the federal government
Examples of inherent powers include the power to determine tribal membership, regulate domestic relations among members, prescribe rules of inheritance, levy taxes, regulate property within tribal jurisdiction, and control the conduct of members by tribal legislation
Inherent powers cannot be divested by treaty or statute, unless Congress clearly expresses its intent to do so
Tribes as Domestic Dependent Nations
In (1831), Chief Justice John Marshall described tribes as ""
This concept recognizes the sovereignty of tribes while also acknowledging their relationship with and reliance on the federal government
As domestic dependent nations, tribes are distinct political entities with inherent powers of self-government, but their external sovereignty is limited by their relationship with the United States
The federal government has a trust responsibility to protect tribal lands, resources, and interests
The Reserved Rights Doctrine
The holds that tribes retain all rights that have not been explicitly extinguished by treaty or federal statute
This doctrine is based on the principle that tribes are sovereign entities that predate the U.S. Constitution
Treaties between tribes and the federal government are interpreted as reserving to the tribes all rights not expressly relinquished
The reserved rights doctrine has been applied to various contexts, including water rights (, 1908) and hunting and fishing rights (, 1905)
Federal-Tribal Relationships
The Trust Relationship
The between the federal government and tribes is a legal and moral obligation rooted in treaties, statutes, and court decisions
Under the trust doctrine, the federal government has a fiduciary duty to protect tribal lands, resources, and interests
The trust responsibility includes managing tribal assets, providing essential services (healthcare, education, housing), and representing tribes in legal matters
The federal government's trust obligations are enforceable through lawsuits filed by tribes against the United States for breach of trust
Congressional Plenary Power
Congress has plenary power over Indian affairs, meaning it has complete and absolute authority to legislate on matters affecting tribes
This power is derived from the (Article I, Section 8, Clause 3) and the (Article II, Section 2, Clause 2) of the U.S. Constitution
Congress can exercise its plenary power to enact legislation that affects tribes, such as terminating the federal-tribal relationship, abrogating treaties, or extending federal criminal jurisdiction over tribal lands
However, the Supreme Court has held that Congress' plenary power is not absolute and must be exercised in a manner consistent with the (United States v. Sioux Nation, 1980)
The Government-to-Government Relationship
The relationship between the federal government and tribes is a government-to-government relationship, recognizing tribes as sovereign entities
This relationship is based on the principle of , which affirms the right of tribes to govern themselves and make decisions about their own affairs
Executive Order 13175 (2000) requires federal agencies to consult with tribal governments when developing policies that have tribal implications
The government-to-government relationship is reflected in various federal laws and policies, such as the (1975) and the Tribal Law and Order Act (2010)
Landmark Supreme Court Cases
Cherokee Nation v. Georgia (1831): The Supreme Court held that tribes are "domestic dependent nations" and that the relationship between the federal government and tribes is similar to that of a ward to its guardian
Worcester v. Georgia (1832): The Court ruled that the laws of Georgia had no force within the Cherokee Nation's territory and that only the federal government had authority over Indian affairs, affirming tribal sovereignty and the federal-tribal relationship
Self-Governance and Determination
The Concept of Self-Governance
Self-governance refers to the right of tribes to govern themselves and make decisions about their own affairs
It encompasses the inherent right of tribes to establish their own governments, determine their own membership, and exercise jurisdiction over their territories
Self-governance is essential for tribes to preserve their unique cultures, traditions, and ways of life
The Indian Self-Determination and Education Assistance Act (1975) and subsequent amendments have strengthened tribal self-governance by allowing tribes to assume control over federal programs and services
The Indian Reorganization Act
The (IRA) of 1934, also known as the Wheeler-Howard Act, was a landmark legislation that aimed to promote tribal self-governance and economic development
The IRA encouraged tribes to adopt constitutions and establish tribal governments, provided for the acquisition of additional land for tribes, and established a revolving credit fund for
The act also prohibited further allotment of tribal lands and extended the trust status of existing allotments
While the IRA had mixed results and was not universally embraced by all tribes, it marked a significant shift in federal Indian policy towards greater tribal autonomy and self-determination
Tribal Constitutions
Many tribes have adopted constitutions as a means of formalizing their governmental structures and asserting their sovereignty
