Learn More About Tribal Sovereignty!
Here is where you will find information about tribal sovereignty and basic understanding of federal Indian policy throughout the history of the United States.
American Indian Tribal Sovereignty Primer – American Indian Policy Center & Brief History of U.S.-Tribal Relations
American Indian Tribal Sovereignty Primer
American Indian Policy Center
Many of us have not had an opportunity to learn the facts about the unique relationship between the United States and the American Indian Tribes. Sovereignty is the foundation upon which this relationship is built. The purpose of this document is to provide the reader with a basic understanding about the sovereign status of American Indian Tribes.
What is Sovereignty?
Sovereignty is an internationally recognized concept. A basic tenet of sovereignty is the power of a people to govern themselves.
American Indian Tribal powers originate with the history of Tribes managing their own affairs. Case law has established that Tribes reserve the rights they had never given away.1
American Indian Tribes Possess a “Nation-within-a-Nation” Status
Treaties formalize a nation-to-nation relationship between the federal government and the Tribes.
In treaties, Indians relinquished certain rights in exchange for promises from the federal government. Trust responsibility is the government’s obligation to honor the trust inherent to these promises and to represent the best interests of the Tribes and their members.
The U.S. Constitution
The U.S. Constitution recognizes Indian Tribes as distinct goverments. It authorizes Congress to regulate commerce with “foreign nations, among the several states, and with the Indian tribes.”2
Three 19th century Supreme Court opinions serve as a cornerstone to understanding the sovereign status of Indian nations. The cases are the most widely cited with respect to Tribal sovereignty.
- Johnson v. McIntosh concerned the validity of a tribal land grant made to private individuals.3
- Provided that Tribes’ rights to sovereignty are impaired by colonization but not disregarded.
- Held that the federal government alone has the right to negotiate for American Indian land.
- Cherokee Nation v. Georgia involved an action brought against the state of Georgia by the Cherokee Nation, which sought relief from state jurisdiction on tribal lands.4
- Described Indian Tribes as “domestic dependent nations.”
- Maintained that the federal-tribal relationship “resembles that of a ward to his guardian.”
- Worchester v. Georgia concerned the application of Georgia State law within the Cherokee Nation.5
- Held that Tribes do not lose their sovereign powers by becoming subject to the power of the U.D.
- Maintained that only Congress has plenary (overriding) power over Indian affairs.
- Established that state laws do not apply in Indian Country.
Some Modifications in the Nation-to-Nation Relationship
In 1953, Congress modified the federal-Tribal relationship in five states through the passage of Public Law 280. More recently, the Indian Child Welfare Act and the Indian Gaming Regulatory Act modified the relationship.
Public Law 280 (1053)
Provides for five states, including Minnesota (with the exception of the Red Lake Reservation), to assume the general criminal7 and some civil8 jurisdiction over Indian reservations within the state. Tribes retain limited criminal and general civil jurisdiction9, but because of a lack of resources, have generally not fully assumed these responsibilities.
Indian Child Welfare Act10 (1978)
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.
Indian Gaming Regulatory Act11 (1988)
Should a Tribe decide to engage in casino gaming, this act requires the state to negotiate in good faith with the Tribe to form a compact setting forth games, limits, and other terms.
Tribal Sovereignty as a Paradox
While the U.S. Government recognizes American Indian Tribes as sovereign nations, the U.S. Congress is recognized by the courts as having the right to limit the sovereign powers of Tribes. However, Congress must do so in definite terms and not by implication.
What Does this Mean?
- Tribes remain sovereign nations and possess self-government.
- Tribes have a nation-to-nation relationship with the U.S. Federal Government.
- Only congress has plenary (overriding) power over Indian affairs.
- State governance is generally not permitted within reservations.
