The Nadir of Native American Sovereignty

Abstract

Tribal sovereignty has always been the central and most perplexing issue in federal policy. Almost every problem that faced, or faces, Native Americans-property ownership, mineral and water rights, and civil jurisdiction, self-government-have all hinged on the federal government's conception of the powers maintained by tribal governments and the federal courts' interpretation of the proper relationship among the national government, the states, and the Native American nations. Rather than remaining static, the scope of tribal sovereignty expanded and contracted with epochal changes in the federal government's vision of the place of Indians in American society. Characterized by federal judge Philip Nichols, Jr. as one of the blackest days in the history of the American Indian (p. 71), Lone Wolf v. Hitchcock was the nadir of tribal sovereignty and the culmination of the late-nineteenth-century attack by the federal legislature and judiciary on Native American political and legal rights. Charles E Wilkinson (American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy, 1987) defined sovereignty as the power of a people to make governmental arrangements to protect and limit personal liberty by social control and demonstrated how pervasively changes in the Supreme Court's interpretation of this intangible influenced Native American lives (pp. 54-55). Yet, surprisingly few monographs have studied the major cases that affected the realm of Native American tribal powers and individual rights as singular objects. Although law libraries remain sadly bereft of detailed works on the important cases of the twentieth century, legal historians have recently and quickly closed the gap in the literature on the nineteenth-century decisions. For instance, in 1994 Sidney J. Harring published Crow Dog's Case: American Sovereignty, Tribal Law, and United States Law in the Nineteenth Century, in which he described the transition in the federal government's treatment of criminal violations on the reservation from self-policing (Ex Parte