Implicit Divestiture of Tribal Powers: Locating Legitimate Sources of Authority in Indian Country


The United States Supreme Court has been severely criticized by tribal leaders, tribal advocates, and scholars for its treatment of tribal powers of self-government. The Court has been charged with straying too far from John Marshall’s “original proposition” that tribes are “distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States.” Put another way, the Court has substantially diluted the theory and substance of tribal sovereignty formulated in the early days of the republic.