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Tribal Sovereignty

Indian Tribal Sovereignty: It's Alive

By Larry B. Leventhal

The legal relationship between the United States and the respective Indian tribes is unique. Unlike all other political entities within the borders of the United States, Indian tribes derive their powers not solely through delegation, but also through their sovereign existence, past and present.

One attempting to derive some logic from Constitutional provisions, 371 treaties, periodic agreements, numerous statutes, an entire volume of the United States Code, federal regulations governing an over-inflated Bureau of Indian Affairs and other agencies, and often contradictory case law, must start with the proposition of initial sovereignty of the various tribes. Tragically, the development of the United states Indian law is drenched in blood (usually Indian), stolen lands (always Indian), and broken promises. Yet despite removal, allotment, and termination, the tribes remain as viable political and cultural entities.

It is well to keep in mind that a review of federal Indian law principles, through which Indian sovereignty has been diminished, should not preclude consideration of principles of Indian traditional law, international law, and inherent justice. The following, extracted from A History of Indian Jurisdiction prepared by the Institute for the Indian training program, provides such expression:

"Indian tradition law usually gives complete jurisdiction to the Indian government to rule Indian territory, to manage Indian national affairs, to settle disputes and so on, all without outside interference. On the other hand, if you go by United States law, actual Indian jurisdiction is much less then the inherent, sovereign jurisdiction which each nation has or had under its own law. Of course, each Indian nation must be looked at individually in light of its own history and law.

Almost everything written on Indian jurisdiction has looked only at the federal law (the laws applied in the United States courts and the decisions of these courts). Naturally, the United States courts are one-sided. If Congress passes a law saying that a particular Indian nation has no government and no jurisdiction at all, then the United States court must accept that as law. According to Indian law and international law, however, Congress has no power to terminate another nation's government. United States law is especially important because, in one way or another, many important cases end up in federal courts, and the federal government may enforce its decisions by force if necessary. So, it is useful to know what the United States law is concerning jurisdiction, no matter how wrong or ridiculous it may be compared to Indian law, international law, or common sense."

Indian tribes have inherent powers deriving from a sovereign status. Their claim to sovereignty long pre-dates that of our own government."e; McClanahan v. Arizona Tax Commission, 411 U.S. 164, 36 L.Ed. 2d 129 (1973). The basic sovereign power to the Indian tribes is still existent, but subject to restrictions which have developed through their relationship with the United States. Iron Crow v. Oglala Sioux Tribe, 231 F. 2d 89 (8th Cir. 1956).

Felix S. Cohen, in his authoritive and extensive work entitled Federal Indian Law (U.S. Department of Interior, 1944), explains the nature of the residual sovereignty of Indian tribes:

"Perhaps the most basic principles of all Indian law supported by a host of decisions...is the principle that those powers which are lawfully vested in an Indian tribes are not, in general delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished. Each Indian tribe begins its relationship with the Federal Government as a sovereign power, recognized as such in treaty and legislation. The powers of sovereignty have been limited from time to time by special treaties and laws designed to take form the Indian tribes control of matters which, in the judgement of Congress, then, must be examined to determine the limitations of tribal sovereignty rather than to determine its sources or its positive content. What is not expressly limited remains within the domain of tribal sovereignty."

(emphasis contained in original source)

The current status of the Indian nation has been variously described as "e;quasi-sovereign tribal entities" Morton v. Mancari, 417 U.S. (1974); "quasi-sovereign nations" Iron Crow, et al. v. Oglala Sioux Tribe, 231 F. 2d 89 (8th Cir. 1956); "dependent nations" Colliflower v. Garland, 342 F. 2d 369 (9th Cir. 1965); "residual sovereignty" Long v. Quinalt, No. C75-677 (W.D. Wash., Sept. 2, 1975); and "semi-sovereign existence" Quechan Tribe of Indians v. Rowe, et. al., No.72-3199 (9th Cir. Feb.2, 1976).

The international concept of nationhood and its attendant sovereignty can be generalized in the language of Montoya v. United States, 180 U.S. 261. In summary, Montoya, supra, specifies that a Nation is a group of people with an organized society in a geographic area bound by common language and customs. Such is in accord with classical definitions.(1) The various Indian tribes quite clearly satisfy such conditions of nationhood. Internally, each had an identifiable language, culture, and social organization. The geographic extent of their dominion was recognized by their neighbors. They had the capacity to govern themselves, to make war, to establish peace, and to form alliances with other nations.

The first known legal document relating to the American Indian was written at the bequest of the Emperor of Spain, by Franciscus de Vitoria in the mid-sixteenth century. In his work(2) , which was influential throughout Europe and generally incorporated into the then developing international law, Father Vitoria stated that "the aborigines in question were the true owners" of lands in the new world. Thus, he found that "discovery" could convey no title upon Europeans; even the Pope had no right to partition the property of the Indians. Rather, a treaty conveying such rights to which he Indian sovereign was agreeable, was seen as the pre-requisite to land acquisition.

Early relationships were established and treaties entered into between the Indian nations of the east coast no North American and the various European powers, including Great Britain, France, Belgium, and the Netherlands. In addition, the colonies, prior to the formation of the Federal Union which was to become the United States, individually entered into treaty negotiations and relationships with the Indian nations.

Under the United States Constitution, Article VI, Section 2, treaties entered into by the President and the Senate as mandated by Article II, Section 2, Clause 2, are considered to be "the supreme law of the land," As such, "judges in every state shall be bond thereby."

Under this Constitutional authority, the United States entered into approximately 371 Indian treaties with the various Indian nations. The Constitutional authority employed is the same as that which enabled the federal government to enter into other international treaties.(3) Indian treaties represented agreements at law between two sovereigns -- the respective Indian nations and the United States.

The method of dealing with Indian by treaty was abandoned with the passage of the Appropriations Act of March 3, 1871. The prohibition of the use of the treaty form in dealing with the Indian nations arose out of jealousy on the part of members of the House of Representatives that they, unlike Senators, could play no part in the formation and approval of a treaty. The legislation expressly provides tat treaties ratified prior to the date of the cut-off would have continuing validity.

Many of the treaties with the respective Indian nations served to limit the sovereignty, rights and independence of the respective tribes. However, what is important is that there is a residue of sovereignty which remains inherent in these Indian nations which is exercised, not through powers delegated to Congress, but through the inherent power of the sovereigns. In other words, such treaties are "not a grant of rights to the Indians, but a grant of rights from them -- a reservation of those not granted." U.S. v. Winans, 198 U.S. 371, 381 (1905); Winters v. U.S., 207 U.S. 564 (1908); U.S. v. Ahtanum Irrigation District, 236 F.2d 321 (9th Cir. 1956)

The treaties between the United States and the respective Indian nations and those between the United States and European nations are similar in form.

The first treaty entered into by the Continental Congress was with the Delaware Indians in 1778. it recognized boundaries and provided for the formation of a military alliance; no land cession was involved. Increasingly, however, the United States used the treaty process as a means of justifying and institutionalizing land appropriated by force and the threat of force.

For their part, Indian nations were frequently anxious to secure promises from the United States honoring tribal control of unceded lands, respecting self-government, pledging non-interference with tribal society and law, guaranteeing hunting and fishing rights, etc. These guarantees, unless specifically abrogated by Congress, remain good law today, and have formed the foundation upon which many successful lawsuits have been instituted for the purpose of protecting Indian rights.

The meaning of the Sioux Treaty of 1868 (the last treaty between the United States and the Sioux) and the inherent guarantee relative to sovereignty, was aptly summarized by the United State Supreme Court in Ex Parte Crow Dog, 109 U.S. 556 (1883). The Court found that the Treaty of 1868, in the context of both tribal sovereignty and United States law, constituted a

"pledge to secure to these people with whom the United States was contracting as a distinct political body, an orderly government,.. (which) necessarily implies,...that of self-government: The regulation by themselves of their own domestic affairs; the maintenance of order and peace among their own members by the administration of their own laws and customs."

This, the Court specified, was the "the highest and best of all of the arts of civilized life." Because of such guarantees, the Court ruled that the United States did not have jurisdiction on the Sioux reservation to prosecute an Indian on charges of murder of another Indian.

The limited character of the independence of the Indian nations found its classic expression in the judgements o Chief Justice Marshall, who described them as "domestic dependent nations." Their rights, he said, had never been entirely disregarded, but had been impaired by colonization. Specifically, they had lost their right to sell their lands to whomever they chose, Johnson v. McIntosh, 8 Wheat. 543 (1828); Worchester v. Georgia, 6 Pet. 515 (1832).

