Tribal Governments- The right to self-govern

From my previous post is shown the U.S. Constitution was modeled after American Indian tribal government. American Indian tribes also know 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 power to tax their own laws and have their own courts. However, Congress has power to pass laws that govern American Indian tribes.


Separation of Powers

Many American Indian tribes have embraced Constitutions similar to the U.S. Constitution’s branches of government where this allows for separation of powers. These tribes have:

  • 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 Americans originates from several legal sources:

  1. The Constitution gives power to Congress to make regulations governing the territory belonging to the United States.
  2. The President’s Constitutional power to make treaties
  3. 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 Congress “Plenary Power” over Indian affairs. Notably, Congress has the right to pass legislation governing Native Americans even when it conflicts with Indian treaties.
  4. 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 was developed by U.S. Supreme Court Justice, John Marshall.

Cases supporting this Congressional Right:

*Lone Wolf v. Hitchcock – Congress broke a treaty provision that guaranteed no more land property would be made without consent of at least 3/4 of adult males from Kiowa and Comanche Tribes.

*Worcester v. Georgia – John Marshall (U.S. Supreme Court) states federal government had a special relationship with the Cherokees through the treaties they signed that involved certain moral obligations; “The Cherokees 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 many case issues involving Federal Government’s 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 officer on tribal land.

U.S. Congress’ Plenary Power a Cruel Oppressive Ruler

Plenary Power – Full, unqualified, entire, complete or absolute

The clause in the U.S. Constitution gives Congress full, unqualified, entire, complete power over Indian Affairs.

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.

  1. Tribes have existing powers of sovereignty that predate the discovery of America and
  2. The tribes have only attributes of sovereignty that Congress gives them….