Tribal Sovereignty
Nebraska Child Support
Enforcement Association
Annual Training Conference
Joseph H. Morsette, J.D., LL.M.
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The Doctrine of Inherent
Sovereignty
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In its simple form, sovereignty is the ability of a people to make their own laws
and live by them. The right of Indian Nations to make their own laws and be
governed by them. The right to be free of state or federal regulation, unless
U.S. Congress clearly expresses an intent to apply federal law to Tribes.
The exercise of sovereignty also means that the Tribe will comply with the laws
it enacts and provide a remedy for any violations of those laws.
Sovereignty is strongest when the Tribe is regulating its internal affairs. When
it engages in commerce with off-reservation interests or employs non-Indian,
U.S. federal courts have been less willing to hold that Tribes are not bound by
federal law.
Since 1492 when Christopher Columbus first landed in what the Europeans
called the “New World,” European governments dealt with Indian Tribes on a
government-to-government basis as sovereigns.
They entered into Treaties with Tribes just as they did with other European
countries.
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Foundations of United States
Federal Indian law
• Indian Tribes were self-governing nations before Europeans arrived on this
continent, and they still exercise the powers of a sovereign government.
• King George’s Proclamation: “Indian Country”
• Declaration of Independence & Revolutionary War.
• U.S. Constitution, Article I, Section 8, Clause 3 – Indian Commerce
Clause: U.S. Congress shall have the power to regulate commerce with
foreign nations, among the several states, and with the Indian Tribes.
• The Marshall Trilogy: Johnson v. McIntosh, 21 U.S. 543 (1823)(Aboriginal
Title, Doctrine of Discovery); Cherokee Nation v. Georgia, 30 U.S. 1
(1831)(Domestic Dependent Nation Status); Worcester v. Georgia, 31 U.S.
515 (1832)(State law shall have no force in Indian Country).
• Indian Tribes, U.S. Supreme Court (SCOTUS) has recognized, “exercise
inherent sovereign authority over their members and territories.
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Fundamentals of the Marshall
Trilogy
• Doctrine of Discovery: Exclusive Right to Transact with Indigenous
Population.
• Native Nations are Inherent Sovereign: Qualified by concepts of U.S.
Congress’ plenary power doctrine and domestic dependent nation status.
• Indian Law is the province of the federal government, not several states.
• Indian Trust Doctrine: Fiduciary Responsibility/Canons of federal Indian
law.
• Aboriginal Rights to Land and Resources: Qualified by concepts of Right
to “Use and Occupancy” which is subordinate to U.S. government’s
ultimate fee. The cloud on the U.S.’s title may be extinguished through
clear:
• Treaty,
• Purchase,
• Conquest.
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Tribal Self-Governance
• Question: What is the source of Tribal power?
• Answer: The source of an Indian Tribe’s power is its people. Indian Tribes
and their members have the inherent right to govern themselves, a right
they have possessed “from time immemorial.”
• As a federal appellate court state in 2002: “Indian Tribes are neither states,
nor part of the federal government, nor subdivisions of either. Rather, they
are sovereign political entities possessed of sovereign authority not derived
from the U.S., which they predate. [Indian Tribes are] qualified to exercise
powers of self-government…by reason of their original Tribal sovereignty.”
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Tribal Sovereignty
• The recognition and treatment of Tribes as sovereign governments was
incorporated into the American legal system by the United States when the
original thirteen (13) colonies first organized into a new nation.
• The Articles of Confederation adopted in 1781 reserved for the federal
government the “sole and exclusive right and power” of regulating trade
with Tribes, Article IX, § 4.
• In 1789, on the conception of the U.S. Constitution, sovereignty of the
American Indian Tribes was expressly recognized and respected by the
Indian treaty clause giving the U.S. the exclusive authority to enter into
treaties with Indian nations.
• The Indian Commerce Clause is another area we point to, to establish
Tribal Sovereignty. The ICC reserves to Congress the exclusive power “to
regulate commerce with foreign nations, and among the several states, and
the Indian Tribes. Article 1, § 8, clause 3.
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Treaties
• Treaties, in essence, are contracts, but they are unique
in that they are contracts between sovereign nations.