Tribal constitutions typically outline the powers and responsibilities of tribal governments, define membership criteria, and establish procedures for decision-making and dispute resolution
The process of drafting and adopting a is an exercise of self-governance and self-determination
Tribal constitutions vary widely in their content and structure, reflecting the diverse cultures, traditions, and needs of individual tribes
The Principle of Self-Determination
Self-determination is the principle that tribes have the right to freely determine their political status and pursue their economic, social, and cultural development
This principle is enshrined in various international instruments, such as the United Nations Declaration on the Rights of Indigenous Peoples (2007)
In the United States, the policy of self-determination has been affirmed through legislation such as the Indian Self-Determination and Education Assistance Act (1975) and the Tribal Self-Governance Act (1994)
Self-determination empowers tribes to make decisions about their own affairs, from managing natural resources to providing essential services to their members
The exercise of self-determination is crucial for tribes to maintain their distinct identities, preserve their cultures, and build sustainable communities for future generations
Key Terms to Review (21)
Cherokee Nation v. Georgia: Cherokee Nation v. Georgia was a landmark Supreme Court case in 1831 that addressed the legal status of Native American tribes and their relationship with the United States government. The case established important precedents concerning tribal sovereignty and the federal government's authority over Indian affairs, ultimately framing the legal context for future cases involving Native American rights.
Congressional Plenary Power: Congressional plenary power refers to the broad and absolute authority granted to the United States Congress to legislate on matters related to Native American affairs. This power is derived from the Constitution and has been interpreted through numerous Supreme Court rulings, establishing that Congress has the ultimate say over tribal sovereignty and governance. This authority can significantly impact the self-governance of tribes, often influencing their ability to exercise autonomy.
Cultural preservation: Cultural preservation refers to the efforts made to protect, maintain, and revitalize the cultural heritage of a community, particularly for Indigenous populations. This involves safeguarding languages, traditions, practices, and sacred sites that hold significant meaning and identity for these communities, ensuring their survival and continuity amidst external pressures.
Domestic Dependent Nations: Domestic dependent nations refer to the status of Native American tribes within the United States, acknowledging their inherent sovereignty while also recognizing their dependence on the federal government for certain aspects of governance and support. This term highlights the unique legal relationship between tribes and the federal government, which impacts tribal sovereignty and self-governance, as well as legal precedents established in landmark Supreme Court cases.
Federal Trust Responsibility: Federal trust responsibility is the legal obligation of the United States government to protect the interests and well-being of Native American tribes and their members. This concept shapes the relationship between the federal government and tribal nations, emphasizing the government’s duty to safeguard tribal sovereignty and resources.
Government-to-government relationship: A government-to-government relationship refers to the formal interaction and negotiation between sovereign nations, emphasizing the recognition of each party's independence and authority. In the context of Native American law, this relationship underlines the legal recognition of tribal sovereignty and the ability of tribes to govern themselves while engaging with federal and state governments. This connection is crucial for understanding how tribes manage their own affairs and negotiate rights related to land and governance.
Indian Commerce Clause: The Indian Commerce Clause refers to the constitutional provision in Article I, Section 8, Clause 3, which grants Congress the power to regulate commerce with Indian tribes. This clause is significant because it establishes a federal authority over trade and relations with Native American tribes, influencing tribal sovereignty, self-governance, and the legal framework surrounding federal-tribal interactions.
Indian Reorganization Act: The Indian Reorganization Act (IRA), enacted in 1934, aimed to reverse the assimilation policies of the previous allotment era and restore tribal sovereignty by promoting self-governance and economic development for Native American tribes. This act provided a framework for tribes to create their own governments and manage their lands, marking a significant shift in federal Indian policy.
Indian Self-Determination and Education Assistance Act: The Indian Self-Determination and Education Assistance Act (ISDEAA) is a federal law enacted in 1975 that empowers Native American tribes to manage their own education, health, and social service programs. This act promotes tribal self-governance, allowing tribes to have greater control over their resources and decision-making processes, while also impacting federal policies and funding mechanisms related to tribal programs.
