The Legal Status

In the course of time there have accumulated 389 treaties, more than5,000 statutes, some 2,000 Federal court decisions, a raft of AttorneyGeneral opinions, numerous administrative rulings, 141 tribal constitutions, 112 tribal charters, a gigantic set of regulations, and an encyclopedic manual2014all especially applicable to Indians, 1 all bearingwitness to their complex and unique legal character.

An Indian is three things: a tribal member with cultural, social, economic, religious, and political ties to tribal life; a "ward" of the Federal Government; and a citizen with most of the same rights andprivileges possessed by other citizens. This tripartite status has beenrecognized, but not clarified, by the courts. As the Supreme Courtsaid in United States v. Nice: 2

Citizenship is not incompatible with tribal existence or continued

guardianship, and so may be conferred without completely emancipating the Indians, or placing them beyond the reach of congressional regulations adopted for their protection.

Moreover, the Indian who severs his tribal ties, asserts his rights asa citizen, and tries to make his way in the white man's world, frequentlydiscovers that in addition to the three facets of his legal personalityoutlined above, he is socially a member of a racial minority. His attempts at assimilation may meet resistance almost as determined as thatfaced by the Negro. Many Indians have, however, one advantage (if itcan be called that), Negroes do not2014they can, and often do, go homeagain.

The Indian as sovereign

Article I, section 8 of the Constitution authorized Congress "to regulateCommerce with foreign Nations, and among the several States andwith the Indian tribes . . . ." It recognizes, in short, that Indian tribesare separate and distinct entities. Moreover, the separate status ofIndians has been confirmed and reconfirmed by the Supreme Court innumerous cases, some of them of recent vintage.

'25

While the Indian right to self-government is firmly rooted in treatiesand judicial decisions, the right itself has been held inherent; that is,it preceded and was not created by the Federal Government. The basicprinciples of tribal sovereignty, then, are these: 8

  1. An Indian tribe possesses, in the first instance, all of the powers of

    any sovereign state.

  2. Conquest puts an end to the tribe's external powers of sovereignty(for example its power to make treaties except with the United States).But conquest alone does not affect a tribe's internal sovereignty, that is,its power of self-government.

  3. The latter, however, is subject to qualification by Federal legislation.

    Two decisions of the Supreme Court illustrate the principle and theextent of tribal sovereignty. In the first, Talton v. Mayes* the Courtheld that Indian tribes were not subject to the constitutional limitationsaddressed to the Federal Government, including the Bill of Rights. Inthe second, Ex Parte Crow Dog, 5 the Court held that Federal tribunalscould not try one Indian for the murder of another on a reservation inthe absence of legislation expressly granting such jurisdiction to theFederal courts.

    While the Crow Dog decision sustained the right of Indian tribes torule and judge in their own bailiwick, it also pointed out that the right wassubject to congressional limitation. Two years later, Congress enactedlegislation giving Federal courts jurisdiction of seven major crimescommitted by an Indian against an Indian in Indian country. 6 Threeother crimes were subsequently added. 7

    Apart from matters of criminal jurisdiction the most extensive congressional limitations on internal, tribal autonomy relate to land tenure.They range from control over the use and disposition of Indian lands,through the grant of adverse interests, to the control of tribal funds,(most of which arise from the use and disposition of tribal lands). Indeed they even deal with land held by individual Indians where the rightto sell is, in one fashion or another, restricted. Since Federal authorityis supreme in these matters the States cannot intrude unless Congressotherwise provides, as indeed it has in recent years.

    At present there are about 250 self-governing tribes supported in themain by Indians themselves. Some, like the Navajos, have superiorresources. They budgeted $20 million for tribal purposes in 1959.Others, like the Pueblo of Zia, have next to no tribal budget and no paidemployees. 8

    To the extent that they have not been limited by Federal law, Indian

    tribes are free to govern their members and manage tribal affairs asthey see fit. However, while the Indian Reorganization Act of 1934strengthened tribal autonomy, the tribes have acceded to the recommendation of the Secretary of the Interior that the constitutions adopted

    under the act include provision for review by him of the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT