inherent sovereignty

What happened

Inherent sovereignty is the idea that tribes govern because they always have, not because the United States gave them that power. In Worcester v. Georgia (1832), Chief Justice Marshall wrote that "The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights."

The Court restated the idea in United States v. Wheeler (1978). It said tribal powers are, in general, "inherent powers of a limited sovereignty which has never been extinguished," quoting Felix Cohen's Handbook of Federal Indian Law. It added that "Before the coming of the Europeans, the tribes were self-governing sovereign political communities." The key question in Wheeler was the source of a tribe's power to punish its own members: inherent sovereignty or federal delegation. The Court said it is inherent.

The same opinion states the limit. "The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers."

Congress has since used the idea. In the VAWA acts of 2013 and 2022, it "recognized and affirmed" the "inherent power" of tribes to exercise criminal jurisdiction. In United States v. Lara (2004), the Court held that Congress could lift restrictions on tribal jurisdiction over nonmember Indians.

Summarized with AI assistance from 4 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error