Tribal Sovereignty

Tribal Sovereignty

Cary Allen

Tribal Sovereignty

Although tribal reservations are part of the United

States, each reservation is organized into

sovereign nations

Sovereignty means that the Indian tribes of the

United States have the right to organize for its

common welfare, adopt an appropriate

constitution and bylaws, and ratify any

amendments of said constitution

Tribal Sovereignty

Although tribal reservations are part of the

United States, each reservation is

organized into sovereign nations

Sovereignty means that the Indian tribes of

the United States have the right to

organize for its common welfare, adopt an

appropriate constitution and bylaws, and

ratify any amendments of said constitution

Tribal Sovereignty

Although the Native American reservations are

defined as sovereign nations, the American

government still has a lot of authority in tribal

affairs through its federal agency: The Bureau of

Indian Affairs.

25 U.S.C.A. § 476

Also called Title 25

§ 476 or Title 25

Defines the organization of Indian tribes

Bequeaths power to the tribal elders or the tribal

councils

The Marshall Trilogy built the basis of 25 U.S.C.A. §

476

25 U.S.C.A. § 476 Rights

(a) Adoption.

Native Indian tribes have the right to organize for its common

welfare, may adopt an appropriate constitution and bylaws,

and ratify any amendments of said constitution when:

Ratified by a majority vote of the adult members of the tribe or

tribes at a special election authorized and called by the

secretary

Approved by the Secretary pursuant to subsection (d) of this

section


Subsection (d) under section (a) states the

secretary shall call and hold an election:

Within 180 days after the receipt of a tribal

request for an election to ratify a proposed

constitution

90 days after the receipt of a tribal request

for election to ratify an amendment to the

constitution and bylaws


Section (f) Privileges and immunities of Indian tribes

and prohibition on new regulations

Native reservations have protection and

immunity from:

Departments or agencies of the United States

disseminating any regulation making any decisions

or determinations in the tribe

History of 25 U.S.C.A. § 476

Marshall Trilogy (named after Chief Justice John

Marshall)

Johnson v. M’Intosh: A dispute over ownership of land in

what at the time was the Illinois Country

Cherokee Nation v. Georgia: Cherokee Nation argued they

were a sovereign and self-governing nation; hence, the

laws of Georgia did not apply to them

Worcester v. Georgia: Addressed whether the laws of the

State of Georgia applied in Cherokee lands

Complete Sovereignty Issue

Whether tribes should be seen as completely

sovereign nations

Complete sovereignty means that:

The Native Indian reservations have the

power to make their own decisions exclusively

through their tribal elders or their tribal

councils

Do not answer to the American government or

The Bureau of Indian Affairs.

Pursuit of Complete Sovereignty

Most tribes want to be completely sovereign as a

result of:

American government enacted

atrocities against the American

Indian

Relocation acts against the

civilized tribes

American government rarely

upheld their end on treaties

Government Orchestrated Atrocities Thomas Jefferson, at the beginning of his

1801 presidency, dispatched the U.S. Army to attack, terrorize, and destroy the Cherokee, Shawness, Peankeshaw, Ouabash, Kickapoes, Mingoes, Munsies, Windots, and Chickasaws tribes.

Sand Creek Massacre: 700 drunk, well-armed men attacked a village of 600 peaceful native peoples of which two-thirds were women and children

A fur trader was killed by Pequots, a powerful tribe who controlled southern New England’s fur trade; to retaliate, Connecticut and Massachusetts soldiers, aided by Narragansett allies, surrounded the main Pequot fortified village and set it ablaze, killing over 500 men, women, and children who tried to escape.

