Soc 338

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Irreconcilable sovereignties since US
Constitution ratified 232 years ago:
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US Constitution: jurisdictional monopoly
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Sovereignty of Native American Nations as original occupants of this land
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No resolution of this tension, except at the expense of Native American tribal nations & people in different periods - see quote p. 45

1.
Tribal people are the original - or indigenous inhabitants of North America and claim to be sovereign nations : they are the “ third sovereigns ”
2.
Over 600 tribal independent tribal nations entered into over 500 treaties and alliances with
European nations and later the U.S., deemed the baseline of government-to-government relations
=> Tribal nations have both extra-constitutional & constitutional (treaty protection) relations with the U.S.

3.
Indian tribal nations are protected by the
Trust Doctrine , whereby the US us trustee and the Tribes are beneficiaries:
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Federal promise to protect tribal property & sovereignty, and to always act in consultation
Act with integrity and abide by treaties
Act morally in Judeo-Christian tradition
Support additional protections as needed

4 . Constitutional, selfvested (Art. 1, “commerce clause”) Congressional Plenary Power:
Exclusive/preemptive/unlimited/absolute jurisdiction to regulate all aspects of the tribal-federal relationship, including treaties, commerce, and laws that relax or restrict the domain of tribal sovereignty
=> both positive & negative aspects of unilateral, extraconstitutional legislation seen in U.S. history.

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Original inherent power of regulating one’s internal affairs
(“regional autonomy” in other countries, international law):
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Political dimension: make & execute laws, impose collect taxes, make alliances with other governments, form tribal gov.’s
Cultural dimension: see quote p. 51
Tribal-US-States (or corporate) relations are like an ongoing & awkward minuet, usually choreographed by the Fed. Gov. with little regard to the inherent rights of the tribal nations. But the tribes have learned to choreograph more since the Red Power Movement of the late 60s./70s

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From the very beginning, U.S. relations with
Indians was a political one between “civilized” and
“savage” nations:
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See the 9 early doc.’s of US political history on pp 52-
54: autonomous nations described in hostile or paternalistic ways.
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Individual Indians NOT deemed citizens unless they first abandoned tribal citizenship/tribal property (1817), tribes could be “naturalized” if they abandoned their customs/language
1887 Dawes Act granted citizenship to those that accepted allotments, after 25 year waiting period.

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Special naturalizations: Indian women married to white men (1888), Indian men who fought in WWI (1917).
Senate denied US citizenship to Indians after the passage of the 1868 14th Amendment, except for
“Indians who had merged with the mass of the people” fell under federal jurisdiction, but not citizenship!
Supreme Court confirmed Indians were not subject to
14th Amendment in 1884: could only be naturalized by an act of congress.
1890 Indian Territory Naturalization Act: congress allowed Indians who apply for US citizenship to be naturalized as “dual citizens”: tribal/US
1905 Supreme Court ruled US citizenship immediately upon accepting allotments (so they could buy liquor!!), but it was overturned in 1906 by new law imposing the
25-year delay, then overturned by S.C. in 1916

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In 1924 Congress finally passed the
General Citizenship Act granting all
U.S.-born Indians individual U.S. citizenship without diminishing their tribal citizenship.
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Some tribes refused to accept it and have sought recognition by U.N. and issued their own passports (which are honored).

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How to manage Intratribal, intertribal, intergovernmental, tribal-corporate, relations and conflicts
Tribal self-determination issues
Triple citizenship hassles: fed., state, tribal competing statuses.
Reservation issues are usually outside the constitutional protections.