Indian Title & Indian Sovereignty
The decisions of the Supreme Court in the United States established a common law title that, like native title, was enforceable against all but the United States government. Under the US Constitution, state governments were also excluded from dealing with Indian lands. While not characterised as a property right (Oneida Indian Nation v County of Oneida 414 US 661 (1974) (Oneida I)), Aboriginal, or Indian, title does include rights to hunt and fish and to the use and enjoyment of resources including minerals and timber.
The idea of Indian, or tribal, sovereignty has been variously restricted and expanded by the United States Courts since the Cherokee Cases. As recently as 1973, the Supreme Court noted that the 'trend has been away from the idea of inherent tribal sovereignty'. (McClanahan v Arizona State Tax Commissioner 411 US 164 (1973), 172) In large part this has been replaced by reliance on treaty relations between the Indian nations and the federal government which set out the respective powers. Nevertheless, in United States v Wheeler 435 US 313 (1978), 322, tribal sovereignty was reaffirmed as 'inherent powers of a limited sovereignty which has never been extinguished.' These inherent powers, like rights over land, are subject to acts to extinguish by the Federal Government.
The idea of Indian, or tribal, sovereignty has been variously restricted and expanded by the United States Courts since the Cherokee Cases. As recently as 1973, the Supreme Court noted that the 'trend has been away from the idea of inherent tribal sovereignty'. (McClanahan v Arizona State Tax Commissioner 411 US 164 (1973), 172) In large part this has been replaced by reliance on treaty relations between the Indian nations and the federal government which set out the respective powers. Nevertheless, in United States v Wheeler 435 US 313 (1978), 322, tribal sovereignty was reaffirmed as 'inherent powers of a limited sovereignty which has never been extinguished.' These inherent powers, like rights over land, are subject to acts to extinguish by the Federal Government.
Keywords: Cherokee cases, Common Law, indigenous people, International Court Case, Oneida Indian Nation v County of Oneida (1974), sovereignty, Supreme Court USA, United States of America, United States v Wheeler (1978)
Author: Strelein, Lisa