American Indian tribes enjoy a special status in the United States that is not fully understood by some. Under the Constitution, federally recognized Indian tribes are autonomous entities with a historically and politically unique relationship with the federal government. The basis for this special status is that self-governing Indian nations (or tribes) had existed and owned their aboriginal lands throughout the Americas before the continent was subsequently discovered and settled by colonists.
After American independence from Great Britain was won, the recognition of sovereign Indian nations was continued by our Founders in the Constitution under Article I, section 8 (“Congress shall have the power ... to regulate commerce ... with the Indian tribes”) and under the treaty-making authority. Although Congress in 1871 enacted a law prohibiting the making of further treaties with the tribes, existing treaties along with certain statutes, executive orders, and federal court rulings uphold the continuing government-to-government relationship of Indian tribes to the United States.
It should be remembered that treaties were most often made by the federal government in order to win cessions of land from Indians for the settlement of what is now the United States. Under these treaties, certain parts of federal territory were reserved for Indians ... hence, the creation of Indian Reservations. Upholding treaty rights is basic duty of the federal government, yet it’s a duty that was often abrogated.
Indian tribes are not, however, foreign nations. According to seminal Supreme Court opinions written by Chief Justice John Marshall, tribes are considered to be “domestic dependent nations.” While this is a concept that has been interpreted a little differently by various courts from the 19th century until present times, it hasn’t lost its basic meaning. They are sovereign political entities, but they are subject to the protection of the federal government; their status can be modified by Congress, even unilaterally. However, States cannot enter into treaties with the tribes, nor can they assert jurisdiction over tribal affairs unless Congress specifically permits it.
Since the founding of the United States of America, tribal history and its relations with the federal government have taken many twists and turns, most often to the detriment of the tribes and their members. Congress has shifted its policies on Indian Affairs several times since the Constitution was written, from respect for tribal sovereignty, to attempts to break up tribes and open Indian land to non-Indian settlement, and back again.
The notion of tribal sovereignty was upheld from the 18th century until 1887, when the General Allotment Act (also known as the Dawes Act) was passed. Under this Act, Congress sought to break up tribes by allotting tribal lands to individual Indians. The expectation was that individual Indians would assimilate into the federal territories and states with the same standing as non-Indians. In fact, the western social, economic, and political systems that Indians were expected to adopt to were quite foreign to them. The result was a massive onset of social instability and poverty, and the loss of Indian ownership of lands.
Congress saw the Dawes Act was a failure, and to rectify the federal policy it passed the Indian Reorganization Act (or Wheeler-Howard Act) in 1934. This law re-instituted, as a matter of federal policy, the role of sovereign tribes as governments for Indian people and their lands. The law ended Indian land allotment and provided for the strengthening of tribal governments and the restoration of tribal lands and powers.
Congress in the 1950's and 1960's again changed its course with respect to Indian policy in what is known as the “termination era.” Congress began to “terminate” the existence of tribal governments. The goal was, again, to assimilate members of tribes into the sphere of the wider society irrespective of their history, cultural, and unique political relations with the U.S.
This, too, was a failed policy. In a special message on July 8, 1970 [link to the special message], President Richard M. Nixon heralded the beginning of a new era in which Indian self-determination without termination would be the guiding Indian policy of the federal government.
This policy is embodied in the “Indian Self-Determination and Education Assistance Act,” which is also known by its Public Law number, 93-638. Subsequent amendments to the Act have led to the phenomenon of many tribes opting for “Self-Governance.” Under Self-Governance arrangements, tribes effectively step into the shoes of the federal government and carry out the various federal programs, services, and functions in a manner that works for the tribes and their members.
These arrangements enable participating tribes to serve their members according to their unique political, social, economic and cultural circumstances, with maximum efficiency and effectiveness.
Tribes are the governing bodies for their Indian members. They provide many vital services and protection to continue and strengthen opportunity, freedom and cultural preservation. Self-Governance thus represents a basic philosophical precept holding that a government closest to its people is the one that best represents them.
Today, more tribes than ever are entering in compacts with the federal government for the tribes to take over functions that have traditionally been administered by the Bureau of Indian Affairs and the Indian Health Service.