De Recto, De Jure, or De Facto: Another Look at the History of U.S./Tribal Relations

Abstract

The history of relations between the United States and Native nations is often divided by scholars into specific eras defined by the Congressional policy in force at the time. Each federal policy had profound consequences for tribes and their sovereign ability to manage their lands and resources. This article surveys the history of U.S./tribal relations through the lens of Professors Joseph Kalt and Joseph William Singer’s scheme of tribal sovereignty. Part I looks at how tribal sovereign rights to manage their people, lands, and resources have been recognized in varying degrees since the time of first contract with European nations and at how, when viewed as a whole, the history of federal Indian law fits precisely under the Kalt/Singer scheme. Part II examines the concept of de facto sovereignty and includes examples of how tribes are taking back control over their own futures.