The limitation of external sovereignty and the limitation of rights to sell land were the earliest of the legal detractions from the independence of the tribes or nations; there have been many others since. To a degree, the history of Indian law in this country has been a history of the gradual abolition of the elements of Indian independence. What is of fundamental importance in understanding this specialized area of law is that the basic framework has never been abandoned and that Indian tribes will possess a degree of sovereignty recognized by law.

The status of the Indian nations was initially given expression by Chief Justice Marshall considered the application of the words "nation" and "treaty" to the various Indian people:

"The very term 'nation,' so generally applied to them (Indians) means 'a people distinct from others.' The Constitution, by declaring treaties already made, as well as those to be made to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words 'treaty' and 'nation' are words of our own language, selected in our diplomatic and legislative proceedings by ourselves, and have a definite and well-understood meaning. We have applied them to the other nations of the earth. They are applied to all in the same sense."

In the next year, in Worcester v. Georgia, supra, Chief Justice Marshall spoke more directly to the questions of Indian status. In that case, the Court held that a clergyman had been wrongfully imprisoned by the State of Georgia for attempting to interfere with the state's removal of the Cherokees. The Court ruled that the Cherokees were entitled by sovereign treaty rights and, as a distinct independent political community to occupy its own territory:

"...and settled doctrines of the law of nations is, that a weaker power does not surrender its independent--it's right to self-government -- by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state. Examples of this kind are not wanting in Europe. 'Tributary and feudatory states', says Vattle, 'do not thereby cease to be sovereign and independent authority are left in the administration of the state.' At the present day, more than one state may be considered as holding its right of self-government under the guarantee and protection of one or more allies.

The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress. The whole intercourse between the United State and this nation is, by our Constitution and laws, vested in the government of the United States. The act of the State of Georgia, under which the plaintiff in error was prosecuted is, consequently void, and the judgment a nullity."

The lack of state jurisdiction relative to the conduct of Indian affairs was made evident in Worcester v. Georgia, supra. The Courts' enunciation that "the Cherokee nation is under the protection of the United State of America, and no other sovereign whatsoever," along with the Court's enunciation of the tribe's sovereignty, revealed at an early date that jurisdiction relative to Indian people on tribal lands was shared by two sovereigns - the tribe and the united States. The tribe was seen as retaining internal sovereignty over its affairs, with external sovereignty (relations with other powers) being submerged in favor of the protection of the United States.

Indian people have often found that when courts speak to protect their interested the courts are not always heeded. The Supreme Court's determination that Georgia's attempted removal of the Cherokee was illegal, only briefly delayed the troops. The long, deadly "Trail of Tears" of the Cherokee to the Oklahoma Territory followed President Andrew Jackson's declaration that "John Marshall has rendered his decision, now let him enforce it."

The principles set forth in Worcester, supra, have fared better than the native lands of the Cherokee. These principles can be summarized as follows: 1) the federal government has plenary authority to regular Indian affairs; 2) an Indian tribes does not lose its internal sovereign powers by becoming subject to the power of a stronger nation; and 3) Indian country is separate and distinct from the state in which it is located, and within its boundaries, state laws do not apply.

Relative to the principles stated above, this perhaps not surprising that the first principle (i.e., the plenary power of the United States) has been applied by Congress and interpreted by the courts in such a manner as to partially erode the vitality of the other two principles (i.e., internal sovereignty and lack of state jurisdiction).

The concept that the United States possess plenary power over Indian tribes developed from cases in which the courts have refused to question executive or Congressional action on the ground that such was seen as being "apolitical question." [e.g., Johnson and Graham's Lessee v. McIntosh, 8 Wheat. 543 (1823)] This has meant that official abuses toward Indian people largely went unreviewed.

This plenary power has also been justified s having been derived from the power of Congress to "regulate Commerce....with the Indian tribes."

Early Congressional legislation directed toward Indians was cautious to speak to external relationships. The Northwest Ordinance (1787) proclaimed that "the utmost good faith shall always be observed toward the Indians." The Indian Non-Intercourse Act of 1790 limited trading prerogatives and restricted land cessions and treaties by the Indian tribes with any party other than the federal government. The General Crimes Act, enacted in 1817, while providing for federal court criminal jurisdiction in Indian Country, expressly precluded such jurisdiction where the matter concerned Indians only, the tribe had acted, or such provision for jurisdiction would be contrary to treaty provisions.