Inherent Powers: Inherent powers refer to the fundamental authority and rights that a sovereign entity possesses simply by virtue of its existence, without needing explicit constitutional or legal acknowledgment. This concept is particularly relevant in the context of tribal nations, where these powers allow tribes to govern themselves, establish laws, and manage internal affairs, reflecting their sovereignty and self-determination.
Reserved Rights Doctrine: The Reserved Rights Doctrine is a legal principle asserting that Native American tribes retain rights to resources, lands, and governance that were not explicitly surrendered to the federal government through treaties or other agreements. This doctrine plays a crucial role in understanding tribal sovereignty and self-governance, as it emphasizes that tribes have inherent rights that are protected under U.S. law, even if they are not expressly stated in legal documents.
Self-Determination: Self-determination refers to the right of individuals and communities, particularly indigenous peoples, to determine their own political status and pursue their economic, social, and cultural development. This principle empowers tribes to govern themselves, make their own decisions, and control their own resources, reflecting a fundamental aspect of tribal sovereignty.
Self-Governance: Self-governance refers to the ability of a community or group to govern itself without external interference, exercising autonomy and control over its own affairs. This concept is deeply rooted in tribal sovereignty, where Native American tribes assert their rights to manage their internal governance, laws, and resources independently from state or federal authorities.
Treaty clause: The treaty clause refers to the provision in the U.S. Constitution that grants the federal government the exclusive authority to enter into treaties with foreign nations and Native American tribes. This clause is significant because it establishes a legal framework for the relationship between the federal government and Native American tribes, recognizing their status as distinct political entities. Through this clause, treaties have historically served as a primary means of defining rights, obligations, and governance in tribal affairs.
Tribal Constitution: A tribal constitution is a governing document that outlines the structure, powers, and functions of a Native American tribe's government. It serves as a foundational legal framework for self-governance and sovereignty, establishing the rights and responsibilities of tribal members, the organization of tribal leadership, and the processes for enacting laws and policies.
Tribal Council: A tribal council is a governing body composed of elected or appointed representatives from a Native American tribe, responsible for making decisions regarding the tribe's governance, resources, and community affairs. This body plays a crucial role in exercising tribal sovereignty and self-governance, as it reflects the tribe's authority to establish its own laws and policies.
Tribal economic development: Tribal economic development refers to the efforts made by Native American tribes to create, enhance, and sustain economic opportunities and resources within their communities. This concept is deeply linked to the ideas of tribal sovereignty and self-governance, as it empowers tribes to take control of their economic futures, foster self-sufficiency, and improve the quality of life for their members while respecting their unique cultural identities.
Tribal sovereignty: Tribal sovereignty refers to the inherent authority of Indigenous tribes to govern themselves, make their own laws, and manage their internal affairs without external interference. This concept is foundational for recognizing tribes as distinct political entities, and it connects deeply with historical and contemporary legal frameworks surrounding Indigenous rights and governance.
Trust relationship: The trust relationship refers to the legal and moral obligation of the federal government to protect and manage the interests of Native American tribes and their members. This relationship is grounded in treaties, statutes, and court decisions, and it establishes a framework for federal oversight, ensuring tribes retain certain rights and sovereignty while receiving support and protection from the federal government.
United States v. Winans: United States v. Winans is a landmark Supreme Court case from 1905 that confirmed the hunting and fishing rights of Native Americans on their ancestral lands, emphasizing the importance of treaties between the United States and Indigenous tribes. The ruling established that these rights were preserved even when the land was sold to non-Native individuals, underscoring the ongoing sovereignty of Native tribes and their self-governing authority.
Winters v. United States: Winters v. United States is a landmark U.S. Supreme Court case from 1908 that established the Winters Doctrine, affirming that Native American tribes possess reserved water rights for their reservations, even if those rights are not explicitly stated in treaties. This case is crucial as it underscores tribal sovereignty and the inherent right of tribes to access water resources necessary for their self-governance and cultural practices.