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American Indian Law: Tribal Sovereignty & Self-Governance

Instructor: Ashley Dugger

Ashley is an attorney. She has taught and written various introductory law courses.

Traditional tribal governments were based on democracy. American Indians instituted equality and justice far before the formation of the United States. This lesson explains American Indian law, including tribal sovereignty and self-governance.

American Indian Influence

Many people believe the colonists were the first to institute a democratic government. But that's incorrect! Traditional tribal governments existed for centuries before the creation of our United States Constitution. These governments were, and are, based on notions of equality, freedom, fair representation and justice.

The colonists witnessed the tribal governments in action, and the constitutional framers recognized the advantages. Looking to leave European authoritarian and hierarchical ways behind, the framers built the U.S. Constitution using the constitution of the Seven Iroquois Nations. Known as 'The Great Law of Peace', it governed an alliance of Indian tribes for over four hundred years before the colonists arrived.

American Indians used a democratic governing system for hundreds of years before the colonists arrived
American Indians used a democratic governing system for hundreds of years before the colonists arrived.

Tribal Sovereignty and Self-Governance

Our U.S. Constitution left the tribal governments in place, protecting their tribal sovereignty. This is a type of independence that means the tribes could continue to manage their members, property and business. The tribes could therefore continue to operate independently and separately, while still belonging to the new United States.

Like each state, federally recognized tribes have relationships with the federal government and are subject to federal law. Federally recognized tribes are those that have received federal recognition status through a treaty, act of Congress, executive order, federal court decision or other federal administrative action. There are over 500 federally recognized American Indian and Alaska Native tribes and villages. These tribes operate as domestic dependent nations, meaning they are independent entities yet part of the United States, with the primary goal of providing for the welfare of their citizens. Tribes handle their own affairs, govern themselves from within, and participate in legal and political dealings with the federal government. This is generally known as self-governance and is a cornerstone of American Indian law.

Tribal governments often run their own hospitals, schools, emergency services, law enforcement and public services. They elect their own officials, develop their own economic base and manage their own government budgets. That's why it's not unusual to see tribe-run businesses in certain areas of the country.

Self-governance was most recently addressed through the Indian Tribal Justice Act of 1993. This act recognizes and affirms each federally recognized tribe's right to tribal sovereignty and self-governance.

American Indian Law

The relationship between federally recognized tribes and the federal government was established through three Supreme Court cases, each authored by Chief Justice John Marshall. The cases are known as the 'Marshall Trilogy' and include Johnson v. M'Intosh in 1823, Cherokee Nation v. Georgia in 1832, and Worcester v. Georgia also in 1832.

In Worcester, the justices ruled that American Indian tribes were 'distinct political communities' and that they retained exclusive authority within the boundaries of their lands. These lands are known as federal Indian reservations. A reservation is an area of land 'reserved' for and belonging to a tribe or tribes. Tribes receive reservations through treaties or other federal administrative actions. Many reservations were established in the 1800s. Some reservations are a portion of the tribe's original homeland, but not all. The federal government created some reservations when tribes were forcibly relocated. This includes Indian Territory in Northeastern Oklahoma, which was created when the Cherokees were relocated from the Southeastern states along the 'Trail of Tears'.

Indian Territory in what later became the state of Oklahoma, circa 1885
Indian Territory in Oklahoma, circa 1885

Tribal Termination and Reorganization

During the late 1800s and early 1900s, a series of federal government decisions led to what is known as the termination era. Tribal governments were weakened, and sometimes eliminated, while reservation lands were reduced. Many economic opportunities once available to tribe members were eliminated through legislation. Numerous Indian children were removed from their reservation homes and prohibited from attending their reservation schools. They were placed in federal schools, where the use of their native languages was banned. For many tribes, the termination era led to decades of poverty and general economic distress.

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