Indigenous Futures: Native Americans

Tribal sovereignty refers to the right of American Indians and Alaska Natives to govern themselves. The U.S. Constitution recognizes Indian tribes as distinct governments and they have, with a few exceptions, the same powers as federal and state governments to regulate their internal affairs. Sovereignty for tribes includes the right to establish their own form of government, determine membership requirements, enact legislation and establish law enforcement and court systems.  The Constitution gives authority in Indian affairs to the federal government, not to the state governments. Just as the United States deals with states as governments, it also deals with Indian tribes as governments, not as special interest groups, individuals or some other type of non-governmental entity. Some states have explicitly recognized the governmental status of Indian tribes through various state recognition processes.

Court cases and legislative actions that are often cited with respect to tribal sovereignty:

• Johnson v. McIntosh (1823)  — This case addressed the legality of a tribal land grant made to private individuals and provided that tribes' rights to sovereignty were impaired by colonization but not disregarded, and that only the federal government has the right to negotiate for American Indian land.
• Cherokee Nation v. Georgia (1831) — The Cherokee Nation filed a lawsuit against the state of Georgia which requested relief from state jurisdiction on their land. The decision described Indian tribes as "domestic dependent nations” and maintained that the federal-tribal relationship "resembles that of a ward to his guardian."
• Worcester v. Georgia (1832) — This case involved the application of Georgia state law within the Cherokee Nation. The decision was made that tribes do not lose their sovereign powers by becoming subject to the power of the United States. It also maintained that only Congress has overriding power over Indian affairs and that state laws do not apply in Indian Country.
• Passed in 1953, Public Law 280 provides for five states, including Minnesota (with the exception of the Red Lake reservation), to assume general criminal and some civil jurisdiction over Indian reservations within the state. Tribes retain limited criminal and general civil jurisdiction. In recent years, some PL 280 states and tribes have worked together to return some or all of this authority to back to tribes.
• Passed in 1978 the Indian Child Welfare Act (ICWA) establishes procedures state agencies and courts must follow in handling Indian child custody matters. Creates dual jurisdiction between states and tribes that defers heavily to tribal governments.
• The 1988 Indian Gaming Regulatory Act (IGRA) requires that, should a tribe decide to participate in casino gaming, the state can negotiate in good faith with the tribe to develop a gaming compact setting forth games, limits and other terms.

OAH, Delucia, C., et al. (2021) Histories of Indigenous Sovereignty in Action. The American Historian. “Sovereignty” holds many meanings for Indigenous people around the world. Ask fifteen different Indigenous scholars to define sovereignty and you may receive fifteen distinct conceptualizations. This multiplicity reflects the diversity of Native forms of knowledge and action and the complexity of the topic. Core qualities of sovereignty encompass the longstanding autonomy and inherent self-determination of Native nations; foundational relationships and responsibilities within and between Native people and homelands; and exercises of authority over how Native experiences are represented, understood and shared. While many critical discussions of Indigenous sovereignty primarily focus on the domains of law and policy, it is also vital to cultivate a more expansive vision that encompasses Indigenous languages, cultures, popular expressions, activism, environment, and much more.

Climate Justice Alliance. (2022) Indigenous and Tribal Sovereignty Indigenous peoples have suffered and continue to suffer from historic injustices as a result of dehumanization and racism and the colonization and dispossession of their lands, territories and resources, preventing them from exercising, in particular, their right of self-determination in accordance with their own needs and interests, extending to their rights affirmed in treaties, agreements and other constructive arrangements entered into with the United States and its several States.

Shrinkhal, R. (2021) Indigenous sovereignty and right to self-determination in international law: a critical appraisal. AlterNative: An International Journal of Indigenous Peoples. Volume: 17 issue: 1, page(s): 71-82.  It is worth recalling that the struggle of indigenous peoples to be recognised as “peoples” in true sense was at the forefront of their journey from an object to subject of international law. One of the most pressing concerns in their struggle was crafting their own sovereign space. The article aims to embrace and comprehend the concept of “indigenous sovereignty.” It argues that indigenous sovereignty may not have fixed contour, but it essentially confronts the idea of “empire of uniformity.” It is a source from which right to self-determination stems out and challenges the political and moral authority of States controlling indigenous population within their territory.