A fundamental aspect of American Indian tribes is the recognition of their sovereignty. The federal government recognizes the political status of Indian tribes as a government. States within whose boundaries Indian reservations are located, also recognize this sovereignty but are more reluctant to deal with tribal leadership on a government-to-government relationship.
The government-to-government relationship between Indian tribal governments and the U.S. government has existed since the formation of the U.S., and been confirmed by every President since Richard Nixon. The relationship foundation is built upon the fact all U.S. government executive agencies deal with Indian tribes as governments, not special interest groups, individuals, or other entities. Just as the U.S. deals with states as governments, it deals with Indian tribes as governments.
American Indians are citizens of original U.S. indigenous tribes or their descendants, and therefore have a political relationship with the U.S., through their tribes. Indians are not considered a racial or ethnic minority. Because of their unique political status, Indians are citizens of three sovereigns: their tribe, the U.S., and the state in which they reside.
About 2 million American Indians are members of federally recognized tribes. Most are eligible for special federal Indian programs offered by the Bureau of Indian Affairs, the Department of Housing and Urban Development, the Department of Labor, the Department of Education, and the Indian Health Services at the Department of Health and Human Services. These programs are provided in return for previous cession of Indian lands.
Article 1, Section 8, Clause 3 of the U.S. Constitution reads: “The Congress shall have Power to … regulate commerce … with the Indian tribes.” This clause forms the basis for Congressional lawmaking authority over the tribes, and the unique tribal-federal government relationship. Both the U.S. Senate and House have established specific Indian legislation committees: in the Senate, the Indian Affairs Committee; in the House, the Subcommittee on Native American and Insular Affairs of the House Resources Committee.
Supremacy of authority exercised by a self-governing state. A basic tenet is the power of a people to govern themselves.
Two competing theories of tribal sovereignty exist. First, tribes have inherent sovereignty powers predating the “discovery” of America. Second, tribes possess only those sovereignty attributes Congress allows. Whichever theory the courts have favored in a given case has determined tribal power and the level of protection received against federal and state government encroachment.
An agreement formalizing a nation-to-nation relationship between tribes and the federal government.
In exchange for federal governmental assurances, Indians relinquished certain rights. Trust responsibility is the governmental obligation to honor these promises and represent the best interests of the 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 Indian tribes.” In addition, the U.S. Supreme Court ruled Congress, as the legislative body of the nation, has an intrinsic power to deal with the Indian nations residing within U.S. borders. Presidential power over Indian tribes is centered on entering into treaties, a power initially used in federal Indian law securing tribal acquiescence to the demands of the encroaching waves of European settlers. In 1871, Congress passed legislation ending the U.S. practice of entering into treaties with Indian tribes. The Supreme Court interprets presidential and congressional actions, striking a balance between Indian nation rights and the interests of European conquerors. Tribal sovereignty was, and continues to be, a primary issue for the courts.
Self-determination is a federal governmental policy developed by President Nixon in consultation with Indian tribal leaders. The policy is codified in federal law, including the Indian Self-Determination and Education Assistance Act, signed by President Ford in 1975. The act promotes Indian tribes contracting to operate federal programs benefitting Indian people. Tribes have contracted to operate tribal programs for 20 years. Under the policy:
- Tribes remain self-governing, sovereign nations
- Tribes have a nation-to-nation relationship with the U.S. federal government
- Only congressional authority supercedes tribal authority
- State governance is generally not permitted within reservations