Source:
Personal Book Collection and Various Academic Sources in the
Internet
TRIBAL SOVEREIGNTY by Melody McCoy, May 18, 2005, USOE
1.
Tribes are Separated Sovereign Government
2.
Tribes Sovereignty Generally Extend Over Tribes Territory
3.
Tribal Sovereignty is Inherent but is Subject to Limitations by
Congress
4.
Tribal Sovereignty may be Exclusive or Concurrent
Video Presentation
IMPORTANT DOCUMENTS
AND READINGS:
-
BIA Performance an Accountability Report
2005
-
Conflict resolution Assistance in Indian
Country
-
Strengthening the Circle Interior Indian
Affairs (2004-2005)
-
A Short Reading on the History of the
Federal Indian Policy
-
Native American Rights Fund Report 2005
-
Reading on Native American Indian
Sovereignty by Peter D'Errico
-
Tribal Perspective Environmental Justice
-
Tribal Government Policy by the Department
of Energy
-
The Relationship Between Unwritten and
Written Tribal Law
-
Strengthening Tribal Government
-
The Role of Tribal Government in
Regulating Research
-
Short Reading in Sovereignty
-
Reading: Organizing in the Context of
Tribal Sovereignty
Tribal Sovereignty by the Indian Affair Council
"Tribal sovereignty"
refers to the right of American Indian tribes to determine their
own future. American Indian tribes through elected tribal
governments have the right to operate as self-governing
nations."
Historical Perspective
"When the United
States government signed treaties with tribal nations, it
affirmed the inherent sovereignty of the tribes. American Indian
tribes have always been sovereign nations and controlled their
own destiny. The United States Congress acknowledged this under
House Concurrent Resolution 331. Among the attributes of
sovereignty are American Indian control of the land and inherent
powers. The inherent powers include: the power to determine the
form of government; to define conditions for membership in the
nation; to administer justice and enforce laws; to tax; to
regulate domestic relations of its members; to regulate property
tax.
One of the aspects
of sovereignty is to be able to exert power to enforce the
sovereignty.
The governments of
these nations have always operated in accordance with democratic
principles. An example is the Iroquois Confederacy. The framers
of the U.S. Constitution based many of their basic concepts on
this Confederacy. Each nation within the confederacy selected
individuals to represent them at confederacy meetings. Issues
were deliberated until all were in agreement on a common course
of action. This method of decision making still used today is
called consensus democracy."
Treaties
"In all the treaties
and agreements that took place between American Indian nations
and the United States government, the tribes retained the right
to maintain their own governments. This right has been upheld
since the 1830's when federal courts affirmed a trust
responsibility to the tribes. That responsibility includes the
protection of tribal rights and interests particularly with
regard to tribal lands and resources. Federal Indian policy,
however, followed an opposite course. In the treaties American
Indian tribes agreed to cede vast segments of their homelands in
exchange for honoring their right to retain small segments of
this land for tribal members in common. The treaties included
provisions that guaranteed the tribes government services in the
areas of education, health and technical assistance. Some of the
treaties guaranteed tribal members the right to hunt, fish and
gather resources in a customary manner on ceded lands."
Federal Polices and Practices
"The federal
government did not honor the treaties. Instead the federal and
state governments pursued polices and passed laws that led to
the erosion of tribal political rights and the further
confiscation of American Indian lands. Although the right of
tribes to govern their own nations has been affirmed by treaty,
federal laws, executive orders, federal policy and procedure
have eroded the tribes' freedom to exercise this sovereign
right.
Early in the
relationships between American Indian Nations and the United
States government, Congress used constitutional powers as
justification for passing laws and approving treaties and
agreements to regulate trade with Indian Nations. Later Congress
arbitrarily passed legislation which interfered with the
internal affairs of Indian Nations and assumed plenary power of
Indian Nations. These actions attempted to exercise control over
all aspects of American Indian life. United States courts have
usually supported the plenary powers of Congress.
In 1790, the
enactment of the first Indian Trade and Intercourse Act brought
federal control over non-Indians on Indian land. This act was
designed to "control" invasions of Indian land. This act and
subsequent Trade Acts encouraged broader intrusions upon
American Indian self-government.
The loss of the
Indian land base through acts of the federal government has been
enormous. Despite provisions of acts authorizing the acquisition
of lands for American Indians, Congress did not appropriate
money for the purpose of Indian land buy-back. The Dawes Act of
1887 allotted Indian lands that resulted in the further loss of
millions of acres.
