Supreme Court's View of Tribal Sovereignty Change Over Time.

From Marshall to Marshall
The Supreme Court's changing stance on tribal sovereignty

BY PHILIP J. PRYGOSKI

Philip J. Prygoski is a professor of law at the Thomas M. Cooley Law School in Lansing, Michigan, where he teaches constitutional law and federal Indian law.

From the era of Chief Justice John Marshall through the time of Justice Thurgood Marshall, the Supreme Court has struggled to define the doctrine of American Indian tribal sovereignty. Tribal sovereignty is not simply an abstract legal concept; it is part of the military, social, and economic development of our country. The following is a look at how the decisions of the Court for the past 170 years have defined, defended, and ultimately diminished that sovereignty.

The role of the Supreme Court in affecting Indian sovereignty is best understood in relation to the powers of Congress and the President. Under the Constitution, Congress has the power to regulate commerce with the Indian tribes. The Indian Commerce Clause (Article I, 8, clause 3) is the main source of federal power over Indian tribes and has been the primary vehicle used by Congress to recognize and define tribal sovereignty. In addition, the Court has ruled that Congress, as the legislative body of the nation, has an intrinsic power to deal with the Indian nations that reside within the borders of the United States.

Presidential power over the Indian tribes is centered on the ability to enter into treaties, a power that was used in the early years of federal Indian law to secure tribal acquiescence to the demands of the encroaching waves of European settlers. (In 1871, Congress passed legislation that ended the practice of the United States entering into treaties with Indian tribes.)

It has been the Supreme Court's role to interpret the actions of the President and Congress, and to strike a balance between the rights of the Indian nations and the interests of the European conquerors. Tribal sovereignty was, and continues to be, a primary issue for the Court.

A Matter of Perspective
There are two competing theories of tribal sovereignty: first, the tribes have inherent powers of sovereignty that predate the "discovery" of America by Columbus; and second, the tribes have only those attributes of sovereignty that Congress gives them.

Over the years, the Court has relied on one or the other of these theories in deciding tribal sovereignty cases. It is important to note that whichever theory the Court has favored in a given case has determined to a large extent what powers the tribes have and what protections they receive against federal and state government encroachment.

In what is known as the "Marshall trilogy," the Supreme Court established the doctrinal basis for interpreting federal Indian law and defining tribal sovereignty.

In the first of these cases, Johnson v. McIntosh (21 U.S. (8 Wheat.) 543 (1823)), Chief Justice Marshall ruled for the Court that Indian tribes could not convey land to private parties without the consent of the federal government. The Court reasoned that, after conquest by the Europeans and the establishment of the United States, the rights of the tribes to complete sovereignty were diminished, and the tribes' power to dispose of their land was denied.

In Cherokee Nation v. Georgia (30 U.S. (5 Pet.) 1 (1831)), the Court addressed the question of whether the Cherokee Nation was a "foreign state" and, therefore, could sue the State of Georgia in federal court under diversity jurisdiction. Chief Justice Marshall ruled that federal courts had no jurisdiction over such a case because Indian tribes were merely "domestic dependent nations" existing "in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian."

The statements by the Court in Cherokee Nation established the premise that Indian nations do not possess all of the attributes of sovereignty that the word "nation" normally implies. Indian nations are not "foreign," but rather exist within the geographical boundaries of the United States, which necessarily limits their sovereignty. It would be unacceptable for an Indian nation located within the United States to enter into treaties with other countries, or to cede Indian land to foreign countries (to have a French or German enclave in the middle of Montana, for example.)

The Court's characterization of the tribes as "dependent nations" is the basis for what has been called the trust relationship between the United States and the Indian tribes, through which the federal government protects the tribes from interference and intrusion by state governments and state citizens. Inherent in the concept of a "trust" relationship is the implication that the tribes are incompetent to handle their own affairs. This presumption has served as the justification for many actions by the federal government that have intruded on and diminished tribal sovereignty.

