Tribal Sovereignty

Dear Readers, “Jurisdiction” and “Sovereignty” are legal definitions of power.  The former loosely describes having the authority to adjudicate, and the latter defines the boundaries of a government.  

Let’s consider some real-life examples.  Here in Houston County, Sheriff’s Deputies have the authority (jurisdiction) to arrest and detain anyone committing an offense within the county, whereas city Police Officers can only do so within the cities they serve.  Sovereignty says Georgia (really any U.S.) law enforcement (and the judicial system) has no authority in Mexico because this is a different nation.  Police authority originates from a sovereign nation and is limited by geographic area.

Sovereignty having some legal significance is a fairly modern concept.  Historically, noblemen, monarchs, or tribal leaders engaged in conquest and used warfare to protect ill-defined boundaries and empires.  Genghis Khan, Alexander the Great, and China’s dynasties were more about rampaging warriors than concrete nations.  Even the Roman Empire was embedded and flowed with conquest.

It was not until the 1700s that identifiable countries with national boundaries and distinct governments, as opposed to dynastic monarchies, came into vogue in Western Europe; England, being an island nation, was somewhat an exception.  A “Hundred’s Years War” was fought amongst the nascent European countries over religion and family-controlled thrones, which bled into our “French and Indian War” in the colonies.

In the midst of this disruptive conflict, culturally, Europe was undergoing a pivot.  During the Age of Reason (Enlightenment), rationality was supplanting faith.  We are the product of this revolution, as our Declaration of Independence describes a rational basis for why we are asserting our independence from Great Britain – it is a physical exemplar of a new rational philosophy of government and sovereignty.  Law over religion.

The Declaration of Independence and the American Revolution were a legal statement of principles premised on the core political belief that the Crown had lost its sovereignty over the colonies due to its abuses – this is what the Boston Tea Party was all about: taxation without representation.  The legal power of a government is derived from the people, as opposed to dynastic inheritance.

From this point, the idea of the nation-state came to dominate.  Germany coalesced around Prussia in the latter part of the 19th Century, and the national boundaries of France solidified in the wake of the Napoleonic Wars (except for disputed territories like Alsace-Lorraine).  By WWI, the world was engulfed in conflagration because of the promises extended by nations to other nations – which begat the still-born “League of Nations.” 

Two decades later, the World was aflame again, and the United Nations became a solution to regulate states.  An important component of this world governing organization is the World Court at the Hague, to adjudicate disputes by nations and violations of international law, like human rights violations.

This is a backdrop for the United States Supreme Court’s 2020 decision in McGirt v. Oklahoma, in which the Court found that Oklahoma had no authority to adjudicate crimes committed on the Muscogee (Creek) Nation.  This decision was born of an understanding of sovereignty.  We signed treaties negotiated with Native American Tribes, granting them nation-boundaries within the United States.  The Court recognized that this treaty recognized sovereignty, bequeathing exclusive authority to the tribes within the confines of their tribal lands. 

In the aftermath of the McGirt ruling, local Oklahoma prosecutors find themselves in a difficult position.  Their constituents are victims of crimes, and they have to sit back and hope the Tribal criminal justice system will act.  

In the waning days of the Biden Justice Department, the DOJ sued two (2) county district attorneys, Matthew Ballard and Carol Iski, for violating the McGirt ruling.  The lawsuit alleges they had filed seven cases against Native American defendants in violation of tribal sovereignty.  Because the previous administration’s Justice Department filed it, Pam Bondi could have just dismissed it.  No more, as the Cherokee, Chickasaw and Choctaw Indian Nations have sought to intervene.

This might not impact us here in Middle Georgia, thanks to the 19th Century’s “Trial of Tears” uprooting the Cherokee Nation from most of the Southeast.  Still, it is politically humbling.  Even within the United States, there are pockets of sovereign nations whom we recognize over which we have no power.  

This is an important lesson that our government has legal limits.  They are self-imposed by documents like our Constitution and negotiated Treaties.  We need to be cognizant of where we legally accept the lines of governmental power stop.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.