B. Tribes as Separate Sovereigns

Although the immense success of Foxwoods was years away, the tribe's land claim and its recognition as a tribe laid the foundation upon which Foxwoods would be built. The question then arises, how could a tribe like the Pequots engineer such a return from the brink of extinction? The partial answer lies in the concept of tribes as separate sovereigns whose existence extends beyond the lifetimes of the individual members of a tribe at any given point in time. A tribe continues to exist as a sovereign entity so long as one member remains. The forces that could cause a tribe to dwindle down to one member, however, have been present since the formation of this nation.

As the newly formed United States began its inexorable march westward, it developed an insatiable appetite for more land. Unfortunately, the Indians occupied the desired land. To satisfy western expansion goals, the Indian lands usually were not taken by force but were instead ceded to the United States by treaty in return for, among other things, the establishment of a trust relationship. The federal government thus assumed a guardian-ward relationship with the Indians. This relationship was assumed not only because of prevailing racist notions of Indian societal inferiority, but also because the trust relationship often was consideration for the Indians' relinquishment of land. Notably, the Indians and the federal government entered into these treaties as government-to-government relationships among collective political entities. From the beginning of its political existence, the United States recognized a measure of autonomy in the Indian bands and tribes. Treaties rested upon a concept of Indian sovereignty and in turn greatly contributed to that concept.

While the formal existence of the United States began at a point in time when the prevailing policy of treaty-making recognized tribal sovereignty, such an orientation was not permanent. In the 1870s, Congress ceased making treaties with the Indians and instead developed a policy that was characterized as a mighty pulverizing engine, a policy that would destroy tribalism and force Indians to assimilate into dominant society as individuals. The policy devastated the tribes, and its consequences remain highly problematic.

The United States changed its policies toward tribal government structures again in 1928. In response to a report documenting the failure of federal Indian policy, Congress passed the Indian Reorganization Act of 1934 (IRA). In an effort to reinforce tribal sovereignty, the legislation allowed tribes to adopt constitutions and to reestablish structures for governance. Congress also passed specific acts to reverse the effects of previous policies established with the intention of destroying the governance structure of particular tribes, such as the Five Civilized Tribes in Oklahoma. Congressional policy had once again reversed itself - instead of destroying tribal sovereignty, the federal government was now encouraging it. As a result, many tribes began to thrive economically. The IRA provided a powerful stimulus to tribal governmental organization and in many cases so strengthened that organization as to enable continued development despite fluctuations in administrative policy.

Federal Indian policies would oscillate through one more cycle in the next half-century. A 1949 Report on Indian Affairs by the Hoover Commission recommended complete integration of Indians [as a federal policy] goal so that Indians would move into the mass of the population as full citizens. As a result, in 1953 the official congressional policy changed to one of ending the Indians status as wards of the United States. For the tribes that were terminated under this policy, the results were disastrous.

Just as Congress had reversed itself when it repudiated allotment and passed the IRA, the policy of termination also was short-lived. Ironically, termination had the opposite effect in its attempt to detribalize. Indians finally recognized that federal policy too often was directed at destroying tribalism. From that perspective, they concluded that only tribal control of Indian policy and lasting guarantees of sovereignty could assure tribal survival in the United States. With the Kennedy and Johnson administrations' abandonment of the termination policy, programs such as the Economic Opportunity Act [were passed, which] recognized the permanency of Indian tribes and the importance of social investment in reservation communities.

President Richard Nixon was arguably the most ardent supporter of Indian sovereignty, and he issued a landmark statement calling for a new federal policy of self-determination for Indian nations. Perhaps the greatest of Nixon's contributions to Indian tribal sovereignty was Public Law 638, the Indian Self-Determination and Education Assistance Act of 1975, which authorized the Secretaries of Interior and Health and Human Services to contract with and make grants to Indian tribes and other Indian organizations for the delivery of federal services. Acting at times pursuant to federal court orders, the Bureau of Indian Affairs (BIA) assisted tribes in reconstituting their governmental structures.

During this period, the U.S. Supreme Court handed down Morton v. Mancari, one of the most important Indian cases of the modern era. The Court held that tribal Indians were members of quasi-sovereign tribal entities and that Indian status was thus political rather than racial in nature. Mancari involved the BIA's hiring preference for Indians, but the Court extended its holding to other areas of Indian policy as long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, and the policy is reasonable and rationally designed to further Indian self-government.

Thus, through acts of Congress and Supreme Court rulings, tribes are ensconced within the federalism framework. In the words of Justice Sandra Day O'Connor, Today, in the United States, we have three types of sovereign entities - [T]he Federal government, the states, and the Indian tribes. Each of the[se] sovereigns plays an important role in this country.