American Indians and Federalism
A common definition of federalism, contained in the majority of American government, state and local politics, and public administration texts, is the division of power between the national and state governments. This system, developed as a compromise during the Constitutional Convention, created a strong central government without stripping states of their inherent sovereignty. When created, however, the Constitution was largely silent with regard to a third set of sovereign governments operating within what would be called the United States—American Indian nations. The relationships among local, state, and federal governments, while constantly evolving, are much more clearly defined than the relationships between any of these entities and indigenous nations. Relations among First Nations, the federal government, and the states have been something of a shifting target, and the deep legal historical roots that have continually changed, and are still changing, have made it extremely difficult to properly place Indian nations within the federal system of government. For instance, the federal government has recognized tribes as international sovereigns, domestic dependent nations, wards that require protection, and quasi-sovereign governments. Thus federal policies have fluctuated from treating native nations as separate political entities with a status requiring treaties, to an attempt to assimilate native people into the general society by refusing to recognize sovereignty at all.
Lost in the vacillation is the idea that First Nations and their relations to other governments within the federal system are unique in that their position relative to both the states and the federal government is not derived from the Constitution; rather, tribal governments derive their powers from an inherent right of self-government. This inherent right and the unique relationship of the tribal governments to the federal government have created special problems in trying to define the role of tribal governments in the federal system. For instance, local governments, through Dillon’s Rule, are creatures of the state and derive their power from the state. Therefore, the place of local governments is outlined. The states, like tribal governments, are in a perpetual process of defining their relationship with the federal government over state sovereignty and federal supremacy. However, the U.S. Constitution clearly establishes the supremacy of federal law through the Supremacy Clause and provides for a much clearer resolution of conflicts between state and federal government. Rules exist that were developed by the judicial system, which determine when state powers are preempted. In this sense, the place of states is somewhat settled—they are sovereign, but their laws can be preempted by the national government. The legal status and the relationship between the tribal and the federal government are quite different in that the policy pendulum has historically swung back and forth between federal trusteeship and tribal self-determination. There has been no Dillon’s Rule or consistently applied constitutional clause to clarify the position of tribal governments within the federal system as there has been for the states and local governments. As a result, federal Indian policies have been administered unevenly through different federal administrations, and state governments have never fully understood how they are to relate to tribal nations. Uneven interpretation, implementation, and shifting of Indian policy can be attributed to the fact that Indian nations have historically been in a state of flux. From international equals, toward of the state, and most recently as quasi-sovereigns viewed as states, the placement of Indian nations within the U.S. system of federalism has been continuously changing and evolving.
Prior to independence and the founding of the United States under the Articles of Confederation, foreign nations such as Spain, France, and England dealt with Indian nations as international sovereigns and more than 500 treaties were signed between these European powers and the various tribal governments in North America. All of these treaties were recognized under international law and established that tribal governments were sovereigns in their own right. The fact that these superpowers would negotiate an agreement is evidence that tribes were viewed as independent governments.
After the war for independence, the newly established U.S. government continued to follow the lead of its colonial predecessors by dealing with tribes via treaties rather than through conquest. The exclusive relationship between the federal government and the various tribal nations was reinforced through several acts of Congress, including the Northwest Ordinance of 1787 and the Trade and Intercourse Act of 1790. The Northwest Ordinance basically provided that Indian land would not be taken and that Indian rights and liberties would always be protected and preserved. The Trade and Intercourse Act dictated that Indian land could not be purchased by states or individual citizens—that only the federal government could enter into agreements to purchase land from tribal nations. Thus we see early on that tribal nations were viewed to be at least on an equal level to states, if not provided an elevated status via the treaty-making process that was normally reserved for foreign governments.
From the mid-1820's through the early part of the twentieth century, perceptions of Indians and the status of tribal nations within our system of federalism would be dramatically changed. Rather than continue to view these unique enclaves as foreign states, moves were made by the U.S. Supreme Court and Congress to move tribal governments to a less prominent position relative to the national government, but there was a continuation of the status of tribes as more than states—albeit with diminished sovereignty.
