Indian Tribal Sovereignty - Current Issues

By Schraver, David M.; Tennant, David H. | Albany Law Review, Fall 2011 | Go to article overview

Indian Tribal Sovereignty - Current Issues


Schraver, David M., Tennant, David H., Albany Law Review


INTRODUCTION

The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States has always been an anomalous one, and of a complex character. (1)

There is nothing in the whole compass of our laws so anomalous, so hard to bring within any precise definition, or any logical and scientific arrangement of principles, as the relation in which the Indians stand toward this [United States] government and those of the states. (2)

The legal relationship of Indian (3) tribes to non-Indian governments in what is now the United States, and the tribes' status as sovereign or quasi-sovereign or semi-sovereign governments, has been a perplexing problem for centuries and remains so. This article seeks to address current concepts of tribal sovereignty as articulated by the Supreme Court of the United States and by tribal advocates who vehemently disagree with the high court's rulings. (4) We seek to examine how these varying views on tribal sovereignty give rise to jurisdictional conflicts in the real world, especially in the State of New York where significant disputes have been litigated in recent times. Our goal is to provide the reader with an understanding of the nature and extent of the jurisdictional conflicts that are in the courts now and where conflicts may arise in the future, not just in New York but wherever tribes seek to exercise claimed sovereign rights. (5)

I. A PRIMER ON INDIAN TRIBAL SOVEREIGNTY

The history of the relation of Indian tribes to the early settlers in North America, English colonies, the confederal government, the states under the Articles of Confederation, and ultimately the United States of America and the states of the Union under the Constitution, is long, nuanced, and multi-faceted. The interactions occurred on political, legal, and cultural levels. Relations developed between and among Indian tribes and the many non-Indian communities and individuals they encountered. The non-Indians at any given time might represent the European colonial government or the domestic national government. White traders and missionaries frequently initiated the contacts. These interactions often led not only to economic, political, and cultural engagement, but also to open conflict, including raids, massacres, and reprisals. In the Declaration of Independence, the founding fathers referred to Indians as the "merciless Indian savage." (6) Upon achieving independence from Britain, the founders appreciated the serious threat to their fledging government presented by independent tribes who controlled strategic locations between British-occupied areas and the newly-formed United States. (7) Even without British provocateurs fomenting unrest, the threat of Indian wars remained a recurring feature of American political life well into the 19th century. (8) Indians were vilified in the press and popular culture; references to them as "savages" persisted for generations. The judges who were called upon to address the "Indian problem" were not immune to these cultural forces; contemporaneous judicial opinions reflect the prevailing racist attitudes and language. (9) A detailed treatment of this history is beyond the scope of this article. Rather, we offer a "primer" focused on Indian tribal sovereignty law, documenting its development over the past two centuries, to enable readers to put current jurisdictional conflicts in context.

A. Historical Development

1. Pre-Constitution

The first Western civilization explorers and settlers in North America found indigenous people living here. (10) These indigenous people and their families, communities, or tribes were sovereign in the sense that they were not subject to external control or the exercise of power by European or other nations from which these explorers or settlers came. There were, however, numerous Indian groups in North America; and the relationships between and among these indigenous groups were marked variously by friendship, coexistence, competition, conflict, and conquest. …

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