What sovereignty means for the American Indian tribes

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AMID the news that made headlines in the Supreme Court that term – the travel ban upheld, Anthony Kennedy’s retirement – came something entirely more prosaic: a battle for the fish. The case, United States vs. Washington, asked if Washington State should ensure a healthy supply of salmon in its rivers and streams for fishing by Indian tribes. The court said yes. In a tie 4-4, with one challenge, he allowed a lower court order to stand in favor of the tribes. The bottom line is that the treaties signed in the 1850s between the state and 21 Indian tribes guaranteed them the right to fish on their reserves. The state’s ill-designed water management system, which has decimated the local salmon population, will need to be fixed. At first glance, the matter seems trivial. But it depends on larger questions about Indian rights, arising from the unique legal status of tribes.

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In colonial America, the British made treaties with the Indians. In doing so, they were dealing with tribes like foreign nations. The practice continued after the American Revolution, although legal uncertainties arose. What were the limits of tribal independence? And who had authority over the tribes? It was up to the Supreme Court to set the parameters. Three cases in the 1820s and 1930s — known as the Marshall Trilogy, named after Chief Justice John Marshall — laid the foundation for much of Indian law. First, the tribes were to be seen as sovereign political entities controlling their internal affairs. They could tax and jail members. But the federal government retained the absolute power to regulate them. States had no say in tribes unless otherwise permitted. In describing this particular arrangement – with tribes that do not look like states or foreign countries – Marshall called them “national dependent nations.” By giving up certain sovereign rights, such as the ability to raise an army, strike money, or form alliances with foreign powers, tribes would gain protection from the federal government. “The Indian tribes are the wards of the nation,” declared the tribunal in 1886. “From this flows the duty of protection, and with it power.

It was noble language, without a doubt. But federal policy was rarely benign, oscillating between respect for tribal independence and the desire to isolate or assimilate Indians. Sovereignty rights were sometimes revoked and often restricted. Beginning in the 1850s, tribes were forcibly relocated to reserves and Indian-held lands were divided. To complicate matters, the fundamental question of what constitutes a tribe, since in order to have rights, tribes must be recognized by the federal government. It was a contested process. In 1953, Congress adopted a policy of “termination” aimed at assimilating and “civilizing” the Indians. More than 100 tribes were delisted, although some were reinstated after Richard Nixon gave up politics in 1970. Tribal independence was restricted to a lesser extent. Tribes do not have criminal jurisdiction over non-Indians who commit crimes on Indian lands, for example. (An exception exists for cases of domestic violence by non-Indians.) They must also guarantee certain civil rights to members.

The unique status of the tribes appears curiously. The most visible are the casinos. Nearly 250 tribes operate gambling operations in states where gambling is otherwise illegal. Another example is same-sex marriage, which tribes are not required to recognize, although it is legal in all 50 states. Today, most court cases focus on thorny issues such as land use, taxation, off-reserve treaty rights, and tribal legal jurisdiction. These opinions are not exactly “good bedtime read” in the words of one legal scholar. But they do a good job for the lawyers. The nature and extent of tribal self-governance is constantly debated.

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