Despite laws designed to protect Indians from white encroachment (such as the Northwest Ordinance and the Trade and Intercourse Act), the United States was rapidly growing and citizens often looked toward Indian lands as a way to ease migration and settlement. Both Congress and the Supreme Court responded through laws and rulings that shifted the position of Indian nations from that of foreign states to domestic dependent nations that were subject to the plenary power of Congress. Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832) are three cases often referred to as the “Marshall Trilogy” after the chief justice at the time, John Marshall. These three cases began to change the position of tribal governments within the American system and clarify where tribal nations stood in relation to both the federal government and various state governments. In Johnson, the Court ruled that tribal nations did not own the land on which they resided but were, instead, more like tenants with a right to occupy land owned by the United States. In Cherokee Nation v. Georgia, the Court went further by noting that while the tribal nations enjoyed the right to occupy land (set forth in Johnson), they could not be accurately defined as foreign nations. Instead, the Court explicitly stated that tribal governments were “domestic dependent nations” and that the relationship between the United States and tribal nations was that of “a ward to its guardian.” In other words, the Court ruled that tribal sovereignty was secondary to the power of the United States—the Court-appointed guardian established to protect the well-being of the domestic dependent tribes. While sovereignty relative to the federal government was diminished in both Johnson and Cherokee Nation v. Georgia, the placement of tribal governments relative to state governments was established in Worcester. Here the Court established that state law has no force within Indian borders and that all interactions with tribes are “vested in the government of the United States.”
Like the Court, Congress also acted to change the relationship of tribal governments in relation to the United States from that of foreign states to domestic dependent nations. In the Indian Appropriations Act of 1871, a rider was attached that prohibited further treaty making between the U.S. government and tribal governments. Since the very nature of a treaty indicates the recognition of sovereignty and equal position, this act was a clear sign that the relationship was changing and that the placement of first nations within the federal system was changing too. This became evident with the passage of the Land in Severalty Act of 1887 (General Allotment Act or the Dawes Act). This act opened up Indian land for white settlement under the guise of guardianship. White philanthropists believed that assimilation into general society was in the best interest of Indians and that breaking up tribal lands would be the quickest way in achieving this. In the words of Theodore Roosevelt, the Allotment Act was a “mighty pulverizing engine to break up the tribal mass.” Indeed it was, as tribal governments saw a drastic reduction in the amount of land they were able to occupy. While the act was challenged by tribal nations as a clear violation of the trust responsibility held by the federal government, the Supreme Court made yet another decision that clarified the status of tribal nations.
In Lone Wolf v. Hitchcock (1903), the virtually unquestioned power of Congress over the tribes was upheld by the Court. In this ruling, the Court was asked to determine whether Congress was acting in the best interest of the tribes and whether tribal leaders had been deceived in the process leading up to the General Allotment Act (the Dawes Act). In ruling, the Court essentially stated that dealings with the tribes were the power of Congress and Congress alone, and that political questions were beyond the scope of the Court’s power. According to the opinion delivered by Justice Edward D. White,
Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of government. We must presume that Congress acted in perfect good faith in the dealings of which complaint is made, and that the legislative branch of the government exercised their best judgment in the premises. In any event, Congress possessed full power in the matter. (187 U.S. 553)
Together, the three doctrines—treaties, the trust relationship, and plenary power—established that Indian tribes, although their inherent internal powers were diminished over reservation territory and affairs, still retained some degree of internal sovereignty; that the United States has trust responsibility for Indian tribes; and that Congress has and exercises an almost unquestioned legislative plenary authority over matters that concern Indian tribes. It is within this changing and evolving framework that we must view American Indian policy and the idea of American Indian federalism, and the related set of rules for states, tribal nations, and the federal government to follow.
