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Sovereignty is the right of a nation or group of people to be
self-governing. We speak of countries such as the United States as
being sovereign political powers because they are completely
independent of any other political entity. Political scientists
often refer to this as absolute sovereignty. The United
States possesses absolute sovereignty within its own borders, but
below the federal government there are other political units such as
states, counties, cities, and towns. While each of these units falls
under the sovereignty of the United States, the federal government,
by its constitution, allows these political units to exercise
sovereignty in certain areas. States, for instance, are allowed to
regulate and build their own roads and prisons, and cities and towns
are allowed by the federal government and the state to run their own
schools, pass their own zoning ordinances, and provide services such
as waste disposal and fire protection. Political scientists often
refer to this as divided sovereignty.
Indian tribes in the United States also possess a form of divided
sovereignty that resembles that held by states, counties, cities,
and towns, but this has not always been the case. Indeed, when
European nations first encountered the Indian tribes in North
America, they treated them as independent nations and as absolute
sovereign powers. This notion was written into the United States
Constitution in 1787. The new federal government took the power of
dealing with the Indians away from the states and reserved this
right to itself when it stated in Article 1, Section 8, that
Congress had the power "To regulate Commerce with foreign Nations,
and among the several States, and with the Indian tribes." Embedded
within this clause is the idea that the United States recognized
tribes as independent and sovereign powers, which in turn
encompassed the related concept of inherent sovereignty. This
meant that tribes were absolute sovereign powers prior to the
arrival of Europeans in North America and that they continued to be
sovereign after Europeans arrived.
The Indians also believed themselves to be independent and
sovereign. Nothing illustrates this better than the War of 1812. As
relations between the United States and Great Britain worsened
between 1807 and 1812, the majority of Indian tribes exercised their
sovereign powers by allying themselves with the British rather than
the United States. However, America's victory ended this alliance
and prevented the Indians and the British from cementing further
agreements. Tribes in the United States increasingly dealt only with
the United States after the war ended in 1815, and this had an
important impact on their sovereignty. As hordes of White settlers
pushed west after the war, Indians west of the Appalachians were
slowly surrounded by Americans. Moreover, the United States had
become much more powerful politically and militarily, and tribes did
not have the power to resist the United States as they did prior to
the War of 1812. The tribes were still independent, but Americans
increasingly came to view tribes less as independent nations in the
sense that the United States, Great Britain, and France were
independent. Tribes found it more difficult to maintain their status
as nations possessing absolute sovereign powers since the United
States increasingly did not allow them to do so.
The actual status of the tribes, however, remained somewhat vague
until 1832, when Chief Justice John Marshall of the United States
Supreme Court issued his decision in the case of Worcester v.
Georgia. Marshall maintained that Indian tribes in the United
States had been treated as independent and sovereign nations since
Europeans first arrived. Since the creation of the United States and
the Constitution, tribes had engaged in various treaties with the
United States, either voluntarily or forcibly. In these treaties,
tribes often agreed to put themselves under United States'
protection. This, Marshall argued, terminated their status as
independent nations. Instead, they were--in Marshall's
words--domestic dependent nations, meaning that they could
not make agreements with any power other than the United States, and
that Congress could regulate their affairs with non-Indians. Because
they possessed inherent sovereignty predating contact with
Europeans, tribes retained the right to govern their own tribal
affairs without U.S. interference. Marshall further stated that
Congress had unilaterally reduced some of this power, and that
tribes had agreed to abridge some of it through certain treaty
negotiations. Thus, tribes were no longer absolute sovereign powers
like independent nations, but they still retained a large measure of
sovereignty as domestic dependent nations. |
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Marshall's 1832 decision is the most significant legal decision
regarding Indian sovereignty. The Constitution guaranteed the
tribes' sovereignty, and Marshall's decision defined it limits.
Because they were both sovereign powers, the United States and the
tribes made treaties, just as sovereign nations have always done and
continue to do today. These treaties had many purposes. Some were
used to make alliances with Indian tribes, while others established
peaceful relations between the United States and certain tribes.