• The use of treaty making as the means to negotiate
and reach agreements with Tribes was an explicit
recognition by the European nations of Tribal
sovereignty.
• Between 1789 and 1871, the U.S. formalized about
350 treaties with the Indian Tribes. The treaties were
primarily used to acquire concessions of rights that
the Tribes possessed, such as rights to a particular
parcel of land.
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Right of U.S. to Abrogate
Sovereignty
• What are the limits of Tribal power?
• The U.S. Supreme Court has held that the U.S. has the authority to abrogate
sovereignty and apply federal laws to Indian Tribes.
• Retained Diminished Dependent Tribal Sovereignty.
• Examples include:
• The Indian Major Crimes Act (1885) 18 U.S.C. § 1153.
• The Indian Civil Rights Act (1968) 25 U.S.C. § 1301-4: Limitations on
Internal Governmental Affairs.
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Are Tribal Powers limited by the
U.S. Constitution?
• NO! SCOTUS held more than a century ago that the U.S. Constitution
does not limit the exercise of Tribal authority.
• There is nothing in the U.S. Constitution that requires Indian Tribes to
conform their powers of self-government to its provisions.
• Tribal governments thus may enact laws that would violate the U.S.
Constitution if those same laws had been enacted by the federal (5th
Amendment – Due Process), or state governments (14th Amendment – Due
Process and Equal Protection).
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The Scope of Tribal Powers
• Tribal governments have the same powers as the federal and state
governments to regulate their internal affairs, with a few notable
exceptions.
• The nine (9) most important areas of Tribal authority:
• (1) The right to for a government;
• (2) The right to determine Tribal membership;
• (3) The right to regulate Tribal land;
• (4) The right to regulate individually owned land;
• (5) The right to tax;
• (6) The right to maintain law and order;
• (7) The right to regulate the conduct of non-members;
• (8) The right to regulate domestic relations; and
• (9) The right to engage in and regulate commerce and trade.
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Customary and Traditional
American Indian Legal Systems
• Tribal customary law found its sources, values,
principles, and rules primarily in tribal clan and
kinship systems and relationships.
• Enforcement of tribal law was therefore primarily a
family and village affair, and focused upon restitution
and satisfying the victim or victim’s family.
• Tribal law sought to restore harmony to the people.
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Felix Cohen’s Recapitulation of the
tribal sovereignty doctrine (1941)
• “What is not expressly limited remains.”
• “Whatever hasn’t been taken away remain.”
• “Those powers which are lawfully vested in Indian
tribes are not, in general, delegated powers, but rather
are inherent powers of a limited sovereignty which
have never been extinguished.”
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Tribal Governments as
Independent Sovereigns
• Indian tribes pre-date the United States Constitution.
• Memorialized in the Indian Commerce Clause: “To
regulate commerce with…the Indian Tribes.”
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Talton v. Mayes (1896)
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Talton v. Mayes (1896)
• Facts: Talton who is a Cherokee Indian, kills another
Cherokee Indian, on Cherokee Lands, and is charged
and prosecuted in Cherokee tribal court for that
murder.
• Issue: Are Indian tribes subject to the United States
Constitution?
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Talton v. Mayes (1896)
Treaty of 1835, and reaffirmed in the Treaty of 1868,
provided:
• “tribal lands would never be included within any
territory or state of the United States.”
1890 Act establishing Oklahoma Territory provided:
• “Indian nations in the Indian Territory would retain
exclusive jurisdiction over crimes committed by tribal
members in Indian country.”
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Talton v. Mayes (1896)
• Holding:
• No. There is nothing in the Treaty, Statute, and in
absence of Congress, we will not apply the Bill of
Rights.
• “It follows that as the powers of local selfgovernment enjoyed by the Cherokee nation existed
prior to the Constitution, they are not operated upon
by the Fifth Amendment.”
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Talton v. Mayes, Takeaways
• Upholding the Doctrine of Indian Tribal Sovereignty.
• Rigorously applies the Marshall Model:
“Whatever has not been taken away remains.”
• The Marshall Model trumps Tribal Sovereignty, until
Congress changes it.
• Tribal Sovereignty under the Marshall Model, is
outside the Constitution, and tribes are not subject to
the restraints of the Constitution.
