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American Indian Sovereignty versus the United States

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Abstract

Questions always arise about the inherent sovereignty of American Indian nations. What civil and criminal political and jurisdictional authority do they exercise over their citizens and their territories? What powers do they possess in relation to the United States? What types of political power did tribal governments in North America exercise in the past? This forthcoming book chapter takes a look at these issues. It sets forth historical evidence on the powers Indigenous governments exercised in the past and how their organizations were structured. It then looks at "Federal Indian Law" and the limitations the United States has placed on complete tribal sovereignty. But it concentrates on how Indian nations are functioning today, how they are created and structured, and what they are doing to positively exercise sovereignty within their territorial borders, within the United States, and in the international law arena. Keywords: Indigenous sovereignty, American Indian sovereignty, Indian nation sovereignty
American Indian Sovereignty versus the United States
Robert J. Miller
The word “sovereignty” holds different meanings for different nations and peoples.1 In this
chapter, however, we must work from some basic definition so that we can intelligently compare
the sovereignty and the ideas about sovereignty of the Indigenous peoples and nations located
within the United States today with the United States’ formulations and definitions of Indigenous
sovereignty.2
A widely used legal dictionary defines sovereignty as: “The supreme, absolute, and
uncontrollable power by which any independent state is governed; supreme political
authority . . . the self-sufficient source of political power, from which all specific political powers
are derived . . . .”3 Webster’s Dictionary defines sovereignty as the “supreme power, esp. over a
body politic,” and as “freedom from external control.”4 I argue that no country in the world, not
1 See, e.g., Taiaiake Alfred, Sovereignty, in SOVEREIGNTY MATTERS: LOCATIONS OF
CONTESTATION AND POSSIBILITY IN INDIGENOUS STRUGGLES FOR SELF-DETERMINATION 34, 38,
41-43 (Joanne Barker ed., 2005); id. Kilipaka Kawaihonu Nahili Pae Ontai, A Spiritual
Definition of Sovereignty from a Kanaka Maoli Perspective, at 153-54, 165; DAVID S. CASE &
DAVID A. VOLUCK, ALASKAN NATIVES AND AMERICAN LAWS 369 (2d ed. 2002).
2 I use the terms “American Indians”, “Indians”, “Alaska Natives”, and “Native Hawaiians” to
refer to the Indigenous nations and peoples located within the United States today.
3 BLACKS LAW DICTIONARY 1252 (5th ed. 1979).
4 WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 1129 (1985).
1
even the world’s leading super power, possesses this extent of sovereignty today. In class, I offer
a thumbnail definition of sovereignty as the power (jurisdiction) that a political entity exercises
over its defined territory and over all the events that occur there and the people present there.
Using these definitions, we can compare the disjuncture between the historical and modern-day
principles of Indigenous sovereignty and the United States’ ideation of that sovereignty.
I. Historical Indigenous Sovereignty
The Indigenous nations and peoples discussed in this chapter exercised sovereignty and
sovereign powers over their bodies politic, free from external controls, since time immemorial.
American Indian, Native Hawaiian, and Alaska Native governments exerted varying levels of
political power to govern their independent states and to exercise their inherent authority. While
their powers and jurisdictions have been restricted somewhat today, these governments continue
to possess extensive sovereign authority over their citizens and territories, and over Indians and
non-Indians. In addition, in the current era of United States Indian policy called “Self-
Determination,” the federal government strongly supports and encourages Indian sovereignty for
the purpose of “fostering tribal self-government.”5
A. American Indian sovereign powers
For thousands of years before Europeans arrived in North America, Indigenous peoples
and nations organized themselves through a wide array of governmental institutions that ranged
from hierarchical and even authoritarian governments that governed large, settled areas and
agrarian populations, to more informal governance structures for small bands that perhaps lived
5 Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 138 n.5 (1982).
2
by seasonal rounds and harvested wild foods and fish and animal migrations to support
themselves.
The Adena and Hopewell cultures that existed from 500 BCE to 500 CE in and around
the modern-day state of Ohio, and the Ancestral Puebloans of the American Southwest, governed
themselves through political entities that possessed the power to mobilize labor, direct
manufacture, and build roads, large urban areas, and enormous public works. The Hohokam
peoples of the Southwest, for example, constructed over 500 miles of canals to irrigate over
100,000 acres and to feed up to 50,000 people in the modern-day Phoenix, Arizona area for over
a thousand years. All these peoples also built permanent residential and enormous ceremonial
structures and practiced elaborate burials for elite leaders.6
Many Indian nations in the vast Mississippi Valley in the central part of modern-day
America were mound building cultures and erected enormous earthen mounds. For example, the
culture that existed around Poverty Point Louisiana from 1700-700 BCE continues to amaze
6 Hohokam Legacy: Desert Canals, http://www.waterhistory.org/histories/hohokam2/; National
Park Service, Pueblo Bonito, https://www.nps.gov/chcu/planyourvisit/pueblo-bonito.htm; Ohio
History Central, Hopewell Culture, http://www.ohiohistorycentral.org/w/Hopewell_Culture;
ROBERT J. MILLER, RESERVATION “CAPITALISM:” ECONOMIC DEVELOPMENT IN INDIAN
COUNTRY 13, 19-20 (2012); CHARLES C. MANN, 1491: NEW REVELATIONS OF THE AMERICAS
BEFORE COLUMBUS 41-42, 288-90 (2005); MICHELE STRUTIN, CHACO: A CULTURAL LEGACY
34-35, 50-51 (1994); LYNDA NORENE SHAFFER, NATIVE AMERICANS BEFORE 1492: THE MOUND
BUILDING CENTERS OF THE EASTERN WOODLANDS 3, 20-23, 25-26, 28, 33-34, 36-38, 40-42, 44-
45 (1992).
