08-Aug-F&F (LoRez) 8/28/08 7:00 PM Page 14
Virginia Example
Federal Sovereignty
of Indian Tribes
T here has been a noteworthy resur-
gence of American Indian nations
based upon issues of sovereignty, self-
government, education, and pride in the
Indian heritage. While the focus of this
article is on the six Indian tribes in the
Commonwealth of Virginia seeking federal
recognition, the resurgence trend is by no
means unique to Virginia.
Research in the area of American
Indian law is intricate and challenging.
Identity issues, conflict of laws, and
jurisdiction that defines federal sov-
ereignty are part of a complex quilt
work of matters involved. Delineation
of federal recognition and sovereignty
related to Indian Law are also among the
plethora of federal laws critical to out-
come-based results.
During the European discovery of
America, Indian tribes were recognized as
sovereign. Government relations were
formed between them by treaties. The
United States government discontinued
the practice of treaties in 1871, but was
unsuccessful in later attempts to dissolve
all relations with Native Americans.
Relationships with the Indians
became strained and moved from a trust
relationship to self determination. The
Secretary of the Interior is responsible for
maintaining relations with the Indians and
must publish a list of recognized tribes in
the Congressional Record. The Virginia
tribes want to be listed in this publication.
14 FACTS & FINDINGS AUGUST 2008
By David Richardson, Paralegal
Information Resources
Primary law on this subject is found
in Title 25 of the United States Code
Annotated (USCA) and United States
Code Service (USCS), which contains
most federal statutes dealing with Native
Americans. Title 25 Code of Federal
Regulations (CFR) provides the
regulatory materials.
sovereignty is
not a set of
‘special’ rights
The publication Indian Country Today
serves as a digest source on general Indian
topics with articles containing primary
and secondary law statements. Other
opinions can be accessed online using
Lexis and Westlaw, and found in the
Indian Law Reporter and the Navajo
Reporter. These sources also include legal
citations of relevant court cases.
Three 19th century US Supreme
Court opinions serve as a cornerstone of
sovereign status of Indian Nations. Three
cases are the most widely cited with
respect to tribal sovereignty: 1) Cherokee
Nation v. Georgia, 2) Worcester v. Georgia,
and 3) Johnson v. McIntosh.
Rule of Law
More than 560 federally recognized
tribes in the United States have succeeded
in achieving sovereignty. The rule of law is
used to clarify the distinction between
myth and reality. Using the rule of law, the
emerging theme is that tribes do exercise
substantial, albeit limited, sovereignty.
This sovereignty is not a set of
“special” rights. Its roots lie in the fact
that Indian nations pre-existed the United
States. Their sovereignty, although dimin-
ished, has not been terminated. Tribal
sovereignty is recognized and protected by
the US Constitution, legal precedent, and
treaties as well as applicable principles
of human rights—the cornerstone of
American governance. The concept of
the initial treaties was based on land
doctrines and such rights of governments
as De Jure Belli.
American Indian tribes hold a unique
position in US history and its contemporary
affairs. Virginia Indian tribes were recog-
nized as sovereign from the time of initial
European contact, and that recognition
should continue as the 400th anniversary
of European occupation is observed
this year.
Besides their indigenous status,
what makes American Indian tribes unique
compared to other ethnic minorities, is
that they have a political relationship with
the US government. This political
relationship has three primary legal bases:
08-Aug-F&F (LoRez) 8/28/08 7:00 PM Page 15
1. The “commerce clause” of the US
Constitution
2. Treaties between the United States and
the Indian nations, legislation, and
subsequent federal policy
3. US Supreme Court decisions and
Executive actions
Sovereign–‘sort of’
A number of studies show a paradox
of sovereignty—American Indian tribes do
not enjoy “absolute” sovereignty.
They are domestic inde-
pendent nations with
nation-to-nation
relationships
with the
federal gov-
ernment, but the government has a fiduci-
ary responsibility for American Indians.
The federal government’s term for this
form of sovereignty is “federal recognition.”
American Indian
tribes do not
enjoy ‘absolute’
sovereignty
The Commonwealth of Virginia must
deal with a form of “documentary geno-
cide,” which makes it difficult for tribes
to win federal sovereignty through the
Bureau of Indian Affairs (BIA) federal
recognition process. This is one of a num-
ber of extenuating circumstances that bear
a burden of proof issue on the Virginia
Tribes. These barriers effectively deny the
existence of Virginia Indians who, ironical-
ly, are considered to be the “First Nation.”
The Virginia Indian tribes have
sought federal sovereignty by way of a
special exception from the troubled BIA
process. Experience with this process,
however, has led the tribes to seeking
sovereignty through legislation. A General
Accounting Office audit of the BIA’s
Office of Federal Acknowledgment (the
Bureau’s recognition arm) essentially
termed it dysfunctional.
However, there are diffi-
culties with the legislative
approach as well.
Virginia Senate
Bill 480
(March
2005),
seeking
recognition for Virginia tribes, is a good
example of the complexities involved with
seeking sovereignty through legislation.
Also, pervading discrimination toward
American Indians can be seen in the
smoke-and-mirrors discussion of gaming
put up to cloud the issue of sovereignty.
This hinders a focus on the real issue.
International Law
Based on Rice v. Cayetano, (the 2000
US Supreme Court case ruling that
Hawaii could not restrict voting in Office
of Hawaiian Affairs elections to Native
Hawaiians) the relationships of native
peoples have been predicated on forced
“inclusion.” This is dramatically unlike
other racially subordinated groups whose
relationships to the federal government
have been defined largely by forced
“exclusion.”
The rule of law is important in craft-
ing a plan for the Virginia Tribes federal
recognition effort. If the Virginia tribes
win their struggle, future events may cause
them to seek judicial remedies to misun-
derstandings or unforeseen events. The
courts will then be asked to intervene.
In the final analysis, the United States
is a sovereign nation among other sover-
eign nations on a global scale, but our
government’s view of indigenous people
differs from that of other nations. Our
government, and the judicial system which
acts as the watchdog of our conscience
toward American indigenous peoples,
invites an international image of perfidy.
In the 1804 case of Murray v
The Schooner Charming Betsy
(6 US 2 Cranch 64 64 (1804)) the
federal court system of the United
States affirmed that
the federal
government
is obligated to
conform its
laws as much
as possible to inter-
national law. The
International
Covenant on Civil
and Political Rights (ICCPR) has stated that
indigenous peoples of the United States con-
tinue to suffer from discriminatory treatment
International law, then, has potential
in the treatment of indigenous people.
International perspective should not be
ignored in a discussion of federal recogni-
tion (sovereignty) for Virginia Indians.
Current Status
The 109th US Congress (2005–07)
ended with no resolution on these matters,
and since that time a new bill, HR 1294,
was introduced to the 110th Congress and
sent to the Senate for action.
David Richardson is a litigation paralegal
with a Richmond, VA, law firm. He has a
Masters of Arts in
Education from Virginia
Tech and a post-bac-
calaureate certificate in
paralegal studies from
the University of
Richmond, where he is
also the School of
Continuing Studies
Student Government
Association Vice
President. He is a
member of the Richmond Paralegal
Association and is a pro bono paralegal with
the Central Virginia Legal Aid Society.
AUGUST 2008 FACTS & FINDINGS 15