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United States v. Wheeler (1978)
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United States v. Wheeler (1978)
• Facts: Navajo Indian defendant pled guilty in Navajo
Tribal Court to disorderly conduct and contributing to
the delinquency of a minor. A year after the tribal
prosecution, the defendant was indicted in federal
court for rape arising out of the same incident.
• Issue: Source of this power to punish tribal offenders:
Is it a part of inherent tribal sovereignty, or an aspect
of the sovereignty of the Federal Government which
has been delegated to the tribes by Congress?
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United States v. Wheeler (1978)
Holding:
• “remain ‘a separate people, with the power of
regulating their internal and social relations.’” Citing
U.S. v. Kagama, and Cherokee Nation v. Georgia.
• “[i]t is evident that the sovereign power to punish
tribal offenders has never been given up by the
Navajo Tribe and that tribal exercise of that power
today is therefore the continued exercise of retained
tribal sovereignty.”
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United States v. Wheeler,
Takeaways
• Upholding the Doctrine of Indian Tribal Sovereignty.
• Continues the notion of conceptualism under the
Marshall Model.
• Explicit analogy to the pre-sovereign status like
states.
• Dual Sovereignty Doctrine, treating tribes like states.
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The Contemporary Scope of
Tribal Sovereignty under the
Indian Civil Rights Act
• Talton v. Mayes, 1896: held that Indian tribes are not
subject to the U.S. Constitution’s Bill of Rights.
• The Indian Civil Rights Act of 1968 was passed by
Congress over strong tribal objections.
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Rules devised by the federal
courts enforcing the ICRA
• 1. While the ICRA is generally patterned after the Bill of
Rights, the same language does not necessarily have to be
interpreted in the same way;
• 2. The ICRA does not require that Indians and nonIndians always have to be treated identically by tribal
governments; that is, different treatment is permitted and
justified in certain circumstances (for example: tribal
membership requirements);
• 3. Tribal customs, traditions, and culture must be
considered in interpreting and applying the ICRA;
• 4. Tribal remedies must first be exhausted before a
dispute can be heard in federal court.
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Santa Clara Pueblo v. Martinez
(1978)
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Santa Clara Pueblo v. Martinez
(1978)
• Facts: Julia Martinez filed suit against the tribe
stating that a tribal ordinance denying membership to
children of female members who marry outside the
tribe (while extending membership to children of
male members who marry outside the tribe) violated
the ICRA’s equal protection provision.
• Issue: Whether the ICRA may be interpreted to
impliedly authorize the bringing of civil actions for
declaratory or injunctive relief to enforce its
substantive provisions?
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Santa Clara Pueblo v. Martinez
(1978)
Holding:
• “But unless and until Congress makes clear its
intention to permit the additional intrusion on tribal
sovereignty that adjudication of such actions in a
federal forum would represent, we are constrained to
find that Section 1302 does not impliedly authorize
actions for declaratory or injunctive relief against
either the tribe or its officers.”
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Santa Clara Pueblo v. Martinez,
Takeaways
• The Santa Clara Pueblo decision held that there is
only one exception to the general rule that the ICRA
does not grant federal courts jurisdiction to hear
alleged violations of the ICRA: namely habeas corpus
actions.
• The Santa Clara Pueblo decision meant that claims
of ICRA violations could be brought only in tribal
court.
• Since this case, the U.S. Supreme Court has not
approved jurisdiction over a non-Indian, absent
consent.
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Santa Clara Pueblo v. Martinez,
Takeaways
• Permit professional attorneys to represent criminal
defendants in tribal courts;
• Grant a jury trial upon request of the defendant in a
criminal case;
• Not impose unfair or cruel sentences on criminal
defendants;
• Define crimes specifically and without vagueness or
ambiguity; and
• Have a prosecutor in criminal proceedings.
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Takeaways
• Tribes have Retained but some Diminished
Inherent Tribal Sovereignty over its own members
when regulating its internal affairs.
• Tribes have Retained but severely Diminished
Inherent Tribal Sovereignty over non-members,
when regulating its internal affairs, taken away
over time by SCOTUS, and federal laws.
• Whatever has not been taken away, remains.
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Questions, Comments,
and/-or Concerns
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