Tribal sovereignty in the United States is the concept of the inherent authority of Indigenous tribes to govern themselves within the borders of the United States.
Originally, the U.S. federal government recognized American Indian tribes as independent nations and came to policy agreements with them via treaties. As the U.S. accelerated its westward expansion, internal political pressure grew for "Indian removal", but the pace of treaty-making grew regardless. The Civil War forged the U.S. into a more centralized and nationalistic country, fueling a "full bore assault on tribal culture and institutions", and pressure for Native Americans to assimilate. In the Indian Appropriations Act of 1871, Congress prohibited any future treaties. This move was steadfastly opposed by Native Americans.
Currently, the U.S. recognizes tribal nations as "domestic dependent nations" and uses its own legal system to define the relationship between the federal, state, and tribal governments.
Native American sovereignty and the Constitution
The United States Constitution mentions Native American tribes three times:
Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed." According to Story's Commentaries on the U.S. Constitution, "There were Indians, also, in several, and probably in most, of the states at that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states." Article I, Section 8 of the Constitution states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes", determining that Indian tribes were separate from the federal government, the states, and foreign nations; and The Fourteenth Amendment, Section 2 amends the apportionment of representatives in Article I, Section 2 above.
These constitutional provisions, and subsequent interpretations by the Supreme Court (see below), are today often summarized in three principles of U.S. Indian law: Territorial sovereignty: Tribal authority on Indian land is organic and is not granted by the states in which Indian lands are located. Plenary power doctrine: Congress, and not the Executive Branch or Judicial Branch, has ultimate authority with regard to matters affecting the Indian tribes. Federal courts give greater deference to Congress on Indian matters than on other subjects. Trust relationship: The federal government has a "duty to protect" the tribes, implying (courts have found) the necessary legislative and executive authorities to effect that duty.
Early history
The Marshall Trilogy, 1823–1832
The Marshall Trilogy is a set of three Supreme Court decisions in the early nineteenth century affirming the legal and political standing of Indian nations.
Johnson v. McIntosh (1823), holding that private citizens could not purchase lands from Native Americans. Cherokee Nation v. Georgia (1831), holding the Cherokee nation dependent, with a relationship to the United States like that of a "ward to its guardian". Worcester v. Georgia (1832), which laid out the relationship between tribes and the state and federal governments, stating that the federal government was the sole authority to deal with Indian nations.
Indian Appropriations Act of 1871
Originally, the United States had recognized the Indian Tribes as independent nations, but after the Civil War, the U.S. suddenly changed its approach.
The Indian Appropriations Act of 1871 had two significant sections. First, the Act ended United States recognition of additional Native American tribes or independent nations and prohibited additional treaties. Thus, it required the federal government no longer interact with the various tribes through treaties, but rather through statutes:
The 1871 Act also made it a federal crime to commit murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny within any Territory of the United States.
Empowerment of tribal courts, 1883
On April 10, 1883, five years after establishing Indian police powers throughout the various reservations, the Indian Commissioner approved rules for a "court of Indian offenses". The court provided a venue for prosecuting criminal charges but afforded no relief for tribes seeking to resolve civil matters. Another five years later, Congress began providing funds to operate the Indian courts.