Tribal Sovereignty Archives - Columbia Law Review

Introduction The Lakota people believe that the mere existence of a crude oil pipeline under the waters of Lake Oahe will desecrate those waters and render them unsuitable for use in their religious sacraments . . . . The Lakota people believe that the pipeline correlates with a terrible Black Snake prophesied to come into the Lakota homeland and cause destruction . . . . The Lakota believe that the very existence of the Black Snake under their sacred waters in Lake Oahe will unbalance and desecrate the water and render it impossible for the Lakota to use that water in their Inipi ceremony.[footnote]Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 239 F. Supp. 3d 77, 82 (D.D.C. 2017) (quoting Intervenor-Plaintiff Cheyenne River Sioux Tribe’s Motion for Preliminary Injunction at 2–3, Standing Rock Sioux Tribe , 239 F. Supp. 3d 77 (No. 1:16-cv-1534-JEB), 2017 WL 1454128).[/footnote] With the rise of oil extraction in the Bakken formation, the United States decided to reduce truck and train traffic across the prairie regions by building a pipeline.[footnote]Devashree Saha, Five Things to Know About the North Dakota Access Pipeline Debate, Brookings Inst. (Sept. 14, 2016), https://www.brookings.edu/articles/five-things-to-know-about-the-north-dakota-access-pipeline-debate/ [https://perma.cc/WR6M-GPU5] (discussing how “the project is expected to create more markets and reduce truck and oil train traffic—the latter of which has been a growing concern after a spate of fiery derailments of a train carrying North Dakota crude”).[/footnote] To move oil from western North Dakota to the Patoka Oil Terminal in Illinois, the pipeline would have to cross the Missouri River.[footnote]See Lauren P. Phillips, Killing the Black Snake: The Dakota Access Pipeline’s Fate Post- Sierra Club v. FERC , 30 Geo. Env’t L. Rev. 731, 734 (2018) (discussing the possible routes for the pipeline along the Missouri River).[/footnote] The U.S. Army Corps of Engineers considered several routes, including one which crossed just ten miles north of Bismarck, the North Dakota state capital.[footnote]Carla F. Fredericks, Mark Meaney, Nicholas Pelosi & Kate R. Finn, Social Costs and Material Loss: The Dakota Access Pipeline, 22 N.Y.U. J. Legis. & Pub. Pol’y 563, 569 (2020).[/footnote] This route was rejected due to the threat to Bismarck’s water supply, should the pipeline rupture upstream from the city.[footnote]See id. (citing “proximity to wellhead source water protection areas” as one of several reasons for eliminating this route).[/footnote] The Army Corps “did not show similar concern for the Tribe’s water source when they approved the route that went directly under Lake Oahe on the Missouri River, which is the Standing Rock Sioux Tribe’s main source of water for drinking, irrigation, and business uses.”[footnote]Id. (footnote omitted).[/footnote] The Dakota Access Pipeline was ultimately built just five hundred feet north of the Reservation’s boundary and on the Tribe’s ancestral lands.[footnote]See Marianne Engelman Lado & Kenneth Rumelt, Pipeline Struggles: Case Studies in Ground Up Lawyering, 45 Harv. Env’t L. Rev. 377, 439 (2021) (“[I]t’s unfortunate that this nation continues to treat our tribe and tribal nations around this country in this manner. We have every right to protest this pipeline. We have indigenous lands, we have ancestral lands, we have treaty lands. The pipeline is 500 feet from our reservation.” (alteration in original) (quoting Despite Impending Deadline, Standing Rock Protesters Vow to Stay, PBS News Hour (Dec. 2, 2016), https://www.pbs.org/newshour/show/despite-impending-deadline-standing-rock-protesters-vow-stay (on file with the Columbia Law Review ))).[/footnote]

