Tribal Sovereignty

Native nations governed themselves long before the United States existed, and their sovereignty predates and does not derive from the Constitution, which mentions tribes in the Commerce Clause alongside foreign nations and the states. The United States made hundreds of treaties with tribes as sovereign nations. The federal government recognizes 574 tribes, each with its own government, laws, courts, and citizenship rules, and most exercise authority over reservation or trust lands.

In a trilogy of cases in the 1820s and 1830s, Chief Justice John Marshall described tribes as domestic dependent nations and held in Worcester v. Georgia in 1832 that state law had no force within Cherokee territory. Later law cut both ways. Congress claims plenary power over Indian affairs and has at times sought to dissolve tribes, as during the termination era of the 1950s, while the federal government also owes tribes a trust responsibility. The Indian Reorganization Act of 1934 and the Indian Self-Determination Act of 1975 strengthened tribal governments, and the Indian Gaming Regulatory Act of 1988 enabled the casino economies that fund many of them.

Modern conflicts center on jurisdiction among tribes, states, and the federal government. In McGirt v. Oklahoma in 2020 the Supreme Court held that much of eastern Oklahoma remains a reservation for purposes of federal criminal law, though Oklahoma v. Castro-Huerta in 2022 allowed states to prosecute non-Indians for crimes against Indians there. In Haaland v. Brackeen in 2023 the Court upheld the Indian Child Welfare Act. Tribal citizens are also U.S. citizens, under the Indian Citizenship Act of 1924, and citizens of the states where they live.