From my previous post history documented the United States Constitution was modeled after American Indian Tribal government. American Indian tribes also known as “Nations within a Nation” are considered as separate governments by the United States Constitution. Native American tribes were deemed rights of self-government originating from their own sovereignty. Therefore, they have the power to tax their own laws and have their own courts. However, Congress has the power to pass laws that govern American Indian tribes.
Separation of Powers
Many American Indian Tribes have embraced constitutions similar to the United States Constitution branches of government; where this allows for separation of powers. The tribal government has:
- An elected Governor, Chief, or President who holds the executive power in the tribe.
- A Tribal Council – holds the legislative power
- A Tribal Court system – handles disputes between tribal members
Generally, most tribes have legal authority and responsibility for their people and lands.
Congress’ Power over Native American Tribes
Congress’ power over Native American tribes originates from several legal sources:
- The Constitution – gives power to Congress to make regulations governing the territory belonging to the United States.
- The President’s Constitutional Power to make treaties.
- The “Commerce Clause” of the U.S. Constitution – that Congress shall have power to regulate commerce with foreign nations and among the several states and with Indian Tribes. This is known as “plenary power” over Indian affairs.
- The “Trust Relationship” – The federal government’s consistent promise in the treaties signed, to protect the safety and well being of the tribal members in return for their willingness to give up their lands.
Notably, Congress has the right to pass legislation governing Native Americans even when it conflicts with Indian treaties.
Cases supporting this Congressional right:
~ Lone Wolf v. Hitchcock – Congress broke a treaty provision that guaranteed no more land property wold be made without consent of at least three-fourths of adult males from Kiowa and Comanche tribes.
~ Cherokee Nation v. Georgia – Johns Marshall (U.S. Supreme Court Justice) described the tribes as “dependent nations” in relation to the United States is like “that of a ward to his guardian”.
~ Worcester v. Georgia – Marshall states federal government had a special relationship with the Cherokee’s through the treaties they signed that involved certain moral obligations..”The Cherokee acknowledge themselves to be under the protection of the United States, and of no other power. Protection does not imply the destruction of the protected”.
One of may cases involving issues of Federal Governments’ power over Native Americans:
~ Nevada v. Hicks – The Supreme Court ruled that tribal courts do not have jurisdiction to hear Federal Civil Rights lawsuits concerning alleged unconstitutional actions by a state government official on tribal land.
U.S. Congress “Plenary Power” a Cruel Oppressive Ruler
Plenary Power – Full, unqualified, entire, complete or absolute. – Therefore, the clause in the U.S. Constitution gives Congress full, unqualified, entire, complete power over American Indian affairs. http://citizensalliance.org/indians-second-class-citizens-congress-plenary-power-tribal-sovereignty-constitutional-rights/
The United States government is not only federal and state but a complex structure of federal, state, and tribal relations. In matters of Tribal Sovereignty there are two competing propositions:
- Tribes have existing powers of sovereignty that predate the discovery of America and
- The tribes have only attributes of sovereignty that Congress gives them.
We can never give a reason for tribal sovereignty.
The Power over Native American Rights – http://law.jrank.org/pages/8749/Native-American-Rights-Federal-Power-over-Native-American-Rights.html