I think this belongs here as well as on the Tribal News thread:
While tribal nations do not enjoy direct access to U.S. courts to bring cases against individual states, as sovereign nations they do enjoy immunity against many lawsuits, unless a plaintiff is granted a waiver by the tribe or by congressional abrogation. The sovereignty extends to tribal enterprises and tribal casinos or gaming commissions. The Indian Civil Rights Act does not allow actions against an Indian tribe in federal court for deprivation of substantive rights, except for habeas corpus proceedings.
Tribal and pueblo governments today launch far-reaching economic ventures, operate growing law enforcement agencies and adopt codes to govern conduct within their jurisdiction but the United States retains control over the scope of tribal law making. Laws adopted by Native American governments must also pass the Secretarial Review of the Department of Interior through the Bureau of Indian Affairs.
The Indian Appropriations Act of 1871 had two significant sections. First, the Act required the Federal Government no longer interact with the various tribes through treaties, but rather through statutes by stating, in part, "no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation".
The 1871 Act also made it a federal crime to commit murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny within any Territory of the United States. The 1871 Act was affirmed in 1886 by the US Supreme Court, in United States v. Kagama, which affirmed that the Congress has Plenary power over all Native American tribes within its borders by rationalization that "The power of the general government over these remnants of a race once powerful ... is necessary to their protection as well as to the safety of those among whom they dwell".
Before 1871 United States had previously recognized the Indian Tribes as semi-independent. The Supreme Court affirmed that the US Government "has the right and authority, instead of controlling them by treaties, to govern them by acts of Congress, they being within the geographical limit of the United States.... The Indians owe no allegiance to a State within which their reservation may be established, and the State gives them no protection."
The federal U.S. government has always been the government that makes treaties with Indian tribes - not individual states.
Article 1, Section 8 of the Constitution states that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes”. This determined that Indian tribes were separate from the federal or state governments and that the states did not have power to regulate commerce with the tribes, much less regulate the tribes.
The states and tribal nations have clashed over many issues such as Indian gaming, fishing, and hunting. American Indians believed that they had treaties between their ancestors and the United States government, protecting their right to fish, while non-Indians believed the states were responsible for regulating commercial and sports fishing. In the case Menominee Tribe v. United States in 1968, it was ruled that “the establishment of a reservation by treaty, statute or agreement includes an implied right of Indians to hunt and fish on that reservation free of regulation by the state”.
States have tried to extend their power over the tribes in many other instances, but federal government ruling has continuously ruled in favor of tribal sovereignty. A seminal court case was Worchester v. Georgia. Chief Justice Marshall found that “England had treated the tribes as sovereign and negotiated treaties of alliance with them. The United States followed suit, thus continuing the practice of recognizing tribal sovereignty. When the United States assumed the role of protector of the tribes, it neither denied nor destroyed their sovereignty.” As determined in the Supreme Court case United States v. Nice (1916), U.S. citizens are subject to all U.S. laws even if they also have tribal citizenship.
When the United States government formed, it replaced the British government as the other sovereignty coexisting in America with the American Indians. The U.S. constitution specifically mentions American Indians three times. Article I, section 2, clause 3 and the fourteenth amendment section 2 address the handling of "Indians not taxed" in the apportionment of the seats of the House of Representatives according to population and in so doing suggest that Indians need not be taxed. In Article I section 8, clause 3, Congress is empowered to “regulate commerce with foreign nations…states…and with the Indian tribes.” Technically, Congress has no more power over Indian nations than it does over individual states and general congressional laws are not applicable to them.
Another dispute over American Indian government is its sovereignty versus that of the states. The federal U.S. government has always been the government that makes treaties with Indian tribes - not individual states. Article 1, Section 8 of the Constitution states that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes”. This determined that Indian tribes were separate from the federal or state governments and that the states did not have power to regulate commerce with the tribes, much less regulate the tribes.