- Congress actions with the support of Court decisions have significantly undermined the tribal sovereignty of Native American Indians
- John Marshall decisions established Native American tribes as dependent domestic nations deserving of recognition on their merit as Sovereign tribes
- Legal philosophy emerging from the decisions of the courts, have overtime undermined the Sovereign nature of Native tribes
Defining tribal sovereignty about Native American Indians within the context of United States court decisions and congressional laws is a challenge. This is because of the inconsistency of decisions of the Supreme Court and laws from Congress regarding the sovereign nature of the native tribes, with few (of the rules and decisions) being objective and fair and most being prejudicial and racial.
The American constitution recognises three forms of sovereignty. One is the sovereignty of the federal government referred to as the supreme sovereignty of the nation. Its legitimacy is from the citizens of the United States and its primary locus of political, economic and legal power of the U.S. as a nation including some delegated authority over the state governments. The second is the sovereignty is that conferred upon the state governments, which includes power the Constitution does not explicitly grant to the Federal government. Lastly, the tribal sovereignty, which is drawn, its legitimacy from the Native tribes and predates the US Constitution. Article VI clause 2 recognises treaties, from which tribal sovereignty is accepted, as among the supreme laws of the United States.
John Marshall Decisions Establish Tribal Sovereignty
The first three decisions by John Marshall in the early days after the Independence of the United States set the foundation for recognition of Native American sovereignty. The first case of 1823, John v McIntosh, given the Royal Proclamation of 1763, defined the doctrine of discovery. The principle states that ‘ownership of land belongs to the government whose citizens first explored and occupied the land whose inhabitants were not subjects of a European monarch.’ The facts of the case were that in 1775, Johnson and other British men purchased from Piankenshaw Indians land in Virginia. Upon his death, his heirs acquired the property. However, William McIntosh in 1818 bought the same parcel of land from Congress. The heirs of Johnson went to court claiming ownership of the property, but the court held that the initial purchase and their inherited title were invalid.
The main issue before the court was the question of the capacity of a Native American tribe to transfer land to an individual. The court unanimously held that only the federal government had the right to sell or give Native land to individuals based on the doctrine of discovery. This meant that Europeans claims over North America supersede claims by Native American.
The second case was the Cherokee Nation vs Georgia (1831) in which the Cherokee in Georgia sought an injunction against the state of Georgia from violating their rights and taking away their rights within the Article III of the Constitution. Article III provided the function of the Supreme Court in solving disputes between nations. By presenting the matter to court by Article III, the Cherokee contended that they were an independent foreign nation and Georgia state laws are not applicable in their territory.
The Chief Justice did not go into the merits of the case but rather took time to determine its legal authority to listen to the matter within the context of the facts of the case, the parties and their rights under the United States Law and any other applicable law. Chief Justice John Marshal disagreed that the Cherokee were a sovereign nation, noting that they were a ‘dependent domestic nation’ and the relationship between the states and the tribes was that of ‘ward and guardian.’ The ruling was a landmark because the judge recognised the inherent sovereignty of the native tribes, ‘which though predates the United States, was within the boundaries of the United States.’ The Cherokee were successful in demonstrating that they were a ‘distinct political society separated from others and capable of managing its affairs and governing itself.’
The case established a rule called the ‘the doctrine of federal trust responsibility.’ According to the doctrine, the federal government was responsible for protecting the tribes in the land reserves and compensating them by providing necessities such as food and shelter among others. The court also took time to elaborate the rights of the native Indians within the doctrine of discovery, which states that rights of ownership over a territory belonging to the nation that discovers it. The courts declared that upon independence the discovery rights over the Native land that were upon the British transferred to the U.S.
A year later, the third important case of Worcester v Georgia (1832) came to the Supreme Court. The state of Georgia had arrested missionaries for violating a state law that required non-Indians residing in the territory of Georgia to secure a license from the state. Upon appeal to the Supreme Court, Justice Marshall took time to extrapolate on the previous decision concerning the dependent domestic nature of the Indian Tribes. The judge stated that Indian Tribes, “had always been considered as distinct, independent, political communities, retaining their original natural rights as the undistinguished possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed; and this was a restriction which those European potentates imposed on themselves, as well as on the Indians. The very term “nation,” so generally applied to them means “a people distinct from others.” He ruled that the tribe had exclusive jurisdiction within their territory and therefore such rules of the state of Georgia did not apply, forming the basis of the present day Indians jurisdictional law.