For Further Reference
This is only a general framework for understanding the unique relationship between the American Indian Tribes, the Federal Government, and the states. For further references see the following:
- National Convergence of State Legislatures, States and Tribes Building New Traditions (James B. Reed and July A. Zelio eds. 1995)
- Federal Indian Law (David H. Getches et al., 3rd ed. 1993)
- The Rights of Indians and Tribes (Stephen L. Pevar, 2nd ed. 1992)
- Indian Tribes as Sovereign Governments (American Indian Resources Institute, 1988)
- Handbook of Federal Indian Law (Felix a. Cohen, 1988)
- U.S. v. Winans, 198 U.S. 371 (1905); Lac Court Oreilles v. Voigt, 700 f. 2d 341 (1983); Lac du Flambeau v. Stop Treaty Abuse, 991 F. 2d 1249 (1993)
- U.S. Constitution, Art. 1, Sec. 8, Clause 3
- Johnson v. McIntosh, 21 U.S. 543 (1823)
- Cherokee Nation v. Georgia, 30 U.S. 1 (1831)
- Worcester v. Georgia, 31 U.S. 515 (1832)
- 18 U.S.C. Sec. 1162; 28 U.S.C. Sec. 1360
- Provides for general state jurisdiction over law enforcement, juvenile justice and courts.
- Permits state courts to resolve private disputes that occur upon reservations.
- Bryan v. Itasca, 426 U.S. 373 (1976)
- 25 U.S.C. Sec. 1901-1963
- 25 U.S.C. Sec. 2701-2721 (Supp. 1994)
This report is provided by the Minnesota Indian Affairs Council and was prepared by the American Indian Research and Policy Institute in cooperation with the University of Minnesota, the Minnesota Extension Service, and the Center for Urban and Regional Affairs. Special thanks to Larry Leventhal, Henry Buffalo, Andrea Atherton, Dr. Cecilia Martinez, and Dr. John Red Horse for technical assistance; to Anita Munson for design consultation; and to Michael Nissen for layout.
Brief History of U.S.-Tribal Relations
Pre-Constitution Policy (1533-1789)
- Administrators of British and Spanish colonies negotiated treaties with Indian Tribes. Treaties are agreements between two sovereign governments, and are considered to be the supreme law of the land.
- These treaties had the effect of according Tribes an equivalent status to that of the colonial governments.
The Formative Years (1789-1871)
- The new U.S. Government assumed the role of the British and Spanish Governments in making treaties with Indian Tribes. U.S.-Tribal treaties are indexed in international law publications with treaties made by all other nations of the world.
- Federal policy instead of state policy dominated because the U.S. Constitution specified in Article 1, Section 8 (Commerce Clause) that “The Congress shall have the power to. . .(t)o regulate Commerce with foreign nations and among the several states, and with Indian tribes.”
- The Marshall Trilogy (Johnson v. McIntosh – 1823; Cherokee Nation v. Georgia – 1831; Worcester v. Georgia – 1832) handed down by the Supreme Court further defined the relationship Tribes had with the U.S. Government, and established the doctrine of federal trust responsibility.
The Era of Allotment and Assimilation (1871-1928)
- The U.S. quit making treaties with Tribes during this time. One of the reasons for this was that treaty-making was seen as an impediment to the assimilation of Indians into “white” society.
- To encourage assimilation, Congress passed the General Allotment Act of 1887 (also called the Dawes Act). This act changed the communal ownership of tribal lands to individual ownership. Each Indian male over 18 years old was given an allotment of acres and the rest of the tribal lands, considered to be “excess,” were sold to non-Indians.
- The Indian Citizenship Act was passed in 1924. This granted Indians United States citizenship for the first time.
Reorganization Era (1928-1945)
- The Merriam Report of 1928 set the tone for reform. It declared allotment to be a complete disaster.
- The Indian Reorganization Act of 1934 set up Reservation Business Councils to govern tribes, and provided for the adoption of constitutions and the granting of federal charters.
Termination Era (1945-1961)
- Legislation passed that called for a reversal of the Tribal self-government movement previously endorsed and called for an end to the trust relationship between federal and Tribal governments.
- This resulted in the termination of more than 50 Tribal governments. The federal government simply no longer recognized them as Indian Nations.