Assimilation
policies followed the loss of land. These policies sought to
destroy tribal cultures and assimilate American Indians as
individuals into mainstream society.
The exercise of
sovereign powers by Indian nations had already been eroded
through legislation. The following methods were used:
The political
question doctrine. Questions decided by the legislature or
executive branch and not by courts.
The guardian-ward
relationship. "Trust" responsibility supposedly allowed Congress
extraordinary power to take actions to protect Indian Nations.
Plenary power of
Congress. The courts have said that the power of Congress in
Indian affairs is plenary (full and complete). Congressional
power in Indian affairs is mentioned in the United States
Constitution.
External controls
are requested by American Indian governments, but often
Congressional action has been prompted by special interest
groups who oppose the exercise of tribal sovereignty.
From 1770 to 1870,
Congress increased its role in Indian affairs from regulating
trade with American Indians to controlling almost all facets of
American Indian government. Treaty specifications were
systematically reduced by subsequent acts of Congress.
One example is the
reduction of land holdings of the Red Lake Reservation. Prior to
1863, the seven clans who comprised the Red Lake Chippewa owned
and controlled more than 13 million acres of land in
northwestern Minnesota. Land holding extended into North Dakota
on the west and Canada on the north.
Red Lake was and is
a separate and distinct nation. The Treaty of 1863 officially
recognized Red Lake as separate and distinct with the signing of
the Old Crossing Treaty of 1863. In this treaty, the Red Lake
Nation ceded more than 11 million acres of the richest
agricultural land in Minnesota in exchange for monetary
compensation and a stipulation that the "President of the United
States direct a certain sum of money to be applied to
agricultural education and to other such beneficial purposes
calculated to promote the prosperity and happiness of the Red
Lake Nation."
In the Agreement of
1889 and the Agreement of 1904, Red Lake ceded another 2,256,152
acres and the Red Lake Nation was guaranteed that all benefits
under existing treaties would not change. But they did.
There are additional
examples in the treaty deliberations with other tribal nations."
Need for Historical Accuracy
"Tribal sovereignty
has not been understood, therefore a prevalent concern among
American Indian scholars is to present an accurate history. The
Institute for the Development of Indian Law defines sovereignty
as the supreme power from which all specific political powers
are derived.
All of the sovereign
powers were once held by tribes, not the U.S. government.
Whatever power the federal government may exercise over Indian
nations it received from the tribe, and not the other way
around.
Included in the
inherent power are the following:
The power to
determine the form of government.
The power to
define conditions for membership in the nation.
The power to
administer justice and enforce laws.
The power to tax.
The power to
regulate domestic relations of its members.
The power to
regulate property tax.
The law is clear
that an Indian nation possesses all of the inherent powers of
any sovereign government, except those powers that have been
limited or qualified by treaties, agreements or an act of
Congress.
Students will be
able to function as responsible citizens if they know how
sovereignty affects interactions of tribes with the federal
government, the state of Minnesota and local governing units.
All of the land in Minnesota was gained by the United States
through a series of treaties with Anishinabe and Dakota
sovereign nations. In order to understand issues of treaties,
sovereignty or rights, one must first understand these very
basic premises: No great war took these lands from American
Indians. No American Indian leader gave Minnesota to the United
States. The nations of Anishinabe and Dakota made concessions as
to specific land uses by the United States. These concessions
were clearly to benefit the settlers who wanted to establish
businesses and homes on Indian lands. The United States was
obligated to carry out the specifications of the treaties.
Anishinabe and Dakota nations clearly retain any and all rights
not specifically mentioned in the contracts.
A common
misconception is that the United States gave American Indian
nations rights through treaties. In fact, American Indian
nations gave land to the United States while retaining inherent
rights and powers."
Source:
Minnesota Indian Affair Council,
http://www.cri-bsu.org/IA_web/htdocs/about/index.html
RESOURCES:
The Institute of Tribal Government
Tax Information for Indian tribal
Government
Cherokee Nation and Tribal Government
Topics A Video Presentations
Indian Country Law Enforcement
The New Laws of the Indies
Tribal Government Sites
National Indian Law Library
Indian Gaming
Excellent Link in the Native American
Census
Indian Recognition Act
Title 25 U.S. Code Indians
by Cornell University
Title 25 U.S. Code Indians
by US Code Home
Native American Law Organizations
Government Law Websites
Tribal CodesI
Library of Congress
International Indigenous People