The internal sovereignty of the tribes later came to be comprised through such legislation as the Major Crimes Act (1885) which, following a public outcry resulting rom the decision in Ex Parte Crow Dog, supra extended total federal jurisdiction over specified, major crimes (initially seen in number, presently fourteen). The General Allotment Act of 1887 authorized federal subdivision of reservations in an effort to "break up the tribal mass", to encourage "civilized" farming, and, of course, to provide for federal assumption of "excess" lands beyond the individual allotments selected.

State laws have generally been held to be inapplicable within the boundaries of an Indian reservation, based upon the rationale of infringement upon tribal self-government and federal pre-emption.

Public Law 280, enacted in 1953, departs from the traditional principle that a state has no jurisdiction on an Indian reservation, by conferring upon six specified states, including Minnesota, general civil and criminal jurisdiction within reservations. Public Law 280 did, however, by its terms, specify that it did not authorize the "alienation, encumbrance, or taxation of any real or personal property," nor was it to be applied in such a manner as to deprive an Indian tribe or group "of any right, privilege, or immunity afforded under federal treaty, agreement, or statute with respect to hunting, trapping, or fishing, or the control of licensing or regulation thereof." The extension of civil jurisdiction under Public Law 280 is limited to the availability of state courts to hear civil causes of action arising upon Indian reservations. Bryan v. Itasca County, U.S. (No. 75-5027, June 14, 1976).

The concept of Congressional plenary power over Indian affairs has been judicially extended to the point that Congress is recognized as possessing the power through legislation to abrogate (i.e., change or nullify) an Indian treaty. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

The abrogation of portions of a treaty or of an entire treaty by statute is usually justified by viewing both statutes and treaties as being on the same footing. In Article VI of the United State Constitution, both are part of the "supreme law of the land." The conclusion is therefore usually reached that the latest in time prevails. Lone Wolf, supra. Since the United State has terminated its entering into Indian treaties, however, legislation is inevitably the latest in time, in matters of current interest to Congress.

Abrogation cannot, however, be by implication, but must be specifically stated. The courts have continually stated that "(T)he intention to abrogate or modify a treaty is not to be lightly imputed to the Congress." Menominee tribe of Indians v. United States, 391 U.S. 414 (1968); Pigeon River Company v. The Cox Company, 291 U.S. 138 (1934); Squire v. Capoeman, 351 U.S. 1, 100 L. Ed. 883, 76 S. Ct. 611 (1956).

In United States v. Consolidated Wounded Knee Cases, the defendant in indictments arising out of the Wounded Knee siege of 1973, sought dismissal of the various charges on grounds of the lack of jurisdiction of the United States on a Sioux reservation, due to guarantees, inherent in the Sioux treaty of 1868, of internal tribal sovereignty and of tribal ability to deal with Indian wrongdoers on the reservation. The court, while noting the existence of "residual" sovereignty, found that such criminal jurisdiction had been properly asserted by the United States, due to statutory provisions enacted subsequent to the U.S. Supreme Court's decision in Ex Parte Crow Dog, supra. The court's summary of history is both shocking and accurate:

"It cannot be denied that official policy of the United States until at least the late the century was impelled by a resolute will to control substantial territory for its westward-moving people. Whatever obstructed the movement, including the Indians, was to be -- and was--shoved aside, dominated, or destroyed. Wars, disease, treaties pocked by duplicity, and decimation of the buffalo by whites drove the Sioux to reservations, shriveled their population and disemboweled their corporate body. They were left a people unwillingly dependent in fact upon the United States.

It is an ugly history. White Americans may retch at the recollection of it."

Yet, despite this acknowledgment, the court relied, without terming it such, on the old political question doctrine. It specified that "relations with Indian tribes are given exclusively to the executive and legislative branches," and concluded that "(t)he defendants, then, are addressing the wrong forum for gaining relief in their sovereignty grievances." The court judicial precedents supporting federal criminal jurisdiction on a reservation, stating:

"When the Supreme Court speaks clearly, I must honor the statements or be as unfaithful to my duty to the law as the United States has been to its promises to the American Indians."

While the concept of Indian sovereignty continually reappears in case law, distortions relative to even the identity and origin of the tribes can be found, particularly on the era of westward expansion. See, for example, Markey v. Coxe, 59 U.S. 100 (1855), wherein an Indian tribe was referred to as "a territory which originated under our constitution and laws."

