American Indian Tribal Sovereignty
prepared by Glenda McCarthy
Billings Public Schools Indian Education for All Instructional Coach 9-12
mccarthyg@billingsschools.org
Teaching Standards
Montana Social Studies Standards
2.4 Relate the concept of tribal sovereignty to the unique powers of tribal governments as they
interact with local, state and federal governments.
6.4 Evaluate how the unique characteristics of American Indian tribes and other cultural groups
have contributed to Montana’s history and contemporary life (eg legal and political relationships
between and among tribal, state, and federal governments).
C3 Social Studies Framework
D2.Civ.1.9-12 Distinguish the powers and responsibilities of local, state , tribal, national, and
international civic and political institutions.
D2.Civ.5.9-12 Evaluate citizens’ and institutions’ effectiveness in addressing social and political
problems at the local, state, tribal, national or international level.
Montana Common Core Standards: Literacy in History/Social Studies
RH.11-12.2 Determine the central ideas or information of a primary or secondary source;
provide an accurate summary that makes clear the relationships among the key details and
ideas.
RH.11-12.4 Determine the meaning of words and phrases as they are used in a text, including
analyzing how an author uses and refines the meaning of a key term over the course of a text
(e.g. how the use of "sovereignty" in official documents impacts political and legal relationships).
SL.11-12.1.d Respond thoughtfully to diverse perspectives, with specific attention to culture;
synthesize comments, claims, and evidence made on all sides of an issue; resolve
contradictions when possible; and determine what additional information or research is required
to deepen the investigation or complete the task.
Essential Understandings Regarding Montana Indians
EU 7 Sovereignty: Under the American legal system, Indian tribes have sovereign powers,
separate and independent from the federal and state governments. However, the extent and
breadth of tribal sovereignty is not the same for each tribe.
EU 1: There is great diversity among the twelve tribal nations of Montana in their languages,
cultures, histories and governments. Each Nation has a distinct and unique cultural heritage that
contributes to modern Montana.
Suggested Learning Activities
Ask students to identify the reservations within Montana and list the tribes that lives on each.
Let them look up or remind them of any they cannot recall.
Ask them to think about who makes laws for these areas and fill out the first box of their four
square sheet. Share out some responses.
Student read definitions of “sovereignty” including Essential Understanding #7 and use these to
complete a word map. Link to any earlier discussion or class work on sovereignty of other
nations, real or hypothetical.
Read and discuss “Montana Indians and Tribal Sovereignty Fast Facts”, then students can fill
out the second box of their four square sheet.
In small groups, students take one example of a current issue involving tribal sovereignty, read
an article, research the issue further, complete a graphic organizer and report back to the class
about the issue.
Students fill in the third square of their four square sheet.
Guest speakers can present further authentic information and answer student questions.
Following this students can complete their four square sheet.
Assessment
Formative assessment tasks: word map, four-square activity, participation in class discussion
and small group work (teachers may choose to give participation/completion points)
Summative assessment: Hopefully this inquiry will contribute ideas to research papers/class
debates/mock congress bills.
Definitions
‘Sovereignty: freedom from external control, an autonomous state’
Source: Merriam Webster’s Collegiate Dictionary
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Essential Understanding 7: Under the American legal system, Indian tribes have
sovereign powers, separate and independent from the federal and state governments.
However, the extent and breadth of tribal sovereignty is not the same for each tribe.
BACKGROUND
Before colonization, Indian tribes possessed complete sovereignty. However, given the
governmental structure of the United States and the complex history of tribal-federal relations,
tribes are now classified as domestic dependent nations. This means tribes have the power to
define their own membership; structure and operate their tribal governments; regulate domestic
relations; settle disputes; manage their property and resources; raise tax revenues; regulate
businesses; and conduct relations with other governments. It also means that the federal
government is obligated to protect tribal lands and resources; protect the tribe’s right to selfgovernment; and provide social, medical, educational, and economic development services
necessary for the survival and advancement of tribes. (Echohawk)
A very important but often unappreciated point is that tribal sovereignty does not arise out of the
United States government, congressional acts, executive orders, treaties, or any other source
outside the tribe. As Felix Cohen puts it, “perhaps the most basic principle of all Indian law... is
that those powers which are lawfully vested in an Indian tribe are not, in general, delegated
powers granted by expressed acts of Congress, but rather inherent powers of a limited
sovereignty, which has never been extinguished” (Cohen 122).
Sovereignty can be defined as: The supreme power from which all political powers are derived.
It is inherent --- it cannot be given to one group by another. In government-to-government
negotiations, states and Indian nations exercise or use their sovereign powers. “Sovereignty
ensures self-government, cultural preservation, and a people’s control of their future.
Sovereignty affirms the political identity of Indian Nations --- they are not simply a racial or
ethnic minority” (Chavaree).
Chavaree, Mark A. Esq. “Tribal Sovereignty.” Wabanaki Legal News, Volume 2, Issue 1. Winter, 1998.
