Tribal sovereignty - AbsoluteAstronomy.com

Tribal sovereignty in the United States refers to the inherent authority of indigenous tribes to govern themselves within the borders of the United States of America. The federal government recognizes tribal nations as "domestic dependent nations" and has established a number of laws attempting to clarify the relationship between the federal, state, and tribal governments. The Constitution and later federal laws grant local sovereignty to tribal nations, yet do not grant full sovereignty equivalent to foreign nations, hence the term "domestic dependent nations".

Native American sovereignty and the Constitution

The United States Constitution

United States Constitution

The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

specifically mentions the relationship between the United States federal government and Native American tribes three times:

Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed."

Article I, Section 8 of the Constitution states that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes”, determining that Indian tribes were separate from the federal government, the states, and foreign nations; and

The Fourteenth Amendment, Section 2 amends the apportionment of representatives in Article I, Section 2 above.

These basic provisions have been changed and/or clarified by various federal laws over the history of the United States. Regulate, historically means facilitate. Therefore, the Congress of these United States was to be the facilitator of commerce between the states and the tribes.

These Constitutional provisions, and subsequent interpretations by the Supreme Court (see below) are today often summarized in three principles of U.S. Indian law:

Territorial Sovereignty. Tribal authority on Indian land is organic and is not granted by the states in which Indian lands are located.
Plenary Power Doctrine. Congress, and not the Executive Branch, has ultimate authority with regard to matters affecting the Indian tribes. Federal courts give greater deference to Congress on Indian matters than on other subjects.
Trust Relationship. The federal government has a "duty to protect" the tribes, implying (courts have found) the necessary legislative and executive authorities to effect that duty.

The Marshall Trilogy, 1823-1832

The Marshall Trilogy is a set of three Supreme Court decisions in the early nineteenth century affirming the legal and political standing of Indian nations.

Johnson v. M'Intosh
Johnson v. M'Intosh
Johnson v. M'Intosh, 21 U.S. 543 , is a landmark decision of the U.S. Supreme Court that held that private citizens could not purchase lands from Native Americans...

(1823)
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...

(1831)
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...

(1832)

Empowerment of tribal courts, 1883

On April 10, 1883, five years after establishing Indian police powers throughout the various reservations, the Indian Commissioner approved rules for a "court of Indian offenses." The court provided a venue for prosecuting criminal charges, but afforded no relief for tribes seeking to resolve civil matters. The new courts' rules specifically targeted tribal religious practices which it called "heathenish rites" and the commissioner urged courts to "destroy the tribal relations as fast as possible." Another five years later, Congress began providing funds to operate the Indian courts.

While U.S. courts clarified some of the rights and responsibilities of states and the federal government toward the Indian nations within the new nation's first century, it was almost another century before United States courts determined what powers remained vested in the tribal nations. In the interim, as a trustee charged with protecting their interests and property, the federal government was legally entrusted with ownership and administration of the assets, land, water, and treaty rights of the tribal nations.

The General Allotment Act (Dawes Act), 1887

Passed by Congress in 1887, the "Dawes Act" was named for Senator Henry L. Dawes of Massachusetts, Chairman of the Senate's Indian Affairs Committee. It came as another crucial step in attacking the tribal aspect of the Indians of the time. In essence, the act broke up the land of most all tribes into modest parcels to be distributed to Indian families, and those remaining were auctioned off to white purchasers. Indians who accepted the farmland and became "civilized" were made American citizens. But the Act itself proved disastrous for Indians, as much tribal land was lost and cultural traditions destroyed. Whites benefited the most; for example, when the government made 2 million acres (8,093.7 km²) of Indian lands available in Oklahoma, 50,000 white settlers poured in almost instantly to claim it all (in a period of one day, April 22, 1889).

Twentieth-century developments

Though Congress on June 2, 1924, extended national citizenship to include members of enrolled tribes, the court concluded two Oglala Sioux defendants convicted of adultery under tribal laws did not enjoy legal protection afforded to other citizens by the United States Constitution

United States Constitution

. The court cited case law from a pre-1924 case that said, "when Indians are prepared to exercise the privileges and bear the burdens of one sui juris (not under the power of another), the tribal relation may be dissolved and the national guardianship brought to an end, but it rests with Congress to determine when and how this shall be done, and whether the emancipation shall be complete or only partial ..." (U.S. v. Nice, 1916). The court further determined, based on the earlier Lone Wolf v. Hitchcock case, that, "It is thoroughly established that Congress has plenary authority over Indians." The court held that, "the granting of citizenship in itself did not destroy ... jurisdiction of the Indian tribal courts and ... there was no intention on the part of Congress to do so." The adultery conviction and the power of tribal courts were upheld.