In the last case of the Marshall trilogy, Worcester v. Georgia (31 U.S. (6 Pet.) 515 (1832)), the Court addressed the issue of whether the state of Georgia could impose criminal penalties on a number of missionaries who were residing in Cherokee territory, without having obtained licenses from the governor of Georgia. Ruling that the laws of Georgia could have no effect in Cherokee territory, the Court said, "[t]he Cherokee nation...is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress...." In Worcester, the Court established the principle that states are excluded from exercising their regulatory or taxing jurisdiction in Indian country.

The collective effect of the Marshall trilogy on the development of federal Indian law has been described as follows:

Three bedrock principles thus underlie Worcester and the earlier decisions: (1) by virtue of aboriginal political and territorial status, Indian tribes possessed certain incidents of preexisting sovereignty; (2) such sovereignty was subject to diminution or elimination by the United States, but not by the individual states; and (3) the tribes' limited inherent sovereignty and their corresponding dependency on the United States for protection imposed on the latter a trust responsibility. (American Indian Law Deskbook. (University Press of Colorado, 1993).)

These principles have continued to guide the Court in its interpretation of the respective rights of the federal government, the states, and the tribes.

In Ex Parte Crow Dog (109 U.S. 556 (1883)), the Court overturned the conviction in federal court of an Indian who had murdered another Indian in Indian country. The Court reasoned that the ability of the tribe to deal with such an offense was an attribute of tribal sovereignty that had not been specifically abrogated by an act of Congress.

The Court's reaffirmation of tribal sovereignty in Crow Dog was in large measure responsible for passage of the Major Crimes Act by Congress in 1885 (18 U.S.C. 1153). Under the act, seven major crimes--if committed by an Indian in Indian country--were placed within federal jurisdiction, regardless of whether the victim of the crime was an Indian.

The Major Crimes Act was a great intrusion into the internal sovereignty of the tribes in that it deprived the tribes of the ability to try and to punish serious offenders in Indian country. The theory underlying it was that Indian tribes were not competent to deal with serious issues of crime and punishment.

A year later, the Court upheld the constitutionality of the Major Crimes Act in U.S. v. Kagama (118 U.S. 375 (1886)), a case in which two Indians were prosecuted for killing another Indian on a reservation. The Indians argued that Congress did not have the constitutional authority to pass the Major Crimes Act. The Court agreed that the prosecution of major crimes did not fall within Congress's power to regulate commerce with the Indian tribes, but it ruled that the trust relationship between the federal government and the tribes conferred on Congress both the duty and the power to regulate tribal affairs.

The ruling implied that because Indian tribes are wards of the United States, Congress has the power to regulate the tribes, even to the point of interfering with their essential sovereign power to deal with criminal offenders within Indian country.

The trust relationship was again the basis for a Court decision that favored Congress in Lone Wolf v. Hitchcock (187 U.S. 553 (1903)). In Lone Wolf, the Court ruled that the trust relationship served as a source of power for Congress to take action on tribal land held under the terms of a treaty: The Court held that Congress could, by statute, abrogate the provisions of an Indian treaty. It went on to say that the status of the Indians who entered into the treaty and their relationship of dependency to the United States were such that Congress had a plenary power over the government's relations with the tribes. The power of Congress in these matter was so complete, the Court reasoned, that it would not even consider the merits of the argument regarding Congress's inability to abrogate an Indian treaty by statute--it said that any complaints about congressional action must be taken to Congress for redress.

Justifying Instruction
The scope of the trust relationship, and its concomitant grant of power to Congress, was illustrated in U.S. v. Sandoval (231 U.S. 28 (1913)), in which the Court upheld the application of a federal liquor-control law to the New Mexico Pueblos, even though the Pueblo lands had never been designated by the federal government as reservation land. The Court ruled that an unbroken line of federal legislative, executive, and judicial actions had "...attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders...." Moreover, the Court said that once Congress had begun to act in a guardian role toward the tribes, it was up to Congress, not the courts, to determine when the state of wardship should end.

Sandoval is one more example of how the trust relationship was used to justify federal intrusion into the internal affairs of Indian communities. Clearly, the trust doctrine not only protected tribes and other Indian communities from encroachment by state governments, it also provided the justification for extremely intrusive actions by Congress.