3
scientists today. These governments demonstrated their power, sovereignty, and jurisdiction by
mobilizing, organizing, and paying or coercing an enormous mass of labor to undertake
unimaginable building operations. Scientists state that these works took a “sophisticated level of
organization . . . to plan and direct” and that the construction of the massive Poverty Point
mounds took “at least five million hours of labor.”7
In addition, the city and culture of Cahokia, in modern-day Illinois, existed from 700-
1300 CE and had an estimated population of 20,000-50,000 in 1250 CE, larger than London. The
primary earthen ceremonial mound that the Cahokians built is the ancient world’s largest man
made structure. It covers fourteen acres; larger than the Great Pyramid of Cheops. Furthermore,
French accounts from the 1700s of the Natchez culture in the lower Mississippi region
demonstrate that it was ruled by a royal lineage, and that leaders and elite citizens were carried
about in litters. Obviously, these Indigenous societies were governed by organized political
institutions.8
Indigenous nations also exercised criminal and civil jurisdiction to control conduct in
their territories. Some American Indian tribes used whip-masters to discipline children, and many
7 Jon L. Gibson, Poverty Point: A Terminal Archaic Culture of the Lower Mississippi Valley, vii,
1-7, 11, 15, 29, 31-32 (2d ed. 1999).
8 MANN, supra note 6, at 27-28, 284-86, 291-97; THE OTHER SIDE OF THE FRONTIER:
ECONOMIC EXPLORATIONS INTO NATIVE AMERICAN HISTORY 5, 86, 103 (Linda Barrington, ed.,
1999); CAHOKIA: DOMINATION AND IDEOLOGY IN THE MISSISSIPPIAN WORLD (Timothy R.
Pauketat & Thomas E. Emerson eds., 1997); SHAFFER, supra note 6, at 51-57, 62-67, 75-85.
4
tribal cultures used corporal and even capital punishment to control conduct. Indigenous cultures
developed dispute resolution systems to settle disputes and help keep the peace. Some tribal
nations fought to defend and to expand their territories. And a few Indigenous governments also
taxed their citizens and held public monies and surplus crops in public treasuries.9
The Hawaiian monarchy provides an impressive example of Indigenous sovereign
powers. Native Hawaiian kings and queens exercised enormous power over their subjects and
built large temples. The United States overthrew the monarchy in 1893 and still to this day
refuses to recognize Native Hawaiian sovereignty.10
9 Robert J. Miller, Tribal, Federal, and State Laws Impacting the Eastern Shawnee Tribe, 1812
to 1945, in THE EASTERN SHAWNEE TRIBE OF OKLAHOMA: RESILIENCE THROUGH ADVERSITY
149-50 (Stephen Warren ed., 2017); 15 SMITHSONIAN INST., HANDBOOK OF NORTH AMERICAN
INDIANS (NORTHEAST) 83, 85, 202-06, 344-47, 384, 430 (William C. Sturtevant et al. eds.,
1978); RENNARD STRICKLAND, FIRE AND THE SPIRITS: CHEROKEE LAW FROM CLAN TO COURT
10-39, 103-05, 168-74 (1975); ANGIE DEBO, A HISTORY OF THE INDIANS OF THE UNITED STATES
13-14 (1970); K. N. LLEWELLYN & E. ADAMSON HOEBEL, THE CHEYENNE WAY: CONFLICT AND
CASE LAW IN PRIMITIVE JURISPRUDENCE 18, 20, 24, 26-28, 42-43, 48, 132-40, 143-46, 157-58,
166-71, 181-82, 185-86, 213-38, 276-83, 310-24, 338-40 (1941).
10 Melody Kapilialoha MacKenzie, Historical Background, in
NATIVE HAWAIIAN LAW: A TREATISE 5-74 (Melody Kapilialoha MacKenzie et al eds, 2015);
COHENS HANDBOOK OF FEDERAL INDIAN LAW 356-79 (2012 ed.).
5
The Indigenous nations of Alaska seem to have been more nomadic and followed a
seasonal round economic life by fishing and hunting animals. Yet these societies also exercised
governing power over their peoples and their well-defined territories and resources.11
One final example of Indigenous sovereignty sums up this brief review. When English
colonists arrived in what they named Jamestown Virginia in 1607, they encountered the
Powhatan Confederacy, a fully operational and fully sovereign Indigenous nation. The English in
the Chesapeake Bay region of Virginia immediately began engaging in diplomatic relations with
this sophisticated sovereign government. There were at least 200 permanent Indian villages in
the region. The famous English Captain John Smith wrote in 1612 that the Powhatan people had
“such government as that their magistrates for good commanding, and their people for due
obedience and obeying, excel many places that would be accounted very civil.”12
These Indigenous peoples were governed by a single chief and leadership structure although
there were perhaps thirty separate Indian nations in the region with a population of over 8,000.
One historian states that the Powhatan Confederacy was a “primitive empire.” That is an apt
description because the Powhatan chief exacted tribute from his subject tribes. Captain Smith’s
11 Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 275, 277,
285-88 (1955).
12 15 SMITHSONIAN INST., supra note 9, at 58-69, 240-81; ALLAN
KULIKOFF, TOBACCO AND SLAVES: THE DEVELOPMENT OF SOUTHERN CULTURES IN THE
CHESAPEAKE, 1680-1800, at 28 (1986); II THE JAMESTOWN VOYAGES UNDER THE FIRST
CHARTER, 1606-1609, at 369 (Philip L. Barbour ed., 1969).
6
1612 map of the Tidewater area shows the extent of the Powhatan’s land husbandry and society,
and even identifies chiefs’ houses, towns, and the district capitals of the Confederacy.13
B. Tribal governance structures
Indigenous governments were based on and operated according to the political beliefs and
consent of their peoples. American Indian governments had varying levels of organization and
institutions that functioned to carry out sovereign powers and to organize and control their
societies. Probably the best known Indian government is the Iroquois Confederacy or the
Haudenosaunee. The Confederacy was a federalist governing system developed and operated by
five and later six Indian nations (Oneida, Onondaga, Seneca, Mohawk, Cayuga, and Tuscarora)
to control their inter-tribal and international relations. Leaders were appointed by clan mothers
and could be removed, or recalled as we would say today, for various infractions. The
Confederacy met in an annual congress to decide internal and international legal and political
issues.14
13 EDMUND S. MORGAN, AMERICAN SLAVERY, AMERICAN
FREEDOM: THE ORDEAL OF COLONIAL VIRGINIA 49-50 (1975); ANTHONY S. PARENT, JR., FOUL
MEANS: THE FORMATION OF A SLAVE SOCIETY IN VIRGINIA, 1660-1740, at 12-13 (2003).
