This article was adapted from an essay that first appeared in the essay collection America Unfinished: 250 Years of Law and Governance (MIT Press, 2026).
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Indian nations occupy two distinct places in American history and law. American Indians are mentioned only once in the Declaration of Independence. They are in a phrase complaining about King George III’s alliances with Indian nations to oppose American invasion of Indian country, and they are described, not as nations, but as “merciless Indian Savages.” Nor was this a slip of the tongue or a brief emotional outburst. The lawyer for the plaintiffs in the 1823 Supreme Court case of Johnson v. M’Intosh similarly referred to Native peoples as “savage tribes,” and even Chief Justice John Marshall described them as “fierce savages.” On the other hand, both the lawyer for the defendants and the Supreme Court in its opinion referred to them as “tribes or nations” or “Indian nations.” And the 1832 case of Worcester v. Georgia referred to “Indian nations” as “distinct, independent political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied by the United States.”
The contrast between “savages” and “nations” reflects a deep ambivalence about the relationship between the United States and the Indian nations. Over the course of U.S. history, the “savages” formulation sometimes prevailed, either to justify removal of Indians from lands east of the Mississippi River from the 1830s to the 1860s or as a reason to “civilize” the Indians by outlawing tribal religion, promoting conversion to Christianity, privatizing tribal lands, and kidnapping tribal children to be educated at harsh boarding schools. But, in other eras of U.S. history, the United States treated Indian nations as distinct political communities with inherent sovereignty and the power to enforce their own laws within their own territory. That was the case in colonial times and the early republic when the U.S. entered treaties with Indian nations, and the New Deal era when the U.S. encouraged Indian nations to adopt written constitutions and to revitalize their governments. It has also been the general national policy ever since 1975 when the United States embraced self-determination for Tribes.
Nevertheless, it is possible to graduate from many (but not all) law schools in the United States and never hear the words “tribal sovereignty.” Many residents of the United States (including law students) are unaware of the fact that the United States has never conquered the 575 federally recognized Indian nations who retain their inherent sovereignty and continue to thrive as “distinct, independent political communities.” Yet every president since Richard Nixon, whether Republican or Democratic, has affirmed the “government-to-government” relationship between the United States and the various Indian nations, and every Congress since that time has, with some exceptions, respected tribal sovereignty. Just last year, on Dec. 18, 2025, President Donald Trump signed a congressional bill recognizing the inherent sovereignty of the Lumbee Tribe of North Carolina.
The fact that the U.S. has chosen to respect tribal sovereignty, at least in part, is to its credit. Indeed, the persistence of tribal sovereignty is a testament to the norm of self-determination which condemns both imperialism and colonialism. The United States itself originated with the belief that it had a right to self-determination. And while the U.S. has not always honored the Tribes’ right to self-determination, as noted, since 1975 both Congress and the president have generally recognized and respected the inherent sovereignty of the 575 Indian nations.
Throughout this, the Supreme Court has played a complicated role in shaping the legal relationship between Indian nations and the United States and the state governments. At various times in history, it has strongly affirmed that Tribes have inherent sovereignty that predates the United States and persists to this day. But at other times, the court has authorized government actions that limit tribal sovereignty or which even terminate the government-to-government relationship between the United States and dozens of Tribes. And while the Supreme Court has maintained its strong support for tribal power over their own members, it has severely restricted the powers of Tribes to regulate nonmembers who enter their territory.
In 2016, for example, the court divided 4-4 in a case about whether the Tribal Court of the Mississippi Band of Choctaw Indians could hear a case by a tribal member against a nonmember corporation when its employee sexually abused a tribal child. The company leased land from the Tribe, obtained a business license from the Tribe, and agreed to participate in an unpaid internship program for tribal minors. The sexual abuse of the Choctaw child took place on Choctaw land within Choctaw territory. The 4-4 vote meant that the Supreme Court did not find it easy to determine whether the Tribe would have the power to protect its own children from harm on tribal lands.
This did not make sense as a matter of precedent. The Supreme Court had held in 1981, in the case of Montana v. United States, that Tribes can regulate non-Indians “who enter consensual relationships with the tribe . . . through commercial dealing, contracts, leases, or other arrangements” and/or who engage in conduct on nonmember land when it “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” One might think that the rape of a tribal child on tribal land within tribal territory threatens the health or welfare of the Tribe, especially when it arises out of three consensual relationships with the Tribe. Yet four justices thought non-Indians should not have to appear in tribal courts to answer a civil claim even when they enter tribal land within the Tribe’s territory and rape a tribal child.
Perhaps four of the justices regret their ruling in Montana that authorized tribal court suits by Tribes or their members against nonmembers when they harm tribal interests. Perhaps they imagine that Tribes will be unfair to non-Indians, given the sorry history of mistreatment of Indian nations by the states. Perhaps they sympathize with non-Indians who are ignorant of tribal sovereignty and never contemplated being subject to the regulatory powers of tribal councils and courts. If so, we are seeing the echoes of the attitude toward Native nations displayed in the Declaration of Independence.
But the court’s recent record has not been entirely to deny tribal sovereignty. In 2020, the Supreme Court held by a vote of 5-4 in McGirtv. Oklahoma that because Congress had never formally disestablished the Muscogee Reservation in Oklahoma that it persists to this day. To the surprise of many, maps had to be changed because much of the state of Oklahoma is now also Indian country. That means that non-Indians entering tribal lands may well be subject to tribal law. Only two years later, however, in the case of Oklahoma v. Castro-Huerta, the court held that states have concurrent jurisdiction with the federal government over crimes by non-Indians against Indians in Indian country. While not directly limiting tribal sovereignty, the Castro-Huerta majority subjected tribal members to state law in a manner that was inconsistent with two hundred years of legal practice (and McGirt).
At the very least, the split votes in the Choctaw, Castro-Huerta, and McGirt cases tell us that – even as Congress and the president have come to favor tribal sovereignty – the contest between the nations’ historically dueling views of Indian nations continues to haunt the Supreme Court’s understanding of American law.
