How the Congress Control Indian Tribe’s Sovereignty and Gambling

Cherokee Nation, then, is a distinct community, occupying its own territory… in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of Congress.” 20 As the Court explained in Warren Trading Post v. Arizona Tax Comm., “from the very first days of our Government, the Federal Government had been permitting the Indians largely to govern themselves, free from state interference…” 21 Moreover, tribes enjoy immunity from suit absent a clear and express waiver by tribal governments. 22
Consistent with the Supreme Court’s decisions, Congress and the Executive Branch have implemented a policy of supporting and enhancing tribal sovereignty.

The federal government’s unique obligation toward Indian tribes, known as the trust responsibility, is derived from their unique circumstances; namely that Indian tribes are separate sovereigns, but are subject to federal law and lack the lands and other resources to achieve self-sufficiency. Since it was first recognized by Justice Marshall in Cherokee Nation v. Georgia, 23 —federal courts have held that Congress as well as the Executive Branch must carry out the federal government’s fiduciary responsibilities to Indian tribes. 24 The trust responsibility is the obligation of the federal government to protect tribes’ status as self-governing entities and their property rights.

However, Congress may limit tribal sovereignty. 25 The Congressional power over Indian affairs is plenary, subject to constitutional restraint. Congress may use its plenary power to “limit, modify or eliminate the powers of local self-government which the tribes otherwise possess.” 26 But, federal law now recognizes that Congressional acts are subject to judicial review to determine whether such enactments violate Indian rights and whether they are constitutional. The notion that Congressional power to regulate commerce with Indian tribes under Art. 1, sec. 8, cl. 3 of the Constitution, is plenary or absolute, is no longer the law. To the contrary, the Supreme Court has expressly rejected contentions that Congress’ pervasive authority over Indian affairs presents “nonjusticiable political questions” that immunize federal legislation from constraints on Congressional power imposed by other parts of the Constitution. 27 As the Supreme Court held in Delaware Tribal Business Comm. v. Weeks,

The statement… that the power of Congress “has always been deemed a political one, not subject to be controlled by the judicial department of the government.…” has not deterred this Court, particularly in this day, from scrutinizing Indian legislation to determine whether it violates the equal protection component of the Fifth Amendment…. The power of Congress over Indian affairs may be of a plenary nature; but it is not absolute.” 28 (emphasis added)

20 Worcester v. Georgia, 31 U. S. (6 Pet.) 515,561 (1832); see also Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) 1 (1831). 21 Warren Trading Post v. Arizona Tax Comm., 380 U. S. 685, 686-7 (1965). 22 Santa Clara Pueblo v. Martinez, 436 U. S. 49, at 58. 23 Cherokee Nation v. Georgia, 30 U. S. (5 Pet.) 1 (1831). 24 See, e. g. Morton v. Mancari, 417 U. S. 535, 555 (1974) (application of trust responsibility to the Congress); Delaware Tribal Business Committee v. Weeks, 430 U. S. 73 (1977) (same); Seminole Nation v. United States, 316 U. S. 286, 297 (1942) (application of trust responsibility to Executive Branch); United States v. Creek Nation, 295 U. S. 103, 110 (1935) (same); Cramer v. United States, 261 U. S. 219, 232-33 (1923) (same). 25 Santa Clara Pueblo v. Martinez, supra note 10. 26 Santa Clara Pueblo v. Martinez, supra. note 10. At 56. See Talton v. Mayes, supra, note 11 and United States v. Kagama, 118 U. S. 375, 379-381 (1886). 27 Delaware Tribal Business Comm. v. Weeks, 430 U. S. 73, 83-84 (1977). 28 Ibid. at 84, (quoting United States v. Alcea Band of Tillamooks, 329 U. S. 40, 54 (1946) and citing United States v. Creek Nation, 295 U. S. 103, 109-110 (1935).