Law | Opinion

Steve Russell: 'Domestic' status of Indian nations invented in 1831

A map of Cherokee Nation lands in 1830, when the state of Georgia asserted authority over the tribe's sovereign territory. Image: Anthony Finley Co. of Philadelphia

Tribal governments are commonly described as "domestic dependent nations" but what exactly does that mean? Steve Russell, a citizen of the Cherokee Nation, finds little clarity with a term that goes back to Cherokee Nation v. Georgia, a U.S. Supreme Court decision from 1831:
The status of domestic, dependent nations was incoherent in the beginning and has only become more incoherent over time. The Cherokee Nation’s attempts to seek redress against settler encroachments in the courts of the settler nation led to a status that was undefined except that an Indian nation was not a foreign state.

The problem “domestic, dependent nations” addressed was that the U.S. did not want the formal equality camel to get its nose in the tent but the Indian nations had to be more than voluntary associations to uphold the authority to cede land. If the Courts simply refused to recognize any legal standing for Indians, the legal fig leaf of treaties would no longer hide the theft and homicide.

Recognizing legal standing for Indians avoided admitting institutional evil on an epic scale in North America. Bad acts were caused by a few bad people, but the process was fair to the indigenes as well as the settlers. Once tribal governments had standing in court, of course, they tried to use it to defend themselves.

The Kiowa Nation’s attempt to enforce the Treaty of Medicine Lodge in the settler courts brought the news that a domestic, dependent nation had no rights the U.S. was bound to respect even when those rights were created by agreement of the parties. Lone Wolf represented the Kiowa Nation in opposition to the allotment of the Kiowa Reservation.

Read More on the Story:
Steve Russell: Institutional Change I: Domestic, Dependent Nations Invented in 1831 (Indian Country Media Network 3/21)