The 1960's witnessed a cultural awakening in which the plight of many oppressed people was brought to the attention of the general public. From the Civil Rights movement to President Lyndon Johnson’s War on Poverty, policies, and legislative acts were put in place to better equalize society. Included in this movement was a renewed interest in the sovereign rights of First Nations. Johnson, for example, devolved some power from the Bureau of Indian Affairs directly to tribal governments as part of his war on Poverty. The idea was that the people most immediately impacted by programs would be in the best position to run them—in other words, they should be allowed a measure of self-rule. The major shift in the position of First Nations within the U.S. system of federalism, however, came under President Richard Nixon. Nixon put forth two separate policies that would eventually place greater emphasis on tribal authority, autonomy, and inherent sovereignty that had been slowly eroded over time. Nixon’s “New Federalism” and policy of tribal self-determination would place First Nations on a path toward both greater independence and fuller participation within the political system.
In 1972 President Nixon sought to decentralize the administration of fiscal sources and grants. Nixon’s New Federalism was advocated in response to fears that the national government had grown too large and intrusive. It was felt that state and local governments should be given more discretion to deal with state-local needs. Likewise, with the Reagan administration’s New Federalism, there was an emphasis on the separation of national and state functions. The administration favored a decentralization of power and policy control to states and local governments such as giving responsibilities in social programs to the states (e.g., Medicaid, food stamps, and AFDC). Although all of President Ronald Reagan’s specific proposals were not adopted, the basic idea was that there would be a swap in responsibilities with the federal government and the states and a return of power to the states.
President George Bush extended Reagan’s agenda, and President Bill Clinton continued the push for state and local governments to be innovative. Clinton went even further by encouraging the establishment of partnerships among the federal, state, local, and tribal governments under the Reinventing Government movement.
On April 29, 1994, Clinton and his cabinet members met with 300 Native American leaders to express his commitment to “consult with and work with tribal governments within the framework of a government-to-government relationship” (Clinton 1994). For the first time in the nation’s history, a president of the United States and all members of his cabinet had met with representatives of Indian nations. Under the Clinton framework, tribes were being viewed as sovereigns and were treated in a manner similar to the relationship between the federal government and the states with regard to the administration of federal regulations. He told tribal leaders gathered in Washington that “together, we can open the greatest era of cooperative understanding and respect among our people ever.” Clinton followed through with his promise by issuing numerous executive orders that directed federal agencies to treat tribal nations on a government-to-government basis. In other words, First Nations were once again being viewed as independent and sovereign nations within the larger system rather than simply as wards of the state operating under total control of the federal government.
In 1970 President Nixon announced in his presidential address the official federal Indian policy of self-determination. In this address, Nixon also announced that “the time has come to break decisively with the past and to create the conditions for a new era in which the Indian future is determined by Indian acts and decisions.” Contemporary Indian policy and relations are predicated on the philosophical foundation laid by Nixon. On January 4, 1975, Congress implemented the Indian Self-determination and Education Assistance Act of 1975, which permits tribes to assume control and operation of many federal programs on Indian reservations. The act gives express authority to the secretaries of interior and health and human services to contract with, and make grants to, Indian tribes and other Indian organizations for the delivery of federal services. The act reflects a fundamental philosophical change concerning the administration of Indian affairs. Tribal programs are funded by the federal government, but the programs shall be controlled and operated by the tribes themselves. The Indian Financing Act, also passed in 1974, provided grants and loans to help Native Americans utilize and manage their own financial resources for reservation development. Cultural integrity was taken into consideration with the passage of the Indian Religious Freedom Act of 1978.