14 Robert J. Miller, American Indian Influence on the United
States Constitution and Its Framers, 18 AM. IND. L. REV. 133, 142-43 (1993); 15 SMITHSONIAN
HANDBOOK, supra note 9, at 314-17, 418-41; Frank G. Speck, The Iroquois, A Study in Cultural
Evolution, BULLETIN 23 (Oct. 1945).
7
Many other American Indian societies formed governments and confederacies for national
governance, strength in numbers, and to conduct international affairs. Tribal nations including
the Powhatan, Cheyenne, Shawnee, Creek, Cherokee, Comanche, Blackfeet, Choctaw,
Chickasaw, and the Wabanaki Confederacy also developed sophisticated governance regimes
that included criminal and civil jurisdiction, democratic principles, and separation of powers
principles that divided power between various branches of tribal governments, clans, and
villages. Almost all Indian governments also divided war and peace powers between civil and
military leaders, and some Indian societies had chiefs who were in charge of planting and
hunting, and some nations had both male and female chiefs.15
It is noteworthy that some scholars argue that Indian governments and Indigenous theories
and practices of political science even influenced the American Founding Fathers and the U.S.
Constitution. In fact, in 1988, the U.S. Congress passed a Resolution “recognizing the influence
of the Iroquois Confederacy and other Indian Nations to the formation and development of the
United States.” Interestingly, in 1744 at a Lancaster Pennsylvania treaty council, Iroquois
Confederacy leader Canasatego told Benjamin Franklin and other colonial representatives that
15 Miller, Tribal, Federal, supra note 9, at 149-50; Miller, Indian
Influence, supra note 14, at 143-46; DUANE CHAMPAGNE, SOCIAL ORDER AND POLITICAL
CHANGE; CONSTITUTIONAL GOVERNMENTS AMONG THE CHEROKEE, THE CHOCTAW, THE
CHICKASAW, AND THE CREEK 8-12, 25-28 (1992); 15 SMITHSONIAN INST., supra note 9, at 58-
69, 84, 240-81; STRICKLAND, supra note 9, at 16, 24-26; THE CHEYENNE WAY, supra note 9, at
ix, 73-76, 78-79, 99-106, 108-10, 130-31; OTHER SIDE OF THE FRONTIER, supra note 8, at 109.
8
the English colonies needed to form a union such as the Iroquois had created. Canasatego stated:
“we, the Six Nations, heartily recommend union and a good agreement between you . . . . Our
wise Forefathers established Union and Amity between the Five Nations; this has made us
formidable; this has given us great Weight and Authority with our neighboring Nations. We are a
powerful Confederacy; and, by your observing the same Methods our wise Forefathers have
taken, you will acquire fresh Strength and Power . . . .” Ten years later, Benjamin Franklin wrote
at the Albany Conference, which conference many historians say led to the formation of the
American union: “It would be a very strange Thing if six Nations of ignorant Savages should be
capable of forming a Scheme for such an Union, and be able to execute it in such a Manner, as
that is has subsisted Ages, and appears indissoluble; and yet that a like Union should be
impracticable for ten or a Dozen English colonies.”16
By comparison, the Hawaiian Islands were populated by Polynesian peoples from 300 CE
forward. Native Hawaiian governments were highly structured and ruled by kings and queens
and a royal lineage that exercised extensive powers and control of their people. Their societies
enforced criminal and civil jurisdiction.17 In contrast, Alaska Native nations were comprised of
16 H.R. Con. Res. 331, 102 Stat. 4932 (1988); CATHERINE BOWEN,
THE MOST DANGEROUS MAN IN AMERICA: SCENES FROM THE LIFE OF BENJAMIN FRANKLIN
98–99 (1974); FRANCIS JENNINGS, EMPIRE OF FORTUNE: CROWNS, COLONIES, AND TRIBES IN
THE SEVEN YEARS WAR IN AMERICA 89 (1988); INDIAN TREATIES PRINTED BY BENJAMIN
FRANKLIN, 1736–1762, at 78 (Carl Van Doren & Julian P. Boyd eds., 1938); 4 THE PAPERS OF
BENJAMIN FRANKLIN 118-19 (Leonard W. Labaree ed., 1961).
17 MacKenzie, Historical Background, supra note 10, at
9
much smaller populations. Their governance structures appear to have been more rudimentary
than other Indigenous nations but as with all societies and cultures, they had laws and customs to
organize and govern themselves and to control the conduct of their peoples.18
We have barely scratched the surface on the wide variety of governance structures that the
Indigenous nations developed pursuant to their political theories and needs. But these points
demonstrate that Indigenous peoples and nations knew how to create governments, institutions,
and laws and that they operated their governments effectively for centuries.
C. Indigenous diplomacy and treaty-making
For centuries before European contact, Indian nations exercised their sovereignty and
engaged in international affairs via inter-tribal diplomacy with other Indigenous nations
regarding political issues and trade and they solemnified their agreements by treaties. Many
Indian nations formed political alliances and even confederated with other tribes for mutual
protection. In the 1720s for example, the Tuscarora nation from South Carolina merged
politically with the Five Nation Iroquois Confederacy in upstate New York and moved to that
area. Thereafter the Confederacy was called the Six Nations.
Once Europeans arrived, Indigenous nations readily incorporated them into their diplomatic
and economic practices. European nations recognized Indian tribes as independent sovereigns
and entered numerous treaties with tribal governments. Indian nations were experienced in
5-74.
18 Tee-Hit-Ton, 348 U.S. at 275, 277, 285-88;
Tlingit and Haida Indians of Alaska v. United States, 147 Ct. Cl. 315, 177 F.Supp.452 (1959).
10
diplomacy and trade and long manipulated European traders and countries by playing them off
against each other.
