What is Indian Sovereignty? Who Dreamed It Up?
Between 1790 and 1871, the U.S. Senate ratified 380 treaties with Indian nations. Congress entered into treaties with the [nations] to acquire land which it would sell to pay off its huge debts. Start-up costs for a nation, even back then were staggering and the U.S. was too weak to take the land by force. What it had to offer the [Indian nations], in return, were sovereignty and peace.
When the legal concept of sovereignty was first challenged in the Supreme Court by the state of Georgia in the 1820s, Chief Justice John Marshall took pains to examine this legal apparatus and to explain how it functions. He knew battles with the [Indian nations] would only escalate over time.
This brace of cases, known as the Marshall Trilogy, held that every treaty ratified by the U.S. Senate under Article VI, Clause 2 of the Constitution, was now the "supreme law of the land." Sovereignty, explained Marshall, exists as a pre-condition among self-governing entities and acts as a legal shield protecting all rights and privileges reserved and implied by nationhood. In fact, treaties were the granting of rights from the [Indian nations] to the federal government.
President Andrew Jackson was so infuriated by Marshall's opinion
that he declared: "Let him enforce it!" then sent thousands of Cherokee to their
death on the Trail of Tears (an act which today would get President Jackson indicted by
The Hague as a war criminal).
For 20 years, Chief Justice William Rehnquist and his ideological cohorts have done their damnedest to dismantle Marshall. In the end, we were a nation of laws that would not easily bend to the political judgments of high-court judges. The foundational law was upheld.
Summer 1999: Native Americans have brought a class-action suit against the Department of Interior's Bureau of Indian Affairs for tens of billions of dollars in misused Indian assets. This case is going to trial this summer, and Price-Waterhouse accountants say the particulars line up very nicely in favor of the Indians. Should get ugly.
December 1997: The Supreme Court enforced Isleta Pueblo water-quality standards on the Rio Grande River on the upstream of Albuquerque, standards that cost Albuquerque $400 million in capital improvements. The Isleta combined their 1st Amendment freedom of religion (water ceremonies) with treaty rights in an argument that had never been heard in a court of law.
October 1998: The 9th Circuit Court of Appeals did the same thing for the Salish and Kootenai [nations] of Western Montana. Montana Gov. Marc Racicot promised to fight it out at the Supreme Court. He did. He lost. Twelve more [nations] have won similar approval from the federal Environmental Protection Agency under Section 519 of the Clean Water Act, while 20 more are in line for approval, and 120, from Maine to California, have initiated the scientific and legal processes.
September 1998: A federal court cited a treaty between the Sandia Pueblo and the King of Spain to restore thousands of acres of land surrounding the city of Albuquerque (including land under the governor's house).
September 1998: Federal court Judge Lawrence Piersol "dismissed with prejudice" the claims of South Dakota Gov. William Janklow and restored jurisdiction and treaty rights to the Yankton Sioux over 360,000 acres of South Dakota prairie, ending a century-long battle over a treaty signed in 1858.