In Talton v. Mayes, 163 U.S. 376 (896), the U.S. Supreme Court, however, citing its "repeated adjudications," specified that the sovereign powers of the Cherokee Nation, although recognized by the federal government, were not created by the federal government; and that, therefore, the judicial authority of the Cherokees was not subject to the limitations imposed by the Bill of Rights. The Court explained that "...the existence of the right in Congress to regulate the manner in which the local powers of the Cherokee Nation shall be exercised, does not render such local powers federal powers..."

In recent assessing the status of the Indian nations, the Ninth Circuit has characterized their status as being higher then that of states:

"Indian tribes are, of course, not states; they have a status higher then that of states. they are subordinate and dependent nations, possessed of all powers as such, and limited only to the extent that they have been expressly required to surrender their powers by the superior sovereign, the United States." Colliflower v. Garland, 342 F2d. 369 (1965).

The status of the sovereign powers of an Indian tribes, as interpreted by federal law, are concisely summarized by Felix Cohen, in his Handbook of Federal Indian Law.

"The whole course of judicial decision on the nature of Indian tribal powers is marked by adherence to three fundamental principles: An Indian tribes possesses, in the first instance, all the powers of any sovereign State. Conquest renders the tribe subject to the legislative power of the united States, and, in substance, terminates the external powers of sovereignty of the tribe, e.g., its power to enter into treaties with foreign nations, but does not by itself affect the internal sovereignty of the tribe, i.e., its powers of local self-government. These powers are subject to be qualified by treaties and by express legislation of Congress, but save as thus expressly qualified, full powers of internal sovereignty are vested in the Indian tribes and in their duly constituted organs of government."

Another interpretation of the effect of the power of the United States on Indian sovereignty is contained within the "Red Paper," issued by the International Treaty Council, following the second International Indian treaty Council proclaimed sovereignty for the respective Indian nations, and viewed the actions of the United States as colonial:

"The United States has imposed a foreign form of government on the Indians and recognizes that government...not a traditional, legitimate government. The United States maintains that no Indian nation's law is effective without service, radio, television, and air transport regulations on reservations...An Indian nation is not even allowed to sign contracts or to hire a lawyer without the permission of the United States. Any self-government left to Indian nations by the United States is, it is made clear, left only to the grace of the United State Congress. The United States maintains it has a right to, at any time, pass a law and make it applicable to Indians on their reservations whether or not the laws conform to treaties with Indians, to international law, or to the United Nations Charter."

There is a temptation in the minds of many to consider concepts of Indian sovereignty to be solely of historical interest. Such an assumptions of misguided. During the past several decades, the United States Supreme Court and other federal courts have applied principles of Indian sovereignty in the resolution of questions relating to such diverse area as taxation, criminal jurisdiction, extradition, authority of tribal courts, licensing and sovereign immunity.

In McClanahan v. Arizona Tax Commission, supra, the United State Supreme Court found that state taxation of the income of an Indian while entire income was derived from reservation sources, was impermissible. The court explained the special status of an Indian tribe:

"It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our own Government...(T)he relation of Indian tribes living within the borders of the United States (is) anomalous one and of a complex character...They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as states, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations...' U.S. v. Kagama, 118 U.S. 375, 381-382, 30 L.Ed. 228, 6 S. Ct. 1109 (1886)."

In Morton v. Mancari, 41 U.S. 535 (1974), the United States Supreme Court upheld the Indian preference in employment practiced by the Bureau of Indian Affairs, against both statutory and constitutional challenges. The Court noted that "the preference is political, rather than racial, in nature." It explained that "(t)he preference, as applied is granted to Indians not as a discreet racial group, but rather, as members of a quasi-sovereign tribal entities."

The special political status of Indian tribes also formed the basis of recent decisions by the United states Supreme Court in Moe, Sheriff, et al v. Confederated Salish and Kootenai Tribes of the Flathead reservation, et al., 44 U.S. L.W. 4535 (decided April 27, 1976), and in Fisher v. the District Court of the Sixteenth Judicial District of Montana, No. 75-5366 (U.S. Sup. Ct. decided March 1, 1976). In Moe, supra, the Court, referring to its constitutional holding in Mancari, supra, stated that the rationale of preferences for Indians are neither "invidious" nor "racial" in character. In considering the role of the Cheyenne Tribal Court, the U.S. Supreme Court in Fisher stated,

"the exclusive jurisdiction of the tribal court does both derive from the race of the plaintiff but rather from the quasi-sovereign status of the northern Cheyenne Tribe under federal law." 424 U.S. at 390.

In United States v. Antelope, U.S. , Vol. 45, No. 40., U.S. Law Week, April 19, 1977, the United State Supreme Court again relied on the quasi-sovereign status of Indian tribes as a basis to uphold federal legislation. The legislation involved a statutory scheme which the lower court had found was racially discriminatory against Indians because of the application on a racial basis of certain criminal doctrines. The Court noted that it had unanimously concluded in Morton v. Mancari, supra, that the distinction considered therein was based on "quasi-sovereign tribal entities" and not race.

The court further noted:

"The decisions of this Court leave no doubt that federal legislation with respect to Indian tribes, although relating to Indians as cuh, is not based upon impermissible racial classifications. Quite the contrary, classifications expressly singling out Indian tribes a subjects of legislation are expressly provided for in the Constitution and supported by the ensuing history of the federal Government's relations with Indians."

"...Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory, Worcester v. Georgia, 6 Pet. 515, 557 (1832); they are 'a separate people' possessing the power of regulating their internal and social relations..." United states v. Mazurie, 419 U.S. 554, 557 (1975).

"Legislation with respect to these 'unique aggregations' has repeatedly been sustained by this Court against claims of unlawful racial discrimination."

The court continued stating:

"Such regulation is rooted in the unique status of Indians as 'a separate people' with their own political institutions."

The "jurisdiction in the Navajo tribe intersovereign rendition" was found by the Ninth Circuit in Arizona ex rel. Merrill v. Turtle, 413 F.2d. 683 (1969), to be sufficient to defeat the agreement of the State of Arizona to extradite an Indian, sought by Oklahoma, from the Navajo reservation located within the state.

The authority of tribal courts has been upheld on the basis of the inherent right of sovereignty. The Eighth Circuit spoke eloquently to this effect, in Iron Crow v. Oglala Sioux Tribe, 231 F 2d. 89 (1956):

"(F)rom time immemorial, the members of the Oglala Sioux Tribe have exercised powers of local self-government, regulating domestic problems and conducting foreign affairs, including in letter years, the negotiation of treaties and agreements with the United States.

We hold that Indian tribes, such as the defendant Oglala Sioux Tribe of the Pine Ridge reservation, South Dakota, still possess their inherent sovereignty excepting only where it has been specifically taken from them, either by treaty or by Congressional act.

It would seem clear that the Constitution, as construed by the Supreme Court, acknowledges the paramount authority of the United States with regard to Indian tribes but recognizes the existence of Indian tribes as quasi-sovereign entities possessing all the inherent rights of sovereignty excepting where restrictions have been placed thereon by United States itself."

Speaking to the same effect, the Ninth Circuit has recently stated:

"(A)s a matter o general Indian law, tribal courts are residuals of each tribe's semi-sovereign existence, having criminal jurisdiction over all persons and offenses within the tribes' domain, to extent that such jurisdiction is not inconsistent with treaties, agreements of federal enactments." Quechan Tribe v. Rowe, No. 72-3199 (9th Cir. February 2, 1976.)

In recently upholding tribal criminal jurisdiction over non-Indians, the Ninth Circuit noted that "(t)he proper approach to the question of tribal criminal jurisdiction is to ask first, what the original sovereign powers of the tribes were, and, then, how far and in what respects these powers have been limited." Oliphant v. Schlie, No. 74-2154 (August 24, 1976). The court further declared that the various Indian tribes "retain those powers of autonomous states that are neither inconsistent with their status nor expressly terminated by Congress."

Indian tribes have been uniformly held to possess sovereign immunity, in the sense that they are immune from suit in the absence of express congressional waiver of such immunity. United States v. United States Fidelity and Guaranty Co., 309 U.S. 506 (1940).

The Fifth Circuit, in Maryland Cas. Co. v. Citizens National Bank North Hollywood, 361 F2d. 517, 520 (1966), explained the origin of this concept:

"Indian nations, as an attribute of their quasi-sovereignty, are immune from suit, either in the federal or state courts, without Congressional authorization...from the beginning of our government, Indian nations or tribes have been regarded as dependent political communities or nations; an as possessing the attributes of sovereignty, except where they had been taken away by Congressional action. They are quasi-sovereign nations."

