Indian Tribal Sovereignty

Article excerpt

Criminal Jurisdiction and Procedure

The relationship between Indian tribes and the U.S. government has changed dramatically over the last 200 years. During the British colonial period, Indian tribes were considered foreign nations by the British crown and were dealt with by treaty. This relationship worked so well that the majority of the tribes allied with the British during the Revolutionary War. The relationship between the tribes and the American colonists was never as strong. At first, the colonists treated the tribes as they were treated by the British, as independent sovereigns, but their sovereignty was diluted over time, and they were treated as dependant sovereigns, retaining limited control of their internal affairs. This changing and uneasy relationship set the stage for many battles, both in the field and in the courts, regarding the status of Indian tribes in modem America.

This article briefly examines the judicial history of tribal sovereignty in American courts. It then reviews the major federal legislation impacting criminal jurisdiction on tribal land and discusses the impact of the federal Constitution on the tribes.


In the 1830s, the U.S. Supreme Court decided two cases collectively known as the Cherokee cases: Cherokee Nation v. Georgia [1] and Worcester v. Georgia. [2] In Cherokee Nation v. Georgia, the Cherokee tribe sued to overturn certain laws of the state of Georgia that it felt interfered with its internal affairs. In order to bring the suit, the tribe had to qualify as a "foreign nation" under the U.S. Constitution. [3] The Court decided the tribe was not a foreign nation and dismissed the suit. However, the Court did characterize the tribe as a "domestic dependent nation." 4 The following year, the Court decided the case of Worcester v. Georgia. In this case, Georgia had passed a law requiring a state permit for any non-Indian to live on the Cherokee reservation. Worcester, a missionary, broke the law and was arrested. The Supreme Court decided that the laws of the state of Georgia had no force on the Cherokee reservation. The Court said that Indian reservations are "distinct political communities, having terr itorial boundaries, within which their authority is exclusive...." 5

The Cherokee cases clearly established that the tribes were separate political entities with authority over their internal affairs and beyond the reach of the authority of the individual states. However, their relationship with the federal government was much different. As noted previously, in Cherokee Nation v. Georgia, the Supreme Court characterized the tribes as dependent nations, meaning dependent upon the authority of the federal government. The Court described the relationship as that of a "ward to his guardian." 6 The Court interpreted this trust relationship to mean that the federal government, specifically Congress, could exercise extensive authority over the tribes. 7 In 1903, the Court recognized that Congress has plenary power over Indian affairs "by reason of its exercise of guardianship over their interests." 8 Over the years, Congress has used that plenary power to apportion criminal jurisdiction on Indian lands among federal, state, and Indian governments.


The Federal Enclaves Act

In 1817, Congress passed The Federal Enclaves Act, 9 asserting federal criminal jurisdiction over non-Indians for crimes they commit in Indian country and over Indians for some crimes they commit against non-Indians. Under the act, "the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States... [extend] to the Indian country." 10 Consequently, for jurisdictional purposes, Indian land is treated today as a "federal enclave," similar to a federal building, park, prison, or military base. The act has three important exceptions: it does not apply to crimes by Indians against Indians; to crimes by Indians that have been punished by the tribe; nor to crimes over which a treaty gives exclusive jurisdiction to the tribe. …