The concept of tribal sovereignty is central to this week's broadcast of What Would Jefferson Do? in which our guest host, Prairie Public's Bill Thomas, asks Thomas Jefferson about the Dakota Access Pipeline.
Chief Justice John Marshall, who served on the Supreme Court from 1801 to 1835, described Native American tribes as "domestic dependent nations" in the 1831 case of the Cherokee Nation v. Georgia. This case, along with two others, are the Marshall Trilogy which created "the basic framework of federal Indian law in the United States".
Below, find Chief Justice Marshall's quote, in context. (Emphasis ours.)
"The Indians are acknowledged to have an unquestionable, and heretofore unquestioned, right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted, whether those tribes which reside within the acknowledged boundaries of the United States can, with accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession, when their right of possession ceases. Meanwhile, they are in a state of pupilage; their relation to the United States resembles that of a ward to his guardian."
President Jefferson, as depicted by humanities scholar Clay S. Jenkinson, cites the Northwest Ordinance and highlights this passage:
The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.
Jefferson, responding to Bill Thomas, goes on to emphasize that sovereignty is the ultimate factor in this situation: "The fact that the Lakota are a domestic dependent sovereign means that the United States and North Dakota have a responsibility to treat with them in a bilateral way. There can't be a dominant culture and a subordinate culture in these relations."