Sovereignty of Indigenous Nations

What is sovereignty?

Indigenous Nations located within the United States, with the exception of Hawaii, are recognized as independent governments that reside inside the border of the United States. Indigenous Nations have a government to government relationship with the U.S. Federal government. As independent governments, Indigenous Nations set up their own government structure, determine criteria for membership, and establish a legal system including law enforcement and courts. Sovereignty is outlined and defined in the United States constitution, treaties and enforced in federal laws.

How was sovereignty established for the Indigenous Nations in the lower 48?

The Marshall Trilogy, crafted over 200 years ago and named after the Supreme Court Chief Justice John Marshall, clarified the relationship between Indian Nations, the U.S. Federal Government and state government.

Three historic court cases are often cited with respect to tribal sovereignty:

Johnson v. McIntosh (1823) — This case addressed the legality of a tribal land grant made to private individuals and provided that tribes’ rights to sovereignty were impaired by colonization but not disregarded, and that only the federal government had the right to negotiate for American Indian land.

Cherokee Nation v. Georgia (1831) — The Cherokee Nation filed a lawsuit against the state of Georgia which requested relief from state jurisdiction on their land. The decision described Indian tribes as “domestic dependent nations” and maintained that the federal-tribal relationship “resembles that of a ward to his guardian.”

Worcester v. Georgia (1832) — This case involved the application of Georgia state law within the Cherokee Nation. The decision was made that tribes do not lose their sovereign powers by becoming subject to the power of the United States. It also maintained that only Congress has overriding power over Indian affairs and that state laws do not apply in Indian Country.

What is a treaty?

Under the U.S. Constitution, treaties are part of the supreme law of the land, with the same legal force and effect as federal statutes. Treaties bind both the federal government and the signing Indian tribe or tribes, and generally constitute recognition of rights to lands and resources, as well as rights to fish, hunt, and gather. As such, the federal government has an obligation to honor and respect tribal rights and resources that are protected by treaties. This means that federal agencies are bound to give effect to treaty language and, accordingly, must ensure that federal agency actions do not conflict with tribal treaty rights. Integrating consideration of tribal treaty rights into agency decision-making processes is also consistent with the federal government’s trust responsibility to federally recognized Indian tribes.¹

After the treaty-making era ended, agreements between Indian tribes and the federal government were instead generally memorialized through other sources of law, including federal legislation such as land claims settlement acts, and in some cases, through executive orders.²

What is the history of the treaties between the US Government and Indigenous Nations?

Over 500 treaties were made. First treaties were made to give the United States standing as a country.

From 1778 to 1871, the federal government’s relations with Indian tribes were defined and conducted largely through the treaty-making process. These treaties recognized the sovereignty of Indian tribes. They also established unique sets of rights, benefits, and conditions for the treaty-making tribes that agreed to cede millions of acres of their homelands to the United States in return for recognition of property rights in land, resources, and federal protections.³

Through treaty-making, Indian tribes granted land and other natural resources to the United States, while retaining all rights not expressly granted. These rights are also known as “reserved rights.” Treaties with Indian tribes cover a wide variety of subjects, including rights reserved by tribes relating to natural resources, such as the right to hunt, fish, and gather both on land ceded or given up by tribes, and on land retained by tribes. Although the treaty-making era ended in 1871, federal treaties with Indian tribes ratified by the Congress remain the law.⁴

How have treaties been modified?

Over the years, several acts of Congress have modified the nation-to-nation relationship between the federal government and Indian tribes:

• Passed in 1953, Public Law 280 provides for six states, including Minnesota (with the exception of the Red Lake reservation), to assume general criminal and some civil jurisdiction over Indian reservations within the state. Tribes retain limited criminal and general civil jurisdiction. In recent years, some PL 280 states and tribes have worked together to return some or all of this authority back to tribes.
• Passed in 1978 the Indian Child Welfare Act (ICWA) established procedures state agencies and courts must follow in handling Indian child custody matters. Creates dual jurisdiction between states and tribes that defers heavily to tribal governments.
• The 1988 Indian Gaming Regulatory Act (IGRA) requires that, should a tribe decide to participate in casino gaming, the state can negotiate in good faith with the tribe to develop a gaming compact setting forth games, limits and other terms.

What are Tribal Treaty rights?

It is not uncommon for Indian tribes to raise treaty rights concerns during Section 106 consultations. All federal agencies as well as applicants for federal funding or approvals should be aware that treaty rights can and do extend to federal, state, and private lands depending on the language of the treaty.⁵