Indian Reorganization Act, 1934

In 1934 the Indian Reorganization Act

Indian Reorganization Act

The Indian Reorganization Act of June 18, 1934 the Indian New Deal, was U.S. federal legislation that secured certain rights to Native Americans, including Alaska Natives...

, codified as Title 25, Section 476 of the U.S. Code, allowed Indian nations to select from a catalogue of constitutional documents that enumerated powers for tribes and for tribal councils

Tribal Council

A Tribal Council is either: an association of Native American bands in the United States or First Nations governments in Canada, or the governing body for certain tribes within the United States or elsewhere...

. Though the Act did not specifically recognize the Courts of Indian Offenses, 1934 is widely considered to be the year when tribal authority, rather than United States authority, gave the tribal courts legitimacy.

In 1956, a U.S. Court concluded no law had ever established tribal courts, but nonetheless, decades of federal funding implied that they were legitimate courts.

Public Law 280, 1953

In 1953, Congress enacted Public Law 280

Public Law 280

Public Law 280 is a federal law of the United States establishing "a method whereby States may assume jurisdiction over reservation Indians," as stated by Arizona Supreme Court Justice Stanley G. Feldman. Public Law 280 is a federal law of the United States establishing "a method whereby States...

, which gave some states extensive jurisdiction over the criminal and civil controversies involving Indians on Indian lands. Many, especially Indians, continue to believe the law unfair because it imposed a system of laws on the tribal nations without their approval.

In 1965 the United States Court of Appeals for the Ninth Circuit

United States Court of Appeals for the Ninth Circuit

The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...

concluded that no law had ever extended provisions of the U.S. Constitution, including the right of habeas corpus

Habeas corpus

is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...

, to tribal members brought before tribal courts. Still, the court concluded, "it is pure fiction to say that the Indian courts functioning in the Fort Belknap Indian community are not in part, at least, arms of the federal government. Originally they were created by federal executive and imposed upon the Indian community, and to this day the federal government still maintains a partial control over them." In the end however, the Ninth Circuit limited its decision to the particular reservation in question and stated, "it does not follow from our decision that the tribal court must comply with every constitutional restriction that is applicable to federal or state courts."

While many modern courts in Indian nations today have established full faith and credit with state courts, the nations still have no direct access to U.S. courts. When an Indian nation files suit against a state in U.S. court, they do so with the approval of the Bureau of Indian Affairs

Bureau of Indian Affairs

The Bureau of Indian Affairs is an agency of the federal government of the United States within the US Department of the Interior. It is responsible for the administration and management of of land held in trust by the United States for Native Americans in the United States, Native American...

. In the modern legal era, courts and congress have, however, further refined the often competing jurisdictions of tribal nations, states and the United States in regard to Indian law.

In the 1978 case 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...

, the Supreme Court, in a 6-2 opinion authored by Justice William Rehnquist

William Rehnquist

William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...

concluded that tribal courts do not have jurisdiction over non-Indians (the Chief Justice of the Supreme Court at that time, Warren Burger, and Justice Thurgood Marshall

Thurgood Marshall

Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...

filed a dissenting opinion). But the case left unanswered some questions, including whether tribal courts could use criminal contempt powers against non-Indians to maintain decorum in the courtroom, or whether tribal courts could subpoena non-Indians.

A 1981 case, Montana v U.S., clarified that tribal nations possess inherent power over their internal affairs, and civil authority over non-members within tribal lands to the extent necessary to protect health, welfare, economic interests or political integrity of the tribal nation.

Other cases of those years precluded states from interfering with tribal nations' sovereignty. Tribal sovereignty is dependent on, and subordinate to, only the federal government, not states, under Washington v. Confederated Tribes of Colville Indian Reservation, (1980). Tribes are sovereign over tribal members and tribal land, under United States v. Mazurie (1975).

