Research Reports
Reflections on Traditional American Indian Ways, 1998
Threats to Tribal Sovereignty, 1998
Traditional American Indian Leadership: A Comparison with U.S. Governance, 1997
Fundamental Principles of Tribal Sovereignty
Sovereignty is an internationally recognized power of a nation to govern itself.
Treaties were agreements between sovereign nations that granted special peace, alliance, trade, and land rights to the newcomers. Indian governments used treaties to confirm and retain rights such as the sovereign right of self-government, fishing and hunting rights and jurisdictional rights over their lands (Kickingbird, et al. 1980). Treaties did not, as is commonly assumed, grant rights to Indians from the United States. Tribes ceded certain rights to the United States government and reserved the rights they never gave away.
Tribal sovereignty preceded the development of the U.S. Constitution.
The framers of the United States Constitution specifically recognized the sovereignty of Indian tribes. In Article 1, section 8, clause 3 of the Constitution, Congress is identified as the governmental branch authorized to regulate commerce with "foreign nations, among the several states, and with the Indian tribes [italics added]." The Supreme Court reaffirmed this legal and political standing of Indian nations in a set of three 19th Century court decisions known as the Marshall Trilogy. These cases serve as cornerstones to understanding Indian sovereignty in the U.S. political system as a clearly defined legal status that has constitutional standing.
The Marshall Trilogy: The Supreme Court and Sovereignty
The three cases which are known as the Marshall Trilogy are Johnson v. McIntosh (1823); Cherokee Nation v. Georgia (1831); and Worcester v. Georgia (1832). In Johnson v. McIntosh (1823) the Supreme Court concluded that tribal sovereignty, although impaired by European colonization, cannot be dismissed.
Supreme Court Chief Justice Marshall stated, "In the establishment of these relations [between Europeans and Indians], the rights of the original inhabitants, were in no instance, entirely disregarded. They were admitted to be the rightful occupants of the soil, with the legal as well as just claim to retain possession of it, and to use it according to their own discretion" (Getches, Wilkinson, and Williams, Jr. 1993, 144).
Cherokee Nation v. Georgia (1831) ruled that Indian tribes were "a distinct political society, separated from others, capable of managing [their] own affairs and governing [themselves]" (Getches et al. 1979, 162).
Worcester v. Georgia (1832), the third case of the trilogy, the Court held that tribal sovereign powers were not relinquished when Indian tribes exchanged land for peace or protection.
As a result of the Marshall Trilogy legal cases, the Supreme Court both reaffirmed the sovereignty of Indian tribes and acknowledged this as predating European arrival. Because Indian nations lie within the acknowledged boundaries of the United States, Chief Justice Marshall delineated Indian tribes as "domestic dependent nations." It is under this definition that Indian tribes find themselves operating today.
Interpretations of Indian treaties are supposed to favor Indian tribes.
In Winter v. U.S. (1908) the court states that, "By rule of interpretation of agreements and treaties with Indians, ambiguities occurring will be resolved from the standpoint of the Indians." In addition, the courts have developed canons of treaty construction that are supposed to guide the interpretation of Indian treaties in decisions.
Three basic canons:
- Ambiguities in treaties must be resolved in favor of the Indians.
- Indian treaties must be interpreted as the Indians would have understood them.
- Indian treaties must be construed liberally in favor of the Indians (Pevar 1992).
Contemporary conflicts between Indian tribes and non-Indians occur as new conditions and situations arise. Thus, there is a constant legal process of defining and interpreting treaties to settle current issues. The standard for resolving these conflicts was established in Winter v. U.S. (1908). "In interpreting Indian treaties, ambiguities are to be resolved in favor of the Indians. Court decisions have stated that this rule applies to agreements as well, and also federal statutes" (Kickingbird et al., 1980, p. 32).
The aforementioned canons apply to treaty cases and to all tribal/federal agreements and statutes. The reasoning behind establishment of the canons of treaty construction was that nuances of the English language were not be the same for Indians as they were for English-speaking negotiators. The Court has also ruled in various cases (see, e.g., Choctaw Nation v. United States (1970); United States v. Shoshone Tribe (1938); Starr v. Long Jim (1913); Fleming v. McCurtain (1909); Worcester v. Georgia (1832)) that the nature of the times when the treaty was signed must also be considered when engaging in present day interpretations of treaties.
The Trust Responsibility
Trust responsibility is integral to the principle of tribal sovereignty. It derives from negotiations with Indian tribes that bound the United States to do the following:
- Represent the best interest of the tribes,
- Protect the safety and well-being of tribal members, and
- Fulfill its treaty obligations and commitments.
The foundation of this unique relationship is one of trust: the Indians trust the United States to fulfill the promises which were given in exchange for their land. The federal government's obligation to honor this trust relationship and to fulfill its treaty commitments is known as its trust responsibility (Pevar 1992, 26). The American Indian Policy Review Commission in 1977 explained the trust obligation in the following way:
The scope of the trust responsibility extends beyond real or personal property which is held in trust. The United States has the obligation to provide services, and to take other appropriate actions necessary to protect tribal self-government. The doctrine may also include a duty to provide a level of services equal to those services provided by the states to their citizens [e.g., educational, social, and medical]. These conclusions flow from the basic notion that the trust responsibility is a general obligation which is not limited to specific provision in treaties, executive orders, or statutes; once the trust has been assumed, administrative action is governed by the same high duty which is imposed on a private trustee [emphasis added].
Despite clear sovereignty of Indian tribes, and trust responsibility obligations of the U.S. government, historic relations between Indians and U.S. governments have been filled with continuous attempts to erode sovereignty. As noted above, this has taken many forms including attempts at assimilation and termination of Indian tribes and people.
Current threats to tribal sovereignty are simply the latest surge in this process. Yet many non-Indians believe that sovereignty is a new Indian cause and that it is open to question or debate. Contrary to attempts by policy makers and political leaders to generalize about Indian history, the fact remains that Indian people are not just another racial minority group - they are a people who have retained a unique aboriginal sovereign status.
The
Well-Being of American Indian Children in Minnesota: Economic Conditions,
1994
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