In United States v. Mazurie , 419 U.S. 544 (1975), the U.S. Supreme Court noted that "the independent authority over matters that affect the internal and social relations of tribal life" was a sufficient basis on which to support the delegation of Congressional authority to the tribe relative to the control of liquor licensing on non-Indian owned land within the reservation. The Court stated:

"Thus it is an important aspect of this case that Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory, Worcester v. Georgia, 6 Pet.515,557, 8 LEd. 483 (1832); they are 'a separate people' possessing 'the power of regulating their internal and social relations...' (citing cases)."

Recent statutory enactments, such as the Indian Self-Determination Act and the Indian education Act, are directed toward restoring tools to Native Americans to regulate their internal and social relations.

We are now at a crossroads in our dealings with the Indian nations within our borders. The United States has always prided itself on its cultural diversity and its federal system of division of powers. Surely within our midst, there is room for those native to this continent to exist and grow within their tribal structures. Sadly, our national honor has been repeatedly blemished by our failure to live up to our word and to extend a fragment of the human respect that first greeted visitors to these shores. The tribal structures have, however, survived, and sovereignty, in a real, although diminished form, has continually been acknowledged by the courts. Such sovereignty must be encouraged; for it is by the strengthening of tribal bonds and culture that not only Indian people will be served, but our national honor as well.

(Originally published in Quaere, University of Minnesota Law School, March & April, 1977 issues.)

(Also, published as appendix within Ortiz, Roxanne, Dunbar The Great Sioux Nation, Moon Books - Random House (1981))

FOOTNOTES

  1. United States Constitution: Article VI, Section 2, Article I, Section 8, Clause 3; Article II, Section 2, Clause 2.
  2. 371 is the total number of treaties signed by both parties, subsequently ratified by Congress, and proclaimed by the President. Additional treaties were signed by the United States and Indian nations that were thereafter not ratified, or if ratified, not proclaimed.
  3. Volume 25.
  4. A follower of Red Cloud, the Great Sioux Chief, stated that "(t)hey made us many promises, more than I can remember, but they never kept but one; they promised to take our land and they took it."
  5. The Indian removal Act, 4 Stat. 411 (1830); similar legislation followed.
  6. The General allotment Act, 24 Stat. 388 (1887); further legislation provided for allotment of specific reservations.
  7. See H. R. Con. res. 108, 83rd Cong, 1st Sess., Congressional record 9968, 10815 (1953).
  8. A History of Indian Jurisdiction, American Indian Journal, Vol. 2, No.4, April, pp. 2-15.
  9. Felix Cohen, Handbook of Federal Indian Law, (1942), p.122. The 1958 "revision", issued by the U.S. Department of Interior, is an unreliable reference, since it was "updated" (not by the original author, then deceased) to provide support for the termination policies then in vogue.
  10. Perhaps the oldest on-biblical definition of national sovereignty as offered by Cicero:
    "Every nation that governs itself, under whatever form, without dependence on any foreign power, is a sovereign state. Nations or states are body politic, societies of men united together for the purpose of promoting their mutual safety and advantage by joint efforts of their combined strength."
  11. The continued modern day sovereignty of the Indian tribes also finds support on Cicero:
    "We ought to include as sovereign states those who have united themselves with another more powerful by an unequal alliance, in which, as Aristotle says, to the more powerful is given more honor, and tot the weaker more assistance... (P)rovided the inferior ally reserved to itself the sovereignty, or the right of governing its own body, it ought to be considered as an independent state that keeps up an intercourse with others under the authority of the law of nations."
  12. Franciscus de Vitoria, De India et De Jure Belli Reflectiones, circa 1539.
  13. 3. United States Constitution: Article VI, Section 2; Article II, Section 2, Clause 2; Article I, Section 8, Clause 3.

    14. 25 U.S.C. 71

    15. 7 Stat. 13, Sept. 17, 1778

    16. United State Constitution, Article I, Section 8, Clause 3

    17. Greeley, American Conflict (1864), Vol.1, p. 106

    18. 1 Stat. 50 (1787).