Most commonly, however, treaties were used by the United States to
purchase land from the Indians. Because they were considered
domestic dependent nations after 1832, the tribes could only enter
into treaty agreements with the United States. They could not make
treaties with other nations, individual states, or with private
persons. In 1871, the United States ended the practice of making
treaties with Indian tribes, but it still recognized their sovereign
status. After 1871, the federal government negotiated formal
agreements with the tribes which had to be approved by both the
House of Representatives and the Senate. This was a change from the
earlier treaty system where treaties (whether made with tribes or
independent nations) required ratification only by the Senate.
Despite the clear delineation of Indian sovereignty by John
Marshall in 1832, federal courts in the United States did not always
agree with Marshall's decision in Worcester v. Georgia. The
legal status of Indians by the early twentieth century was in a
state of disarray. This changed in the 1940s when Felix S. Cohen, a
legal scholar, published his monumental work The Handbook of
Federal Indian Law. Cohen argued that Indian sovereignty was
firmly rooted in both the Constitution and in Marshall's 1832
decision, and that any decisions which did not recognize Indian
sovereignty were at variance with established law. Cohen's work
reestablished Marshall's original argument and stemmed the tide of
legal decisions which failed to recognize Indian
sovereignty. |
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At about the same time, Congress passed the Indian Reorganization
Act (IRA), an important piece of legislation with a tremendous
impact on twentieth-century Indian sovereignty. In 1934, this
reversed the federal government's policy of assimilation which had
been in place since the Civil War and which was supposed to make
Indians live more like "civilized" white men and less like Indians.
The policy was a failure since Indians had refused to give up their
languages, cultures, and Indian identity. The IRA allowed--even
urged--tribes to form tribal governments and conduct their own
internal affairs. These new tribal governments became important
institutions because they provided Indian tribes with political
organs that could assert their sovereign rights. Tribes today have
their own governments, tribal courts, tribal law codes, and even
tribal police forces.
Indians today are United States citizens, but they are also
citizens of their tribes. Like other Americans, Indians are subject
to federal laws, but they are not always subject to state laws.
Indian reservations are held in trust by the federal government for
the tribes, so state laws do not always extend to their reservation
lands. Thus, the state of Wisconsin, for example, can pass laws
regulating hunting and fishing, but these laws do not extend to
Indian reservations: tribes are allowed to make their own hunting
and fishing laws. When Indians are off their reservations, they are
subject to state laws unless they have reserved certain rights in
treaties or other agreements with the federal government. For
example, an Indian who is caught speeding on a state highway in
Wisconsin can be ticketed just like any other person. However, in
their treaties with the United States, the Ojibwe of Wisconsin
reserved the right to hunt and fish on lands ceded to the United
States in the 1800s. Thus, the Ojibwe can spearfish on lakes, under
regulations agreed upon between the tribes and the State, in
northern Wisconsin despite state laws preventing the general public
from doing so. |
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Another issue related to tribal sovereignty is that of
citizenship. During the 1800s, Indians were considered citizens of
tribes and not the United States. Even after John Marshall declared
tribes to be domestic dependent nations in 1832, United States
citizenship was not extended to Indians. After the Civil War,
Indians were still considered citizens of their tribes and not the
United States and--even if they left their tribes--they still were
not considered citizens. After 1887, there were various ways
individual Indians could become United States citizens, and some
did, particularly Indian men who served in the armed forces during
World War I. Congress passed a law in 1924 that made all Indians
United States citizens, but it still allowed them to retain their
tribal citizenship as well. Thus, Indians today have a kind of dual
citizenship.
While Indians retain a large degree of sovereignty, it remains
somewhat precarious because it is subjected to the will of Congress.
Indeed, during the 1950s and 1960s, the federal government
experimented with the idea of termination, whereby Indian tribes
would be divested of their sovereign status. The Menominees were
terminated in 1961 and ceased to be a sovereign entity, as did the
Klamath tribe in Oregon. The experiment generated so many negative
reactions among Indians and even non-Indians that other tribes
fought the government's efforts to terminate their status. The
Menominees lobbied to regain their status as a sovereign tribe, and
Congress complied in 1973. Thus, Congress has placed itself in
control of Indian sovereignty whether tribes agree or not, although
the disasters that resulted from the termination policy have made
the federal government less likely to attempt a similar experiment
in the near future. For now, the tribes have retained their
sovereign status, and will continue to do so in the foreseeable
future. | |