The response was swift. Beginning in late summer 2016, thousands of people began gathering on the northern boundary of the Standing Rock Indian[footnote]The author recognizes that the word “Indian” has a number of problematic and even overtly racist connotations. Its use in this Symposium Piece is as a legal term of art. This Piece uses the term “Indian” instead of “Native” or “Indigenous” only when it is necessary to refer to persons who are enrolled members of federally recognized tribes. For example, Native Hawaiians are Indigenous, but they are not Indians. Rebecca Tsosie, Engaging the Spirit of Racial Healing Within Critical Race Theory: An Exercise in Transformative Thought, 11 Mich. J. Race & L. 21, 42 (2005). The term “Indian” is regularly used in federal law (e.g., Title 25 of the U.S. Code is the Title dealing with “Indians”), and it is used in the Constitution’s Commerce Clause to contradistinguish “Indian [t]ribes” from fellow sovereigns “[s]tates” and “foreign [n]ations.” U.S. Const. art. I, § 8, cl. 3. The term is used to codify the definition of “Indian country” at 18 U.S.C. § 1151 and is used to determine which tribes share in a government-to-government relationship through the Federally Recognized Indian Tribe List Act of 1994, Pub. L. 103-454, 108 Stat. 4791. For a discussion of how the term “Indian” is more problematic in other contexts, see H. Patrick Glenn, Legal Traditions of the World 60 n.1 (5th ed. 2014). The author further recognizes there is divided guidance on the capitalization of the term “Indian country.” The Bureau of Indian Affairs suggests always capitalizing the term. See Editorial Guide, Bureau of Indian Affs., https://www.bia.gov/guide/editorial-guide [https://perma.cc/7KXD-RP9U] (last visited Feb. 7, 2025). But the author has chosen to use the National Congress of American Indians’ style preference, which capitalizes the term “Indian Country” when referring to “a general description of Native spaces and places within the United States” but not when referring to the legal term of art defined in the U.S. Code. NCAI Response to Usage of the Term, “Indian Country”, Nat’l Cong. of Am. Indians (Dec. 27, 2019), https://www.ncai.org/news/ncai-response-to-usage-of-the-term-indian-country [https://perma.cc/5ZMD-4TXQ].[/footnote] Tribe’s reservation.[footnote]Elizabeth Ann Kronk Warner, Environmental Justice: A Necessary Lens to Effectively View Environmental Threats to Indigenous Survival, 26 Transnat’l L. & Contemp. Probs. 343, 355 (2017).[/footnote] Many called themselves “water protectors,” connecting their protest to the threat the pipeline posed to the Tribe’s survival and to the disruption of “significant sites of tribal cultural, religious, and spiritual importance . . . located along the proposed route.”[footnote]Id.[/footnote] These #NoDAPL protesters eventually built a camp on tribal land and contributed an on-the-ground presence objecting to the construction of the pipeline until the camps were ordered to be dismantled due to a heightened risk of flooding in early 2017.[footnote]Id. at 356 (“[C]iting environmental and safety concerns associated with an increased likelihood of flooding, the State of North Dakota ordered the camps evacuated and closed.”).[/footnote]

The #NoDAPL protests drew national attention.[footnote]See, e.g., Mayra Cuevas, Sara Sidner & Darran Simon, Dakota Access Pipeline Protest Site Is Cleared, CNN, http://www.cnn.com/2017/02/22/us/dakota-access-pipe line-evacuation-order/ [https://perma.cc/M36E-J7SF] (last updated Feb. 23, 2017); Tom DiChristopher, Standing Rock Activists Dig in Ahead of Deadline to Clear Protest Camp, CNBC (Feb. 22, 2017), http://www.cnbc.com/2017/02/22/standing-rock-activists-dig-in-ahead-of-deadline-to-clear-protest-camp.html [https://perma.cc/CZ2K-VQA2].[/footnote] The response from North Dakota was disconcerting. The state legislature considered legislation that “would make it legal for drivers to run over protesters who are standing in a roadway, clearing drivers of any liability, as long as their action was ‘unintentional.’”[footnote]Nina Agrawal, In North Dakota, It Could Become Legal to Hit a Protester With Your Car, L.A. Times (Feb. 3, 2017), https://www.latimes.com/nation/la-na-bills-protest-criminal-20170201-story.html(on file with the Columbia Law Review ).[/footnote] Two years later, South Dakota enacted a ban on “riot-boosting” aimed at “Native Americans, state farmers and ranchers, and residents of nearby states who opposed” the Keystone XL pipeline.[footnote]Andrew Malone & Vera Eidelman, The South Dakota Legislature Has Invented a New Legal Term to Target Pipeline Protesters, ACLU (Apr. 1, 2019), https://www.aclu.org/news/free-speech/south-dakota-legislature-has-invented-new-legal-term-target[https://perma.cc/PCH6-65NG] (internal quotation marks omitted) (“The law is written so broadly that even a tweet encouraging activists to ‘[j]oin a protest to stop the pipeline and give it all you’ve got!’ could be interpreted as ‘riot-boosting’ should a fight break out at the protest.”).[/footnote] The law imposed a sentence of up to twenty-five years in prison and additional fines and civil penalties, but it was ultimately blocked by a federal judge.[footnote]Id.[/footnote]