Indigenous nations signed over one hundred treaties with England, France, and Spain. The
English and American colonies, and then the American states, entered hundreds of treaties with
tribal nations from the early 1600s until the early 1800s. Europeans engaged in full diplomatic,
political and commercial dealings with tribal governments. All of the European countries that
attempted to establish colonies in North America dealt with tribes through treaty-making and
international diplomatic methods.19
Moreover, even economic affairs, who might be considered just private conduct, had
political and diplomatic dimensions for Indigenous nations. American Indian, Alaska Native, and
Native Hawaiian governments were actively engaged in controlling and conducting trade with
other nations. In fact, trade routes crisscrossed North America long before the arrival of
Europeans. Trade goods were often traded 1,000 miles from their place of manufacture, mining,
or harvest. In addition, annual and semi-annual tribal markets were held in many locations in the
lower 48 states in which people traveled long distances to buy and sell manufactured goods,
food, and other items. Trade was so important to Indigenous nations that actual warfare and
animosities would be put on hold to allow the regularly scheduled markets. Native Hawaiians
and their kings also engaged in similar kinds of activities between islands.
19 CHAMPAGNE, supra note 15, at 50; ANGIE DEBO,
THE RISE AND FALL OF THE CHOCTAW REPUBLIC 27-36 (2d ed. 1967); FRANCIS PAUL PRUCHA,
AMERICAN INDIAN TREATIES: THE HISTORY OF A POLITICAL ANOMALY 8-9 (1994); A
Bibliography of the English Colonial Treaties with the American Indians (ed. Henry F. De Puy
1917, 1999 reprint).
11
When Europeans arrived in North America and Hawaii, Indigenous nations were eager to
trade with new partners. Diplomacy, trade, and treaty-making expanded exponentially as
Indigenous peoples and their governments engaged in trade and diplomatic exchanges with
newly arrived Europeans, including the Spanish in the American southeast and southwest, the
French and English in the American east and midwest, Russian fur traders in Alaska, and Euro-
American explorers in Hawaii.
In sum, Indigenous governments and societies exercised to varying degrees sovereign and
governmental powers long before and after Europeans arrived. Indigenous nations enforced civil
and criminal jurisdiction and governed their societies and territories. They were skilled in the arts
of diplomacy and in using their sovereignty and sovereign powers.
II. United States “Indian Law” and Indigenous Sovereignty
There is an enormous body of U.S. Indian law that has developed from federal court
cases, acts of Congress, and actions of the Executive Branch since 1789. It is impossible to set
out here all of American “Indian law.” Thus, we will only mention some basic aspects of federal
law and policies that have had major impacts on Indigenous sovereignty.
A. Doctrine of Discovery
When European countries arrived in the New World they were dreaming of empires and
wealth. Europeans had already developed “international law” that was designed to serve their
goals of colonizing non-European areas and limiting the sovereign powers, property, and human
rights of Indigenous nations and peoples. Today we call that international law the Doctrine of
Discovery.20
20 ROBERT J. MILLER, NATIVE AMERICA,
DISCOVERED AND CONQUERED: THOMAS JEFFERSON, LEWIS & CLARK, AND MANIFEST DESTINY
12
Under that law, Europeans presumed that Indigenous nations and peoples had immediately,
and without payment, knowledge nor consent, lost some of their sovereign powers and property
rights when Europeans “discovered” them. The Doctrine claimed to grant the sole right to
acquire lands from Indigenous governments, by purchase or by conquest, to the European nation
which claimed first discovery. Indian nations and peoples continued to possess rights to use and
occupy their territories but their sovereign land rights were restricted in that they allegedly could
only sell land to their discovering European nation and they were only supposed to deal
diplomatically and commercially with that European country.21
European nations continued, however, to deal with Indigenous nations as political entities
that possessed sovereign powers over specific lands and the peoples and events located there.
England and the English colonies, for example, entered scores of treaties with Indian nations in
North America and engaged in extensive diplomatic relationships with them. Spain signed
twenty or more treaties with Indian nations across what is now the southeast and southwest parts
of the United States. France and Holland also engaged in diplomatic relations with Indigenous
peoples and signed treaties with Indian nations.22
Not surprisingly, the new United States adopted the Doctrine of Discovery and treated
1-5, 10-21 (2006).
21 Johnson v. M’Intosh, 21 U.S. (8 Wheat) 543,
573-74 (1823); MILLER, NATIVE AMERICA, supra note 20, at 3-5.
22 PRUCHA, supra note 19, at 59; I VINE DELORIA
JR. & RAYMOND DEMALLIE, DOCUMENTS OF AMERICAN INDIAN DIPLOMACY: TREATIES,
AGREEMENTS, AND CONVENTIONS, 1775-1979, at 6, 103, 106-07 (1999).
13
tribal nations as if their political and sovereign powers were limited by the mere existence of the
United States. But the United States also continued the English and colonial practice of dealing
with Indian nations as sovereign governments that possessed power and jurisdiction over their
territories and citizens. In September 1774, the thirteen English/American colonies created their
first national government, the Continental Congress. From its beginning, this United States
government realized it had to deal with tribal nations to ensure its own survival. Consequently,
the Continental Congress took a very conciliatory position viz a viz Indian tribes. In 1778, for
example, this Congress requested permission through a treaty to cross Delaware Nation lands to
attack British forces. This treaty even offered the Delaware Nation the opportunity to join the
United States as a state.23
The thirteen American states then convened a new Congress in 1781 under a written
constitution called the Articles of Confederation. These Articles assigned to Congress “the sole
and exclusive right and power of . . . regulating the trade and managing all affairs with the
Indians.” This Congress continued the colonial and Continental Congress practice of utilizing the
Doctrine of Discovery while also recognizing the realpolitik situation of the powers of Indian
nations. This Congress continued negotiating with Indigenous governments over trade, peace,
and land purchases, and ultimately entered eight treaties with Indian nations from 1784-89.24
B. U.S. Constitution and Indigenous Sovereignty
23 MILLER, NATIVE AMERICA, supra note 20, at 38-
39; Treaty with the Delawares, 7 Stat. 13 (Sept. 17, 1778).
24 Articles of Confederation art. IX (1781), quoted
in Miller, Indian Influence, supra note 14, at 151-52.
14
The American Founding Fathers enshrined the political status and sovereign authority of
Indian governments into the United States Constitution.
As already mentioned, European nations and the new United States dealt with Indigenous
nations on a diplomatic, governmental, and treaty basis. Involvement in Indian affairs was a
crucial part of life in early America. Indian tribes were very powerful in the 1700s and early
1800s and were a serious threat to the new country. Consequently, the Founding Fathers of the
new United States Constitution of 1787-89 included Indian nations and peoples in that document.
