AIDTAC
American Indian Disability Technical Assistance Center
Technical Assistance on Native American Culture:
Improving WIPA Services to Native American SSA Beneficiaries
with Disabilities
Issues Brief #5
May 2007
Tribal Sovereignty
American Indian tribes have a special status within the federal system of the United States. This
unique status is based both on their prior control of all the land and resources of this country and
on the constitutional, congressional, and judicial rights that the United States recognize as
belonging to tribes. They have a political status in this country unlike any other group of people,
based on the treaty clause of the U.S. constitution. As a result, American Indian individuals are
members of tribal nations and citizens of the United States, having some rights and
responsibilities that differ from other Americans and some that are the same. The complex
relationships between American Indian nations and the United States and American Indian
individuals and their fellow American citizens are constantly evolving. The government to
government relationship between tribes and the U.S., which is defined in terms of tribal
sovereignty, is the focus of this paper.
Tribal sovereignty is an acknowledgement by the United States of those tribes that are federally
recognized to be self-governing, albeit in a restricted way. More than 560 tribes currently have
federal recognition in the United States (Tribal Court Clearing House, 2007); other tribes are
recognized only by state governments, while hundreds more are not recognized by any
authorities other than themselves. The status of federal recognition for tribes is often based in
treaty or by congressional or executive branch recognitions; the number of tribes with such status
has fluctuated over time. Tribes with federal recognition have the greatest powers of selfgovernance, but degrees of sovereignty vary widely from tribe to tribe based on their
constitutions. Unrecognized tribes, and their members, in some cases have rights deriving from
being Indian and in other cases lack those rights.
Tribal sovereignty is best understood as inherent, but with some congressional limitations. In the
words of 19th century Supreme Court Chief Justice John Marshall, tribal nations are considered
“domestic, dependent nations” (Cherokee Nation v. Georgia, 1831). In other words, since
Indians are accorded recognition as nations in the U.S. constitution, they retain that status; and
since they are within the borders of the United States, they are domestic. Because they are not
entirely independent, however, they are considered dependent. This dependence is formalized in
what is called the “trust relationship.”
The trust relationship (discussed later in this article) is one of the twin pillars of federal policy
actions toward American Indians; the other is the “treaty relationship.” Many—though not all—
Indian tribes, communities, and nations entered into treaty agreements with the United States in
the 18th and 19th centuries. Some tribes, such as those in Virginia, completed the treaty-making
process before the colonies broke away from England after the American Revolutionary War;
1
they do not have a treaty relationship with the U.S. because they already completed the process
before the U.S. became a country. Other tribes signed treaties with the U.S. that Congress never
ratified, and therefore never became part of U.S. treaty law; still others never entered into treaties
with the U.S. for various reasons.
For those tribes that did enter into treaties with the United States, the treaties are the foundational
recognition of their rights under U.S. law. Whereas many Americans think of treaties primarily
as documents that conveyed lands to the United States government, for tribes the treaties define
and enshrine their basic rights. These rights fall into two categories: inherent or reserved rights,
and granted rights.
Inherent rights have existed since time immemorial, which tribes retained or reserved when they
signed treaties. These rights include rights to hunt and fish and gather and utilize other resources
on lands sold to the U.S., including rights of governance. Other rights granted to tribes by the
United States were granted or conveyed under the aegis of the trust relationship; for example,
they include rights to health care and education benefits.
In its most basic terms, the trust relationship is a derivation of pre-Columbian Spanish law
brought into the U.S. legal system. It posits that the United States has a responsibility for the
survival and welfare of the people whose land and resources were dispossessed in order to build
what by the twentieth century was the wealthiest nation in the world. One example, the Indian
Health Service, is supported under this trust doctrine as a responsibility that the U.S. has
assumed to ensure the health of Native Americans, as part of the exchange made to gain access
to their best lands and the resources on those lands.