Cohen, Felix S. Ch. 7 “Sect. 1, Introduction - The Scope of Tribal Self-Government.” Handbook of
Federal Indian Law. U.S. Government Printing Office. 1945. 4th Printing. (Cohen’s Handbook. p 122.
http://thorpe.ou.edu/)
Echohawk, John E. “From the Director’s Desk.” Justice Newsletter. 2000.
http://www.narf.org/pubs/justice/2000fall.html
Source: Montana OPI. Essential Understanding Regarding Montana Indians. 2012. Web. 15 Feb. 2015.
http://opi.mt.gov/pdf/indianed/resources/essentialunderstandings.pd f
Montana Indians and Tribal Sovereignty - Fast Facts
American Indian tribes govern themselves much the same way states and local governments
do, through a tribal council (or similar name) served by elected representatives. Executive
authority is exercised by a tribal chairman or president.
Indian tribes have court systems, varying from highly structured to simpler, part time courts.
There is not always a separation of powers (legislative, judiciary and executive).
Prior to confinement on the reservations, traditional governance in Indian tribes had certain
common features:
● integration of political and the religious
● the importance of the tribe over the individual
● consensus decision making
Most modern tribal governments generally follow a western European model and originated in
the Indian Reorganization Act (IRA) of 1934.
Reservations that are home to more than one tribe share one tribal government. Some tribal
governments have constitutional provisions for shared representation. For example. on the Fort
Belknap reservation, the candidates for chairman and vice chairman must run as a team, one
being Assiniboine and the other, Gros Ventre.
Tribal elections are conducted by secret ballot of tribal members. Elections are not partisan.
Tribal governments:
● define conditions of membership (ex ¼ blood quantum)
● prescribe rules for inheritance of property
● levy taxes
● administer peace
● manage economic enterprise and natural resources
● develop tribal health and education programs
● maintain intergovernmental relations at the federal, state and local level
The United States Constitution gives authority in Indian affairs to the federal government, not to
the state governments. Tribal governments are not subservient to state governments.
The Bureau of Indian Affairs is a federal body responsible for land held in trust and providing
public services (education, health, law and order etc) through contracts with the tribe or directly.
Since 1972, many tribes have entered into self-government compacts with the federal
government, thereby taking responsibility for programs formerly operated by the BIA.
Source: Montana Indian Education Association. Fast Facts About Montana Tribal
Governments. 2006. Print.
Some Sovereignty Issues in 2015
Federal recognition of the Little Shell Tribe
The Little Shell Tribe of Chippewa Indians is recognized by the state of Montana but not by the
federal government. Their appeal for federal recognition has bipartisan support and would bring
their 4,500 members health and education services as well as the very important right to self
government.
Coal Development on the Crow and Northern Cheyenne Reservations
Crow and Northern Cheyenne lands have significant coal reserves, offering the potential for
much needed good paying jobs. The Crow Tribe is making a deal with Cloud Peak Energy for
exploration and the tribe want to develop their resources as much as possible in the most
responsible way, including a coal to liquids plant, a “clean coal” technology. here are objections
from environmental groups and some tribes opposing rail terminals for the transportation of
coal. In general, more Northern Cheyenne tribal members have environmental concerns about
coal development.
The Right to Grow or Ban Marijuana on Reservations
In states where marijuana has been legalized, tribes can ban it within their reservation for public
health reasons. On the other hand, if tribes want to grow crops for sale, they will now no longer
be at risk of prosecution by the Justice Department.
Translocation of Bison
Bison have great historical, practical and spiritual significance to Plains Indian tribes and many
FIrst Nations in Canada. Although they were nearly exterminated as a result of westward
expansion/eastern invasion in the 19th century, conservation efforts have successfully
reintroduced the bison in Yellowstone National Park, followed by translocations to Fort Peck and
Fort Belknap reservations. A new intertribal alliance proposes more translocations, but there is
opposition from ranchers do to competition for grazing land and the possibility of disease
transfer.
CSKT Water Compact and Dam
The State of Montana ratified a water compact with the an agreement with the Confederated
Salish and Kootenai Tribes, guaranteeing non-Indian irrigators to certain amounts of water use
and consumption. The compact is based on the 1855 Hellgate Treaty granting the tribe water
rights for instream flow for traditional fishing. The tribes have also recently taken over running
the Salish and Kootenai Dam, previously the Kerr Dam. Now the Citizen Equal Rights Alliance
(CERA) is active in the Flathead area, arguing for an end to tribal sovereignty.
Short film resource
Montana Historical Society. “Montana Mosaic: Federal Indian Policy.” Online video clip.
YouTube. 25 Apr. 2014. Web. 24 Feb. 2015.
This 19-minute video examines the changes in federal government policy toward American Indians in the
second half of the twentieth century. Focusing on the story of the Juneau family, the video looks at the
relocation program of the Bureau of Indian Affairs and the effects the relocation program had on
American Indian identity. The video touches on the events surrounding and leading up to the formation of
the American Indian Movement along with the movement's goals. Interviewees talk about their continuing
commitment to shape the federal policy and to regain control over their tribe's futures.