The new Constitution refined the idea contained in the Articles of Confederation and states
that “Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes . . . .” The U.S. Supreme Court has cited this provision
dozens of time in deciding Indian law cases. This provision is extremely important to any
discussion of Indigenous sovereignty because it expressly recognizes that there are three
governments within the United States: federal, state, and Indian tribes.25
The Constitution also impliedly refers to Indian nations in the Treaty Clause in Article VI
where it states that “all Treaties made, or which shall be made, . . . shall be the supreme Law of
the Land . . . .” By 1789, when the Constitution became operational, the United States had
entered twenty-three treaties with foreign countries and nine treaties with Indian nations. Thus,
the Treaty Clause language, “all Treaties made, or which shall be made,” ratified these prior
foreign and Indian treaties as the supreme law of the United States, and provided that same status
for future treaties with foreign countries and Indian tribes.26
25 U.S. CONST. art I, § 8, cl. 3; MILLER, NATIVE
AMERICA, supra note 20, at 43-44.
15
Individual Indians, and their status as citizens of their own sovereign nations, are also
mentioned twice in the Constitution of 1789, in Article I, and in the Fourteenth Amendment
which was ratified in 1868. In counting the population of the states, Indians were not to be
counted unless they paid taxes. In effect, individual Indians were not federal or state citizens
because they were citizens of their own nations. After the Civil War, when citizenship rights were
extended through the Fourteenth Amendment to “[a]ll persons born or naturalized in the United
States” that amendment still “exclud[ed] Indians not taxed.” This demonstrates that Congress
still considered Indians to be citizens of their own sovereign governments in 1868. Thereafter,
some Indians became U.S. citizens under various federal laws but it was not until 1924 that all
Indians were made United States citizens.27
C. The Marshall Trilogy
The most famous chief justice of the United States Supreme Court, John Marshall, wrote
three opinions in the mid-1800s that set out basic principles of Indian law that are still relevant
today. His decisions both limited and somewhat protected Indian sovereignty.
In 1823, in Johnson v. M’Intosh, the Court first addressed the definition of Indian sovereignty
and land ownership rights. This case has already been cited above because this is the case in
26 U.S. CONST. art. VI, cl. 2; Robert J. Miller,
Treaties Between the Eastern Shawnee Tribe and the United States: Contracts Between
Sovereign Governments, in THE EASTERN SHAWNEE TRIBE OF OKLAHOMA: RESILIENCE
THROUGH ADVERSITY (Stephen Warren ed., 2017).
27 U.S. CONST. art. VI, cl. 2; U.S. CONST. art I, § 2,
cl. 3; U.S. CONST. amend. 14, § 2.
16
which the Supreme Court adopted the Doctrine of Discovery. I argue that in this case, Chief
Justice Marshall set out ten elements that comprise this legal principle and show how it limits
Indigenous sovereignty and land rights. In a nutshell, the Johnson opinion affirmed the United
States legal claim to possess the sole right to buy Indian nations’ lands and assets, and that tribal
governments could only deal with the United States and had lost their international diplomatic
and commercial rights.28
In 1831, the Supreme Court had to decide whether the Cherokee Nation was a “foreign
state” because the Nation sued the state of Georgia under a constitutional provision that required
that the plaintiff be a foreign state. The Court relied on many different aspects of international
law, Indian treaty-making, and the Doctrine of Discovery to render its decision. In light of the
evidence, the Court stated that Indian nations are governments and possess political sovereignty
and had “been uniformly treated as a state from the settlement of our country. The numerous
treaties made with them by the United States recognize them as a people capable of maintaining
the relations of peace and war, of being responsible in their political character . . . . The acts of
our government plainly recognize the Cherokee nation as a state . . . .” But ultimately the Court
held that Indian nations are “domestic dependent nations” and not foreign states and are
something less than full-fledged international sovereigns: “They may, more correctly, perhaps, be
denominated domestic dependent nations. . . . They are in a state of pupilage. Their relation to
United States resembles that of a ward to his guardian.” The Court also stated that any attempt by
another country to “form a political connection with [Indian Tribes] would be considered by all
as an invasion of our territory, and an act of hostility.” Not surprisingly, then, the Supreme Court
28 Johnson v. M’Intosh, 21 U.S. 543, 562-63, 567-
68, 571, 573-77, 581, 583-84 (1823); MILLER, NATIVE AMERICA, supra note 20, at 1-5, 50-53.
17
held that American Indian nations no longer possessed unfettered international sovereignty and
that the Cherokee Nation was not a foreign state.29
In 1832, the Marshall Court again relied on many aspects of international law, treaties,
and international law scholarship to determine Georgia’s authority to apply its law inside the
Cherokee Nation’s territory. In contrast to the other two cases, Chief Justice Marshall and the
Court now strongly supported the existence of tribal governments as political entities possessing
sovereign powers. The Court stated that the actions of the United States “manifestly consider the
several Indian nations as distinct political communities, having territorial boundaries, within
which their authority is exclusive, and having a right to all the lands within those
boundaries . . . .” The Court also stated: “The very term ‘nation,’ . . . applied to [Indigenous
governments], means ‘a people distinct from others’ . . . . The words ‘treaty’ and ‘nation’ are
words of our own language, selected in our diplomatic and legislative proceedings . . . . We have
applied them to Indians, as we have applied them to the other nations of the earth. They are
applied to all in the same sense.” After making these observations, the Court held that the state
“laws of Georgia can have no force” within the Cherokee Nation’s territory.30
These three cases are enormously important in United States Indian law and continue to
impact the sovereignty of American Indian nations and peoples to this day.
D. Felix Cohen’s Indian law principles
29 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1,
4, 17-18, 22, 27, 30, 38, 44, 46-49, 52-53, 56, 60-61, 68 (1831).
30 Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 516-
17, 536, 542-44, 546-48, 553, 559-61, 583-84 (1832).
18
The most famous American Indian law scholar is Felix Cohen. In the early 1940s he wrote
the first treatise on American Indian law. He distilled an enormous mass of federal case law,
congressional acts, and Executive Branch policies and actions into three fundamental principles.
The U.S. Supreme Court relies heavily on these foundational principles and they have a major
effect on American Indian sovereignty today.
1. Congress’ plenary power
The plenary power principle states that Congress has very broad authority in Indian
affairs. The Supreme Court has held that this power originates in the Interstate/Indian Commerce
Clause of the Constitution, which grants Congress power “[t]o regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes.” According to the Court, this
Clause “provides Congress with plenary power to legislate in the field of Indian affairs . . . .”
This authority allows Congress to enact laws that injure Indian nations and their citizens or laws
that benefit Indigenous tribes and their citizens. Thus, Congress has a nearly unchecked power in
Indian affairs. In fact, no federal law regarding Indian nations and Indian peoples has ever been
overturned because Congress exceeded its power in the Indian law arena. As a matter of fact,
only in recent times did the Supreme Court decide that congressional actions regarding Indian
nations can even reviewed by the courts.31
2. Trust doctrine
The Executive and Legislative branches of the federal government have guardian and
31 U.S. CONST. Art. I, § 8, cl. 3; Cotton Petroleum
Corp. v. New Mexico, 490 U.S. 163, 192 (1989); FELIX S. COHENS HANDBOOK OF FEDERAL
INDIAN LAW 207-57 (Rennard Strickland ed., 1982 ed.); CHARLES F. WILKINSON, AMERICAN
INDIANS, TIME, AND THE LAW 78-79, 82 (1987).
19
fiduciary responsibilities for American Indian nations. This duty is partially based on the United
States nearly unchecked plenary power over Indians and their governments. Principles of general
trust law, and the alleged helplessness of tribal nations, led to the rise of the trust responsibility
as a corollary to plenary power. In exercising this extremely broad authority, Congress and the
Executive Branch are charged with the responsibilities of a guardian to act on behalf of
dependent Indian peoples and their governments. The United States has accepted this
responsibility and has “charged itself with moral obligations of the highest responsibility and
trust” and judges its own conduct towards tribes “by the most exacting fiduciary standards.”32
The idea of a trust duty began developing in Supreme Court case law in 1831 when the
Court considered the sovereign status of the Cherokee Nation. In that case, the Court stated that
the Nation was dependent on the United States for its “protection” and “wants” and was in a
“state of pupilage” with the federal government. The Cherokee Nation Court then went on to
state that the Nation’s “relation to the United States resembles that of a ward to his guardian.”
Furthermore, in 1886, the Supreme Court stated that because the “Indian tribes are the wards of
the nation . . . [and] communities dependent on the United States” that a heavy responsibility
weighs on the U.S. to care for Indians and their governments due to their very “weakness and
helplessness.”33
The idea of a Euro-American duty to “protect” Indians and Indigenous nations arose long
32 Seminole Nation v. United States, 316 U S. 286,
297 (1942).
33 Cherokee Nation, 30 U.S. at 17; United States v.
Kagama, 118 U.S. 375, 383-84 (1886).
20
before these Supreme Court cases. Euro-Americans had long claimed an obligation to care for
the best interests of Indians. Many of the United States treaties with Indian nations, for example,
contained promises by the United States to protect tribes, to support their commercial activities,
and to provide education and medical care.34
3. Diminished tribal sovereignty
The third principle, called diminished tribal sovereignty, holds that Indian governmental
sovereignty was automatically and immediately diminished upon contact with Euro-Americans.
Some Indigenous sovereign rights were automatically diminished under the Doctrine of
Discovery as discussed above. But the Supreme Court added two factors that also diminish
Indigenous sovereignty even beyond the impact of Discovery. First, the Court implied in
Worcester in 1832 that Indian nations could voluntarily give up aspects of their inherent
sovereignty and sell land through treaties. Second, the Court has held that Congress can take
aspects of Indigenous sovereignty without tribal consent pursuant to its plenary power.35
In 1978, the Supreme Court added a third factor to the principle of diminished tribal
sovereignty. In Oliphant v. Suquamish Indian Tribe, the Court held that the inherent sovereign
powers of Indian nations did not, could not, include jurisdiction to criminally prosecute non-
34 MILLER, NATIVE AMERICA, supra note 20, at 25-
29, 165-66; LAWS OF THE COLONIAL AND STATE GOVERNMENTS RELATING TO INDIANS AND
INDIAN AFFAIRS, FROM 1633 TO 1831, at 12, 16-17, 22, 37, 45, 59, 136, 142, 146, 150, 154
(1832: Reprint, 1978).
35 COHENS HANDBOOK, supra note xx, at 23, 229-
32; Worcester, 31 U.S. (6 Pet.) at 542-43, 546, 549, 555, 561; Kagama, 118 U.S. at 383-84.
21
Indians. The Court stated that Indian nations could not have this jurisdiction because it would be
“inconsistent with their status.” The Court thus expanded the definition of the diminished
sovereignty principle by holding that tribal nations retain those aspects of their inherent
sovereignty that they have not voluntarily given up, by treaty for example, or which Congress
has not taken, pursuant to its plenary power, or, which they have not impliedly lost by virtue of
their dependent status upon the United States.36
All of these principles of Indian law limit Indigenous sovereignty.
III. Present Day Indian Nation Sovereignty
There are 573 federally recognized Indian nations and tribes in the United States today.
These political entities are governments and they exercise sovereign powers over their territories,
citizens, and other persons and entities that engage in activities in Indian country. In fact, long
before Europeans arrived in North America and the Hawaii Islands, American Indian, Alaska
Native, and Native Hawaiian governments exercised complete authority over their territories.
After the arrival of Europeans, however, England, France, and Spain used law and raw power to
limit the sovereign powers of Indigenous nations. Yet today federally recognized tribal
governments still have a government-to-government political relationship with the United States
and are sovereign governments with primary control and jurisdiction over their citizens and their
territories. (Native Hawaiians do not possess a federally recognized government.)
A. Indian nations are sovereign governments
The United States has always recognized American Indian nations as governments.
Indigenous nations exercise their own inherent sovereign powers as innate aspects of the power
36 Oliphant v. Suquamish Indian Tribe, 435 U.S.
191, 208, 210 (1978).
22
and authority that all governments possess. The U.S. Supreme Court has always acknowledged
that Indian governments possess inherent powers that exist totally separate from the United
States and distinct from the United States Constitution. Tribal nations are “distinct, independent
political communities” that exercise their powers of self-government via inherent sovereignty.
Indian nations, for example, did not acquire their political existence or sovereign authority from
the U.S. or from the U.S. Constitution. The Court has expressly noted that tribal governments
predate the Constitution and are unrestrained by constitutional and federal provisions that
specifically limit federal and state authorities. Indigenous communities were and still are
separate political bodies that have created the specific governments that they have chosen to live
under today.37
Indian nations possess “attributes of sovereignty over both their members and their
territory” and “tribal sovereignty is dependent on, and subordinate to, only the Federal
Government, not the States.” Although tribes are no longer “possessed of the full attributes of
sovereignty,” they remain a “separate people, with the power of regulating their internal and
social relations.” The Supreme Court, for example, has long stated that tribal governments have
the exclusive authority to define tribal citizenship and to make their own laws regarding internal
matters, such as domestic relations, inheritance, and citizenship, and “to enforce that law in their
own forums.”38
37 U.S. CONST. art. I, sec. 8, cl. 3; Worcester, 31
U.S. at 559; United States v. Wheeler, 435 U.S. 313, 319-21, 323-24, 328 (1978); Santa Clara
Pueblo v. Martinez, 436 U.S. 49, 56 (1978); Talton v. Mayes, 163 U.S. 376, 384 (1896); Ex Parte
Crow Dog, 109 U.S. 556 (1883); Miller, Indian Influence, supra note 14, at 158-59.
23
The Kingdom of Hawaii, and the specific Hawaii island chiefs before that Kingdom,
exercised extensive sovereign powers. It is thus especially ironic that the United States does not
recognize today an Indigenous Native Hawaiian government. However, approximately 229
Alaska Native tribes and villages are federally recognized Indigenous governments.
B. Treaties
One obvious way that the United States recognized the inherent political and sovereign
existence of Indian nations was by engaging in treaty-making. “A treaty, including one between
the United States and an Indian tribe, is essentially a contract between two sovereign nations.”
From its beginning, the United States recognized the autonomy of Indian nations, and treaty-
making rested on the concept of Indian sovereignty. From 1778 to 1871, the U.S. entered 375
treaties with Indian governments and signed three treaties with the Kingdom of Hawaii in 1826,
1849, and 1875. (There were no U.S./Alaska Native treaties.) The Congress and the Executive
Branch have been engaged in nearly continuous political interactions with Indian nations
throughout American history and entered treaties and other agreements with them using the same
procedures and respect as treaties conducted with foreign nations.39
38 United States v. Mazurie, 419 U.S. 544, 557
(1975); Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 154
(1980); Kagama, 118 U.S. at 381-82; Santa Clara Pueblo, 436 U.S. at 55–56, 66–67; Williams v.
Lee, 358 U.S. 217 (1959).
39 Washington v. Washington Commercial
Passenger Fishing Vessel Ass’n, 443 U.S. 658, 675 (1979); PRUCHA, AMERICAN INDIAN
TREATIES, supra note 19, at 2-4, 21, 59, 67, 72-73, 128; Treaty with Hawaii on Commerce, Dec.
24
Yet at the same time the United States was respecting Indigenous sovereignty, it included
in almost all Indian treaties a provision that limited Indian nations’ international sovereignty and
commercial rights. In these treaties, the tribes granted (if they were told what the English words
meant) the U.S. “the sole and exclusive right of regulating the trade with the Indians, and
managing all their affairs in such manner as [the United States] think proper.” Furthermore, the
tribes often acknowledged themselves “to be under the protection of the United States and of no
other sovereign whatsoever.”40
C. Criminal jurisdiction
American Indian governments also exercise sovereignty and power over their territories by
enforcing criminal laws. Some courts have held that tribal governments have criminal
jurisdiction over their own citizens even for actions which occur outside of reservations.
Interestingly, in 1883, the U.S. Supreme Court held that tribal governments had exclusive
jurisdiction to prosecute Indian-on-Indian crime on reservations. Congress thereafter used its
plenary power to create limited federal jurisdiction over some of these crimes in the Major
Crimes Act of 1885. In 1968, Congress also affected tribal criminal jurisdiction by limiting the
number of years and fines that tribal courts can impose.41
23, 1826, 3 CHARLES I. BEVANS, TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF THE
UNITED STATES, 1776 – 1949, at 861 (1971); 9 Stat. 977; 19 Stat. 625.
40 MILLER, NATIVE AMERICA, supra note 20, at 43,
48.
41 Ex Parte Crow Dog, 109 U.S. 556 (1883);
Wheeler, 435 U.S. 313; 25 USC §1302(a)(7)(B); Settler v. Lameer, 507 F.2d 231, 239 (9th Cir
25
In 1978, the Supreme Court held that tribal governments do not have criminal jurisdiction
over non-Indians. In 2013, however, Congress took a tentative step to assist Indian governments
in enforcing law and order by granting them criminal jurisdiction over non-Indians in domestic
violence situations. In 2010, Congress also strengthened tribal ability to enforce criminal law.42
D. Civil jurisdiction
Indigenous governments exercise extensive jurisdiction over civil matters within Indian
country. Many American Indian tribes operate court systems and bureaucracies, and to varying
degrees exercise adjudicatory, administrative, and regulatory authority. Tribes have the sovereign
authority to regulate Indian and non-Indian civil conduct on reservations in many situations.
Tribal nations can tax and regulate persons involved in on-reservation activities, and disputes
arising on reservations involving Indians or non-Indians will often be decided in tribal courts. In
fact, the Supreme Court has stated that tribal courts are often the exclusive forum for the
adjudication of disputes affecting personal and property interests on reservations. The Court
stated twice in the 1980s that tribal courts are the primary forum for the adjudication of civil
issues arising on reservations and jurisdiction “presumptively lies in the tribal courts” even when
cases involve non-Indians. In more recent years, however, the Supreme Court has limited tribal
court civil jurisdiction over non-Indians and especially when the activities at issue occur on non-
Indian owned fee simple lands on a reservation.43
1974).
42 Oliphant, 435 U.S. at 208, 210; Violence Against
Women Act, 127 Stat. 54, 120 (2013); Tribal Law and Order Act, 124 Stat. 2261 (2010).
