Indian Sovereignty, International Law and the Marshall Cases

Abstract

This paper critically explores whether American Indian nations’ claim to tribal sovereignty is legitimate. It proposes that the development of the newly formed United States, political influences, and the relationship between the states and the union had a major impact on the metamorphosis of Indian nations from sovereign entities under international law into “domestic dependent nations”. The paper first briefly analyses whether the inherent tribal sovereignty and the indigenous people’s right to self-determination and self-governance can be simply overruled by state legislation and whether the Supreme Court provided sufficient protection under the premises of constitutional and international law. For this purpose, the three Marshall cases and their far-reaching impact on Native rights will be examined. Following that, one of the leading principles in this regard, the Doctrine of Discovery needs some discussion. The paper then addresses the relations between the Europeans and later Americans with the Indian tribes through diplomacy and treaty. Subsequently, Congress plenary power and, as a result, the almost unlimited control over the Indians will be assessed. The paper concludes that, although the American Indian nations’ claim to sovereignty is legitimate, the United States approach with regard to the Supreme Court decisions was weak and was designed to pave the way for the adoption of a quasi-sovereignty by “recognizing some scope for Indian internal sovereignty and …, [at the same time], establishing wider federal jurisdiction over Indians”.