An Issue of Sovereignty

Janurary 2013

Tribal sovereignty refers to the right of American Indians and Alaska Natives to govern themselves. The U.S. Constitution recognizes Indian tribes as distinct governments and they have, with a few exceptions, the same powers as federal and state governments to regulate their internal affairs. Sovereignty for tribes includes the right to establish their own form of government, determine membership requirements, enact legislation and establish law enforcement and court systems.

Three historic court cases are often cited with respect to tribal sovereignty:

Johnson v. McIntosh (1823)  — This case addressed the legality of a tribal land grant made to private individuals and provided that tribes' rights to sovereignty were impaired by colonization but not disregarded, and that only the federal government has the right to negotiate for American Indian land.

Cherokee Nation v. Georgia (1831) — The Cherokee Nation filed a lawsuit against the state of Georgia which requested relief from state jurisdiction on their land. The decision described Indian tribes as "domestic dependent nations” and maintained that the federal-tribal relationship "resembles that of a ward to his guardian."

Worcester v. Georgia (1832) — This case involved the application of Georgia state law within the Cherokee Nation. The decision was made that tribes do not lose their sovereign powers by becoming subject to the power of the United States. It also maintained that only Congress has overriding power over Indian affairs and that state laws do not apply in Indian Country.

Over the years, several acts of Congress have modified the nation-to-nation relationship between the federal government and Indian tribes:

  • Passed in 1953, Public Law 280 provides for five states, including Minnesota (with the exception of the Red Lake reservation), to assume general criminal and some civil jurisdiction over Indian reservations within the state. Tribes retain limited criminal and general civil jurisdiction. In recent years, some PL 280 states and tribes have worked together to return some or all of this authority to back to tribes.

  • Passed in 1978 the Indian Child Welfare Act (ICWA) establishes procedures state agencies and courts must follow in handling Indian child custody matters. Creates dual jurisdiction between states and tribes that defers heavily to tribal governments.

  • The 1988 Indian Gaming Regulatory Act (IGRA) requires that, should a tribe decide to participate in casino gaming, the state can negotiate in good faith with the tribe to develop a gaming compact setting forth games, limits and other terms.

The Constitution gives authority in Indian affairs to the federal government, not to the state governments. Just as the United States deals with states as governments, it also deals with Indian tribes as governments, not as special interest groups, individuals or some other type of non-governmental entity. Some states have explicitly recognized the governmental status of Indian tribes through various state recognition processes.