In more recent cases, the Court has upheld the principle of tribal sovereignty first articulated in Worcester. For example, in Williams v. Lee (358 U.S. 217 (1959)), the Court ruled that Arizona state courts did not have jurisdiction in a civil case that involved a non-Indian who sued two reservation Indians for an alleged breach of contract that happened on the reservation. The Court concluded that allowing state jurisdiction in such a case would undermine the authority of tribal courts to decide matters that arise on the reservation--a clear infringement of the right of Indian self-government.

Discussing the issue of tribal sovereignty, the Court asserted that "...[A]bsent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them."

The import of this principle is that when Congress has not by statute or treaty determined that a state may assert jurisdiction over specific activities in Indian country, a state is disabled from taking any action that would interfere with a tribal government's power to regulate the internal affairs of the tribe. Accordingly, it is up to federal courts to determine whether any given state action has interfered too greatly with the internal sovereignty of a tribe.

However, a different situation exists when Congress has addressed the relative spheres of power of state and tribal governments.

Further Erosion
In McClanahan v. Arizona State Tax Commission (411 U.S. 164 (1973), the Court, through Justice Thurgood Marshall, ruled that a state cannot tax the income of an Indian earned on a reservation. Although in McClanahan the Court reaffirmed the principle of tribal sovereignty over internal tribal affairs, it emphasized a different basis for tribal freedom from intrusions by a state:

[T]he trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal pre-emption.... The modern cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look instead to the applicable treaties and statutes which define the limits of state power...

Tribal sovereignty was further diminished by the Court in Brendale v. Confederated Tribes & Bands of the Yakima Indian Nations (492 U.S. 408 (1989)). The Court ruled that the Yakima Indian Nation did not have the power to apply its zoning laws to property owned by non-Indians in areas of the reservation that had lost their Indian character--the population in the disputed areas was largely white. The Yakima Nation could, however, apply its zoning laws to those areas of the reservation that retained their essentially Indian character. Although there was no majority opinion in Brendale, the result of the Court's rulings was to eliminate the power of tribes to exercise civil jurisdiction over the activities of non-Indians on the reservation, even where those activities implicate an important tribal interest.

Brendale is significant because the Court took upon itself the power to determine when demographics would change the scope of tribal sovereignty in matters of land-use regulation. The Court's willingness to assume the power to define tribal sovereignty, even in internal matters, continued in a case handed down a year after Brendale.

In Duro v. Reina (495 U.S. 696 (1990), the Court held that Indian tribes do not have criminal jurisdiction over non-member Indians who commit crimes on the reservation. The Court asserted that "...the retained sovereignty of the tribe as a political and social organization to govern its own affairs does not include the authority to impose criminal sanctions against a citizen outside its own membership."

The majority concluded that the retained sovereignty of a tribe was only broad enough to encompass the power of tribal courts to impose criminal penalties on tribal members, and that non-Indians and nontribal Indians were not within the criminal jurisdiction of a tribe (see Oliphant v. Suquamish Indian Tribe (435 U.S. 191 (1978)).

(In 1991, Congress in effect overturned Duro by passing a statute that reaffirmed tribal power to exercise criminal jurisdiction over all Indians on the reservation, regardless of whether they are tribal members (see 25 U.S.C. 1301 (4)).)

The Court's theory in Duro was that the dependent status of the tribes implicitly divested them of the power to impose criminal sanctions on nontribal Indians. The Court said that tribes are "...prohibited from exercising both those powers of autonomous states that are expressly terminated by Congress and those powers inconsistent with their status." The danger of such an approach is that it allows the Supreme Court, at its own discretion, to determine which attributes of internal tribal sovereignty are inconsistent with the tribes' status as "domestic dependent nations." The assumption of this role by the Court not only changes the usual division of power in the federal government (where Congress has the primary power to deal with Indian tribes), but also enhances the power of the Court to diminish the scope of tribal sovereignty.

