Tribal Sovereignty June 9, 2014 Albuquerque, New Mexico

1. Tribal Sovereignty June 9, 2014 Albuquerque, New Mexico Stephen L. Pevar

2. Tribal Sovereignty: Uniquely Important Indian tribes have many rights, but the single most important—and most cherished—is the right of tribal sovereignty, the right to be self-governing. "The reverence American Indians hold for the sovereignty of their tribal governments is absolute." Anthony Pico, former chairman, Viejas Band of the Kumeyaay Nation, Op-Ed, “Sovereignty is Absolute for Native Nations," Indian Country Today, 6/30/97 (A5)

3. What is "Sovereignty"? Dictionary definition: A sovereign government is a government that is vested with "independent and supreme authority." It has the power to make its own laws, and to then enforce those laws. Under a dictionary definition, sovereignty is "all or nothing."

4. Are Tribal Governments Sovereign? Three possible answers:  1. Yes: Indian tribes are sovereign governments and the United States must relate to them in that manner, same as with England and France. "Indian tribes are independent, sovereign nations whose inherent right to self-determination predates and survives contact with Euro-American peoples. . . .Indian sovereignty is never extinguished." William Bradford, Chiricahua Apache, Assoc. Professor, Univ. of Indiana School of Law, "'Another Such Victory and We are Undone,': A Call to an American Indian Declaration of Independence," 40 Tulsa Law Review 71, 75, 134 (2004).

5. Are Tribal Governments Sovereign? 2. No: Indian tribes are "conquered" nations. As a result, they have lost all of their sovereign authority.

6. Are Tribal Governments Sovereign? (cont.) 3. Yes and No: Indian tribes are “quasi-sovereign" possessing "attributes of sovereignty." Indian tribes retain some of their inherent powers of self-government, but tribes are subject to the supreme ("plenary") power of the United States.

7. Are Tribal Governments Sovereign? (cont.) The Supreme Court developed this middle ground in a line of cases beginning in the 1820s. As summarized in United States v. Lara, 541 U.S. 193 (2004): (1) Congress has plenary power over Indian tribes: "The Constitution grants Congress board general powers to legislate in respect to Indian tribes, powers that we have consistently described as 'plenary and exclusive.'" (at page 200) (2) However, those rights not removed from tribes remain as part of their inherent authority. "Indian tribes are unique aggregations, possessing attributes of sovereignty over both their members and their territory." (at page 204)

8. Criticism of the Plenary Power Doctrine: Might Doesn't Makes Right The plenary power doctrine is firmly established in federal law. All 3 branches of the federal government accept it. However, the doctrine has been extensively criticized. After all, there is nothing in the Constitution that authorizes the federal government to legislate over Indian tribes. The Supreme Court relies primarily on the Commerce Clause, but that Clause says only that Congress shall have the power "To regulate commerce with foreign Nations, and among the several States, and with the Indian tribes." Art. I, Sec. 8, Cl. 3. That language confers no greater power over Indian tribes than over foreign Nations.

9. Criticism of the Plenary Power Doctrine: Might Doesn't Makes Right (cont.) "The plenary power was seemingly plucked out of thin air by the Supreme Court." Walter Echo-Hawk, In the Courts of the Conqueror: The Ten Worst Indian Law Cases Ever Decided (2010) at page 163. The plenary power doctrine was adopted by the Supreme Court to justify "federal land acquisition and power in Indian affairs." Frank Pommersheim, Broken Landscape: Indians, Indian Tribes, and the Constitution (2009) at page 140. The plenary power doctrine has its "origins in medieval-era traditions of Christian cultural racism," and was developed "to permit the 'superior' race to exercise whatever power necessary to 'civilize' [the Indians]." William Bradford, supra, 40 Tulsa Law Review at 81 n.57.

10. Three Principles Regarding Tribal Sovereignty 1. Indian tribes do retain certain inherent powers of a sovereign. 2. Congress, however, has the power to limit or abolish tribal authority. 3. In addition to the express limits that Congress has placed on tribal powers, there are certain "implied" limits.

11. First Principle: Indian Tribes Retain Inherent Authority 1. Worcester v. Georgia, 31 U.S. 515 (1832). "Indian nations had always been considered as distinct, inde­pendent political communities, retaining their original rights, as the undisputed possessors of the soil from time immemorial. . . .The Chero­kee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and the citizens of Georgia, have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress.”

12. First Principle: Indian Tribes Retain Inherent Authority 2. Talton v. Mayes, 163 U.S. 379 (1896).  3. California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).

13. Second Principle: Congress Can Limit or Abolish Tribal Powers 1. Worcester v. Georgia, 31 U.S. 515 (1832). 2. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). 3. Menominee Tribe v. United States, 391 U.S. 404 (1968).

14. Third Principle: There Are Also Implied Limits on Tribal Power 1. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). 2. Montana v. United States, 450 U.S. 544 (1981).

15. Conclusion Some tribal powers have been expressly limited or abolished by Congress, and others have been "lost" by implication. But Indian tribes still have vast powers, particularly over their members and territory. Congress has passed laws that encourage and affirm the exercise of tribal powers: - The Indian Self-Determination and Education Assistance Act of 1975 - The Indian Child Welfare Act of 1978 - The "Duro Fix" of 2000 - The Tribal Law and Order Act of 2010 - The Violence Against Women Act of 2012

16. Conclusion (cont’d) "Indian tribes are neither states, nor part of the federal government, nor subdivisions of either. Rather, they are sovereign political entities possessed of sovereign authority not derived from the United States, which they predate. [Indian tribes are] qualified to exercise powers of self-government . . . by reason of their original tribal sovereignty." National Labor Relations Board v. Pueblo of San Juan, 276 F.3d 1186, 1192 (10th Cir. 2002).