Reclaiming Sovereignty

In recent years, tribal sovereignty in the United States has undergone significant and transformative changes. This progress is a testament to the resilience and relentless advocacy of Native tribes, who have long fought for the right to govern themselves, manage their lands, and protect their cultures without undue interference from state or federal governments. As we witness this historic moment, it is crucial to understand the implications of these changes and the challenges that still lie ahead.

Tribal sovereignty, fundamentally, is the right of Native tribes to govern themselves—a recognition of their inherent authority over their members and territories. This principle is rooted in centuries of legal and political history, including treaties, Supreme Court rulings, and federal laws. Recent developments have further solidified this sovereignty, marking a shift toward greater autonomy and self-determination for Native communities.

The United States Supreme Court's landmark decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) stands as a testament to the positive developments within the realm of tribal sovereignty. This decision affirmed the Muscogee (Creek) Nation’s reservation boundaries, which had never been formally disestablished by Congress, and reaffirmed the federal government’s obligations to tribal nations.

Following McGirt, a significant number of court cases emerged, aiming either to affirm the scope of tribal sovereignty or to clarify longstanding lacunas in the law. The wide array of subject matters provoked by McGirt—from taxation and criminal jurisdiction to land use and child welfare—illustrates the decision's deep impacts. Many of these cases, including Hogner v. State, 2021 OK CR 4, 500 P.3d 629, have unfolded within the State of Oklahoma, catalyzing broader debates about the relationship between state, federal, and tribal governments and unveiling substantial effects on jurisdiction, governance, and rights within Indian country.

Aside from the direct impacts of McGirt on Indian policy and governance, American society possesses a renewed interest in tribal advocacy. High-profile cases such as the opposition to the Dakota Access Pipeline at Standing Rock and the removal of four hydroelectric dams on the Klamath River have galvanized public support and brought international attention to the struggles faced by Native communities in protecting their lands and waterways.

Similarly, land reclamation efforts, such as the return of ancestral lands to the Esselen Tribe in California and the recent transfer of 255 acres of ancestral homelands by Brown University to the Pokanoket Nation in Bristol, Rhode Island, highlight progress toward addressing historical injustices. Additionally, several states, including Washington and Nebraska, have pursued retrocession of criminal jurisdiction under Public Law 280, restoring authority to tribal governments and the federal government to enhance tribal self-governance in criminal justice matters.

The federal government is also increasingly committed to addressing historical injustices and enhancing its cooperation with tribal nations. Efforts like the U.S. Department of the Interior's Federal Indian Boarding School Initiative highlight a concerted effort to confront and make amends for the painful legacy of assimilation policies and cultural suppression. These steps underscore a growing recognition of the federal government’s obligations to tribal communities and the need for transparency in reckoning with the past.

While federal initiatives signal progress, the path forward is far from straightforward, as state-level resistance and systemic challenges persist. The Supreme Court's affirmation of tribal rights through McGirt instigated a misalignment in the delicate symbiosis between states and tribes, disrupting longstanding arrangements and raising complex jurisdictional questions. For example, the State of Oklahoma has persistently challenged the decision's implications through legal and political maneuvers. These efforts have included attempts to undermine tribal sovereignty by renegotiating gaming compacts under unfavorable terms for tribes in the state, which often diminish revenue-sharing agreements critical to tribal economies and negate the broader equitable benefits that tribes contribute to the state economy. Similarly, disputes over tag compact negotiations have arisen, with the state seeking to strongarm conditions that ultimately erode tribal self-determination. Such opposition serves as a stark reminder of the persistent challenges tribes face within American systems, often leaving them mired in an all-too-familiar power struggle.

Systemic challenges remain, as well. The lack of action by state and federal law enforcement to investigate missing and murdered Indigenous peoples (MMIP) exacerbates these challenges, leaving many communities vulnerable and underserved. See Amnesty International, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA (2007). This crisis underscores the enduring legal inequities vocalized at the time the Supreme Court decided Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), which stripped tribes of criminal jurisdiction over non-Indians on tribal lands. By denying tribes the authority to prosecute non-Indians, Oliphant created jurisdictional voids that have persisted for decades, enabling perpetrators to act with impunity and leaving Native communities reliant on state and federal systems that often fail to prioritize Indigenous safety and justice. The MMIP epidemic is a direct consequence of these gaps, reflecting the compounded effects of jurisdictional ambiguities, systemic inaction, and the marginalization of tribal sovereignty. These real-world consequences highlight the critical need to restore jurisdictional authority to tribes, ensuring they can adequately protect their members and address the unique challenges they face.

Tribal sovereignty has undeniably evolved through shifting federal policies, with the current Self-Determination Era emphasizing tribal control over governance and resources. Post-McGirt, the legal and political landscape has further advanced this trajectory. By reaffirming tribal sovereignty, the Supreme Court provided tribes with a profound opportunity to reclaim and assert their inherent rights, marking a critical step in the ongoing journey toward self-determination.

Each step toward sovereignty represents a move away from the dark legacy of colonization, forced removal, and systemic inequality that has long defined the fraught relationship between Native peoples and federal and state governments. It is also a step toward rectifying historical injustices, honoring treaties made in good faith, and affirming the inherent rights of Native tribes to govern themselves, steward their lands, and preserve their cultural heritage. As Chief Joseph of the Nez Perce said, “The earth is the mother of all people, and all people should have equal rights upon it.” These words resonate today, reminding us of the moral imperative to ensure equity and justice in tribal self-determination.

The progress we witness today offers both inspiration and a challenge. Building on this momentum requires continued advocacy, steadfast support for Indigenous leadership, and a commitment to education and cooperation. Achieving justice for Native peoples is not merely about redressing the past but forging a future rooted in equality, mutual respect, and the shared stewardship of our collective future. Chief Joseph’s call to “treat all men alike” serves as a guiding principle, urging us to strive for a world where the rights, dignity, and cultures of Native peoples are fully recognized and protected.