Relocation Acts

Indian Removal Act

Signed by President Andrew Jackson, transpired during presidency of President Van Buren

Trail of Tears

Relocations of the Choctaw, Creek, Cherokee, and Chickasaw Nations, and ejection of the Seminole Nation from their lands. Most of the tribes who were relocated were civilized tribes

Lack of respect for treaties

The Treaty of Fort Laramie

Allowed the Sioux to continue to hunt in areas

outside the reservation as long as big game

was available

The U.S. government agreed to provide food,

blankets, and other supplies to the Sioux

The U.S. government often failed to uphold its

end of the agreements and failed at making

regular payments for the land, and decreased

or cut back on the promised supplies

Opposed to Complete Sovereignty

If the native reservations were sovereign, there

would be tiny sovereign states inside America’s

states

Some tribes lack the ability to sustain themselves

Federal government and The Bureau of Indian

Affairs would no longer be there to protect and

manage the native reservations


If the native reservations were sovereign, there would

be tiny sovereign states inside America’s states

Article I, Section 8, Clause 3 of United States

Constitution states that the United States Congress shall

have power to regulate commerce with foreign Nations,

and with the Indian Tribes.

If the reservations were sovereign, the United States

constitution’s power over the reservations, and the

powers bequeathed from the constitution therein, would

no longer exist


Some tribes lack the ability to sustain

themselves

Some tribes such as the Navajo Nation and

Cherokee Nation are wealthy and influential

compared to the smaller tribes

Casinos

Native-Indian-made products

Monuments which attract tourism


Federal government and The Bureau of Indian

Affairs would no longer be there to protect and

manage the native reservations

Some Native Indian tribes see the federal

government as their guardian, and rely on the

federal governments for their protection, although

this does not impede with their rights of self-

governance

Bureau of Indian Affairs would have to be eliminated

Personal Position

The Five Civilized Tribes prove that certain native tribes can survive, even more so in the 21st century now that technology surpasses when the tribes were allowed to govern themselves

Seminole Bought Rights to Hard Rock Café Franchise

Certain wealthy tribes could be completely sovereign and support themselves as they did before the European settlers came

The wealthy tribes have the influence to maintain an agreement between the sovereign nation and the United States government, which states that American citizens can travel and play at sovereign nation owned casinos, and tribes that have franchise rights such as the Seminole can maintain franchising in the United States; smaller and less wealthy tribes do not have this luxury

Personal Position

Obstacles to Complete Sovereignty Less wealthy tribes do not have the resources to

sustain a sovereign nation state

Native Indians have been perceived as the enemy

in the past, especially after The French and Indian

War, The Civil War, and The War for Independence

Elimination of a lot of jobs in The Bureau of Indian

Affairs

The Bureau of Indian Affairs and tribal

agencies, in 2000, employed about

2,300 full time law officers and 1,160

support personnel

Judgement

I believe that the large and wealthy tribes that can survive as complete sovereign nations should do so

Small and less wealthy Native Indian tribes who cannot survive with complete sovereignty should remain self-governing under the rights bequeathed by 25 U.S.C.A. § 476

The federal government could possibly implement a policy that makes the tribal elders and The Bureau of Indian affairs as equals, which positions the tribal councils and The Bureau of Indian Affairs as the vanguards against tribal issues such as with lack of water, sewerage, and telecommunications

References Case, D. & Voluck, D. (2012). Alaska natives and American laws. Fairbanks, AK: University of

Alaska Press.

Drew, B. (2014). The great amnesia. Southwest Review, 99(4), 556.

Foner, E. (2014). An American history: Give me liberty!. (4th ed., Vol. 1). NY, New York: W.W. Norton & Company.

Fortson, R. (2015). Advancing tribal court criminal jurisdiction in Alaska. Alaska Law Review, 32(1), 93-152.

Jalata, A. (2013). The impacts of terrorism and capitalist incorporation on indigenous Americans. Journal Of World-Systems Research, 19(1), 130-152.

Kowalski, K. (2015). False promises. Cobblestone, 36(1), 2.

Mathers, R. (2012). The failure of state-led economic development on American Indian reservations. Independent Review, 17(1), 65-80.

McCarthy, R. (2004). The bureau of Indian affairs and the Federal trust obligation to American Indians. BYU Journal of Public Law, 19(1), 1-160.

Organization of Indian tribes; constitution and bylaws and amendment thereof; special election. 25 U.S.C.A. § 476. (2004).

Stouff, C. (2003). Native Americans and homeland security: Failure of the Homeland

Security Act to recognize tribal sovereignty. Penn State Law Review, 108375.

U.S. Const. art, I, § 8, Clause 3

Questions?

Comments?

Documents

Tribal Sovereignty