Native American sovereignty has changed as a result of U.S. Supreme Court decisions. Chief Justice John Marshall in three seminal decisions laid the foundations for the abrogation of Native American sovereignty. In Johnson v. McIntosh (1823), the sovereignty and independence of Native American nations was "diminished." In Cherokee Nation v. Georgia (1831), the Supreme Court described Native Americans as "domestic dependent nations" that were under the protection of the U.S. government. Furthermore, Native Americans lost the right to interact in international relations but kept their internal sovereignty. In Worcester v. Georgia (1832), the Supreme Court held that the Cherokee possessed self-government, even though it was dependent on the United States. These three cases, known collectively as the Marshall Trilogy, have defined the basic construct of Native American sovereignty, and subsequent cases have limited tribal sovereignty.
The cases that have had a direct effect upon Native American sovereignty include Oliphant v. Suquamish Indian Tribe (1978), in which the Court denied that a tribal court has criminal jurisdiction over a non-Native American on a reservation. This was one of the most destructive erosions of tribal sovereignty. In Nevada v. Hicks (2001), the Supreme Court ruled that a tribal court lacked jurisdiction and authority to hear a civil lawsuit against state officials. Justice Sandra Day O'Connor took the view that the unanimous decision of the Court undermined the right of tribal authority to make and be governed by its own laws.
However, contemporary sovereignty of tribal governments includes the authority to define their own citizenship, and to tax, license, and regulate lands and resources. Criminal and civil laws can be established, to be ruled upon by tribal courts. Tribal government can be developed, structured, and controlled. Additionally, Native American nations have sovereign immunity: inherent sovereignty that predates the U.S. Constitution, general exclusion of state law, and extraconstitutional tribal powers (that is, the U.S. Constitution does not bind or restrict tribes). A "trust relationship" also exists, based on treaties with the federal government, which protects land, assets, and treaty rights. Additionally, tribal governments are responsible for a plethora of governmental activities, which include education, health, housing, social services, court services, and natural resources. Intertwined here is the authority of tribes to protect and preserve their culture, heritage, language, history, and traditions.
To Native Americans, sovereignty is a constantly evolving concept that is defined by the U.S. Supreme Court—the federal government, which continues to have the right to extinguish any aspect of tribal sovereignty—and, more importantly, by Native American nations who can directly influence Congress to protect their sovereignty. Many tribes describe themselves as sovereign nations because they assert that the U.S. government has never conquered them. Native American nations are defending their sovereign right to land, water, and hunting rights through treaties and are advancing their claims through the United Nations and in the international arena.
Dewi I. Ball
Pommersheim, Frank. Braid of Feathers: American Indian Law and Contemporary Tribal Life. Berkeley: University of California Press, 1995; Anderson, Terry L. Sovereign Nations or Reservations? An Economic History of American Indians. San Francisco: Pacific Research Institute for Public Policy, 1995; Wilkins, David E., and K. Tsianina Lomawaima. Uneven Ground: American Indian Sovereignty and Federal Law. Norman: University of Oklahoma Press, 2001.