The Water Protectors, camping along the northern boundary of the Standing Rock Sioux Reservation, represent just the latest in a storied history of Indigenous protest and resistance. Indigenous peoples have protested against the acts of colonizers since the arrival of Europeans, with the stories of most of those protests lost to history.[footnote]We know that protests by Indigenous people must have been common because, as Cohen’s Handbook of Federal Indian Law explains, from the first days of the British colonies, the early American government “sought to forestall further Native anger by asserting greater centralized authority over Indian affairs.” Cohen’s Handbook of Federal Indian Law § 2.02 (2024). Officers were appointed to handle Indian affairs. “The importance of these offices is indicated by the fact that . . . Benjamin Franklin, Patrick Henry, and James Wilson” were elected commissioners of the middle department. Felix S. Cohen, Handbook of Federal Indian Law 9 (1942). Cohen tells us that there were many discussions involving these appointed commissioners, sometimes leading to “formal, written treaties with Native nations.” Cohen’s Handbook of Federal Indian Law, supra, § 2.03. The “first such treaty” was the 1778 Treaty with the Delaware (Lenape) Nation. Id.[/footnote] As Chief Justice John Marshall explained in 1832: The Continental Congress “resolved ‘that . . . securing and preserving the friendship of the Indian Nations appears to be a subject of the utmost moment to these colonies.’”[footnote]Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 549 (1832) (quoting 2 Journals of the Continental Congress 1774–1789, at 174 (Worthington Chauncey Ford ed., 1905)) (misquotation).[/footnote]

Protest by Native people against the United States has taken many forms, including legal challenges.[footnote]See Chronicles of American Indian Protest 110–14 (Council on Interracial Books for Children ed., 2d ed. 1979) (discussing how legal challenges and physical confrontation were both part of Cherokee protests against removal).[/footnote] The first petition by an Indian tribe to reach the Supreme Court was Cherokee Nation v. Georgia in 1831.[footnote]30 U.S. (5 Pet.) 1 (1831).[/footnote]The Cherokee Nation had a treaty with the United States, with lands clearly demarcated.[footnote]See Gregory Ablavsky, “With the Indian Tribes”: Race, Citizenship, and Original Constitutional Meanings, 70 Stan. L. Rev. 1025, 1056–57 (2018) (describing the Treaty of Hopewell and the Treaty of Holston as treaties with the Cherokee that considered jurisdiction and recognized territory belonging to the Tribe).[/footnote] Georgia, claiming that the lands reserved by treaty were a part of the state, extended its criminal laws over the territory and criminally charged a Cherokee man, Corn Tassel, with violating Georgia law.[footnote]See Stephen Breyer, Making Our Democracy Work: The Yale Lectures, 120 Yale L.J. 1999, 2004 (2011) [hereinafter Breyer, Making Our Democracy Work] (“The State extended Georgia law over the Cherokee territory, invalidated Cherokee laws, and required that many of those living there sign loyalty oaths to Georgia.”).[/footnote] Corn Tassel was convicted and sentenced to death. Although the Supreme Court issued a stay of execution, Corn Tassel was hanged.[footnote]Id.[/footnote] The Cherokee Nation retained William Wirt, one of the most notable Supreme Court advocates of the day, to represent its interests.[footnote]See id.[/footnote] Although the Nation lost the case for lack of subject matter jurisdiction, it prevailed the following term, winning a judgment that held that the laws of Georgia do not extend to Indian lands.[footnote]See id. The prevailing case is Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). For an additional academic discussion of the same story, see Barry Friedman, The History of the Countermajoritarian Difficulty: The Road to Judicial Supremacy (pt. 1), 73 N.Y.U. L. Rev. 333, 395–96 (1998).[/footnote] Justice Stephen Breyer has described the case as follows:

Wirt then found the case he was looking for. A New England missionary, Samuel A. Worcester, living in Cherokee territory had refused to sign Georgia’s loyalty oath, and Georgia had jailed him. He could bring Worcester’s case to the Supreme Court by way of appeal, and it was unlikely that Georgia would execute Worcester—a citizen of Vermont—before the Court could decide it. He did appeal. He pointed to the treaties and to Article VI of the Constitution, which makes treaties (along with the Constitution and federal laws) the “supreme Law of the Land.” And, not surprisingly, he won the case—despite the unpopularity of the Indian tribes and the popularity of Georgia’s position. The Court decided that the Cherokees owned the land; that Georgia had no right to make laws there; and that Worcester must be freed.[footnote]Breyer, Making Our Democracy Work, supra note 21, at 2004 (footnotes omitted) (quoting U.S. Const. art. VI, cl. 2).[/footnote] The Worcester v. Georgia opinion both culminated the first legal protest brought by a tribe in the Supreme Court of the United States and established the baseline principle that on tribal lands, the tribal sovereign—not the state—has the power to regulate conduct.[footnote] Worcester , 31 U.S. (6 Pet.) at 561–62 (“[T]he acts of Georgia . . . interfere forcibly with the relations established between the United States and the Cherokee nation . . . . They are in direct hostility with treaties, repeated in a succession of years, which mark out the boundary that separates the Cherokee country from Georgia . . . .”).[/footnote]Worcester was a non-Indian protester.[footnote]Sara E. Hill, Restoring Oklahoma: Justice and the Rule of Law Post- McGirt , 57 Tulsa L. Rev. 553, 560 (2022) (describing Worcester as “a non-Indian who lived and worked among the Cherokee people with their permission and the approval of the President”).[/footnote] Willing to work as a missionary without swearing an oath of allegiance to the State of Georgia, knowing that his continued presence in Cherokee lands was a violation of Georgia law,[footnote]See Sarah Deer & Mary Kathryn Nagle, Return to Worcester : Dollar General and the Restoration of Tribal Jurisdiction to Protect Native Women and Children, 41 Harv. J.L. & Gender 179, 207 (2018) (noting that most missionaries moved to Tennessee to continue their work after the passage of the Georgia law). Knowing that Georgia had criminalized Worcester’s work, “he remained in New Echota, Cherokee Nation, where he preached the Gospel and assisted Elias Boudinot in the printing of the Cherokee Nation newspaper, the Cherokee Phoenix .” Id.[/footnote] he was willing to stand up for the rights of the Tribe against the power of the state.[footnote]See Eric Eisner, Comment, The Law-of-Nations Origins of the Marshall Trilogy, 133 Yale L.J. 998, 1007 (2024) (describing how the Governor of Georgia offered Worcester a pardon, but Worcester refused, willing to sit in jail and provide the test case necessary for the Cherokee Nation to bring its argument to the Supreme Court).[/footnote] Worcester’s victory at the Court secured tribal sovereigns across the country the important recognition that when on tribal lands, even non-Indians are subject to the laws of the tribal sovereign to the exclusion of the regulatory power of the state.[footnote]Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 Harv. L. Rev. 381, 395 (1993) [hereinafter Frickey, Marshalling Past and Present] (noting that the appropriateness of state and tribal regulatory power on tribal lands was squarely presented and decided in the Worcester opinion).[/footnote]

