Tribal Sovereignty: History and the Law

Tribal governments are the oldest governments in existence in the Western Hemisphere. Despite common misperceptions, the United States was not the first government to institute democratic rule and introduce concepts of fair representation, equality, and justice for all.   At a time when European governments were authoritarian and hierarchical, traditional tribal governments were based upon principles of democracy, equality, freedom, and respect.

In fact, not everyone is aware of just how much American government and political life as we know it today has been drawn from Indian culture.

From the very beginning, the founding fathers saw tribal government as something to be admired and emulated.  Did you know that the U.S. Constitution is modeled after the oldest constitution in North America -- the constitution of the Seven Iroquois Nations? The Indians called this constitution "The Great Law of Peace" and it governed an alliance of Indian tribes that was four hundred years old when the first settlers arrived.

And did you know that the traditions of Congressional debate are taken from American Indian tribal councils?

When colonists first arrived, they brought with them the notions of British government where the members of Parliament had to shout each other down to win an argument. (You can see that tradition is still alive today if you watch British government on C-SPAN.)

By watching tribal councils, early Americans observed that each representative spoke individually and everyone listened first without interruption. Jefferson and his colleagues adopted this process  as a more civilized way to conduct government.

Europeans were used to feudal government systems and government based on authoritarian control. They had little experience in making decisions by consensus.

Newcomers to America sat down with tribes like the Algonquian and learned the concept of group meetings which the Algonquians called "caucuses."

The U.S. Constitution recognized tribal governments and, starting with Thomas Jefferson, America's founding fathers pledged that their sovereignty was to be protected.

The U.S. Supreme Court has repeatedly recognized tribal sovereignty in court decisions for more than 150 years. In 1831, the Supreme Court agreed, in Cherokee Nation v. Georgia, that Indian nations had the full legal right to manage their own affairs, govern themselves internally, and engage in legal  and political relationships with the federal government and its subdivisions.

In 1942 New York Supreme Court Justice Felix Cohen wrote, "Indian sovereignty is the principle that those powers which are lawfully vested in an Indian tribe, are not delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which can never be extinguished."

Today, 200 years later, tribal governments still exist for the same reasons they were originally founded: To provide for the welfare of the Indian people.

Tribal governments build and maintain services like water, roads, waste disposal, emergency assistance, law enforcement, and transportation. Like the United States government, tribal government leaders are charged with protecting and developing an economic base. Like state, federal and local governments, tribal governments work to preserve and encourage culture and to support higher education.

Tribal governments today are in a transition that began with independence, progressed through a long, difficult period of survival, and are now moving again toward self-determination and control. California tribal governments continue their progress protecting the legacy of sovereignty and providing for the future self-sufficiency of their people.

Constitutional Law and Legal Precedent

Over the last two centuries, a unique relationship has been maintained between Indian tribes and the federal government.  This relationship was defined in an 1832 U.S. Supreme Court ruling.  In Worcester v. Georgia, the court ruled that Indian tribes are "distinct political communities, retaining their original rights as the undisputed possessors of the soil from time immemorial...the very term nation, so generally applied to them, means a people distinct from others, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged but guaranteed by the United States."

In fact, the U.S. Constitution specifically recognizes Indian tribes as distinct governments, along with foreign nations and the several states.  Since the early 1800's, the U.S. Supreme Court has upheld the principle that tribes did not lose their sovereign powers by becoming subject to the power of the federal government.

Sovereignty as a Retained Right

Long before there was a United States of America, tribes governed themselves, provided for their people, and negotiated treaties with other nations such as England, France, and Spain. When tribes signed treaties with the U.S., they were guaranteed the right to continue governing themselves.  This means that their sovereign rights are retained, not granted.

Tribes and the Federal Government

Federal policy toward Indians and tribal governments was inconsistent throughout much of the 19th century. As the 1900's approached, federal officials adopted a goal of assimilation and initiated efforts to end the reservation and tribal government system.

Then, in a major policy change enacted between 1880 and 1930, reservations were surveyed and lands deeded to Indian and non-Indian individuals.  Tribal land holdings were vastly diminished and tribal governments were greatly weakened or eliminated.  This became known as the "termination" era.  Indian children were taken from their homes, moved to federal schools, and barred from using their native language or visiting their reservation homes.  During this period, Indian social and economic problems skyrocketed.

The Cornerstones of Tribal Self-Government

In 1934, federal policy changed again with passage of the Indian Reorganization Act, which restored tribal lands and permitted tribes to reorganize under federal law for purposes of self-government. Since then, Congress has passed several other landmark statutes to strengthen tribal self-government, including:

The Indian Civil Rights Act of 1968, which applied most of the Bill of Rights' requirements and guarantees to Indian tribal governments;

The Indian Self-Determination and Education Act of 1975 - which strongly reaffirmed Congress' policy that tribal governments should be permitted to control education programs, contracts, and grants affecting Indians;

The Indian Child Welfare Act of 1978 - which established federal rules to ensure that Indian children removed from their homes are placed with Indian families whenever possible to preserve cultural values;

The Indian Gaming Regulatory Act of 1988 - which recognizes Indian gaming as a vehicle for achieving economic self-sufficiency on reservations, and details the authority and role of tribal governments, the federal governments and the states in Indian gaming;

The Indian Tribal Justice Act of 1993 - which reaffirmed the  responsibility of the U.S. government to tribal governments, including the protection of the sovereignty of each tribal government; and confirmed that Congress, through statutes, treaties and administrative authorities, has recognized the  self-determination, self-reliance and inherent sovereignty of Indian tribes.