19. Why Indian Tribal Sovereignty Is Important

During much of 2016, construction of the Dakota Access Pipeline drew a number of lengthy protests stemming from concerns over the impact of the pipeline on the region’s ground water. The pipeline also passed near the Standing Rock Indian Reservation which drew opposition from some members from the Sioux tribe and other tribes. Tribal governments became involved, and as a result, federal regulators became involved also.

In late 2016, in the midst of the protests, Donald Trump’s transition team—during pre-inauguration preparations—suggested that it may pursue efforts to “privatize” Indian reservation lands as a means of streamlining the pipeline construction process.1

What would be the purpose of this “privatization”? According to several sources within the Trump transition team, the stated intent of the privatization policy was to allow tribal governments to circumvent US federal regulations in favor of more localized decision-making. According to Reuters:

Now, a group of advisors to President-elect Donald Trump on Native American issues wants to free those resources from what they call a suffocating federal bureaucracy that holds title to 56 million acres of tribal lands, two chairmen of the coalition told Reuters in exclusive interviews...

The tribes have legal rights to use the land, but they do not own it. They can drill it and reap the profits, but only under regulations that are far more burdensome than those applied to private property.

“We should take tribal land away from public treatment,” said Markwayne Mullin, a Republican US Representative from Oklahoma and a Cherokee tribe member who co-chaired Trump’s Native American Affairs Coalition. “As long as we can do it without unintended consequences, I think we will have broad support around Indian country.”2

The idea here was that many officials and residents within tribal lands and tribal governments wanted the pipeline to proceed, and this was more likely to happen if federal involvement could be minimized.

It was never quite clear what the Trump team meant by “privatization,” but if privatization in this context meant taking more land out of the hands of the US federal government, then that’s a good thing. On the other hand, if privatization meant the dissolution of Indian reservations and other tribal institutions, that would be a bad thing. Whether or not tribal governments are reformed or dissolved should, of course, be up to the people who live on tribal lands. But even for Americans who are not members of tribes and who do not live on tribal lands, tribal sovereignty has the potential to serve an important role in limiting federal power through political decentralization.

Tribal Lands Should Be Beyond the Reach of the Federal Government

The relationship between tribal governments and the US federal government has long been complex. To simplify greatly: the Indian tribes are sovereign governments, and their relationships with the US government are governed by bilateral treaties. In practice, however, the tribes are only semi-sovereign and are subject to federal oversight and federal regulation. The treaties that govern federal-tribal relations can be changed or disregarded unilaterally by the federal government. In practice, these “sovereign nations” have even less local control than the member states of the United States.

Nevertheless, the tribes remain de jure political entities outside the states in which they are located and thus have a direct legal relationship with the federal government. They are, in this way, intended to enjoy some degree of independence from both the federal government and the state governments.

In recent years, some progress has been made, at least in the area of expanding tribal sovereignty in relation to US member states.  For example, in 2019, in the case of Herrera v. Wyoming (2019), the US Supreme court overturned the lower courts’ findings that tribal rights (established in an 1868 treaty with the United States government) in Wyoming had ceased when Wyoming became a state in 1890. According to the case summary:

In 2014, Wyoming charged petitioner Clayvin Herrera with off-season hunting in Bighorn National Forest and being an accessory to the same. The state trial court rejected Herrera’s argument that he had a protected right to hunt in the forest pursuant to the 1868 Treaty, and a jury convicted him.3

The right to hunt was limited to “unoccupied” lands, and Herrera contended both that the National Forest lands in which he was hunting was unoccupied, and that he had a right to hunt there due to treaty stipulations. The court did not rule on whether or not the specific place Herrera was hunting was “occupied,” but focused instead on whether or not tribal-members’ rights continued to exist in accordance with an extant treaty. The court found these rights do still exist, but Herrera may still be found guilty if it is established the land on which he was hunting is not unoccupied.

Whether or not Herrera is ultimately found guilty, the court’s findings are important because they potentially establish a higher standard of sovereignty for tribal governments than had been previously admitted by the courts.

After all, the basic premise of treaties between the tribes and US government—at least as communicated to the tribes themselves—was that the tribes were sovereign entities entering into treaties with another sovereign entity (i.e., the US government). Over time, the US government took advantage of the tribes’ lack of de facto independence to reinterpret treaties as documents subject to unilateral amendment and abrogation by the US Congress. Even worse, state governments in the US began to assert their own authority over tribes, even though the tribes were not parties to any sort of agreement with the state governments.

In recent decades, however, courts have slowly begun to limit state jurisdiction over tribes with the effect of providing more autonomy to tribes. Perhaps most famous among these decisions is the 1987 case California v. Cabazon Band of Mission Indians in which the court determined state governments could not prevent tribes from offering legal gambling within their own borders (in most cases). The result was political decentralization and greater access to legal gambling for non-tribal members. The subsequent rise of the gaming industry on tribal lands has greatly improved the standard of living for many Indians.

In Herrera v. Wyoming, the court further established that state governments cannot simply override treaty-established tribal law whenever it suits state legislatures. But this isn’t the only case in recent years which has strengthened tribal independence. In March 2019, the Supreme Court decided in favor of the Yakama tribe in Washington State Dept. of Licensing v. Cougar Den, Inc. The Court held that the Yakama Nation Treaty of 1855 preempts state attempts to tax fuel purchased by a tribal corporation for sale to tribal members. The State of Washington insisted it could tax tribal fuel transported on state highways. The Supreme Court disagreed and took a relatively broad interpretation of the treaty’s provisions guaranteeing use of the state’s highways.