Congressional Preliminary Power
Two main principles undermine the exercise of tribal sovereignty the Congressional preliminary power and the political question doctrine. Congressional preliminary power means that the Courts cannot question Congress decisions, expressed through laws and policies, about Native American tribes. The political question doctrine provides that courts will not act as platforms for determining political issues or politically charged cases. Whereas the political question doctrine does not apply to questions concerning Native Indians, the principle applied together with Congressional preliminary power curtail the functions of courts as platforms for arbitrating Native Indian concerns and the sovereignty of Native tribes.
The doctrine of Congressional preliminary power was from the case of Ex Parte Crow Dog (1883,). A Native American, Crow Dog in 1881, killed another Native American on Indian Territory. He convicted by the tribal government and ordered to pay restitution, but state government of Dakota charged Crow with murder and sentenced him to death. Crow appealed to the U.S Supreme Court for a writ of habeas corpus, which is a legal application to a court of law questioning reasons for confinement. The Supreme Court in examining the Fort Laramie 1868 treaty concluded that the treaty intended to enable the Natives to create “an orderly government” and “the regulation by themselves of their domestic affairs” and therefore allowed Crow to fulfil the tribal court judgment and not the State one. In response to the case, Congress passed the Major Crimes Act 1885 that granted criminal jurisdiction to the U.S. federal government over enumerated major crimes committed within the Indian territories by one Native against another. In United States v. Kagama, (1886) following the Major Crimes Act, Kagama, a Native American, was charged with the murder of Iyouse another Native in an Indian reservation. Kagama challenged the jurisdiction of the state Court. The court following on the ward/guardianship principle in Cherokee Nation vs Georgia (1831) affirmed Congress preliminary power in regulating the tribes. In United States vs Sandoval (1913), the court held that Pueblo Indians were an Indian Nation over which Congress had the power to extend its legislative authority. Pueblos land was a grant from Spain under communal in fee simple and confirmed by Congress. The court noted that the ‘Indians were inferior people, in need of special consideration and protection.’ In Lone Wolf vs Hitchcock (1903), the Court held that Congress had an authority to revoke an Indian Treaty unilaterally. The court also held that there is a presumption of good faith in the manner in which Congress handles Indian affairs which is a political question not subject to judicial review.
Reducing Native Indian Property Rights
The identity of Native Americans is intrinsic to land ownership. Indian Wars were a spirited battle to maintain their identity and the ownership of their land. However, the court’s interpretation of treaties and the Indian tribal sovereignty has consistently diminished their holds of sovereignty. In Montana v United States (1981), the court held that Crow tribe could regulate fishing and hunting on Reservation lands owned by non-Indians. The court noted tribal held that tribal sovereignty does not extend that which is explicitly granted by Congress with two exceptions. One when non-Indians consent through commercial undertakings to be regulated by Indians and secondly when the conduct of non-Indians on Reservation land “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” However, in Brendale v. Confederated Tribes and Bands of Yakima (1989), the Indian tribe attempted to enforce zoning laws a closed area, which were trust lands and forests and in open areas which contained towns and airports. In what is considered a fractured decision, the court in fractured ruling found that the tribes’ power to regulate the closed areas did not apply to the open area due to a “subsequent alienation” that suspended the requirements within reservation boundaries of those land by allowing non-Indian access and ownership.
The case of Solem v. Bartlett (1984), established that the Indian Territory is not equivalent to Indian fee ownership. Fee ownership is the highest possible form of land ownership without expiration like in lease ownership, which expires after a certain period. The case outlined three circumstances under which Congress had the right to reduce the Indian Territory. The first was by intention. Any intention of Congress to divest a reservation and or reduce the boundaries of a reservation would result in a reduction or delisting of a reservation opening it up for settlement by non-Indians. The second, tied to the first was that intention is present only when the actions of Congress result to an actual reduction of Reservation Territory. The third is an unconditional commitment to compensate the Indians for the land. A further influx of non-Indians into the opened portion is evidence of intent to reduce the reservation according to the judgment.
Further, Congress enacted the Indian Reorganization Act (IRA) in 1934 that mandated the Secretary of Interior to acquire and hold land in trust “for any recognised Indian tribe now under Federal jurisdiction.” However, in Carcieri v Salazar, (2009) held that the law was only applicable for federal tribes recognised at the time and the Narragansett Indian Tribe not known in 1934 are not entitled to the benefits under the Act.