The term was made up by Chief Justice John Marshal in the following case:
- Worcester v. Georgia.
- From Tribal Sovereignty:
. . . the modern definition of tribal sovereignty acknowledges that tribes possess a unique political status different from any other group in the United States. Thus, federal and state governments are required to engage in government-to-government relationships with all federally recognized tribes.
This unique political status has evolved from the inherent sovereign status of Indigenous peoples prior to European contact and through the process of treaty making between the United States and the various tribes. The Indian Commerce Clause of the United States Constitution (Article I, 8, clause 3) is the main source of the “nation to nation” relationship between the federal government and tribes, and has been the primary vehicle used by Congress to recognize and define tribal sovereignty. In addition, the Court has ruled that Congress, as the legislative body of the nation, and not state governments, has an intrinsic power to deal with the Indian nations that reside within the borders of the United States.
The Marshall trilogy, a series of three Supreme Court cases decided by Chief Justice John Marshall beginning in the 1830’s, set forth the legal framework for defining Tribal sovereignty. In defining tribal sovereign powers, Justice Marshall described tribes as “domestic dependent nations,” meaning that although tribes were “distinct independent political communities,” they remained subject to the paternalistic powers of the United States. Thus, Indian tribes possess internal governmental power over all affairs within the tribe, but lack external authorities to engage in relationships with foreign nations. It is important to note that state governments do not possess authority over tribes and the powers to “expand” or “contract” tribal sovereign authority rests solely within the power of the federal government. Thus, sovereignty also means that states are precluded from interfering with the tribes in their self-governance, while at the same time the United States congress reserves plenary power to change the scope and definition of tribal sovereignty.
