2

IV. The U.S.A.: Domestic Dependent Nations

SOURCES: Dan Russell, A People’s Dream., pp. 14-

David Wilkins, “The Shifting Sands of Indigenous Governance: The U.S. State as Shape Shifter”, address to University

of Calgary, Nov. 16, 2001.

a) Cherokee Nation vs Georgia (Chief Justice Marshall, Sup. Ct., 1831)

Ruled that the tribe is not a foreign state, but that it is a state – “a distinct political society separated from others, capable of managing its own affairs and governing itself”.

“They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory over which we assert a title independent of their will, which must take effect in point of possession, when their right of possession ceases. Meanwhile, they are in a state of pupilage; their relation to the United States resembles that of a ward to his guardian.”

Two principles enunciated here:

1) domestic dependent nations

2) fiduciary relationship i.e., trustlike relationship with the fed. govt.

b) Worcester vs Georgia (Chief Justice Marshall, Sup. Ct., 1831)

Ruled that the fed govt shd consider “the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive.

i.e., the laws of Georgia have no force in the Cherokee Nation.

c. However, Fed. Govt has Full Plenary Authority

i.e., Congress can unilaterally modify, diminish, or even extinguish the authority of the tribes.

But, states and the fed. govt cannot intervene in areas of tribes’ authority unless

Congress gtives specific authority to do so.

d) Other Notes on U.S. Tribes’ Sovereignty and Relations with U.S. Federal

Government

- Varying Notions of Sovereignty Among American Tribes.

- Sovereignty as incorporating the cultural soul of the people

- Indian-Government relations in the USA are riddled with contradictions.

Examples :

- Sovereign tribes, but individuals as wards.

- states vs corporations vs municipalities vs voluntary associations

- Marshall’s decisions created for Indians two different legal statuses, held

simultaneously – namely:

- Congress, the courts, and the bureaucracy (the Exec. branch) often work at cross

purposes with one another.

- The Renquist Supreme Court’s Decisions

- revolutionized the notion of what sovereign powers tribes have

With the blessing of the Supreme Court, the states are now intruding

on tribal jurisdiction