The Direction Is Clear
At least two troubling aspects of the Court's treatment of the sovereign rights and powers of Indian tribes emerge from a look at the development of the doctrine of tribal sovereignty. First, the Court has moved away from the concept of intrinsic tribal sovereignty that predated the coming of the European conquerors, and has adopted the view that tribal sovereignty, and the concomitant freedom of the tribes from encroachments by the states, exists solely because Congress has chosen to confer some protections on the tribes.

Second, whatever the doctrinal underpinnings of tribal sovereignty may be, it is clear that the sovereignty of American Indian tribes has been progressively and systematically diminished by the actions of the federal government, including the Supreme Court.

Meet Virginia Tribes for Native American Heritage Month.

To celebrate Native American Heritage Month and educate people about Virginia Indians, the Virginia Department of Education has put together an informative 25-minute video entitled “The Virginia Indians: Meet the Tribes.”

Read more at http://indiancountrytodaymedianetwork.com/2013/11/26/meet-virginia-tribes-native-american-heritage-month-152424

United Cherokee Indian Tribe of Virginia, Inc.

HJ744: United Cherokee Indian Tribe of Virginia, Incorporated; State Recognition.

HOUSE JOINT RESOLUTION NO. 744
Offered January 16, 2013 Extending state recognition to the United Cherokee Indian Tribe of Virginia, Incorporated.
---------- Patron-- Fariss ---------- Referred to Committee on Rules ---------- WHEREAS, the 1983 Session of the General Assembly passed House Joint Resolution No. 54 recognizing the existence within the Commonwealth of certain named Indian tribes and also acknowledging the fact that members of other Indian tribes reside within the Commonwealth; and
WHEREAS, the United Cherokee Indian Tribe of Virginia, Incorporated, commonly known as the Buffalo Ridge Band of Cherokee, was not among those tribes formally recognized in 1983; and
WHEREAS, Horace R. Rice, in his 1991 book,
The Buffalo Ridge Cherokee: The Colors and Culture of a Virginia Indian Community, describes the rich historical legacy of the United Cherokee Indian Tribe of Virginia, Incorporated; and
WHEREAS, the United Cherokee Indian Tribe of Virginia, Incorporated, composed of about 650 members, is located in Madison Heights in Amherst County; and
WHEREAS, the members of the United Cherokee Indian Tribe of Virginia, Incorporated trace their ancestry back to Northumberland County, where the “king of Wiccocomico Indian Town,” Robert Pinn, is considered the first ancestor chief and patriarch; and
WHEREAS, as the English encroached, the Northern Neck Indians left the area in search of new land for their people and mingled with other Indian tribes, including the Cherokee; and
WHEREAS, Robert Pinn’s great-grandson, Raleigh, who had both Wiccocomico and Cherokee heritage, served briefly as an indentured servant before moving to the Buckingham County and Amherst County area; and
WHEREAS, Raleigh Pinn’s work as a Native American farmer and experiences with white settlers as an indentured servant allowed him to become a successful farmer and Amherst County records from the late 1700s detail his land transactions; and
WHEREAS, Raleigh Pinn also served as a militia man with the Amherst County militia, eventually serving at the Battle of Yorktown; and
WHEREAS, even though Raleigh Pinn successfully assimilated in many ways into the white culture, he continued to honor his Native American heritage; and
WHEREAS, Raleigh Pinn formed two bands of mixed Cherokee and Wiccocomico on land he owned, one in Buckingham County and one at Buffalo Ridge in Amherst County; and
WHEREAS, Raleigh Pinn separated the bands so as to not alarm local white settlers with one large Cherokee settlement; he served as chief of both Cherokee bands for many years; and
WHEREAS, in 1991, the tribes were officially named the United Cherokee Indian Tribe of Virginia, Incorporated and today the two bands are led by Samuel H. Penn, Sr.; and
WHEREAS, in 2000, Samuel H. Penn, Sr., and a delegation from the United Cherokee Indian Tribe of Virginia, Incorporated were honored at a U.S. Department of Interior’s National Park Service celebration of Native Americans who fought at Yorktown; and
WHEREAS, the United Cherokee Indian Tribe of Virginia, Incorporated and its descendants contributed and continue to contribute to the settlement and growth of the Commonwealth, have maintained their ethnic background, and number among themselves families with well-known names throughout the area and Commonwealth; now, therefore, be it
RESOLVED by the House of Delegates, the Senate concurring, That from and after the effective date of this resolution, the Commonwealth of Virginia recognizes the existence within the Commonwealth of the United Cherokee Indian Tribe of Virginia, Incorporated; and, be it
RESOLVED FURTHER, That the Clerk of the House of Delegates transmit a copy of this resolution to Chief Samuel H. Penn, Sr., of the United Cherokee Indian Tribe of Virginia, Incorporated, requesting that he further disseminate copies of this resolution to his constituents so that they may be apprised of the sense of the General Assembly of Virginia in this matter; and, be it
RESOLVED FURTHER, That the Commonwealth, by this resolution, does not address the question of whether the tribe has been continuously in existence since 1776; and, be it
RESOLVED FINALLY, That the Commonwealth, by this resolution, does not confirm, confer, or address in any manner any issues of sovereignty.

