In the broadest sense, Indian law requires the practitioner to fully understand the government-to-government relationship that Tribes share with the Federal government, State government, and amongst other Tribes. It requires practitioners on the opposite side of the table to fully understand the issues as well. The treaties for each Tribal Nation are the place to start any discussion on the topic. Again, the treaties are specific to each Tribal Nation named in the document, and the associated provisions only govern those entities.
The treaties illustrate the exercise of sovereignty[1] for Tribal Nations. This inherent power preempts the Constitution based on the right and power of self-governance.[2] Understanding this principle, and the reserved rights exercised through treaties, is the hallmark first step of any practitioner dealing in or around Indian Country.
Moreover, the treaties illustrate the exercise of Plenary Power[3] by the Federal government, and how that impacts the authority of states. The treaties also illustrate the exercise of the Trust Doctrine and the Trust Responsibility[4] for the Federal government. This responsibility, born out of the sovereignty of each nation, and their relationship to each other, is on full display in the treaties. While many more issues challenge the Indian law landscape, the treaties provide a practitioner with the strongest framework to begin understanding the status, powers, jurisdiction,[5] and authorities of each sovereign impacted in Indian law.
Introduction and compilation by Rebecca Chapman, Esq.
[1] For more information, see Nell Newton, Cohen’s Handbook of Federal Indian Law, §§ 4.01-4.05 (Lexis Nexis 2012 ed.). See also 3 Donald Fixico, Treaties with American Indians, 947-948 (2008). See also Wade Davies and Richmond Clow, American Indian Sovereignty and Law, 1-50, 95-110 (Scarecrow Press 2009).
[2] See Id. at §§ 1.07, 4.01-4.05. See also Fixico, supra at 709-710, 734. See also Davies and Clow, supra at 131-152.
[3] See Id. at §§ 5.01-5.05. See also Fixico, supra at 942. See also Davies and Clow, supra at 127-130.
[4] See id. at §§ 5.04-5.05. See also Fixico, supra at 954-957. See also Davies and Clow, supra at 121-126.
[5] See Id. at §§ 7.02-7.06, 9.01-9.07. See also Davies and Clow, supra at 169-188, 207-238, 355-362.
