Western Hemisphere

When the United States government formed, it replaced the British government as the other sovereignty coexisting in America with the American Indians.

In U.S. law the term “Indians” refers generally to the indigenous peoples of the “North American” continent at the time of European colonization. “Alaska Natives” and “Native Hawaiians” refer to peoples indigenous to the areas occupied by those named states. The terms “tribe” or “band” designate a group of Indians of the same or similar heritage united in a community under one leadership or government and inhabiting a particular territory. Because Indians have increasingly preferred “nation” or “people,” the term “tribe” has become controversial.

States may recognize particular “Indian” groups, even if the federal government does not recognize the group. To determine whether a group will be recognized, courts and legislatures examine such factors as the extent of Indian governmental control over individual lives and activities, the extent to which the group exercises political control over specific territory, and the continuity of the group’s history.

Unless a treaty or federal statute removes a power, however, the tribe is assumed to possess it.

Federal law recognizes a special kind of Indian sovereign authority to govern themselves, subject to an overriding federal authority. Indian tribes are considered by federal law to be “domestic, dependent nations.” Congress enacted this sovereign authority to protect Indian groups from state authority. This sovereign authority extends to Indian tribal courts, which adjudicate matters relating to Indian affairs.

The Indian Appropriations Act of 1871 had two significant sections. First, the Act ended United States recognition of additional Native American tribes or independent nations, and prohibited additional treaties. Thus it required the federal government no longer interact with the various tribes through treaties, but rather through statutes:

“That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, that nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.”

In Iron Crow v. Oglala Sioux Tribe, the United States Supreme Court concluded that two Oglala Sioux defendants convicted of adultery under tribal laws, and another challenging a tax from the tribe, were not exempted from the tribal justice system because they had been granted U.S. citizenship. It found that tribes “still possess their inherent sovereignty excepting only when it has been specifically taken from them by treaty or Congressional Act”. This means American Indians do not have exactly the same rights of citizenship as other American citizens.

The court cited case law from a pre-1924 case that said, “when Indians are prepared to exercise the privileges and bear the burdens of” sui iuris, i.e. of one’s own right and not under the power of someone else, “the tribal relation may be dissolved and the national guardianship brought to an end, but it rests with Congress to determine when and how this shall be done, and whether the emancipation shall be complete or only partial” (U.S. v. Nice, 1916). The court further determined, based on the earlier Lone Wolf v. Hitchcock case, that “It is thoroughly established that Congress has plenary authority over Indians.” The court held that, “the granting of citizenship in itself did not destroy … jurisdiction of the Indian tribal courts and … there was no intention on the part of Congress to do so.” The adultery conviction and the power of tribal courts were upheld.

Article I section 8, clause 3 of the US Constitution states that Congress is empowered to“regulate commerce with foreign nations…states…and with the Indian tribes.” Technically, Congress has no more power over Indian nations than it does over individual states.

In the 1970s Native American self-determination replaced Indian termination policy as the official United States policy towards Native Americans.Self-determination promoted the ability of tribes to self-govern and make decisions concerning their people.

In the case Menominee Tribe v. United Statesin 1968, it was ruled that “the establishment of a reservation by treaty, statute or agreement includes an implied right of Indians to hunt and fish on that reservation free of regulation by the state”.

What’s important to know and remember is that when the United States assumed the role of protector of the tribes, it neither denied nor destroyed their sovereignty.