In Duro v. Reina

Duro v. Reina

In Duro v. Reina, 495 U.S. 676 , the U.S. Supreme Court concluded that Indian tribes could not prosecute Indians who were members of other tribes for crimes committed by those nonmember Indians on their reservations...

, , the Supreme Court held that a tribal court does not have criminal jurisdiction over a non-member Indian, but that tribes "also possess their traditional and undisputed power to exclude persons who they deem to be undesirable from tribal lands…. Tribal law enforcement authorities have the power if necessary, to eject them. Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain and transport him to the proper authorities." In response to this decision, Congress passed the Duro Fix', which recognizes the power of tribes to exercise criminal jurisdiction within their reservations over all Indians, including non-members. The Duro Fix was upheld by the Supreme Court in U.S. v. Lara [2004].

Tribal governments today

At the dawn of the 21st Century, the powers of tribal courts across the United States varied, depending on whether the tribe was in a Public Law 280 state or not. Tribal courts maintain much criminal jurisdiction over their members, and because of the Duro Fix, over nonmember Indians regarding crime on tribal land. The Indian Civil Rights Act, however, limits tribal punishment to 6 months in jail and a $5,000 fine. Tribal Courts have no criminal jurisdiction over non-Indians. In PL280 states (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin), the state has been granted criminal and civil adjudicatory jurisdiction over activities in Indian Country. In non-PL280 states, Indian on Indian crime in Indian Country may be prosecuted in Federal Court if the crime is one of those listed in the Major Crimes Act

Major Crimes Act

The Major Crimes Act is a law passed by the United States Congress in 1885. It places 7 major crimes under federal jurisdiction if they are committed by a Native American against another Native American in Native territory....

(§1153). Indian on non-Indian crime in Indian Country will be prosecuted in Federal Court, either from the MCA, or the Indian Country Crimes Act (§1152) (unless the Indian was punished by the tribe). Non-Indian on Indian crime in Indian Country will be prosecuted in Federal court using ICCA. Non-Indian on non-Indian crime in Indian Country will be prosecuted by the state.

While tribal nations do not enjoy direct access to U.S. courts to bring cases against states, as sovereigns they do enjoy immunity against many lawsuits, unless a plaintiff is granted a waiver by the tribe or by congressional abrogation. The sovereignty extends to tribal enterprises and tribal casinos or gaming commissions. The Indian Civil Rights Act does not allow actions against an Indian tribe in federal court for deprivation of substantive rights, except for habeas corpus

Habeas corpus

proceedings.

Tribal and pueblo governments today launch far-reaching economic ventures, operate growing law enforcement agencies and adopt codes to govern conduct within their jurisdiction but the United States retains control over the scope of tribal law making. Laws adopted by Native American governments must also pass the Secretarial Review

Secretarial Review

Secretarial Review is a part of the Indian Reorganization Act of 1934 . According to this law, Native American tribes were expected to write constitutions loosely resembling the United States Constitution...

of the Department of Interior through the Bureau of Indian Affairs.

Nation to Nation: Tribes and the Federal Government

When the United States government formed, it replaced the British government as the other sovereignty coexisting in America with the American Indians. The U.S. constitution specifically mentions American Indians three times. Article I, section 2, clause 3 and the fourteenth amendment section 2 address the handling of "Indians not taxed" in the apportionment of the seats of the House of Representatives according to population and in so doing suggest that Indians need not be taxed. In Article I section 8, clause 3, Congress is empowered to “regulate commerce with foreign nations…states…and with the Indian tribes.” Technically, Congress has no more power over Indian nations than it does over states and general congressional laws are not applicable to them. In the 1970s Native American self-determination

Native American self-determination

Native American self-determination refers to the social movements, legislation, and beliefs by which the tribes in the United States exercise self-governance and decision making on issues that affect their own people...

replaced Indian termination policy

Indian termination policy

Indian termination was the policy of the United States from the mid-1940s to the mid-1960s. The belief was that Native Americans would be better off if assimilated as individuals into mainstream American society. To that end, Congress proposed to end the special relationship between tribes and the...

as the official United States policy towards Native Americans. Self-determination

Self-determination

Self-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...

promoted the ability of tribes to self-govern and make decisions concerning their people. It has been argued that American Indian matters should be handled through the United States Secretary of State

United States Secretary of State

The United States Secretary of State is the head of the United States Department of State, concerned with foreign affairs. The Secretary is a member of the Cabinet and the highest-ranking cabinet secretary both in line of succession and order of precedence...