Native American Heritage Month

Senate Honors Native American Heritage Month

Resolution Recognizes the Cultures and Contributions of the Tribal Nations of this Country

Nov 21, 2013

WASHINGTON D.C. – The Senate passed a resolution introduced by Chairwoman Maria Cantwell (D-WA) that honors the Nation’s first Americans during Native American Heritage Month.  The resolution passed the Senate on Wednesday, November 20. 

“The contributions that American Indians have made to the foundation of the United States are significant and continue today,” said Cantwell.  “From influencing the documents that founded our Nation to serving in World War II as code talkers, American Indians have helped shape the face of our Nation.”

Chairwoman Cantwell was joined in introducing Senate Resolution 305 by 24 bi-partisan colleagues, including Senators Tammy Baldwin (D-WI), John Barrasso (R-WY), Mark Begich (D-AK), Thad Cochran (R-MS), Michael Crapo (R-ID), Al Franken (D-MN), Kirsten Gillibrand (D-NY), Martin Heinrich (D-NM), Heidi Heitkamp (D-ND), Mazie Hirono (D-HI), John Hoeven (R-ND), Tim Johnson (D-SD), Amy Klobuchar (D-MN), Edward Markey (D-MA), Jeff Merkley (D-OR), Jerry Moran (R-KS), Harry Reid (D-NV), Brian Schatz (D-HI), Jon Tester (D-MT), John Thune (R-SD), Mark Udall (D-CO), Tom Udall (D-NM), Mark Warner (D-VA), and Ron Wyden (D-OR).

The full text of Senator Cantwell’s floor statement follows:

Each November, the President declares this month as National Native American Heritage Month and the Senate dedicates a resolution honoring the Nation’s first Americans. As Chairwoman of the Senate Committee on Indian Affairs, it is my privilege to introduce this resolution. I am pleased to be joined by so many of my colleagues, including Senators Baldwin, Barrasso, Begich, Cochran, Crapo, Franken, Gillibrand, Heinrich, Heitkamp, Hirono, Hoeven, Johnson of South Dakota, Klobuchar, Markey, Merkley, Moran, Reid, Schatz, Tester, Thune, Udall of Colorado, Udall of New Mexico, Warner, and Wyden, in introducing this resolution.

Since time immemorial, American Indians have occupied the lands we now know as the United States. To date, the federal government recognizes 566 distinct tribal nations across the country. While these Indian tribes share many attributes, each tribe is unique. The contributions that American Indians have made to the foundation of the United States are significant and continue today. From influencing the documents that founded our Nation to serving in World War II as code talkers, American Indians have helped shape the face of our Nation. It is fitting that we are honoring the Code Talkers this week with a Congressional Gold Medal Ceremony, as Native Americans have served in the military at a higher rate per capita than any other group in the country.   

Native American heroes played a significant role in World War II. Among them was Charles Chibitty of the Comanche Nation, who aided the successful landing at Normandy and the capture of an enemy flag in a French village, for which he was recognized by the French government. The Code Talkers came from many tribes, including the Navajo, who played a crucial role in the Pacific. The Choctaw, Sioux, Assiniboine, Apache, Hopi, Mohawk and many other tribes gave this Nation their dedication, determination and courage. They will never be forgotten.   

