Tribal Sovereignty & Legal Implications
Native American tribes hold a unique status under US law. The Constitution grants authority to the federal government to manage relations with tribal nations. The Commerce Clause provides Congress with the power to "regulate commerce with the Indian Tribes," while the President holds the power to make treaties with them. Historically, states did not hold authority over tribal nations within their borders, although this has changed somewhat over time.
In general, Native American tribes can control their internal affairs to the same extent as state and federal governments. This arises from their pre-existing status as independent sovereigns. A tribe can establish their own form of government and determine who qualifies as a member of the tribe, with the associated rights and obligations. Tribes have legislative, executive, and judicial powers, such as enacting and enforcing laws and regulations, operating an independent tribal court system, and collecting taxes.
The Marshall Trilogy and Federal-Tribal Relations
Early in US history, a trio of Supreme Court cases laid the foundation for the concept of tribal sovereignty. These are known as the Marshall trilogy after Supreme Court Chief Justice John Marshall, who wrote each of these opinions. In the 1823 decision of Johnson v. McIntosh, the Court reviewed a grant of Native American land to private parties. Marshall wrote that this grant was an invalid infringement on the tribal right to sovereignty, which had survived the colonial period to a limited extent. This case created the rule that the federal government holds exclusive power to negotiate for tribal lands.
About a decade later, in Cherokee Nation v. Georgia, the Court again reviewed the relationship between tribal nations and state and federal governments. The Cherokee Nation had sued the state government of Georgia to prevent its jurisdiction over tribal territory. In language uncomfortable to some modern readers, Marshall described the relationship between the federal government and the Native American tribes as a guardian-ward relationship. He defined the tribes as domestic dependent nations, which placed them in a position distinct from both foreign countries and US states.
The final case in the Marshall trilogy, Worcester v. Georgia, caused the Court to revisit relations between Georgia and the Cherokee Nation a year later. This opinion provided that state laws did not apply on reservations and in other "Indian country," since the federal government held exclusive power to manage Native American affairs. Marshall also reaffirmed the survival of tribal sovereignty, despite the subordination of tribes to the federal government.
Public Law 280 and State-Tribal Relations
States traditionally were not granted jurisdiction over Native American reservations and other Indian country within their borders. This changed for some states when Congress passed Public Law 280 in 1953. Public Law 280 signaled a limited shift away from exclusive federal regulation of Native American affairs toward a triangular relationship involving the federal government, the states, and the Native American tribes. Under this law, five states received general criminal and limited civil jurisdiction over Indian country within their borders. (Alaska was added later.) Public Law 280 also opened the door to eight other states to assume this jurisdiction by enacting a statute or amending the state constitution. Tribal governments retained limited criminal and general civil jurisdiction. The scope of state civil jurisdiction extended only to adjudicatory power in cases involving individual Native Americans.
Over time, some of the states covered by Public Law 280 have sought to restore at least some state authority to tribal governments. However, other federal laws have extended the trend of shifting some authority or influence involving certain types of tribal matters to the states. The Indian Child Welfare Act, for example, provided dual jurisdiction to states and tribes in Native American child custody matters, although tribal authorities receive substantial deference. The Indian Gaming Regulatory Act allows states to negotiate agreements with tribes who set up gaming operations on their lands.