Decentralization and Local Sovereignty Matters

These two cases, of course, are just very small steps in the right direction. For the most part, Congress can still abrogate and amend treaties on its own with precious little input from the tribes themselves. These recent cases help to establish greater tribal sovereignty in the face of state law, but do little—on their own—to enhance tribal sovereignty when it comes to federal legislation. Some observers might wrongly interpret these decisions as attacks on state-level sovereignty by lessening state control over its own territory. This, however, misses the point.

Correctly imagined, both state governments and tribal governments ought to have far greater independence both from federal control, and from each other. In practice, for example, the entire northeast corner of Arizona, which is mostly Navajo tribal land, ought not be considered Arizona territory at all. Nor should it be considered US territory.

For now, though, the federal government continues to exercise immense amounts of direct regulatory power over tribal lands, and can regulate internal tribal affairs right down to whether or not the tribes can legalize marijuana.

Nevertheless, the treaty-granted status of the tribes does constitute a check on the power of the federal government.  This idea has been explored by Kevin Bourgault of the Center for Indigenous Self-Determination Research. Bourgault writes:

Tribes are the sole entities in our society with established treaty rights....As sovereign nations, tribes are equivalent political entities to the states in which they are located.

Tribes also are among the few entities that have an immediate claim to legal redress and mitigation. This means that tribes are uniquely positioned to act quickly within a legal system that is becoming more and more byzantine and unresponsive to immediate needs….4

Bourgault has framed the argument in terms of environmental issues, but the larger issue here is one of decentralization. Since tribal governments are—at least theoretically—sovereign governments and arguably peers of the US government, they could potentially act as true obstacles to federal power, possibly to a greater extent than the governments of US member states. Whether or not this can be done in practice will depend on political realities. 

But Tribal Governments Are Corrupt!

Unfortunately, the concept of tribal sovereignty continues to encounter opposition, often due to outsiders’ concerns over political corruption within tribal governments. Some critics have (correctly) pointed out that tribal governments are often corrupt, with tribal officials using their privileges to enrich themselves at the expense of other tribal members. This corruption we are told, is sufficient grounds for the federal government to dissolve those governments and reform them as federal officials see fit.5

The call for dissolving tribal governments as a means of fighting corruption, however, is just as problematic as the claim that corruption at the state or local level of government is sufficient grounds for the federal government to dissolve those governments. Clearly, this would be a disastrous policy that would enormously expand federal power.

The proper position, of course, is to recognize that any efforts to make tribal governments less corrupt is a matter for tribal members and residents of tribal lands. Just as the residents of Texas should decide for themselves how the government of  Texas works, so should the members of the Navajo Nation decide how the Navajo tribal government works. Federal involvement is simply not necessary. Non-Indians who do not wish to be subject to tribal government need not live on tribal lands or travel through them.

Indeed, the idea that the federal government will solve the problem of corruption in tribal government is thoroughly unconvincing given that corruption of tribal governments has long been largely a product of federal involvement in tribal affairs. Historically, federal officials are notorious for running their own puppet candidates in tribal elections who can serve as a direct conduit between tribal governments and the federal government’s favored interest groups.

The Effects of Ignoring Tribal Sovereignty

The federal government’s tribal policies have long functioned primarily to benefit the federal government itself. For example, since 1880, much of the land that has been removed from sovereign tribal hands has simply been added to the hundreds of millions of acres of federally owned lands. Experience suggests abolishing the tribes or their treaties would only convert tribal land into federal land, to be held by federal government agencies in perpetuity. The federal government already owns 640 million acres, and further expanding federal power over vast areas of land would only further enhance and centralize political institutions in the United States.

After all, lest we think that the feds can be trusted to privatize those lands or grant them to the states, we’d do well to remember that the reason the federal government presently owns so much land in the first place is because the federal government has repeatedly failed to follow through on promises to localize or privatize federal lands.6

Most of Western Colorado, for example, was Ute tribal land until 1880. When federal agencies seized that land from the tribe, only a portion was privatized or even transferred to states and local governments. Instead, most of that land today remains in federal hands.

• 1Valerie Volcovici, “Trump advisors aim to privatize oil-rich Indian reservations,” Reuters, December 5, 2016, https://www.reuters.com/article/US-usa-trump-tribes-insight-idUSKBN13U1B1.
• 2Ibid.
• 3Herrera v. Wyoming, No. 17-532, 587 U.S. (2019), https://www.supremecourt.gov/opinions/18pdf/17-532_q86b.pdf.
• 4Kevin Bourgault, “Tribal power and important check on ruling elite,” The Register-Guard, September 19, 2016, http://web.archive.org/web/20200713152505/http://registerguard.com/rg/opinion/34780967-78/tribal-power-an-important- check-on-ruling-elite.html.csp.
• 5Carl Horowitz, “No Reservations: The Case for Dismantling the Indian Bureaucracy,” Townhall, February 4, 2011, http://townhall.com/columnists/ carlhorowitz/2011/02/04/no_reservations__the_case_for_dismantling_the_indian_bureaucracy.
• 6Ryan McMaken, “How the Feds Botched the Frontier Homestead Acts,” Mises Wire, October 19, 2016, https://mises.org/blog/how-feds-botched-frontier-homestead-acts.