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Sovereignty


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Sovereignty is the right of a nation or group of people to be self-governing. We speak of countries such as the United States as being sovereign political powers because they are completely independent of any other political entity. Political scientists often refer to this as absolute sovereignty. The United States possesses absolute sovereignty within its own borders, but below the federal government there are other political units such as states, counties, cities, and towns. While each of these units falls under the sovereignty of the United States, the federal government, by its constitution, allows these political units to exercise sovereignty in certain areas. States, for instance, are allowed to regulate and build their own roads and prisons, and cities and towns are allowed by the federal government and the state to run their own schools, pass their own zoning ordinances, and provide services such as waste disposal and fire protection. Political scientists often refer to this as divided sovereignty.

Indian tribes in the United States also possess a form of divided sovereignty that resembles that held by states, counties, cities, and towns, but this has not always been the case. Indeed, when European nations first encountered the Indian tribes in North America, they treated them as independent nations and as absolute sovereign powers. This notion was written into the United States Constitution in 1787. The new federal government took the power of dealing with the Indians away from the states and reserved this right to itself when it stated in Article 1, Section 8, that Congress had the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes." Embedded within this clause is the idea that the United States recognized tribes as independent and sovereign powers, which in turn encompassed the related concept of inherent sovereignty. This meant that tribes were absolute sovereign powers prior to the arrival of Europeans in North America and that they continued to be sovereign after Europeans arrived.

"Domestic Dependant Nations"

The Indians also believed themselves to be independent and sovereign. Nothing illustrates this better than the War of 1812. As relations between the United States and Great Britain worsened between 1807 and 1812, the majority of Indian tribes exercised their sovereign powers by allying themselves with the British rather than the United States. However, America's victory ended this alliance and prevented the Indians and the British from cementing further agreements. Tribes in the United States increasingly dealt only with the United States after the war ended in 1815, and this had an important impact on their sovereignty. As hordes of White settlers pushed west after the war, Indians west of the Appalachians were slowly surrounded by Americans. Moreover, the United States had become much more powerful politically and militarily, and tribes did not have the power to resist the United States as they did prior to the War of 1812. The tribes were still independent, but Americans increasingly came to view tribes less as independent nations in the sense that the United States, Great Britain, and France were independent. Tribes found it more difficult to maintain their status as nations possessing absolute sovereign powers since the United States increasingly did not allow them to do so.

The actual status of the tribes, however, remained somewhat vague until 1832, when Chief Justice John Marshall of the United States Supreme Court issued his decision in the case of Worcester v. Georgia. Marshall maintained that Indian tribes in the United States had been treated as independent and sovereign nations since Europeans first arrived. Since the creation of the United States and the Constitution, tribes had engaged in various treaties with the United States, either voluntarily or forcibly. In these treaties, tribes often agreed to put themselves under United States' protection. This, Marshall argued, terminated their status as independent nations. Instead, they were--in Marshall's words--domestic dependent nations, meaning that they could not make agreements with any power other than the United States, and that Congress could regulate their affairs with non-Indians. Because they possessed inherent sovereignty predating contact with Europeans, tribes retained the right to govern their own tribal affairs without U.S. interference. Marshall further stated that Congress had unilaterally reduced some of this power, and that tribes had agreed to abridge some of it through certain treaty negotiations. Thus, tribes were no longer absolute sovereign powers like independent nations, but they still retained a large measure of sovereignty as domestic dependent nations.

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Cohen Reaffirms Sovereignty

Marshall's 1832 decision is the most significant legal decision regarding Indian sovereignty. The Constitution guaranteed the tribes' sovereignty, and Marshall's decision defined it limits. Because they were both sovereign powers, the United States and the tribes made treaties, just as sovereign nations have always done and continue to do today. These treaties had many purposes. Some were used to make alliances with Indian tribes, while others established peaceful relations between the United States and certain tribes. Most commonly, however, treaties were used by the United States to purchase land from the Indians. Because they were considered domestic dependent nations after 1832, the tribes could only enter into treaty agreements with the United States. They could not make treaties with other nations, individual states, or with private persons. In 1871, the United States ended the practice of making treaties with Indian tribes, but it still recognized their sovereign status. After 1871, the federal government negotiated formal agreements with the tribes which had to be approved by both the House of Representatives and the Senate. This was a change from the earlier treaty system where treaties (whether made with tribes or independent nations) required ratification only by the Senate.

