From Marshall to Marshall
The Supreme Court's changing stance on tribal sovereignty
There are two competing theories of tribal sovereignty: first, the tribes have inherent powers of sovereignty that predate the "discovery" of America by Columbus; and second, the tribes have only those attributes of sovereignty that Congress gives them.
The scope of the trust relationship, and its concomitant grant of power to Congress, was illustrated in U.S. v. Sandoval (231 U.S. 28 (1913)), in which the Court upheld the application of a federal liquor-control law to the New Mexico Pueblos, even though the Pueblo lands had never been designated by the federal government as reservation land. The Court ruled that an unbroken line of federal legislative, executive, and judicial actions had "...attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders...." Moreover, the Court said that once Congress had begun to act in a guardian role toward the tribes, it was up to Congress, not the courts, to determine when the state of wardship should end.
In McClanahan v. Arizona State Tax Commission (411 U.S. 164 (1973), the Court, through Justice Thurgood Marshall, ruled that a state cannot tax the income of an Indian earned on a reservation. Although in McClanahan the Court reaffirmed the principle of tribal sovereignty over internal tribal affairs, it emphasized a different basis for tribal freedom from intrusions by a state:
At least two troubling aspects of the Court's treatment of the sovereign rights and powers of Indian tribes emerge from a look at the development of the doctrine of tribal sovereignty. First, the Court has moved away from the concept of intrinsic tribal sovereignty that predated the coming of the European conquerors, and has adopted the view that tribal sovereignty, and the concomitant freedom of the tribes from encroachments by the states, exists solely because Congress has chosen to confer some protections on the tribes.