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Editor's Comments - October 4, 2014: Is the tide turning?

Just when you think tribal sovereignty is eroding, something happens and a comeback looks possible. Taxation cases are starting to favor tribes, off-reservation gaming developments are moving forward, water rights are moving somewhat, and so forth.

Tribal sovereignty refers to the fact that each tribe has the inherent right to govern itself. The concept was firmly challenged and established inWorcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

The opinion is most famous for its dicta, which lay out the relationship between tribes and the state and federal governments, stating that the federal government was the sole authority to deal with Indian nations. It is considered to have built the foundations of the doctrine of tribal sovereignty in the United States.

Although this decision has taken on every assault against the doctrine, it is still good case law today. Without it, tribes would have no sovereign immunity to fight for rights negotiated through treaties with the United States. Believe it or not, our greatest ally is our treaties and the United States compliance with this one belief.

The problem is that whereas we have somewhat enjoyed government protection against non-Indian governmental entities, the erosion of this right is still fighting hard to change. A good example is where Senator John McCain and Rep. Jeff Flake who all of sudden think that they understand sovereignty better than the Federal Courts of the land.