TRIBAL SOVEREIGNTY

In considering the constitutional status of American Indians, a distinction must be made between tribal entities and individual citizens. As stated before, the legal status of Indian tribes has vacillated throughout this nation's history in the eyes of the federal government. The numerous treaties made with Indian tribes recognized them as governments capable of maintaining diplomatic relations of peace and war, and of being responsible, in a political sense, for their violation.

When engaged in war against whites, Indians were never treated as rebels, subject to the law of treason, but, "on the contrary, were always regarded and treated as separate and independent nations, entitled to the rights of ordinary belligerents and subject to no other penalties."(12) Hostile Indians surrendering to armed forces were subject to the disabilities, and entitled to the rights, of prisoners of war. (13)

Tribal sovereignty was originally formally recognized by Chief Justice Marshall in Worcester v. Georgia: "The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently, admits their rank among those powers who are capable of making treaties."(14) That position, which determined the federal judiciary's basic policy toward Indian tribes throughout the 19th century, may be contrasted with the attitude of later court decisions such as Montoya v. United States, (15) wherein the court concluded that "the word 'nation' as applied to the uncivilized Indians was little more than a compliment."

Today, the concept of tribal sovereignty is widely misunderstood, and can only be meaningfully discussed with regard to specific attributes or powers. Clearly, tribal governments are not on the same legal footing as independent nations; on the other hand, they are widely recognized as political units with governmental powers, which exist, in some sense, on a higher level than that of the states.

The contemporary meaning of tribal sovereignty is defined in Iron Crow v. Oglala Sioux Tribe of Pine Ridge Reservation (16) as follows: It would seem clear that the Constitution, as construed by the Supreme Court, acknowledges the paramount authority of the United States with regard to Indian tribes, but recognizes the existence of Indian tribes as quasi-sovereign entities possessing all the inherent rights of sovereignty, except where restrictions have been placed thereon by the United States, itself.

In his 1940 edition of Federal Indian law, Felix Cohen summarized the meaning of tribal sovereignty in the following manner: The whole course of judicial decision on the nature of Indian tribal powers is marked by adherence to three fundamental principles: