THE CHEROKEE TREATIES WITH THE UNITED STATES. SEE COHEN, FEDERAL INDIAN LAW, PP. 259-260 (1982).
DECISIONS FOLLOWING WORCESTER HAVE RELAXED THIS TERRITORIAL RULE SIGNIFICANTLY. IN PARTICULAR, "NOTIONS OF INDIAN SOVEREIGNTY HAVE BEEN ADJUSTED TO TAKE ACCOUNT OF THE STATE'S LEGITIMATE INTERESTS IN REGULATING THE AFFAIRS OF NON-INDIANS." MCCLANAHAN V. ARIZONA STATE TAX COMMISSION,411 U.S. 163, 171 (1973). IN ADDITION, "THE TREND HAS BEEN AWAY FROM THE IDEA OF INHERENT INDIAN SOVEREIGNTY AS A BAR TO STATE JURISDICTION AND TOWARD A RELIANCE ON FEDERAL PRE-EMPTION." ID. AT 171. MODERN CASES THUS "TEND TO AVOID RELIANCE ON PLATONIC NATIONS OF INDIAN SOVEREIGNTY AND LOOK . . . INSTEAD TO THE APPLICABLE TREATIES AND STATUTES WHICH DEFINE THE LIMITS OF STATE POWER." ID. AT 172.
UNDER THE MODERN APPROACH, THE SUPREME COURT HAS IDENTIFIED "TWO INDEPENDENT BUT RELATED BARRIERS TO THE ASSERTION OF STATE REGULATORY AUTHORITY OVER TRIBAL RESERVATIONS AND MEMBERS." WHITE MOUNTAIN APACHE TRIBE V. BRACKER,448 U.S. 136, 142-43 (1980). FIRST, THE EXERCISE OF SUCH STATE AUTHORITY MAY BE PREEMPTED BY FEDERAL LAW. SECOND, STATE REGULATION MAY UNLAWFULLY INFRINGE "ON THE RIGHT OF RESERVATION INDIANS TO MAKE THEIR OWN LAWS AND BE RULED BY THEM." WHITE MOUNTAIN, 448 U.S. AT 142, QUOTING WILLIAMS V. LEE, 358 U.S. 217, 220 (1959). UNDER THIS TWO-PRONGED TEST, "TRADITIONAL NOTIONS OF INDIAN SELF-GOVERNMENT ARE SO DEEPLY ENGRAINED IN OUR JURISPRUDENCE THAT THEY HAVE PROVIDED AN IMPORTANT BACKDROP AGAINST WHICH VAGUE OR AMBIGUOUS FEDERAL ENACTMENTS MUST ALWAYS BE MEASURED." AS A RESULT, UNDER THE MODERN CASES, INDIAN TRIBES HAVE RETAINED "A SEMI-INDEPENDENT POSITION . . . NOT AS STATES, NOT AS NATIONS, NOT AS POSSESSED OF THE FULL ATTRIBUTES OF SOVEREIGNTY, BUT AS A SEPARATE PEOPLE, WITH THE POWER OF REGULATING THEIR INTERNAL AND SOCIAL RELATIONS, AND THUS FAR NOT BROUGHT UNDER THE LAWS OF THE UNION . . . OR THE STATES WITHIN WHOSE LIMITS THEY RESIDED." MCCLANAHAN, 411 U.S. AT 173, QUOTING STATES V. KAGAMA, 118 U.S. 375, 381-82 (1886).
ANOTHER SIGNIFICANT DEVELOPMENT IN THE LAW OF INDIAN SOVEREIGNTY INVOLVES THE IDENTIFICATION OF THE TERRITORY OVER WHICH THESE JURISDICTIONAL PRINCIPLES ARE APPLIED. ALTHOUGH WORCESTER AND SUBSEQUENT CASES REFER TO RESERVATIONS AS THE AREAS OVER WHICH TRIBES ARE ENTITLED TO GOVERN THEMSELVES WITHOUT STATE INTERFERENCE, IT IS "INDIAN COUNTRY" THAT IS NOW THE TOUCHSTONE IN DETERMINING WHETHER INDIAN SOVEREIGNTY PRINCIPLES SHOULD BE APPLIED TO A PARTICULAR AREA. "INDIAN COUNTRY" IS DEFINED IN18 U.S.C. 1151, AS:
"(A) ALL LAND WITHIN THE LIMITS OF ANY INDIAN RESERVATION UNDER THE JURISDICTION OF THE UNITED STATES GOVERNMENT, NOTWITHSTANDING THE ISSUANCE OF ANY PATENT, AND, INCLUDING RIGHT OF WAY RUNNING THROUGH THE RESERVATION, (B) ALL DEPENDENT INDIAN COMMUNITIES WITHIN THE BORDERS OF THE UNITED STATES WHETHER WITHIN THE ORIGINAL OR SUBSEQUENTLY ACQUIRED TERRITORY THEREOF, AND WHETHER WITHIN OR WITHOUT THE LIMITS OF A STATE, AND (C) ALL INDIAN ALLOTMENTS, THE INDIAN TITLES TO WHICH HAVE NOT BEEN EXTINGUISHED, INCLUDING RIGHT OF WAY RUNNING THROUGH THE SAME."
ALTHOUGH SECTION 18 U.S.C.A. 1151 WAS ENACTED AS PART OF THE FEDERAL CRIMINAL CODE, THE