The definition of tribal sovereignty refers to the inherent authority of Indigenous Tribes to govern themselves.  This power is not delegated by congressional acts but Congress can, however, limit tribal sovereignty.  Unless a treaty or federal statute removes a power, the tribe is assumed to possess it.  Current federal policy in the United States recognizes this sovereignty and stresses the government-to-government relations between the U.S. and the American Indian Tribes.  However, most Indian land is held in trust by the United States, and federal law still regulates the political and economic rights of tribal governments.  Tribal criminal jurisdiction over Indians is negated when it comes to certain crimes and tribes are still striving to achieve criminal jurisdiction over non-Indian persons who commit crimes in Indian Country. 

There are many acts and laws that have been passed by Congress in the history of relations between Indian tribes and the United States that uphold tribal sovereignty and many that take away or negate tribal sovereignty.  The congressional acts that have taken away and negated tribal sovereignty will be the focus of this research. 

TREATIES

Let us begin with the fact that the treaties that were signed between Indian tribes and the United States recognized a government-to-government relationship.  None of the treaties ever “granted” American Indians sovereignty because this concept was inherently recognized by the signing of the treaties themselves.  After the signing of the treaties however, laws and acts were passed by Congress that slowly began taking away our inherent right to govern ourselves because the United States had the attitude that Indians were not “competent” enough to run their own affairs. 

Marshall Trilogy

Three legal cases known as the “Marshall Trilogy” formed the basis for American Indian sovereignty and American Indian Law.  “Chief Justice John Marshall crafted opinions, usually through consensus building with other justices, that gave rise to the concept of Indian nations retaining their inherent ‘nations’ status, such that all relations with these ‘nations’ were solely within federal power.  These cases heralded the introduction of the unique trustee/ward relationship between the tribes and federal government.” (1) 

In the case of Worcester V. Georgia (1832), the Supreme Court held that Indian tribes, as separate nations, had defined territorial boundaries within which state law was inoperative and ordered Worcester charges dismissed. (1)  In the case of The Cherokee Nation V. Georgia (1831), the Supreme Court held that the Cherokee Nation was not a foreign nation, rather a “domestic dependent nation” subject to the sovereignty of the United States federal government.  In the case of Johnson V. M’Intosh (1823), Chief Justice Marshall examined the history of how land was acquired during the European invasion and ultimately held that the tribe did not have an enforceable title to the land it sold.  The Indians enjoyed a right of “occupancy” only.  The ultimate title to land had passed to the United States government under a principle called “discovery.”   

Definition of Public Law 280-

Public Law 280 was a transfer of legal authority from the federal government to state governments which significantly changed the division of legal authority among tribal, federal, and state governments. Congress gave six states (five states initially – California, Minnesota, Nebraska, Oregon, and Wisconsin; and then Alaska upon statehood) extensive criminal and civil jurisdiction over tribal lands within the affected states. Public Law 280 also permitted the other states to acquire jurisdiction at their option. 

How did Public Law -280 take away sovereignty away from tribes?

In 1953, Congress enacted Public Law -280, which gave some states extensive jurisdiction over the criminal and civil controversies involving Indians on Indian lands. Many, especially Indians, continue to believe the law unfair because it imposed a system of laws on the tribal nations without their approval.  It takes away from tribal sovereignty by controlling how criminals are being prosecuted for certain crimes on Indian land.  It implies that American Indians are too incompetent to prosecute their criminals correctly.   
 
 
 Definition of the Major Crimes Act-

 The Major Crimes Act is a law that was passed by Congress in 1885. It places 15 major crimes under federal jurisdiction if they are committed by a Native American against another Native American in Native territory.

Indian on Indian crime in Indian Country may be prosecuted in Federal Court if the crime is one of those listed in the Major Crimes Act. 

How did Major Crimes Act take away sovereignty away from tribes?

- The Major Crimes Act reduced the internal sovereignty of native tribes by removing their ability to try and to punish serious offenders in Indian country.

LINKS:

http://en.wikipedia.org/wiki/Tribal_sovereignty

http://en.wikipedia.org/wiki/Major_Crimes_Act

http://www.aidainc.net/Publications/pl280.htm

http://law.jrank.org/pages/8746/Native-American-Rights-Tribal-Sovereignty.html

http://wordnetweb.princeton.edu/perl/webwn?s=sovereignty&sub=Search+WordNet&o2=&o0=1&o7=&o5=&o1=1&o6=&o4=&o3=&h=000

http://www.hawaii-nation.org/sovereignty.html

http://www.umass.edu/legal/derrico/sovereignty.html

http://www.rootforce.org/factsheets/indigenous/

http://sisis.nativeweb.org/

http://academic.udayton.edu/race/02rights/native11.htm

Three legal cases known as the “Marshall Trilogy” formed the basis for American Indian sovereignty and American Indian Law.  “Chief Justice John Marshall crafted opinions, usually through consensus building with other justices, that gave rise to the concept of Indian nations retaining their inherent ‘nations’ status, such that all relations with these ‘nations’ were solely within federal power.  These cases heralded the introduction of the unique trustee/ward relationship between the tribes and federal government.” (1) 

        In the case of Worcester V. Georgia (1832), the Supreme Court held that Indian tribes, as separate nations, had defined territorial boundaries within which state law was inoperative and ordered Worcester charges dismissed.(1)            

        In the case of The Cherokee Nation V. Georgia (1831), the Supreme Court held that the Cherokee Nation was not a foreign nation, rather a “domestic dependent nation” subject to the sovereignty of the United States federal government. 

        In the case of Johnson V. M’Intosh (1823), Chief Justice Marshall examined the history of how land was acquired during the European invasion and ultimately held that the tribe did not have an enforceable title to the land it sold.  The Indians enjoyed a right of “occupancy” only.  The ultimate title to land had passed to the United States government under a principle called “discovery.”

        In these three very controversial court case opinions by Chief Justice Marshall, they ensured that states didn’t have jurisdiction over Indian land.  They then classified American Indian Nations as “domestic, dependent nations,” which made them subject to the sovereignty of the United States.  As if these blows to our tribal sovereignty weren’t enough, they then said that American Indians enjoyed the right to “occupancy” only and that the United States had the ultimate title to the land due to the Doctrine of Discovery.  To conceive that the basis for American Indian Sovereignty and American Indian Law was formed due to these opinions and that one of these opinions relies on the Doctrine of Discovery is outright ludicrous!  Thousands and thousands of years of residence in North America should surely be enough evidence to see that we have more than just occupancy rights to the land of our ancestors.    

        The Doctrine of Discovery provided that by law and divine intention European Christian countries gained power and legal rights over indigenous non-Christian peoples immediately upon their “discovery” by Europeans.  To think that American law in the 21^st century relies on a 15th century Christian doctrine for most of the land they claim as theirs, something is wrong here.

            Simply from the fact that we are sovereign nations, because treaties are only signed between two nations or countries, we have our basic human right to control our own lives.  Nobody from the outside should tell us how to educate our youth, we are sovereign nations, but yet we are told we don’t know how to educate ourselves.  We have been educating ourselves for thousands of years and, to be honest, were much better off than we have been of lately.      

            They take this paternalistic view on Indians and clearly believe that we are still incompetent.  It seems that they aren’t really trying to help Indians at all because if they did help, there would be no need for their position in the BIA, and they would be out of a job. 

          The second selection from Red Power tying in with the first is, “Laws have been passed based on the premise that the U.S. government would eventually step aside and let Indians run their own affairs, and even when other laws conferred on the Department of the Interior certain powers over the Indians, they frequently stipulated that the powers were temporary and that they should be transferred to the Indians as soon as possible.” (69)  Even though this all sounds good, there is too much economic interest in our natural resources for them to even want to give us control of our lives and our land, let alone make a strong effort to give the control of our lives and our land back.  They are not looking out for the best interests of Native peoples, only their own best interests, while disguising it as ours.              

              The best thing for the Indigenous people here in North America would be for the government to step out of the picture, and give us the respect that they would give to any other peoples, country or nation.  Cohen really hits the nail on the head when he says “All it can really do for self-government is to get out of the way…”  (71)  The government claims to be looking out for Native peoples “best interests” with the passing of the Self-Determination Act and the Indian Child Welfare Act.  They make it appear as if they are trying to help, yet they still won’t give us control of our own lives.  We are still very far away from having self-determination, and as long as the BIA is standing in the way, it’s not possible for us to see true self-government and self-determination.