- Public Law 280 passed in 1953, gave six states mandatory and substantial criminal and civil jurisdiction over Indian country. The states included were Alaska (except for Metlakatla Reservation), California, Minnesota (except Red Lake Reservation), Nebraska, and Oregon (except Warm Springs Reservation). Ten other states also opted to accept some degree of P.L. 280 jurisdiction. They are: Arizona, Florida, Idaho, Iowa, Montana, North Dakota, South Dakota, Utah, and Washington.
Self-Determination Era (1961-present?)
- The abuses of the termination era led to reforms. This period has been characterized be expanded recognition of the powers of Tribal self-government.
- Important legislation includes: Indian Civil Rights Act of 1968, Indian Self-Determination and Education Assistance Act of 1975, Indian Child Welfare Act of 1978, American Indian Religious Freedoms Act of 1978, and Native American Graves Protection and Repatriation Act of 1990.
The Indigenous Governance Database
The Native Nations Institute for Leadership, Management, and Policy (NNI), housed at The University of Arizona’s Udall Center for Studies in Public Policy, serves as a self-determination, governance, and development resource for Indigenous nations in the United States, Canada, and elsewhere.
NNI was founded in 2001 by the Morris K. Udall Foundation (now Morris K. Udall and Stewart L. Udall Foundation) and The University of Arizona.
We have provided three sections below. The first is documents developed by local Tribes themselves. The second is Native Sovereignty Law documents. And finally, we have Nisqually Watershed podcasts provided by Evergreen State College.
These resources, Tribal History, PowerPoints and Documents, are courtesy of Port Angeles High School Tribal Language Teacher Jamie Valadez, National Board Certified. Many thanks to her for the information and image rich resources on Nisqually, Jamestown S’Klallam, Elwa Klallam, Makah, Port Gamble S’Klallam, and Squaxin Island Tribes. PowerPoints and support materials are suitable for middle and high school students and all teachers. No content may be altered without permission from Jamie Valadez at Port Angeles High School, Port Angeles, WA.
1 Tribal History, PowerPoints and Documents
Port Gamble SKlallam
Squaxin Island Tribe
2 Native Sovereignty Law
PPT by Robert J. Miller, Professor, Lewis & Clark College, Portland OR
3 NISQUALLY WATERSHED PODCASTS
Winter 2009 Academic Project
Conceptualizing Native Place program
The Evergreen State College
The “Conceptualizing Native Place” program at The Evergreen State College used art and geography to explore Native and Western concepts about place. In Winter quarter of 2009, students in the full-time academic program created 10-minute documentary podcasts (audio tracks with accompanying still images) on the Nisqually River Watershed. The project had the permission and guidance of the Nisqually Tribal Council and Culture Committee to document tribal natural and cultural resource programs. These podcasts can be watched over the web, or downloaded onto iTunes and transferred to a video iPod player. They can be also played at a larger size on iTunes, though some of the small maps may be pixelated (fuzzy). You can also copy and paste the following URL into iTunes’ Advanced > Subscribe to Podcast field:
In order to create these podcasts about relationships between people, places, and species within the Nisqually Watershed in the southern end of Washington’s Puget Sound, students interviewed local people, researched archives and other published materials, learned to use audio recording equipment, learned to edit audio and photographic files, created their own maps and graphics, and obtained permissions to use anything they did not create themselves. They worked in three-person teams and produced these podcasts during a 10-week period. Most of them started with little or no digital media experience. Their final projects tell some of the stories of the Nisqually Valley and our place in it.
(Ruth Kodish-Eskind, Ursula Opalka, Ella Pultinas)
“Dupont: Corporate Space in Native Place” addresses the history of the City of Dupont, on Sequalitchew Creek near the Nisqually Estuary. It covers Nisqually longhouses, colonization by the Hudson Bay Company, and the environmental and economic impacts of modern corporate development. Dupont’s prolonged status as a “company town” demonstrates how the treatment of place is effected by land ownership and control.
