Reconciling Federal and State Power Inside Indian Reservations with the Right of Tribal Self-Government and the Process of Self-Determination

Originally, the Indian nations and tribes inhabiting the territory now comprising the United States were independent sovereign nations. However, in an 1823 case, the United States Supreme Court held that all tribes had become geographically incorporated within the United States territory by judicial fiat via the doctrine of discovery. In 1831, the Supreme Court held that Indian tribes were not foreign nations but were, instead, domestic dependent nations. Although it took almost another one hundred years for Indians, as individuals, to become incorporated into the United States political system, the tribes as self-governing political entities were never fully integrated into the political system of the United States.

Today, U.S. courts recognize that American Indian nations have a right to tribal self-government. Furthermore, Congress has endorsed a policy of promoting and encouraging tribal self-determination; however, these rights to tribal self-government and self-determination have remained ill defined and unprotected. Thus, while the Supreme Court continues to adhere to the belief that "Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status," the Court has also stated that "[t]he sovereignty that the Indian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." In other words, Congress has plenary power in Indian affairs and can, theoretically, abolish the tribes' right to self-government overnight."