Tribal sovereignty: the Marshall trilogy, treaties and federal Indian law

On the first warm weekend in November, Jesse Morningstar went hunting with his uncle on ceded treaty land near the Nimkii Bay reservation, and on the way home they were stopped by a state conservation officer who saw a deer in the back of the truck. The officer was polite, checked their identification and asked a few questions, and then let them go. Jesse tells the class that his uncle has been stopped like that many times, and that the outcome has not always been so quiet. 'Sometimes they knew the treaty,' he says. 'Sometimes they didn't, and they seized the deer and the rifle, and my uncle went to court to prove a right his grandfather had.' Desjardins says this lesson is about the law that answers the officer's question.

Tribal sovereignty is not a matter of culture or courtesy. It is a legal principle as old as the United States, recognized in the Constitution, in treaties and in two centuries of Supreme Court decisions. Officers meet it most often in questions of jurisdiction, which Lesson 5 covers, and in hunting, fishing and land disputes, but it also shapes the authority of tribal governments, tribal police and tribal courts.

The Marshall trilogy

In three decisions between 1823 and 1832, Chief Justice John Marshall set out the basic framework of federal Indian law. In Johnson v. M'Intosh (1823), the Court adopted the doctrine of discovery, holding that European discovery gave the discovering nation, and later the United States, the exclusive right to acquire Native land, leaving tribes a right of occupancy. In Cherokee Nation v. Georgia (1831), the Court described tribes as 'domestic dependent nations' whose relationship with the United States 'resembles that of a ward to his guardian'. In Worcester v. Georgia (1832), the Court held that the Cherokee Nation was a distinct political community in which the laws of Georgia 'can have no force', and that relations with tribes belonged to the federal government. Together the three cases established that tribes are sovereign governments, that states generally lack authority over them, and that the federal government has a special relationship with them.

Marshall's framework has been both a protection and a burden. The doctrine of discovery, which the Vatican formally repudiated in 2023, has been criticized as a legal justification for taking Native land. The ward-guardian language was later used to justify federal control over tribal affairs. But the core idea of Worcester, that tribes are governments with their own territory and their own laws, survived, and it is the foundation of tribal police and courts today. Sergeant Keeshig tells the class that every time a state officer asks him by what authority he stops a non-Native driver on the reservation, the answer starts in 1832.

Plenary power, the trust responsibility and reserved rights

Over time, the Supreme Court held that Congress has plenary power over Indian affairs. In United States v. Kagama (1886), it upheld the Major Crimes Act, which extended federal criminal law to serious crimes by Indians in Indian country. In Lone Wolf v. Hitchcock (1903), it held that Congress could abrogate a treaty without the tribe's consent. At the same time, the courts developed the federal trust responsibility, a legal obligation of the United States to protect tribal lands, resources and self-government, which agencies such as the Bureau of Indian Affairs are supposed to carry out. Courts also read treaties in the way the tribes would have understood them and resolve ambiguities in their favor.

A key principle is that treaties are not grants of rights to tribes but grants of rights from tribes, which reserved everything they did not give away. In United States v. Winans (1905), the Court held that a treaty right to fish at usual and accustomed places allowed Yakama fishers to cross private land to reach them. In United States v. Washington (1974), often called the Boldt decision, a federal court held that treaty tribes in Washington State were entitled to up to half of the harvestable fish. In Minnesota v. Mille Lacs Band of Chippewa Indians (1999), the Court held that hunting, fishing and gathering rights reserved in an 1837 treaty survived. In Michigan, federal court decrees recognize the fishing rights in the Great Lakes, and the inland hunting and fishing rights, reserved by the 1836 Treaty of Washington, and tribes regulate their own members' harvest under those decrees.

Inherent sovereignty and civil rights in tribal government

The Supreme Court has repeatedly held that tribes retain inherent sovereignty, the powers they had as independent nations except where Congress or the tribes' dependent status has removed them. In United States v. Wheeler (1978), the Court held that a tribe's prosecution of its own member is an exercise of its own sovereignty, not federal power, so a later federal prosecution for the same conduct did not violate double jeopardy. In Santa Clara Pueblo v. Martinez (1978), it held that tribes decide their own membership. Because tribes are not created by the Constitution, the Bill of Rights does not bind them directly; instead, the Indian Civil Rights Act of 1968 applies most of its protections to tribal governments, including protection against unreasonable searches and seizures, the right to counsel at the defendant's own expense in most cases, and limits on punishment, with review in federal court mainly through habeas corpus.

The UN Declaration on the Rights of Indigenous Peoples

In 2007, the UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples, which sets out minimum standards for the survival, dignity and well-being of Indigenous peoples, including rights to self-determination, to their lands and resources, and to free, prior and informed consent on matters affecting them. The United States voted against it in 2007 and announced its support in 2010, describing it as an aspirational statement rather than a binding legal document. The Declaration is not enforceable in American courts, but tribes, advocates and some federal agencies cite it as a standard, and several states and cities have referred to it in policies on consultation with tribes.

Linh Tran asks whether the Declaration changes what officers do on the street. Desjardins says not directly; it does not change the Criminal Code or give officers new powers. But it shapes the direction of law and policy, and it gives Indigenous communities a standard against which to measure the government's conduct, including its policing. Lesson 6 shows how tribal police departments have grown out of the same principle of self-determination.

Rights on the ground: what officers do

For most officers, rights questions arise in three kinds of situation. The first is harvesting: hunting, fishing, trapping and gathering, where a person may have a right that ordinary seasons, licenses or limits do not reach. The second is land and protest: blockades and occupations, where the underlying dispute is often about rights or consultation. The third is jurisdiction: whether a First Nation or tribe's own laws and police have authority, which Lesson 5 covers. In each case, the officer's job is not to decide the legal question on the spot, but to recognize it, handle the encounter safely and respectfully, record the facts carefully and consult people who know.

For harvesting calls, officers should know that tribal citizens may have treaty rights to hunt, fish and gather both on the reservation and in ceded territory, and that those rights are usually regulated by the tribe itself or by an intertribal body under court decrees and agreements. A tribal citizen hunting under tribal regulations may be acting lawfully even outside the state season. Officers who come across such cases should identify the people involved, ask for tribal identification and any tribal harvest license, note any claim of rights, and contact a conservation officer or the tribe's conservation department. Safety laws, such as those on carrying loaded firearms in a vehicle, still apply. Ohio officers will rarely meet these questions, because no reservation or reserved off-reservation treaty harvest right is currently recognized in the state, but Port Ardent officers who hunt or fish across the line in Michigan, or who work with Michigan agencies on Lake Erie, should know that the rules there are different.

Jesse says that the officer who stopped him and his uncle did almost exactly that. 'He asked, he wrote it down, he made a call, and he said have a good night,' he says. 'Took twelve minutes. My uncle said it was the first time in years he didn't feel like a criminal.'

Why rights matter beyond the law

Sergeant Keeshig ends the lesson by connecting rights to trust. For many people in his community, he says, hunting and fishing are not hobbies but ways of feeding their families, keeping their culture alive and teaching their children. When an officer treats a lawful harvest as a crime, the community hears that the government still does not respect its treaties. When an officer recognizes the right, even if the details have to be sorted out by someone else, the community hears that things may be changing. 'You don't have to be a lawyer,' he says. 'You just have to know that the question exists, and treat the person in front of you like they might be right.'