The Consent of the Governed – A New Concept in Indian Affairs?

The Indian tribe is a unique component in our federal system of government. Unlike all our other governmental institutions, the tribe is not a creature of the Constitution of the United States, nor of the federal government created by the Constitution, nor of the states which created the Constitution.

The existence of the Indian tribe is, however, explicitly recognized in the Constitution, and the tribes’ governmental rights and responsibilities have been confirmed and protected by many federal laws and treaties.1

Under the Constitution, relations with the Indian tribes are the exclusive responsibility of the federal government. Although the territory of an Indian tribe may lie within the boundaries of a state, the state may not ‘legislate with respect to its affairs or otherwise interfere with the right of its members to govern themselves within its reservation in accordance with their own laws and customs, except with the express sanction of the Congress of the United States.2

While Congress has legislated with respect to a number of specific matters affecting reservation Indians,3 has granted authority for states to govern certain reservations,4 has extended state authority over all reservation Indians in certain matters,5 and has established a number of specific limits on tribal action,6 it has otherwise left the government of Indian country to the tribes themselves.7