INTRODUCTION TO AMERICAN INDIAN SOVEREIGNTY
INDIAN RIGHTS TO SOVEREIGNTY
There are three theories that Congress uses
as the justification to interfere with Indian rights to sovereignty;
(1) the political
question doctrine - where the political nature of the Indian nations
and the US and the questions that arise are to be decided by the legislative
or executive branches of the government rather than the courts. For example
Wolf v. Hitchcock, 187 U.S. 553 (1903); United
States v. Kagama, 118 U.S. 375, S.Ct. 1109 (1886); where the
Indians challenged an act of Congress which was passed in violation of
a prior treaty with the Indian nation. The court upheld the law by stating
that the power of Congress over Indian affairs was "absolute" and would
not be reviewed by the federal courts because of the 'political nature'
of the relationship between the Indian nation and the US.
the guardian-ward relationship; here the courts have used the guardian-ward
relationship or the other term used is the 'federal trust responsibility'
to justify Congressional power in Indian affairs. This responsibility supposedly
allows Congress extraordinary power to take actions to "protect" Indian
(3) the plenary power
of Congress; relying on interpretation of the constitutional provisions
(a) the power to regulate commerce with
(b) the power to ratify treaties with other
(c) the power to make war;
(d) the power to provide for the general
(e) the power to admit new states into the
union, which also includes the power to specify the conditions upon which
new states will be admitted;
(f) the power over federal territories.
The courts have said that the power of Congress
in Indian affairs is plenary (full and complete). Under present law, Congressional
power in Indian affairs is great but it is not absolute. See; Delaware
Tribal Business Comm. V. Weeks, 97 S.Ct. 911, 918 (1977). Nor could
it be, because to some extent the doctrines of plenary power of Congress
and inherent sovereignty of Indian nations are mutually exclusive. We have
seen that one of the most basic principals underlying the rights and powers
of Indian nations is that they retain all those original sovereign powers
which have not been given up or taken away.
The law is clear that an Indian nation possesses
all the inherent powers of any sovereign nation except as those powers
may have been qualified or limited by treaties, agreements, or specific
acts of Congress. Handbook of Indian Law,
p. 123. A.I.P.R.C., Commission Report, Chapter 3. Courts have held that
the intent of Congress to limit the sovereign powers of Indian governments
by legislation must be clearly expressed in the law in order to be effective.
Tribe v. United States, 391 U.S. 404 (1968).