43 Colville Indian Reservation, 447 U.S. at 152-54;
26
Native Hawaiians cannot exercise civil authority because according to the United States they
do not have a federally recognized government. Alaska Native governments, on the other hand,
possess limited forms of civil jurisdiction even though the U.S. Supreme Court has held that
there is no (or very little) Indian country in Alaska.44
E. Tribal Sovereign Immunity
Merrion, 455 U.S. at 149; Fisher v. District Court, 424 U.S. 382 (1976); Williams, 358 U.S. 217;
Iowa Mutual Insurance Company v. LaPlante, 480 U.S. 9, 18 (1987); Strate v. A-1 Contractors,
520 U.S. 438 (1997); Montana v. United States, 450 U.S. 544 (1981).
44 John v. Baker, 982 P.2d 738, 754, 756 (Alaska
1999); Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998).
27
As governments, tribal nations enjoy the same right of sovereign immunity as do state
and federal governments. Consequently, Indian governments are immune from being sued in
tribal, state, or federal courts. This immunity applies whether a tribe is acting in a governmental
or business capacity and whether the activity at issue occurred on or off a reservation. And tribal
governmental entities, whether created to perform governmental activities or purely commercial
activities, usually also benefit from the protection of sovereign immunity. Congress or Indian
governments can waive tribal sovereign immunity. Waivers, however, “cannot be implied but
must be unequivocally expressed.”45
Since Native Hawaiians do not possess a governmental entity recognized by the United
States, the principle of immunity does not apply to them. Alaska Native governments, however,
do benefit from the protection of sovereign immunity.46
IV. International law and American Indian sovereignty
Today, American Indian nations and Indigenous peoples around the world are
increasingly looking to international law and the international system to help them protect their
traditional governments and their human, sovereign, and diplomatic powers of self-government.
Indigenous nations and advocates from around the world achieved a great accomplishment when
the United Nations General Assembly adopted the Declaration on the Rights of Indigenous
45 Kiowa Tribe of Oklahoma v. Manufacturing
Technologies, Inc., 523 U.S. 751, 760 (1998); Santa Clara Pueblo, 436 U.S. at 59; Weeks
Construction, Inc. v. Oglala Sioux Housing Authority, 797 F.2d 668 (8th Cir. 1986).
46 Runyon v. Asso. Village Council Presidents, 84
P.2d 437 (Alaska 2004).
28
Peoples in September 2007. While the United States was one of only four countries to vote
against the Declaration, it has since agreed to abide by the Declaration.47
The Declaration contains several provisions that address Indigenous sovereign rights. It
states that Indigenous peoples should be allowed to freely determine their own political status
and “have the right to autonomy or self-government in matters relating to their internal and local
affairs,” and “the right to . . . their distinct political . . . institutions.” But it seems evident that
Indigenous nations cannot use the Declaration to argue for independence and separation from the
countries they are currently aligned with because Article 46(1) states: “Nothing in this
Declaration may be interpreted . . . . or construed as authorizing or encouraging any action which
would dismember or impair, totally or in part, the territorial integrity or political unity of
sovereign and independent States.”48
Indigenous nations in the Americas are also using the Organization of American States to
defend their rights. The OAS Commission and Court of Human Rights have issued some
surprising victories for Indigenous peoples in recent decades. In addition, in 1977, Inuit
governments and communities located in several countries created the Inuit Circumpolar Council
to assist them in their international efforts to protect their rights and sovereignty.49
47 Robert J. Miller, Consultation or Consent: The
United States’ Duty to Confer with American Indian Governments, 91 N. DAK. L. REV. 37, 67-86
(2015).
48 Declaration, arts 3-5, 9, 20(1), 26-27, 46(1).
49 S. JAMES ANAYA, INTERNATIONAL HUMAN
RIGHTS AND INDIGENOUS PEOPLES (2009); http://www.iitc.org/;
29
V. Conclusion
In the United States system of government, federal, state, and tribal governments all have
various limitations on ultimate sovereign power. Indian nations have seen some of their
historical, inherent powers expressly taken by Congress pursuant to its plenary power, have
voluntarily given up others via their own treaties, and have lost yet others by implicit divestiture
due to their incorporation into the territory of the United States. But my conclusion, based on
thirty years of studying American Indian law and history, and based on my limited experience in
international Indigenous affairs, is that American Indian nations and peoples exercise perhaps the
highest level of Indigenous sovereignty in the world. To be clear, I am not an apologist for the
colonial/settler society of the United States nor am I claiming it is some kind of model for how to
treat Indigenous nations. In fact, even as I state this fairly positive opinion, I am painfully aware
of the Indian law principles of plenary power and diminished tribal sovereignty, and even worse I
am fully cognizant of the following statement of the United States Supreme Court from 1978:
“The sovereignty that the Indian tribes retain is of a unique and limited character. It exists
only at the sufferance of Congress and is subject to complete defeasance. But until
Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still
possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication
as a necessary result of their dependent status.”50
Indigenous nations located within the United States are obviously faced with a serious
conundrum when the Supreme Court considers their inherent sovereignty to be nothing more
than this. What is American Indian sovereignty if it is this tenuous?
We plainly cannot solve that conundrum in this short chapter.
https://www.inuitcircumpolar.com/.
50 Wheeler, 435 U.S. at 323.
30
Historically, Indian nations exercised nearly unfettered sovereignty and engaged in
international affairs and diplomacy. But today Indian nations must contend with the United
States, and the states to some extent, to exercise sovereign and governmental powers. In point of
fact, Indian governments have dealt somewhat successfully with the United States and its
colonial/settler society in the past six decades. Clearly, Indian governments and peoples must
continue their struggle to protect and exercise their self-determination, governmental, and
sovereign rights.
31
Article
Full-text available
In this paper, I defend the claim that addressing dominating ontologies is crucial for achieving Indigenous self-determination. Consequently, the struggle for Indigenous self-determination comprises not only an engagement with political practices, structures, and institutions, but also with political ontology. I first argue that implementing Indigenous self-determination requires an engagement with political ontology. I then introduce Iris Young’s conception of self-determination as non-domination as a way to engage with diverging ontologies within the political framework of federalism. In the final section of the paper, I present two constructive proposals concerning how Indigenous peoples and settler states can establish an ontology at the federal level that facilitates Indigenous self-determination.
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