I am honored to represent the 29 tribes in my home state of Washington. Tribal culture is woven into the fabric of our State, as a critical part of not only the State’s history, but also its modern-day economy and governance. In 2012, Washington State tribes purchased more than $2.4 billion in goods, paid $1.3 billion in wages, and spent $259 million on construction activities. The Tribes and the State are partners in virtually every aspect of governance, from natural resource management to tax collection.

Many of the tribes in my State entered into agreements with the United States government over the last two and a half centuries for cessions of land and natural resources. In exchange for these lands, the United States promised essential services to American Indians. As the Trustee for Indian nations across the United States, the federal government has much work to do. I am encouraged by events like the Tribal Nations Conference, which has been convened annually since the election of President Obama. While this is a step in the right direction, we must do more to ensure that our Indian communities are thriving. 

As we celebrate National Native American Heritage Month, I encourage my colleagues to take some time and think about the federal government’s responsibilities to our first people. I ask my colleagues to support this resolution designating November 2013 as National Native American Heritage Month and November 29 of this year as Native American Heritage Day, and I encourage all Americans to recognize the important contributions American Indians have made to this great Nation.

The full text of Senate Resolution 305 follows:

RESOLUTION

Recognizing National Native American Heritage Month and celebrating the heritages and cultures of Native Americans and the contributions of Native Americans to the United States.
Whereas from November 1, 2013, through November 30, 2013, the United States celebrates National Native American Heritage Month;
Whereas Native Americans are descendants of the original, indigenous inhabitants of what is now the United States;
Whereas the United States Bureau of the Census estimated in 2010 that there were more than 5,000,000 individuals in the United States of Native American descent;
Whereas Native Americans maintain vibrant cultures and traditions and hold a deeply rooted sense of community;
Whereas Native Americans have moving stories of tragedy, triumph, and perseverance that need to be shared with future generations;
Whereas Native Americans speak and preserve indigenous languages, which have contributed to the English language by being used as names of individuals and locations throughout the United States;
Whereas Congress has consistently reaffirmed its support of tribal self-governance and its commitment to improving the lives of all Native Americans by enhancing health care and law enforcement resources, improving the housing and socioeconomic status of Native Americans, and approving settlements of litigation involving Indian tribes and the United States;
Whereas the United States is committed to strengthening the government-to-government relationship that it has maintained with the various Indian tribes;
Whereas Congress has recognized the contributions of the Iroquois Confederacy, and its influence on the Founding Fathers in the drafting of the Constitution of the United States with the concepts of freedom of speech, the separation of governmental powers, and the system of checks and balances between the branches of government;
Whereas with the enactment of the Native American Heritage Day Act of 2009 (Public Law 111-33; 123 Stat. 1922), Congress--
(1) reaffirmed the government-to-government relationship between the United States and Native American governments; and
(2) recognized the important contributions of Native Americans to the culture of the United States;
Whereas Native Americans have made distinct and important contributions to the United States and the rest of the world in many fields, including the fields of agriculture, medicine, music, language, and art, and Native Americans have distinguished themselves as inventors, entrepreneurs, spiritual leaders, and scholars;
Whereas Native Americans have served with honor and distinction in the Armed Forces of the United States, and continue to serve in the Armed Forces in greater numbers per capita than any other group in the United States;
Whereas the United States has recognized the contribution of the Native American code talkers in World War I and World War II, who used indigenous languages as an unbreakable military code, saving countless Americans; and
Whereas the people of the United States have reason to honor the great achievements and contributions of Native Americans and their ancestors: Now, therefore, be it
Resolved, That the Senate—

(1)   recognizes the month of November 2013 as National Native American Heritage Month;

(2)   recognizes the Friday after Thanksgiving as `Native American Heritage Day' in accordance with the Native American Heritage Day Act of 2009 (Public Law 111-33; 123 Stat. 1922); and

(3)   urges the people of the United States to observe National Native American Heritage Month and Native American Heritage Day with appropriate programs and activities.

US Senate Indian Affairs Committee Video on hearing

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