Current tribal leadership consistently laments the chipping away of tribal sovereignty by Congress, legal cases and administrative decisions. What is the relationship between sovereignty or indigenous rights and American democracy? The lawyer Felix Cohen famously wrote that American Indians were like the miner’s canary, a first warning sign of the deterioration of democracy, and, we would now say, human rights.

American Indians are U.S. citizens and most want to participate in American society, but at the same time want to retain their Indian identity and rights. The differences between tribal rights and the rights of Indians as U.S. citizens has not been formalized or consistently worked out, or recognized. In part, this state of affairs is a result of American belief or understanding that tribal rights will play a subordinate, if not temporary, role to the American democratic system.

Recent legal cases have adopted the doctrine that the American government never intended to put its citizens under the jurisdiction of American Indian governments. Therefore, by treaty and intent of Congress, U.S. citizens are not subject to Indian country criminal courts or labor laws. This line of reasoning is consistent with many early treaties where the U.S. negotiated the extradition to American courts of any U.S. citizen who committed a capital crime in Indian country. In these treaty clauses, American citizens would not be tried in Indian courts or under Indian forms of justice, but in American courts of law. Indians who committed capital offenses against American citizens were tried in American courts.

The treaties, however, do not mention capital offenses between two Indians or tribal members, which were left to the tribal community to decide the method and forms of trial and punishment. Treaties are agreements; they require the consent of both parties. However, when the Major Crimes Act of 1885 was passed by Congress, the act extended the powers of American federal courts into Indian country and tried crimes between tribal members. Tribal peoples were not asked to give their consent for the adoption of American courts and justice. The Major Crimes Act was considered legal because it was passed by Congress, which has power to regulate trade and relations with Indian nations under the commerce clause of the U.S. Constitution. The question is whether Congress has the power and right to enact laws over tribal communities without their consent.

The doctrine of plenary powers suggests that congress has the right to make policy in Indian affairs, but does it have the power and right to legislate about internal issues within tribal communities without their consent? The doctrine of plenary powers emerged in the late 1800s during a period when tribal communities were considered uncivilized, and their institutions and ways of justice were rejected as primitive. These attitudes, now rejected by most people in the world, continue to form the common law and legislative history that congress and courts continue to use when deciding issues within tribal governments and communities.

The Major Crimes Act does not abolish tribal government powers over criminal offenses, but now major criminal offenses are concurrently managed by both tribal and non-tribal courts. Tribal courts and forms of justice, however, have generally taken secondary, if not nonexistent, roles. Tribal governments and tribal citizens are caught in multiple layers of legal and political complexities that restrict their indigenous rights and goals without their consent. Is democracy well served if indigenous peoples cannot realize their rights and are subject to legal and political actions to which they do not give consent?

In the latter part of the 20th century democracies focused on improving civil rights and individual human rights. Democracies in the 21st century need to recognize and negotiate the rights and powers of consent with their indigenous peoples. Democracies that include indigenous peoples and recognize their rights and participation will be more just, enduring, and will realize new levels of democratic and multi-cultural community.