While Indian nations were written into the Constitution, it was in the early 19th century that U.S.
policy toward tribes began to evolve. The most significant documents defining that relationship
are a series of Supreme Court cases known collectively as the Marshall trilogy (American Indian
Policy Center, 2002). Those cases not only defined tribal status as domestic dependent nations,
they also outlined the relationship tribes would have with various governments and governmental
entities. For example, the court decided, based on the Constitution, that no authority other than
the federal government could purchase land from Indian tribes. It also ruled that the states had no
jurisdictional rights in Indian country; later, congressional actions modified this ruling. Indian
governments, however, were ruled to be under the control of the U.S. federal government,
placing Indian governments on a status similar to that of states. Finally, in the early 20th century,
the Court claimed that the U.S. Congress has plenary power over tribes—meaning the
government can do as it will even without consideration of treaties, court decisions, or previous
laws passed.
As previously mentioned, Congress (using its plenary power) has restricted both tribal and
federal jurisdiction in Indian country. Although there are some exceptions, Indian nations have
no control over international relations, which are under the sole domain of the U.S. government.
Since the late 19th century, the United States has claimed jurisdiction over specifically defined
“major crimes” such as felonies like kidnapping, murder, armed robbery, and rape in Indian
country. Tribes have broad civil jurisdiction over other domestic matters, but only when their
authority has not been restricted by Congress; as a rule, tribes lack that jurisdiction unless they
specifically claim it. To complicate matters, many Indian reservations were disbanded by various
policies in the 19th and 20th centuries, dispossessing Indians of land even on their own
2
reservations; in numerous cases non-Indians have become the primary land-controllers, either
through ownership or lease, of Indian lands.
In summary, civil and criminal jurisdiction in Indian country is complex, with tribal sovereignty
and self-determination restricted to various extents across Indian country. The only way to know
the extent of sovereignty in a specific tribal community is to understand the community
individually. Service providers should grasp what tribal sovereignty means in general terms and
then look at the specific conditions in the community where they are working.
The best way to understand a community where you are working is to develop relationships with
community members and to do so in a respectful manner; demonstrate your openness to learning
the intricacies of the historical development of the community where you are working.
Openness to constant learning and growth is essential; even the most informed experts do not
understand tribal sovereignty completely. Those who are willing to keep learning about tribal
sovereignty and its historical development will find that their diligence goes a long way toward
creating an understanding of and positive working relationship with a tribal community.
References
American Indian Policy Center. (2002). Fundamental principles of tribal sovereignty. Accessed
May 3, 2007, from http://www.airpi.org/research/st98fund.html
Cherokee Nation v. Georgia 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831).
Tribal Court Clearing House. (April 2007). Tribal law enforcement. Accessed April 30, 2007,
from http://www.tribal-institute.org/lists/enforcement.htm
________________________________________________________________________
This Issues Brief was written by Dr. Dave Beck, Professor and Acting Chair of Native American Studies
at the University of Montana.
Alternative formats are available upon request.
The Technical Assistance on Native American Culture project is funded by the United States
Social Security Administration. Opinions expressed in this Issues Brief are not necessarily those
of the Social Security Administration.
________________________________________________________________________
AIDTAC
American Indian Disability Technical Assistance Center
Technical Assistance on Native American Culture
Tel (406) 243-5441, (406) 243-4200 (TTY), (406) 243-2349 (Fax)
http://www.NativeAmericanCWIC.org
3
Reader Survey: Issues Brief 5
Tribal Sovereignty
The Native American CWIC Team is dedicated to providing you with timely, useful information.
To help us, please take a moment to answer these questions and email to
jclay@ruralinstitute.umt.edu.
.
Name/Title: ___________________________________________________________
Agency: _______________________________________________________________
Agree
The contents were clearly stated
5
4
3
2
Disagree
1
I will apply this info in my work
4
3
2
1
5
I will share the publication with others
_____Yes
4
_____No