Despite the clear delineation of Indian sovereignty by John Marshall in 1832, federal courts in the United States did not always agree with Marshall's decision in Worcester v. Georgia. The legal status of Indians by the early twentieth century was in a state of disarray. This changed in the 1940s when Felix S. Cohen, a legal scholar, published his monumental work The Handbook of Federal Indian Law. Cohen argued that Indian sovereignty was firmly rooted in both the Constitution and in Marshall's 1832 decision, and that any decisions which did not recognize Indian sovereignty were at variance with established law. Cohen's work reestablished Marshall's original argument and stemmed the tide of legal decisions which failed to recognize Indian sovereignty.

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Indian Reorganization Act

At about the same time, Congress passed the Indian Reorganization Act (IRA), an important piece of legislation with a tremendous impact on twentieth-century Indian sovereignty. In 1934, this reversed the federal government's policy of assimilation which had been in place since the Civil War and which was supposed to make Indians live more like "civilized" white men and less like Indians. The policy was a failure since Indians had refused to give up their languages, cultures, and Indian identity. The IRA allowed--even urged--tribes to form tribal governments and conduct their own internal affairs. These new tribal governments became important institutions because they provided Indian tribes with political organs that could assert their sovereign rights. Tribes today have their own governments, tribal courts, tribal law codes, and even tribal police forces.

Indians today are United States citizens, but they are also citizens of their tribes. Like other Americans, Indians are subject to federal laws, but they are not always subject to state laws. Indian reservations are held in trust by the federal government for the tribes, so state laws do not always extend to their reservation lands. Thus, the state of Wisconsin, for example, can pass laws regulating hunting and fishing, but these laws do not extend to Indian reservations: tribes are allowed to make their own hunting and fishing laws. When Indians are off their reservations, they are subject to state laws unless they have reserved certain rights in treaties or other agreements with the federal government. For example, an Indian who is caught speeding on a state highway in Wisconsin can be ticketed just like any other person. However, in their treaties with the United States, the Ojibwe of Wisconsin reserved the right to hunt and fish on lands ceded to the United States in the 1800s. Thus, the Ojibwe can spearfish on lakes, under regulations agreed upon between the tribes and the State, in northern Wisconsin despite state laws preventing the general public from doing so.

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U.S. Citizenship

Another issue related to tribal sovereignty is that of citizenship. During the 1800s, Indians were considered citizens of tribes and not the United States. Even after John Marshall declared tribes to be domestic dependent nations in 1832, United States citizenship was not extended to Indians. After the Civil War, Indians were still considered citizens of their tribes and not the United States and--even if they left their tribes--they still were not considered citizens. After 1887, there were various ways individual Indians could become United States citizens, and some did, particularly Indian men who served in the armed forces during World War I. Congress passed a law in 1924 that made all Indians United States citizens, but it still allowed them to retain their tribal citizenship as well. Thus, Indians today have a kind of dual citizenship.

While Indians retain a large degree of sovereignty, it remains somewhat precarious because it is subjected to the will of Congress. Indeed, during the 1950s and 1960s, the federal government experimented with the idea of termination, whereby Indian tribes would be divested of their sovereign status. The Menominees were terminated in 1961 and ceased to be a sovereign entity, as did the Klamath tribe in Oregon. The experiment generated so many negative reactions among Indians and even non-Indians that other tribes fought the government's efforts to terminate their status. The Menominees lobbied to regain their status as a sovereign tribe, and Congress complied in 1973. Thus, Congress has placed itself in control of Indian sovereignty whether tribes agree or not, although the disasters that resulted from the termination policy have made the federal government less likely to attempt a similar experiment in the near future. For now, the tribes have retained their sovereign status, and will continue to do so in the foreseeable future.

 
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