Overview

Understanding the complex nature of relationships between American Indian tribal governments, states, and the federal government is essential. American Indians possess a unique status in the U.S. because their nations exist within but predate the formation of the American republic. Tribal governments exercise their sovereignty and their right to self-determination in a variety of ways. Some operate their own housing and economic development programs, schools, municipal courts, business ventures, and other enterprises. Others maintain a collective land base but do not operate programs. Some tribes are as large as small states, while others may have only a few hundred people.

Historically, tribes were autonomous polities that developed over thousands of years, implementing various governing structures. On the Eastern Seaboard, paramount chiefdoms developed among the Algonquian peoples such as the Delaware and the Powhatan. These societies were governed by a single spiritual leader who was thought to have the powers of a lesser god, to whom numerous sub-chiefs reported. Sharp social divisions existed between common people and the priestly aristocracy, and both men and women could inherit tribal leadership positions. Only priests could enter the community temple, and only they were thought to experience the afterlife. Other Virginia tribes were governed by a council of elder men with no paramount chief. Farther northwest, in what is now New York and Pennsylvania, the Haudenosaunee confederation of tribes (known to Americans as the Iroquois) developed a much more democratic form of representative government that served, in some respects, as a model for America's founders.

Why I Taught These Sources

These sources are designed to give students a general understanding of the concepts involved with tribal self-governance. Inherent limited sovereignty is a notion difficult to grasp, because we seldom think of American citizens being outside of state or municipal law, or subject to regulations not imposed on others. Americans are confused about the rights of American Indians: most don’t realize that Indians weren’t considered citizens until 1924, some think that Indians are required to remain on reservations all their lives, and many believe that Indians don’t pay any federal taxes or that they automatically receive per capita payments from their tribes just for being a member. They don’t understand why only Congress is authorized to negotiate with federally recognized tribes or why non-federally recognized tribes can't access some grants and scholarships. Such misconceptions lead to misunderstandings between communities and perpetuate stereotypes. I hope that by studying these sources, students will gain a more nuanced understanding of the complexities, historic and contemporary, involved with American Indian law and policy development.

How I Introduce These Sources

It is helpful to ask students, before the lesson, to research Virginia Indian government by reading about it on the Department of Education’s “Virginia’s First People" website.. I introduce the sources by first discussing the concept of nationhood. What powers and rights does an independent nation have? What defines its membership: geography, culture, shared history, language? Why are Indian nations considered to have retained “limited” sovereignty, and what are the limitations? For example, if a white man commits murder on an Indian reservation today, would he be judged by a tribal or municipal court? Why do some tribes have casinos and others don’t? What is a domestic dependent nation, and how did tribes come by that designation? Why don’t tribes make treaties today?

Next we discuss state and federal recognition, and the processes through which Indian tribes have obtained these designations. While some states have rigid, specific criteria for state recognition, others have little or no criteria, and some states have no process at all for recognizing a tribe. Some tribes obtained federal recognition through a history of treaties or other federal documentation, while others remain unacknowledged. Some tribes have been recognized and then “terminated” while others have had their acknowledgment revoked by the federal government.

Reading the Sources

The documents on sovereignty and self-determination (Handout #1) explain the concepts of sovereignty and self-determination, on which modern Indian policy and historic treaty-making are based. The 1677 Treaty between Virginia tribes and King Charles II (Handout #2) describes the notion of “domestic dependent nation” without ever using that phrase. Because its language is cumbersome, it might be most helpful to approach the treaty with the following questions: Why do you think the treaty refers to “Indian Kings and Queens”? What are the assumed rights of Indians? What are those of Englishmen? What is the purpose of the “tribute”? Does the treaty seem like a fair agreement to you? Do you think it is still binding on Virginia or on the U.S., and if so, which is the correct government to negotiate with Virginia tribes?

Next I ask students to read the state and federal criteria for recognition (Handout #3) as an exercise in comparing and contrasting. They can research the following questions in groups: What rights does state recognition give to an Indian nation? What are the benefits of federal recognition? Why might a tribal group want state recognition? Are there ways in which federal recognition might not be beneficial to a tribe?

Finally, a summary of the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2009 (H.R. 1385) and articles on its progress (Handout #4) help students to understand how tribes work through existing policy to improve their situations, and how time-consuming that process can be.

Reflections

Studying the complexities of historic and contemporary relations between Virginia Indian, state, and federal authorities illuminates why problems have developed through centuries of subjective decision making, poorly constructed federal policies, and haphazard implementation. Virginia Indian tribes have survived not only wars and diseases but 400 years of policy making that has rarely considered their best interests. Nevertheless, today Virginia Indian leaders are learning to craft and implement their own strategies for changing policies that have the most direct impact on their people. We can expect this trend to continue as more Indian students graduate from universities and law schools, returning to their communities with new skills.