NCJ Number
163050
Journal
Compleat Lawyer Volume: 12 Issue: 4 Dated: (Fall 1995) Pages: 14-17
Date Published
1995
Length
4 pages
Annotation
This article examines how the decisions of the U.S. Supreme Court for the past 170 years (from the era of Chief Justice John Marshall through the time of Justice Thurgood Marshall) has struggled to define the doctrine of American Indian tribal sovereignty.
Abstract
The role of the Supreme Court in affecting Indian sovereignty is best understood in relation to the powers of Congress and the President. Under the Constitution, Congress has the power to regulate commerce with the Indian tribes. The Indian Commerce Clause is the primary source of Federal power over Indian tribes and has been the main vehicle used by Congress to recognize and define tribal sovereignty. In addition, the Court has ruled that Congress, as the legislative body of the Nation, has an intrinsic power to deal with the Indian nations that reside within the borders of the United States. Presidential power over the Indian tribes is centered on the ability to enter into treaties, a power that was used in the early years of Federal Indian law to secure tribal acquiescence to the demands of the encroaching waves of European settlers. It has been the Supreme Court's role to interpret the actions of the President and Congress and to strike a balance between the rights of the Indian nations and the interests of the European conquerors. There are two competing theories of tribal sovereignty; first, the tribes have inherent powers of sovereignty that predate the "discovery" of America by Columbus; and second, the tribes have only those attributes of sovereignty that Congress gives them. Over the years, the Court has relied on one or the other of these theories in deciding tribal sovereignty cases. Over the years the Court has moved away from the concept of intrinsic tribal sovereignty that predated the coming of the European conquerors and has adopted the view that tribal sovereignty and the concomitant freedom of the tribes from encroachments by the States, exists solely because Congress has chosen to confer some protections on the tribes. The sovereignty of American Indian tribes has been progressively and systematically diminished by the actions of the Federal Government, including the Supreme Court.