Below is an overview of Tribal sovereignty. Included are citations spread throughout U.S. history and modern day about what sovereignty means to Tribes, as well as how sovereignty pertains to Tribal state and federal relationships, as well as the evolution of Tribal sovereignty over time. Sovereignty entails the right to self-governance including freedom from a state's ability to assert authority over a Tribe. The Bureau of Indian Affairs FAQ is a bountiful resource to seek more information about Tribes and Tribal matters.
Tribal sovereignty in the U.S refers to the inherent authority of indigenous tribes (Native Americans or Indians) to govern themselves within the borders of the U.S. The federal government recognizes tribal nations as "domestic dependent nations" and has established a number of laws attempting to clarify the relationship between the federal, state, and tribal governments. The Constitution and, later, federal laws grant local sovereignty to tribal nations, yet do not grant full sovereignty equivalent to foreign nations, hence the term "domestic dependent nations." This limitation to tribal nations’ sovereignty became federal law in 1832 after a U.S. Supreme Court opinion delivered by Chief Justice John Marshall in the case of Worcester v. Georgia.
The Treaty with the Delawares
The "Treaty with the Delawares" was signed on September 17, 1778. Under the treaty, the United States recognized the Delaware Nation's sovereignty. The 2013 U.S. Mint Native American coin commemorates this treaty.
Please visit the U.S. Mint's website to view more information about the coin.
Native American Tribal Sovereignty and the Constitution
The U.S. Constitution specifically mentions the relationship between the U.S. federal government and Native American tribes three times:
These basic provisions have been changed and/or clarified by various federal laws over time.Regulate, historically, means facilitate. (Black’s Law Dictionary) Therefore, Congress was to be the facilitator of commerce between the states and the tribes.
Early Victories for Tribal Sovereignty
The Supreme Court of the U.S. has determined many times that states have no authority in Indian affairs and that tribes possess the power of self-determination:
Tribal Governments Today
In 1934, the Indian Reorganization Act, codified as Title 25, Section 476 of the U.S. Code, allowed Indian nations to select from a catalogue of constitutional documents that enumerated powers for tribes and for tribal councils. The net effect was a legal and political normalization between tribal governments and the states.
Two main principles of U.S. Indian law guide current practices: 1) Territorial Sovereignty, and 2) Trust Relationship. (Les F. Wilkinson, Indian tribes as Sovereign Governments: A Sourcebook on Federal-Tribal History, Law, and Policy, AIRI Press, 1988; Conference of Western Attorneys General, American Indian Law Deskbook, University Press of Colorado, 2004; N. Bruce Duthu, American Indians and the Law, Penguin/Viking, 2008)
The federal Indian trust responsibility is also a legally enforceable fiduciary obligation on the part of the U.S. to protect tribal treaty rights, lands, assets, and resources, as well as a duty to carry out the mandates of federal law with respect to American Indian and Alaska Native tribes and villages. (Robert J. McCarthy, The Bureau of Indian Affairs and the Federal Trust Obligation to American Indians, 19 BYU J. PUB. L. 1, December, 2004) In several cases discussing the trust responsibility, the Supreme Court has used language suggesting that it entails legal duties, moral obligations, and the fulfillment of understandings and expectations that have arisen over the entire course of the relationship between the U.S. and the federally recognized tribes. This obligation was first discussed by Chief Justice John Marshall in Cherokee Nation v. Georgia (1831).
Nation to Nation: Tribes and the Federal Government
At the foundation of the constitutional status of tribes is the idea that tribes have an inherent right to govern themselves—the power is not delegated by congressional acts. Congress can, however, limit tribal sovereignty. Unless a treaty or federal statute removes a power, however, the tribe is assumed to possess it. (Light, Steven Andrew, and Kathryn R.L. Rand. Indian Gaming and Tribal Sovereignty: The Casino Compromise. University Press of Kansas, 2005). Current federal policy in the U.S. recognizes this sovereignty and stresses the government-to-government relations between Washington, D.C. and the American Indian tribes. (The White House, Office of the Press Secretary. (2004). Government-to-Government Relationship with Tribal Governments. [Press release]) However, most Indian land is held in trust by the U.S., and federal law still regulates the political and economic rights of tribal governments.
Tribal State Relations: Sovereign within a Sovereign
The federal government has always been the entity that makes treaties with Indian tribes - not the states. As stated previously, the U.S. Constitution, Article 1, Section 8 states that Congress has the power to regulate commerce with Indian tribes. Indian tribes are separate from the federal or state governments, and the states do not have power to regulate commerce with the tribes, much less regulate the tribes. (American Indian Policy Center, 2005. St. Paul, MN. 4 Oct. 2008) While federally recognized tribes generally are not subordinate to states, they can have a government-to-government relationship with these other sovereigns, as well. (Bureau of Indian Affairs, FAQs)