M3 Academic Blog
I reviewed the following web resources.
Tribal Consultation with the Federal Government and Tribal Courts of New York and supplemented this with The Legal Framework of Sovereignty by Peter d’Errico.


These web resources document the dealings of Indian Tribes with both the federal governments concerning the rights of sovereignty and jurisdiction of authority.  From Peter d’Errico’s paper we find that “sovereignty is classically defined as supreme legal authority,” but this is not the way it has been applied to the sovereign Indian nations of North America.  Sovereignty is a fluid term that is open to interpretation in the case of tracing “supreme authority to the people or to a “divine right” of rulers.”  The early European colonizers chose to define sovereignty using divine right based on “theological-legal theory.”  The Pope decreed land titles “for purposes of Christian civilization.”  This left the Native tribes with no authority over the land or their own rule.  The lands of North America were “treated as legally vacant” and they “were declared to have a “right of occupancy”, but not ownership.”  This interpretation was the beginning of taking away land from the Native population of North America and parceling it out to settlers as they moved across the country.  With the birth of the United States of America this policy of divine right was applied to the newly formed country.  In 1823 the Supreme Court followed the “right of occupancy version of colonial sovereignty” in the case of Johnson v. McIntosh.  Through many court cases following this “subordinate sovereignty”, which denied them full independent sovereignty, but did grant them “internal or tribal sovereignty.”  In the 1886 Supreme Court case of United States v. Kagama the court declared that “the soil and the people within these limits are under political control of the government of the United States, or of the States of the Union” thus denying full rights of sovereignty to Indian nations.  In 1934 the Indian Reorganization Act recognized “tribal sovereignty as an organizing principle.”  This provided for the formation of semi-independent tribal governments with limited self rule.  In cases before the courts to this day full sovereignty has never really been recognized as Native American right.



The Tribal Consultation sight describes Executive orders from Presidents Clinton and George W. Bush that seek to affirm tribal rights of sovereignty.  This GSA sight starts out with “the United States has a unique legal and political relationship with Indian tribes…as provided in the Constitution of the United States, treaties, and federal statutes.”  In November of 2000 President Clinton issued executive order 13175 Consultation and Coordination with Indian Tribal Governments to “strengthen the United States government relationships with Indian tribes.”  This act states “the United States continues to work with Indian tribes on a government-to-government basis” and “recognizes the right of Indian tribes to self government and supports tribal sovereignty and self determination.”  This sound like things may be changing, but within this executive order are terms and phrases such as “where possible” and “to the extent practicable and permitted by law.”  In September 2004 President Bush issued executive order 13336 Executive Memorandum Government-to-Government Relationship with Tribal Governments where he “reiterated…adherence to a government-to-government relationship and support for tribal sovereignty and self determination.”  He goes on throughout this executive order giving support to tribal self government and self determination, but still includes statements like “as permitted by United States law.”  Near the end of this order the phrase “this memorandum is intended only to improve the internal management of the executive branch…” seems to be saying that all this talk is merely lip service to appease certain parties.


The tribal Courts of New York on the other hand seems to be making a genuine effort to find some common ground on the issues of tribal sovereignty and self-government.  Statements like “the need for cooperative efforts among federal, state, and tribal entities to address and resolve jurisdictional conflict” appear to be looking to involve all parties in the legal decision making necessary for tribal sovereignty.  This ongoing effort in New York may be the beginning of better cooperation and understanding of tribal legal issues.


These websites provide detailed information on the issue of tribal self government and sovereignty and were well chosen for this exercise.  They have shown me both sides of the issue and the need to develop a comprehensive strategy to resolve tribal sovereignty.






Tribal Consultation with the Federal Government, https://www.gsa.gov/node/79654

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