Indian Sovereignty: Easy, But Easily Misunderstood

One of the many things that bugs me when I hear people talk about Indians, is hearing things like, "Indians don't pay taxes", or "Why can Indians vote in my county, but I can't vote on their reservation", or "Indians have special rights", oh and there's more. Seems like a semester in the 4th grade of our public schools would do wonders for this misinformation and might even help with race relations.

All Indians pay all taxes with few exceptions. If an Indian lives and works on a reservation they don't pay state income tax, but do pay all other state and federal taxes. And of course Indians living on trust land don't pay property tax, why would they seeing as how their land preceded any county by hundreds of years and is held in trust by the United States Government? The USA don't pay taxes to any county.

Indians vote in all elections because they are citizens of their own Indian Nation and the United States. They are dual citizens. Most of us are not. And by the way, Indians didn't fight for or even ask to be citizens of the United States. Citizenship was given to them in 1924, and not with a Constitutional Amendment as with women and Blacks, but with an Act, the Indian Citizenship Act of 1924. Women conversely got full citizenship with the 19th Amendment in 1920, and Blacks with the 14th Amendment in 1868.

But the one that really bugs me is that "Indians have more rights than I do or special rights". It's simple. Indians had every right under God until the White man came to the America's. Every single right under God. Their rights have been taken away, not given to them. If it seems as though an Indian has a right that you don't, it's because it hasn't been taken away - yet.

So here's a little updated lesson on Indian Sovereignty I wrote for the Minnesota Legislature awhile back, because they weren't taught this stuff in the 4th grade either. It's not that difficult to understand, it's even intuitive if you think about it a little. Hope it adds a little to your "legal" understanding of America's Indigenous Peoples too.

An Exercise in Sovereignty. Indian Nation License plates. Red Lake was first in the Nation. Sovereignty like anything else must be exercised to keep.

What is Sovereignty?

Sovereignty is an internationally recognized concept. A basic tenet of sovereignty is the power of a people to govern themselves.

Tribal Sovereignty.

American Indian tribal powers originate with the history of tribes managing their own affairs. Case law has established that tribes reserve any and all rights they have never given away.

American Indian Tribes Possess a “Nation-within-a-Nation" Status

• Treaties. Treaties formalized a nation-to-nation relationship between the federal government and tribes.
• Trust Responsibility. In treaties, Indians relinquished certain rights in exchange for promises from the federal government’s obligation to honor the trust inherent to these promises and to represent the best interests of tribes and their members.
• The U.S. Constitution. The U.S. Constitution recognizes Indian tribes as distinct governments. It authorizes Congress to regulate commerce with “Foreign nations, among the several states, and with the Indian tribes”.

Some Modifications to the Nation-to-Nation Relationship

In 1953, Congress modified the federal-tribal relationship in five states through the passage of Public Law 280. More recently, the relationship was modified by the Indian Child Welfare Act and the Indian Gaming Regulatory Act.

• Public Law 280 (1953) Provides for five states, including Minnesota (with the exception of the Red Lake Nation), to assume general criminal and some civil jurisdiction over Indian reservations within the state. Tribes retain limited criminal and general civil jurisdiction, but because of lack of resources have generally not fully assumed those responsibilities.
• Indian Child Welfare Act. (1978) Establishes procedures state agencies and courts must follow in handling Indian child custody matters. Creates dual jurisdiction between states and tribes that defers heavily to tribal governments.
• Indian Gaming Regulatory Act. (1998) Should a tribe decide to engage in casino gaming, this act requires the state to negotiate in good faith with the tribe to form a compact setting forth games, limits and other terms.

Tribal Sovereignty as a Paradox.

While the U.S. Government recognizes Indian tribes as sovereign nations, the U.S. Congress is recognized by the courts as having the right to limit the sovereign powers of tribes. However, Congress must do so in definite terms and not by implication.

What Does This Mean?

• Tribes remain sovereign nations and possess self-government.
• Tribes have a nation-to-nation relationship with the U.S. Federal government.
• Only Congress has plenary (overriding) power over Indian affairs.
• State governance is generally not permitted within reservations.

This is only a general framework for understanding the unique relationship between the American Indian tribes, the federal government, and the states. Further references are available.