(Jon Babin, Nicholas Croft, Tyler Luce)
“Ohop Creek Restoration and Design” documents the Nisqually Tribe’s salmon habitat restoration program on the creek in the Middle Nisqually Valley. It tells the unique story of a straightened creek that is being remanipulated to again follow a meandering course. The tribal program has worked with the Nisqually Land Trust, Citizens Reclaiming the Ohop Watershed, South Puget Sound Salmon Enhancement Group, and others.
(Dimitri Antonelus-Lapp, John P. Walker, Simon Wright)
“Mashel River” explains the social and ecological importance of the Mashel River within the Middle Nisqually Watershed, as a potential refuge for salmon. It discusses the cooperation between the Nisqually Tribe, Eatonville and the Nisqually Land Trust in restoring salmon habitat with log jams and other riparian repair methods.
(Morgan Black, Sabrina Buck, Hilary Schult)
“Geoduck: the Nisqually Shellfish Program and Nisqually Aquatic Technologies” addresses the importance of geoduck harvesting to the Nisqually Tribe and its treaty rights, the impacts of harvest on the geoduck resource and the environment, and the economic and cultural benefits of the geoduck diving program. (The Geoduck is also our Evergreen team mascot.)
(Emily Gwinn, Jennifer Johnson, Joe Nance)
“Nisqually Estuary” reviews the Nisqually Delta restoration projects just north of I-5, in the Nisqually National Wildlife Reserve (formerly the Brown Farm), and the tribally-owned Braget Farm Site on the east bank of the Nisqually River. It focuses on dike removal and the effects that it will have on the estuary and its species. It also examines the cooperative relationship between local farmers and the Nisqually Tribe to protect the estuary from development.
(Scott Casterline, Callie Martin, Sally Hull)
“Muck Creek Chum Salmon Restoration” looks at cooperative riparian restoration efforts on Muck Creek, which flows through Fort Lewis and the City of Roy on its way to the Nisqually River. It highlights the connections of the importance of salmon to local culture, tradition and sense of place, using the 2009 Roy Salmon Ceremony to illustrate the growing Native/non-Native cooperation to bring back chum salmon to the tributary.
(Jason Bean-Mortinson, Annalise Duerr-Miller, Julia Vieau)
“Nisqually Tribe and Fort Lewis” examines the relationship between the Nisqually Reservation and the adjacent military base. About 70 percent of the reservation was seized to form the Army post in 1917, and tribal members were forcibly removed from their lands. In recent years, the Tribe has convinced the Army to restore access rights to tribal members, and jointly protect unique species and cultural sites on post. This cooperation was symbolized in the 2009 Leschi and Quiemuth Honor Walk.
CLEAR CREEK HATCHERY
(Mick Michelutti, John Moudy)
“Clear Creek Hatchery” focuses on one aspect of the relationship between the Nisqually Tribe and Fort Lewis. In 1991, the Tribe opened the hatchery on former reservation lands inside the military base, initiating the cooperation process between the Tribe and the Army. Funding for the hatchery came from dam operators compensating the tribe for their damage to the tribal fishery. The hatchery plays a key role in restoring salmon runs.
(Stephanie Cichy, Alison Miklich, Zoe Farabaugh)
“Wilcox Farms and a Salmon-Safe Future” looks at how Wilcox Farms has contributed to creating a Salmon-safe environment in the Nisqually watershed. It shows how an emerging “shared sense of place” has been aided by the cooperative relationship between the Nisqually Tribe, the Nisqually Land Trust, and the private landowning family running the Wilcox Farms.
Our enduring thanks to the Nisqually Tribal Council, Culture Committee, tribal staff members, federal, state and local government staff, and tribal members and private citizens interviewed for these Podcasts.
Thanks also to Evergreen technical staff for the computer application trainings. Finally, thanks to the awesome students of Conceptualizing Native Place for challenging themselves and forming a strong learning community to bring these documentaries to the world.
Conceptualizing Native Place
Fall 2008 syllabus
Winter 2009 syllabus http://academic.evergreen.edu/g/grossmaz/CNPWinter09Syllabus.doc