The most frequent and common questions regarding Indian tribal sovereignty in America, include these: Where did tribes get their sovereignty? How did tribes keep their sovereignty? How long have tribes had their sovereignty?
The answers: From the Creator who put them here. They inherited it. Since the beginning of time.
Answers to these questions have been around far longer than the questions themselves. Tribal sovereignty flows through American history in a timeless river, without beginning or end. The reality here is that tribes have always been sovereign, a fact recognized in the actions and laws of early European explorers, a fact recognized as exploration became settlement and a fact recognized as settlement evolved through colonial and into national government.
The sovereignty of Indian tribes is INHERENT. That means it existed since time immemorial and is recognized as such in the Constitution of the United States. It is true that Congress has plenary power (final authority) over tribes. The national legislature can change the sovereign status of tribes and its legal foundation. States and tribes have equal legal and constitutional status in their dealings with the federal government.
Most commonly known of the government-to-government relationship between the United States and Indian Nations is the power of Congress to make treaties. The relationship extends to existing reservations, some created by Congress and others by Executive Order of the President. This government-to-government relationship exists between tribes and states and is often reflected in tribal-state compacts, the equivalents of treaties.
A vast number of tribes in America have been relocated away from their original homelands . Idaho tribes, however, are truly the original Idaho. While the tragedies of war and near genocide existed here, tribes remain on reservation lands that represent small portions of their original homelands. These tribes, the Coeur d'Alene, Kootenai, Nez Perce, Northwestern Band Shoshoni Nation, Shoshone-Bannock and Shoshone-Paiute, maintain jurisdictional and sovereign authority over their lands, upheld in legal decisions by the Idaho Supreme Court and the United States Supreme Court.
Tribal sovereignty remains as an American doctrine, with extensive, fundamental powers held by tribal governments . Tribes have the power to establish their own form of government , not necessarily patterned after the federal government. Tribal governments, because they are constitutionally sovereign, are not subject to the requirements of separation of powers or even the establishment of religion, although these principles are almost universal in tribal constitutions. The Indian Reorganization Act points out that tribal sovereignty is inherent and therefore even farther reaching than the Act itself.
Tribal sovereignty also includes the power to determine membership, police power, power to administer justice, power to exclude persons from the reservation (although not unlimited or to the point of denying legal access), power to charter business organizations and regulate their activity, power to levy taxes, and sovereign immunity. This sovereign immunity means tribes cannot be sued without the expressed written consent of tribal governments. State governments are also protected by this immunity within the 11th Amendment to the Constitution of the United States.
The origins of this sovereignty are a combination of historical, cultural and legal. Through treaties and executive orders, tribes have a legal underpinning in the ongoing and difficult effort to keep their cultures, traditions, languages, customs and jurisdictions alive.
Tribes and tribal governments remain committed to the preservation of their heritage and to controlling their destinies. Tribal members often say they have a commitment to this preservation and control because of their commitment to future generations, because of their connection with the land and because of their connections to their ancestors buried in it. These are moral obligations supported by indisputable legal and constitutional authority. Tribes were here many thousands of years before there was a United States or an Idaho. Tribes were here and took part in the development and protection of the United States and Idaho. Tribes will be here even if the day comes when there is neither a United States nor an Idaho.
As one tribal elder explained, "We are here because this is where the Creator put us. This is where we will always be."