Protest by Indigenous people on tribal lands has been a feature of American history.[footnote]See generally Chronicles of American Indian Protest, supra note 18 (collecting primary source documents with annotation about the nature of Indigenous protest from the pre-revolutionary period through the civil rights era).[/footnote] The #NoDAPL protesters were building on a rich tradition that developed during the civil rights era.[footnote]See Monica Krup, Note, “Riot Boosting”: South Dakota’s Integration of Environmental, Indigenous, and First Amendment Concerns and the Rhetoric on Protest, 22 Rutgers Race & L. Rev. 293, 317–22 (2021) (arguing that the rhetoric around protest can be used to influence legislation in ways that can preserve Indigenous rights).[/footnote] The American Indian Movement (AIM) featured prominently in the news cycle.[footnote]See, e.g., Juan F. Perea, An Essay on the Iconic Status of the Civil Rights Movement and Its Unintended Consequences, 18 Va. J. Soc. Pol’y & L. 44, 54 (2010) (“This American-Indian movement intended to restore sovereignty to American-Indian nations, a sovereignty that had been under direct attack since around 1945.”); Rita Lenane, Note, “It Doesn’t Seem Very Fair, Because We Were Here First”: Resolving the Sioux Nation Black Hills Land Dispute and the Potential for Restorative Justice to Facilitate Government-to-Government Negotiations, 16 Cardozo J. Conflict Resol. 651, 674–75 (2015) (“The Wounded Knee Standoff in 1973 is a good example of a way in which the Sioux Nation brought national attention to their anger and disillusionment with the status quo . . . .”).[/footnote] As “grass-roots protest shaped federal Indian policy by first placing and then keeping Native American concerns on the national agenda,”[footnote]Dean J. Kotlowski, Alcatraz, Wounded Knee, and Beyond: The Nixon and Ford Administrations Respond to Native American Protest, 72 Pac. Hist. Rev. 201, 204 (2003).[/footnote] AIM members physically occupied Alcatraz from 1969 to 1970, the Bureau of Indian Affairs building in Washington, D.C., in 1972, and the city of Wounded Knee, located on the Oglala Sioux Reservation, in 1973.[footnote]See Brenda Jones Quick, Special Treatment Is Fair Treatment for America’s Indigenous Peoples, 1997 Det. Coll. L. Mich. St. U. L. Rev. 783, 790–91.[/footnote] During the occupation of Wounded Knee, a seventy-one day standoff between approximately 250 protesters and “tribal law enforcement, U.S. marshals, the BIA police, and even U.S. military advisors” ended with an exchange of gunfire and deaths on both sides.[footnote]Carole Goldberg, A Law of Their Own: Native Challenges to American Law, 25 Law & Soc. Inquiry 263, 268–69 (2000) (book review).[/footnote]

This Symposium Piece builds upon a history of protest by Indigenous people and dozens of Supreme Court opinions on tribal jurisdiction to first make a legal claim and then a normative assertion about the power to regulate protests in Indian country. First, tribes have the exclusive power to regulate protest activity when it occurs in Indian country. This exercise of a tribe’s inherent power applies even on land owned by the state or by nonmembers of the tribe if it occurs within the boundaries of an Indian reservation. Second, while a tribe’s exercise of its inherent power to regulate these protests is not constrained by the U.S. Constitution, tribal governments should be scrupulous in the imposition of penalties for conduct which would otherwise be protected by federal law.

To justify these positions, this Piece proceeds in three Parts. Part I defines the places over which tribal regulatory authority is exclusive. It uses the contours of “Indian country”[footnote]“Indian country” is a legal term of art defined at 18 U.S.C. § 1151 (2018). For additional context, see infra Part II.[/footnote] to describe the legally defined spaces over which tribal exercise of their inherent regulatory power is greatest and makes clear that these spaces include land owned in fee simple by nonmembers when that land is within the reservation’s boundaries.

Part II explores the inherent regulatory power of Indian tribes. It builds upon well-established Supreme Court precedent to justify why a tribe’s inherent power to regulate protest activity exists throughout Indian country. Having established that such tribal power exists, it then uses the doctrines of infringement and preemption to explain why states lack concurrent regulatory authority, leaving the tribal sovereign as the sole authority to regulate protest activity in Indian country. Part II concludes with a discussion of federal power, recognizing that Congress could impose regulations regarding protest activity on tribal lands but suggesting that it will not do so both because of its stated commitment to protecting tribal sovereignty and because its recent legislative history has shown a reticence to impose new federal regulations on Indian tribes.

Part III turns to the tribal sovereign. It explains that tribal governments, unlike state or federal governments, are not bound by the U.S. Constitution—including its protections for freedom of speech, freedom of association, and the right to petition. Part III then looks at existing tribal regulation and enforcement of protest in Indian country, particularly against tribal members, and cautions tribes to be intentional with the punishment of conduct that would otherwise be federally protected.

Tribal Sovereignty

THE RIGHT TO PROTEST IN INDIAN COUNTRY

TOWARD TRIBAL SOVEREIGNTY: ENVIRONMENTAL REGULATION IN OKLAHOMA AFTER MCGIRT