Beginning in the early 1980's, Indian policy, and therefore the placement of tribal nations within the federal system, began to shift once again. A number of legislative acts, such as the Tribal Self-government Act of 1988 and the Indian Tribal Economic Development and Contract Encouragement Act of 2000, appeared to have been pushing the era of self-determination to new heights and were aimed at an era of true self-government. This was capped by a historic agreement reached between the Clinton Administration and the leaders of several Tribal nations to sign a consultation policy. Actions impacting indigenous people would require consultation. At the same time, however, other congressional actions and court rulings were inconsistent with the idea of self-governance and actually took away tribal authority—especially relative to state governments. For example, the Indian Gaming Regulatory Act (IGRA) of 1988 allowed for casino-type gaming operations on tribal lands after the signing of a gaming compact with the state. Tribal governments were allowed the flexibility to operate casinos if they wanted, but only if they could convince the state to negotiate a compact—a stark departure from the traditional separation of tribes and states established under Worcester in 1832. While one provision of the IGRA allowed tribes to sue states that failed to negotiate in good faith, this provision was ruled unconstitutional by the Supreme Court in Seminole Tribe of Florida v. Florida (1996). Thus tribes were left at the mercy of state governments if they wanted to engage in gaming on their own land. Other rulings have tended to support state sovereignty over tribal sovereignty when the two have been at odds. Such decisions have led leading Indian scholar David Wilkins to note that
the policy ambivalence evident in the conflicting goals of sometimes recognizing tribal self-determination and sometimes seeking to terminate that governing status has lessened only slightly over time. Tribal Nations and their citizens find that their efforts to exercise inherent sovereignty are rarely unchallenged. (Wilkins 2002, 118)
Thus, the uncertainty that has historically defined the position of First Nations within the broader American federal system remains. Decades of progress can be suddenly changed, depending on the political climate. One recent example, as of 2018, was the conflict over the Dakota Access and Keystone XL oil pipelines. Since 2000, Tribal nations were consulted prior to any major activities which would impact them. Grassroots protests and the consultation process resulted in both controversial projects being halted by President Barack Obama. However, On January 24, 2017, President Donald Trump issued executive orders reinstating the projects after only four days in office – with no consultation with Tribal nations. Such has been the history of federal Indian policy – ever shifting with no solid foundation for predictability.
To summarize, the U.S. federal system of government consists of three primary parts—the national, state, and local governments. Governmental authority and relations for each of the three are enumerated in and are based on charters, constitutions, and court decisions. Tribal governments, however, were originally not part of this system. As a result, they were initially dealt with on the basis of international law. Formal government relations were established through treaty and agreements. Because of their changing legal and political status, Indian nations have been treated as international sovereigns, domestic dependent nations, and quasi-sovereign governments. In the course of defining the parameters of the legal and political status of these unique enclaves within the U.S. political system, federal Indian relations have evolved through protectorate and guardianship, and now are a trust relationship—albeit a less dictatorial relationship than the original concept of a trust relationship developed via the Marshall Trilogy. The modern trust relationship is based on a combination of international law, treaties, federal judicial decisions, legislation, and presidential decrees. The modern trust relationship, when coupled with the push for self-determination and New Federalism, relies more heavily upon tribal autonomy. At the same time, paternalistic tendencies have been very much a part of dealings with tribal nations from the very beginning of our nation. The interesting combination of the federal trust relationship, paternalism, and tribal self-government forms a complex backdrop for examining American Indians within the U.S. system of federalism and ensures that the ever-changing status of First Nations will continue to change and evolve.
William J. Clinton, “Government-to-Government Relations with Native American Tribal Governments,” Memorandum of April 29, 1994 (FR Doc 94-10877); David H. Getches, Charles F. Wilkinson, and Robert A. Williams, Federal Indian Law, 4th ed. (St. Paul, MN: West Publishing, 1998); Sharon O’Brien, American Indian Tribal Governments (Norman: University of Oklahoma Press, 1989); and David E. Wilkins, American Indian Politics and the American Political System (New York: Rowman & Littlefield, 2002); David E. Wilkins and Heidi Kiiwetinepinesiik Stark, American Indian Politics and the American Political System, 4th ed. (New York: Rowman & Littlefield, 2018).
Jeffrey S. Ashley
Last updated: December 2017