In an 1823 dispute over land titles, Supreme Court Chief Justice John Marshall clarified that the United States had gained title to all Indian lands when it stepped into the shoes of Great Britain. According to Marshall, "Discovery" gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or conquest, and also gave a right to such a degree of sovereignty, as the circumstances of the people would allow them to hold.(1) When Marshall asserted exclusive Federal power over all Indian lands, he put the United States in conflict with many of its States, since Indian nations still resided and held lands within State borders. If the United States were possessed of an exclusive right to acquire land and to manage all trade with Indian nations, then States would be dependent upon the exercise of Federal power to remove or break up Indian land holdings within their borders. Failure to remove Indian nations would surely lead to Federal, State, and Tribal conflicts.
In 1831 a conflict over tribal sovereignty arose when the State of Georgia asserted its laws over Cherokee lands. In excluding the State of Georgia, Chief Justice Marshall upheld the Cherokee Nation's right of inherent sovereignty.(2) In Worcester v. Georgia (1832), Marshall articulated the judicial view that the United States had treated Indian Tribes as nations from the very beginning.(3) The power of Congress to regulate trade and manage all the affairs with Indians was not viewed as "a surrender of self-government" by Tribes.(4)
Other opinions contrary to Marshall's had also been expressed in Worcester, by concurring and dissenting Justices whose views of tribal sovereignty were much more restrictive. Justice McLean believed that the exercise of the power of self-government by Indians, within a State, is undoubtedly contemplated to be temporary. In McLean's view, because Congress held plenary power over Indian nations it could enact legislation to assimilate Indians, making the concept of tribal self-government an historical artifact.(5) The conflict between Marshall's and McLean's views has never been resolved. Both Justices, however, viewed the Constitution's Treaty and Commerce clauses as the basis for Federal supremacy in Indian affairs. Congressional policy in the last 200 years has swung in the direction of both Justices, sometimes favoring tribal self-government and at other times favoring assimilation and the break-up of Indian Tribes.
Since the power of Congress is plenary, (6) tribal self-government is necessarily limited by express acts of Congress. (7) (8) For the 100 years following Worcester, Congress assumed a self-imposed burden of "civilizing" Indians by treating them as "wards of the nation." (9) Along the way, Congress attempted to end Treaty making (10) and passed numerous allotment acts designed to break up Indian lands and to assimilate tribal members. (11) In the process, the United States came to see itself as a trustee whose duty it was to act on behalf of the Indian "communities dependent on the United States." (12) The duty of trust responsibility was self-imposed and self-defined. Not even Federal citizenship for individual Indians, a hallmark of assimilation, could put them beyond the reach of Federal regulations "adopted for their benefit." (13)
In 1934, a piece of New Deal legislation encouraged strengthening tribal government. The pendulum appeared to swing toward self-governance with enactment of the Indian Reorganization Act. (14) The Indian Reorganization Act (IRA) ended the policy of compulsory allotment (15) and offered Tribes the opportunity to draft their own constitutions, enact their own laws and court systems, and obtain Federal corporate charters. In theory, reorganizing under the IRA would have freed tribal governments from the Secretary of Interior's immense discretionary and regulatory authorities. (16) A major objective of the legislation was to free tribal self-government from the executive direction of the Federal government. (17) The drafters of IRA intended to end regulatory control of Indian Tribes by the Bureau of Indian Affairs. It was intended to empower tribal governments and to enable them through Federal corporation charters to develop and manage their own resources. Unfortunately, many Indian Tribes adopted a boilerplate constitution. Many of these hastily adopted constitutions contained terms requiring Secretarial approval over all tribal ordinances. (18) Notwithstanding Federal agencies discretionary authority to permit greater tribal autonomy, to a great extent, the IRA continued to manage the internal affairs of Indian Tribes. (19)
In 1953, The House and Senate adopted House Concurrent Resolution (HCR) 108 to "free" Indian Tribes and individuals from Federal supervision and control. (20) The policy pendulum had swung back towards Justice McLean. With the view that tribal governments were temporary, the sentiment was that there was no harm in dissolving Tribes and emancipating individual Indians, especially if they were given the same privileges and responsibilities as other citizens of the United States. Pursuant to this new policy, Congress used its plenary power to enact termination acts dissolving 109 Tribes. (21)
The Indian Reorganization Act had also foreseen an end to Federal supervision and control. But under the IRA there would have been little need for Federal supervision if strong tribal governments were in place. For the IRA, terminating the supervisors rather than the objects of their supervision would eventually solve the problem of Indian administration. HCR 108 unanimously passed both Houses of Congress. Similar to the IRA, HCR 108's termination policy also provided for terminating the supervisors. Unlike the IRA, however, HCR 108's termination policy foresaw an end to tribal self-government. To Congress, termination meant that Indians could assume their role as free citizens in their respective States without further need of Federal supervision. Congress also enacted PL 83-280 providing State governments with concurrent jurisdiction over Indian reservations. (22)
By 1968, Federal support for termination was ended. (23) In the courts, Tribes continued to make arguments that Federal preemption (24) and tribal sovereignty barred the exercise of State power. (25) But Tribes also realized the importance of actively and collectively petitioning Congress and the Executive to push the pendulum back, in the direction of tribal self-government and self-determination.
In 1970 President Nixon sent his recommendations for Indian policy to the Congress (26) calling for a new era in Indian policy based upon "Self-Determination Without Termination." Nixon called upon the Congress to pass a new Concurrent Resolution to renounce, repudiate and repeal the termination policy previously expressed in House Concurrent Resolution 108. Nixon asserted the right of Indian Tribes to control and operate their own programs. (27) President Nixon's Indian Self Determination Policy eventually led to enactment of the Indian Self-Determination and Education Assistance Act (ISDEA) in 1975.