Title: American Indians and the Constitution | Encyclopedia.com
Headings: American Indians and the Constitution
American Indians and the Constitution
AMERICAN INDIANS AND THE CONSTITUTION
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Content: Although in cases outside Indian law the Supreme Court has refused to apply the preemption doctrine to exclude the operation of state law where congressional intent was doubtful, in Indian cases it has inferred preemptive intent from the general purposes of treaties and statutes to protect tribal resources and promote tribal sovereignty. Thus, absent clear and express congressional consent, states may not regulate non-Indian activities that affect tribal self-government. Despite their lack of authority over reservation Indians, states are prohibited by the Fourteenth Amendment from denying Indians rights available under state law. Within their realm of authority, Indian tribes exercise powers of self-government, not because of any delegation of powers, but rather because of their original, un-relinquished tribal sovereignty. The Supreme Court recognized this sovereign status of Indian tribes in United States v. Wheeler (1978), which held that it would not constitute double jeopardy to try an Indian in federal court after he had been convicted in tribal court because the court systems belong to separate sovereigns. The Constitution has never been invoked successfully to prevent Congress from abolishing tribal authority in whole or in part; but the Supreme Court has required a clear and specific expression of congressional intent before recognizing the termination of tribal powers. This canon of construction was established to implement the federal government's obligation to protect the Indian tribes. Some tribal powers were necessarily relinquished when the United States incorporated the tribes, such as the power to carry on foreign relations, the power to transfer Indian land without consent of the United States, and the power to prosecute non-Indians for crimes. These relinquished powers are few, however, and Congress could restore them if it chose.