|
Tribal sovereignty in the United States is the inherent authority of indigenous tribes to govern themselves within the borders of the United States of America. The U.S. federal government recognizes tribal nations as "domestic dependent nations" and has established a number of laws attempting to clarify the relationship between the federal, state, and tribal governments. The reference to Indians in the Constitution is not to grant local sovereignty. The only references are: * Article 1, Section 2, which states, "Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons." This reference is for determining the number of representatives and taxes for a state. This does not allow for the exclusion of Indians from taxes and later federal laws grant local sovereignty to tribal nations, but do not grant full sovereignty equivalent to that of foreign nations, hence the term "domestic dependent nations". * Article 1, Section 8, which states, "(Congress shall have Power... ) To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" It may be noted that while Native American tribal sovereignty is partially limited as "domestic dependent nations," so too is the sovereignty of the federal government and the individual states – each of which is limited by the other. The people's sovereignty underlies both the U.S. federal government and the States, but neither sovereignty is absolute and each operates within a system of parallel sovereignty. According to the reservation clause of the Tenth Amendment, the U.S. federal government possesses only those powers delegated to it by the states or the people, while other aspects of the people's sovereignty reside in the individual states. For example, the individual states hold full police powers. On the other hand, the individual states, like the Indian tribes, do not print currency or conduct foreign affairs; and the individual states are constrained by federal authority under the U.S. Constitution and are bound by the Bill of Rights. Viewed in this light, tribal sovereignty is yet another form of parallel sovereignty〔http://www.tilj.org/content/journal/42/num1/Lenzerini155.pdf〕 within the U.S. constitutional framework, constrained by but not subordinate to other sovereign entities. ==Native American sovereignty and the Constitution== The United States Constitution specifically mentions the relationship between the United States federal government and Native American tribes three times: * Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed."〔Constitution of the United States of America: Article. I.〕 According to Storey's Commentary on the U.S. Constitution, "There were Indians, also, in several, and probably in most, of the states at that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states." * Article I, Section 8 of the Constitution states that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes”,〔American Indian Policy Center. 2005. St. Paul, MN. 4 Oct. 2008〕 determining that Indian tribes were separate from the federal government, the states, and foreign nations;〔''Cherokee Nation v. Georgia''〕 and * The Fourteenth Amendment, Section 2 amends the apportionment of representatives in Article I, Section 2 above.〔Additional amendments to the United States Constitution〕 These basic provisions have been changed and/or clarified by various federal laws over the history of the United States. ''Regulate'', historically means ''facilitate''. Therefore, the Congress of these United States was to be the facilitator of commerce between the states and the tribes.〔Black’s Law Dictionary, ''regulate'' meant that Congress should in principle assist with Commerce disputes between the States, but did not grant Congress the power of law to inflict criminal penalties, (Article 2 of the Kentucky Resolutions of 1798 ) by Thomas Jefferson〕 These Constitutional provisions, and subsequent interpretations by the Supreme Court (see below) are today often summarized in three principles of U.S. Indian law:〔Charles F. Wilkinson, (Indian tribes as sovereign governments: a sourcebook on federal-tribal history, law, and policy ), AIRI Press, 1988〕〔Conference of Western Attorneys General, American Indian Law Deskbook, University Press of Colorado, 2004〕〔N. Bruce Duthu, (American Indians and the Law ), Penguin/Viking, 2008〕 * Territorial Sovereignty. Tribal authority on Indian land is organic and is not granted by the states in which Indian lands are located. * Plenary Power Doctrine. Congress, and not the Executive Branch, has ultimate authority with regard to matters affecting the Indian tribes. Federal courts give greater deference to Congress on Indian matters than on other subjects. * Trust Relationship. The federal government has a "duty to protect" the tribes, implying (courts have found) the necessary legislative and executive authorities to effect that duty.〔Robert J. McCarthy, The Bureau of Indian Affairs and the Federal Trust Obligation to American Indians, 19 BYU J. PUB. L. 1 (December, 2004)〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Tribal sovereignty in the United States」の詳細全文を読む スポンサード リンク
|