What sovereignty means for America’s Indian tribes

By K.W.

AMID the headline-grabbing news from the Supreme Court this term—the travel ban upheld, Anthony Kennedy’s retirement—came something altogether more prosaic: a fight over fish. The case, United States v Washington, asked whether Washington state must ensure a healthy supply of salmon in its rivers and streams for fishing by Indian tribes. The court in effect said yes. In a 4-4 tie, with one recusal, it let stand a lower-court order in the tribes’ favour. The gist is that treaties signed in the 1850s between the state and 21 Indian tribes guarantee them a right to fish off their reservations. The state’s ill-designed water-management system, which has decimated the local salmon population, will require repair. On its face the case appears mundane. But it hinges on larger questions about Indian rights, stemming from the tribes’ unique legal status.

In colonial America, the British entered into treaties with Indians. In doing so they dealt with tribes much like foreign nations. The practice continued after the American revolution, though legal uncertainties emerged. What were the limits of tribal independence? And who had authority over tribes? It fell to the Supreme Court to set parameters. Three cases in the 1820s and ’30s—known as the Marshall Trilogy, after the chief justice, John Marshall—laid the groundwork for much of Indian law. First, tribes were to be regarded as sovereign political entities with control over their internal affairs. They could tax and jail members. But the federal government retained absolute power to regulate them. States had no say over tribes unless otherwise authorised. In describing this peculiar arrangement—with tribes like neither states nor foreign countries—Marshall called them “domestic dependent nations”. By renouncing certain rights of sovereignty, like the ability to raise an army, mint money or form alliances with foreign powers, tribes would get protection from the federal government. “The Indian tribes are the wards of the nation,” the court declared in 1886. “There arises the duty of protection, and with it the power.”

It was lofty language, without a doubt. But federal policy was rarely benign, seesawing between respect for tribal independence and the desire to isolate or assimilate Indians. Rights of sovereignty were sometimes revoked and often curtailed. From the 1850s, tribes were forcibly moved onto reservations and Indian-held land was parcelled out. Complicating matters was the basic question of what constitutes a tribe—since, to possess rights, tribes have to be recognised by the federal government. This was a contested process. In 1953 Congress adopted a policy of “termination” whose goal was to assimilate and “civilise” Indians. More than 100 tribes were de-listed, though some were reinstated after Richard Nixon abandoned the policy in 1970. Tribal independence has been restricted in lesser ways. Tribes lack criminal jurisdiction over non-Indians who commit crimes on Indian land, for example. (An exception exists for cases of domestic violence by non-Indians.) They must also guarantee certain civil rights to members.

The unique status of the tribes pops up in curious ways. Most visible are casinos. Nearly 250 tribes run gaming operations in states where gambling is otherwise illegal. Another example is same-sex marriage, which tribes are not bound to recognise, despite its being legal in all 50 states. Today most court cases centre on knotty issues like land use, taxation, off-reservation treaty rights and the tribes’ legal jurisdiction. These opinions do not exactly make for “good bedtime reading”, in the words of one legal scholar. But they make good work for lawyers. The nature and extent of tribal self-governance are continually up for debate.