The pendulum between self-determination and dependency
The following outline provides a glimpse into the complex legal basis for Nimíipuu sovereignty, considering both the treaty and congressional actions that uphold and undermine that sovereignty.
- Sovereignty: In the Supreme Court ruling - Worcester v. Georgia (1832) - the court recognized that Indian nations were "distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries." The court also acknowledged the sovereign nature of Indian nations as established and recognized through treaties with the federal government.
- The legal status of the tribal entities is acknowledged to be
that of an inherent "sovereign nations." State
law, for example, is not legally applicable within reservation boundaries, unless abrogated by U. S. Congressional consent (e.g., Gaming Compacts with states).
- As established in Article VI, Section 2, of the United States
Constitution, treaties are the "supreme law of the land,"
and they are bilaterally-constructed, nation-to-nation agreements, intended to be legally binding for all time.
- Ownership of the land and the resources are to be held by the
tribes unless explicitly relinquished in the language of an
agreement/treaty. For example, the ownership of a lake or river, if not explicitly granted to the United States, would remain with the tribe. As such, the agreements entered into were not grants of rights to Indians, but rather grants of rights from Indians to the United States, i.e., "reserved rights doctrine." Property should not be taken without consent of the Indian. (e.g., United States v. Winans, 198 U.S. 371 1905)
- Treaties/agreements are to be interpreted as their signers
intended, an understanding known as the "cannons of construction."
- In exchange for the cession of vast tracts of land and
resources, i.e. "ceded territory," the tribes would receive
educational and health benefits, and other services. Such services and
allocations are thus "purchased" and "contracted"
services, and are not "social entitlements" or "special rights."
- Especially during the late nineteenth and much of the
twentieth century, the U.S. Federal government's record of adhering to
these principles was far from exemplary. But simply because one party in an agreement does not honor the accords of that agreement such action does not negate the legal status and continued integrity of the agreement or treaty.
- Over 400 treaties and agreements (executive orders) established between 1778-1902.
- Dependency: Indian sovereignty has also been infringed upon and compromised by US federal government.
© Nez Perce Tribe 2002
- The U.S. Federal Government and its courts have also maintained that the Indian tribes are not foreign nations, but constitute "distinct political" communities within the United States,
i.e., "domestic, dependent nations" whose relation to
the U.S. resembles that of a ward to his guardian (Supreme Court Chief
Justice John Marshall in Cherokee Nation v. Georgia 1831). This has given birth to federal trusteeship in Indian affairs.
- Congressional authority has also asserted its plenary powers over the tribes. For example, specified rights acknowledged in a treaty can be abrogated by Congress's pursuant to its plenary power (e.g., Lone Wolf v. Hitchcock, 187 U.S. 552 1903 and as exemplified in the Dawes Act of 1887 and Termination Policy of the 1950s and Public Law 280 in 1953)
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