    19. Act of July 22, 1790, Ch. 33, 1 Stat. 137

    20. Interestingly, the Indian Non-Intercourse Act is now providing ammunition to a few small eastern tribes which ceded land to the state by a treaty following 1790. The Non-Intercourse Act precluded treating with Indian tribes by all but the federal government. If these state treaties are illegal, state claim to the lands ceded is in doubt. in the context of land area, the most significant claim is that of the 3000 Passamaquoddy and Penobscot Indians of Maine, who now claim 58% of the State. Because of the claim, bond counsel to Municipalities, school boards, and state units have refused to certify a number of proposed bond issuances.

    21. 18 U.S.C. 1152

    22. 18 U.S.C. 1153

    23. 24 Stat. 388 (1887)

    24. See McClanahan v. Arizona, 411 U.S. 164 (1973); Williams v. Lee, 358 U.S. 217 (19 ); Kennerly v. District Court of Montana, 400 U.S. 423 (1971)

    25. 25 U.S.C. 1321 as amended (1953)

    26. United States v. Consolidated Wounded Knee Cases, 389 F. Supp. 35 (D. Neb. W.D. S.D. 1975); aff'd in major part, 8th Circuit Court of Appeals, No. 75-1173, No. 75-1398, No. 75- 1483, July 15, 1976; Petition for Writ of Cert. pending before U.S. Supreme Court.

    27. 109 U.S. 556, 3 S. Ct. 396, 27 L.Ed. 1030 (1883)

    28. The Indian Civil Rights Act, 25 U.S.C. 1301-1303 (1968), guarantees specified rights infringement by Indian tribes. These constitute some but not all the rights specified in the Bill of Rights.

    29. Another interpretation of the effect of the power of the United States on Indian sovereignty is contained within the "Red Paper", issued by the International Treaty Council, following the second International Indian Treaty Conference held on the Yankton Sioux reservation on June 13-20, 1976. The International treaty Council proclaims sovereignty for the respective Indian nations, and views the actions of the United States as colonial:

    "The United states has imposed a foreign form of government on the Indians and recognizes that government...not a traditional legitimate government. The United States maintains that no Indian nation's law is effective without United State approval. It imposes its criminal law, foreign trade, currency, postal service, radio, television and air transport regulations on reservations...An Indian nation is not even allowed to sign contracts or to hire a lawyer without the permission of the United States. Any self-government left to Indian nations by the United States is, it is made clear, left only by the grace of the United States Congress. The United States maintains it has a right to, at any time, pass a law and make it applicable to Indians on their reservations whether or not the laws conform to treaties with Indians, to international law, or to the United Nations Charter."

    30. Cohen, Handbook of Federal Indian Law, (1942), p.123

    31. It should be noted that some tribes such as the Chippewa and Sioux (native to Minnesota), have never been conquered, but entered into treaties with the United States from a position of strength.

    32. In Bryan v. Itasca County, Minnesota, U.S. (No. 75-5027, June 14, 1976), The Supreme Court defeated attempts to tax Indian-owned, reservation-based property within Minnesota. The Court stated that McClanahan, supra was applicable, despite Public Law 280 which provided for the delegation of certain civil and criminal authority on Indian reservations in sic states, including Minnesota. The Court stated the Public Law 280, in the context of civil jurisdiction constitutes "a reaffirmation of the existing reservation Indian- Federal Government relationship in all respects" except for "the conferral of state court jurisdiction to adjudicate private civil causes of action involving Indians."

    33. See Turner v. United States, 248 U.S. (1919); Hamilton v. Nakai, 453 F.2d. 152 (9th Cir.1971); Greene v. Wilson, 331 Frnd. 769 (9th Cir. 1964); Cherokee Nations v. State, 461 F.2d. 674 (10th Cir. 1972); Twin Cities Chippewa Tribal Council v. Minnesota Chippewa

    Tribe, 370 F.2d. 529 (8th Cir. 1967); Maryland Casualty Co. v. National Bank, 361 F 2d. 517 (5th Cir. 1966); Iron Crow v. Oglala Sioux Tribe, 231 F2d. 89 (8th Cir. 1956); and Barnes v. United States, 205 F. Supp. 97 (D. Mont. 1962).

    34. In Indian Civil Rights Act (25 U.S.C. 1301 et seq.) enacted in 1968, guarantees specified rights against infringement by Indian tribes. Courts have held that the Act manifests a waiver by Congress of the sovereign immunity of an Indian tribe as to actions alleging violation of the specified civil rights.

    35. 25 U.S.C. 450 (1975).

    36. P.L. 92-318, P.L. 92-380


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