Implicit divestiture
Encyclopedia
Implicit divestiture is the ability of the Supreme Court of the United States
to solely determine the extent of an Indian Nation's sovereignty, an approach, of recent decades, to federal Indian policy, which is contradictory to U.S. Constitutional protections of Native American sovereignty.
The issue of indigenous sovereignty rights and their protections under federal trust in the United States was asserted in the 19th century, through Supreme Court cases called the Marshall Trilogy of Johnson v. McIntosh, Cherokee Nation v. Georgia
, and Worcester v. Georgia
. As Indian law writer Andrew Fletcher terms it, the “colonial trilogy” of Oliphant v. Suquamish Indian Tribe
, Montana v. United States
, and Nevada v. Hicks
undermined tribal sovereignty, through their introduction of “implicit divestiture.” Its application in respect to the United Nations Declaration on the Rights of Indigenous Peoples
is yet to be tested.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
to solely determine the extent of an Indian Nation's sovereignty, an approach, of recent decades, to federal Indian policy, which is contradictory to U.S. Constitutional protections of Native American sovereignty.
The issue of indigenous sovereignty rights and their protections under federal trust in the United States was asserted in the 19th century, through Supreme Court cases called the Marshall Trilogy of Johnson v. McIntosh, Cherokee Nation v. Georgia
Cherokee Nation v. Georgia
Cherokee Nation v. Georgia, , was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the state of Georgia depriving them of rights within its boundaries, but the Supreme Court did not hear the case on its merits...
, and Worcester v. Georgia
Worcester v. Georgia
Worcester v. Georgia, 31 U.S. 515 , was a case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Indians from being present on Indian lands without a license from the state was unconstitutional.The...
. As Indian law writer Andrew Fletcher terms it, the “colonial trilogy” of Oliphant v. Suquamish Indian Tribe
Oliphant v. Suquamish Indian Tribe
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 is a United States Supreme Court case regarding the criminal jurisdiction of Tribal courts over non-Indians. The case was decided on March 6, 1978, with a 6-2 majority. The court opinion was written by William Rehnquist; a dissenting opinion was...
, Montana v. United States
Montana v. United States
Montana v. United States, 450 U.S. 544 is a Supreme Court case which addressed the Crow Nation’s ability to regulate hunting and fishing on tribal lands by a non-tribal member. The case considered several important issues concerning tribes' treaty rights and sovereign governing authority on Indian...
, and Nevada v. Hicks
Nevada v. Hicks
Nevada v. Hicks, , is a United States Supreme Court case regarding the jurisdiction of Tribal Courts over local Native Americans.- Background :Hicks was a member of the Fallon Paiute-Shoshone Tribes of western Nevada and lived on tribal land...
undermined tribal sovereignty, through their introduction of “implicit divestiture.” Its application in respect to the United Nations Declaration on the Rights of Indigenous Peoples
Declaration on the Rights of Indigenous Peoples
The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the United Nations General Assembly during its 62nd session at UN Headquarters in New York City on 13 September 2007....
is yet to be tested.