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Tribal Sovereignty | An Explanation and Some Resources

Tribal Sovereignty Definition

Tribes are treated significantly different than other minority groups because the United States has a legal and political relationship with tribes.

Tribal Sovereignty is a philosophical term that is legally constructed and came about through the treaty relationship, is limited via legislation and court decisions, and applied through the actions of Native nation building and self-determination.

At the most basic level, tribal sovereignty is the inherent political powers of Native nations to self-govern with each nation recognized as a distinct political entity.  In political reality, Congress, court rulings and treaties have limited tribal sovereignty.  It is important to understand that tribes were not given sovereignty; rather sovereignty of tribes was and is inherent and is legally recognized initially through treaties and was later limited by laws and court rulings.

The federal-tribal relationship is both constitutionally based and congressionally based.  Congressional Plenary Power or the idea that Congress has ultimate authority over Indian affairs was defined by a series of three Supreme Court rulings called the Marshall Trilogy (Chickasaw Nation Video on the Marshal Trilogy).  This series of cases defines Congressional Plenary power or the exclusive Federal-Tribal relationship, inherent tribal sovereignty, the Trust Doctrine or the responsibilities of the United States to Tribes, and the Canons of Construction, which defines the role of the courts with regard to tribes.
Tribal sovereignty is further supported by various mandates, including, but not limited to:

  • Executive Order 13175Consultation and Coordination with Indian tribes, where tribal self-government and sovereignty are recognized and a commitment to the government-to-government federal-tribal relationship was reaffirmed by President Clinton in 2000.
  • Executive Memorandum of September 23, 2004 where President Bush recommitted to the principles of sovereignty, self-determination, and the government-to-government relationship.
  • Executive Order – Establishing the White House Council on Native American Affairs enacted by President Obama in 2013; “This order establishes a national policy to ensure that the Federal Government engages in a true and lasting government-to-government relationship with federally recognized tribes in a more coordinated and effective manner, including by better carrying out its trust responsibilities.”

Resources:

The Rights of Indians and Tribes, Stephen L. Pevar

The Cherokee Cases: Two Landmark Federal Decisions in the Fight For Sovereignty, Jill Norgren

American Indian Law in a Nut Shell, William C. Canby Jr.

Understanding Tribal Sovereignty, Amanda Cobb

Tribal Officials Resource Guide, Arizona State University