, the official responsible for foreign policy. However, in dealing with Indian policy, a separate department, the Bureau of Indian Affairs

Bureau of Indian Affairs

has been in place since 1824.

At the foundation of the constitutional status of tribes is the idea that tribes have an inherent right to govern themselves—the power is not delegated by congressional acts. Congress can, however, limit tribal sovereignty. Unless a treaty or federal statute removes a power, however, the tribe is assumed to possess it. Current federal policy in the United States

United States

The United States of America is a federal constitutional republic comprising fifty states and a federal district...

recognizes this sovereignty and stresses the government-to-government relations between Washington, D.C.

Washington, D.C.

Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....

and the American Indian tribe

Tribe

A tribe, viewed historically or developmentally, consists of a social group existing before the development of, or outside of, states.Many anthropologists use the term tribal society to refer to societies organized largely on the basis of kinship, especially corporate descent groups .Some theorists...

s. However, most Indian land is held in trust by the United States, and federal law still regulates the political and economic rights of tribal governments. Tribal jurisdiction over persons and things within tribal borders are often at issue. While tribal criminal jurisdiction over Indians is reasonably well settled, Tribes are still striving to achieve criminal jurisdiction over non-Indian persons who commit crimes in Indian Country. This is mostly due to the Supreme Court's ruling in 1978 in Oliphant v. Suquamish Indian Tribe

Oliphant v. Suquamish Indian Tribe

that tribes lack the inherent authority to arrest, try and convict non-Indians who commit crimes on their lands (see below for additional discussion on this point.) The Oliphant decision remains "controversial because it signaled that project of imperialism is alive and well in Indian Country..."

Tribal State Relations: Sovereign within a Sovereign

Another dispute over American Indian government is its sovereignty versus that of the states. The federal U.S. government has always been the government that makes treaties with Indian tribes - not the states. Article 1, Section 8 of the Constitution states that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes”. This determined that Indian tribes were separate from the federal or state governments and that the states did not have power to commerce with the tribes, much less regulate them. The states and tribal nations have clashed over many issues such as Indian gaming, fishing, and hunting. American Indians believed that they had treaties between their ancestors and the United States government, protecting their right to fish, while non-Indians believed the states were responsible for regulating commercial and sports fishing. In the case Menominee Tribe v. United States in 1968, it was ruled that “the establishment of a reservation by treaty, statute or agreement includes an implied right of Indians to hunt and fish on that reservation free of regulation by the state”. States have tried to extend their power over the tribes in many other instances, but federal government ruling has continuously ruled in favor of tribal sovereignty. A seminal court case was Worchester v. Georgia. Chief Justice Marshall found that “England had treated the tribes as sovereign and negotiated treaties of alliance with them. The United States followed suit, thus continuing the practice of recognizing tribal sovereignty. When the United States assumed the role of protector of the tribes, it neither denied nor destroyed their sovereignty.” As determined in the Supreme Court case United States v. Nice (1916), U.S. citizens are subject to all U.S. laws even if also they have tribal citizenship.

List of cases

United States v. Holiday, 70 U.S. 407 (1866) (holding that a Congressional ban on selling liquor to the Indians was Constitutional)
In re Heff, 197 U.S. 488 (1905) (holding that Congress has the power to place the Indians under state law if it chooses, and the ban on selling liquor does not apply to Indians subject to the Allotment acts)
Iron Crow v. Ogallala Sioux Tribe, 129 F. Supp. 15 (1955) (holding that tribes have power to create and change their court system and that power is limited only by Congress, not the courts)
Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F. Supp. 719 (holding that tribal law and not state law governs the custody of children domiciled on reservation land)
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) (holding that Indian Nations have the power to tax Non-Native Americans based on their power as a nation and treaty rights to exclude others; this right can be curtailed only by Congress.)
American Indian Agricultural Credit Consortium, Inc. v. Fredericks, 551 F. Supp. 1020 (1982) (holding that federal, not state courts have jurisdiction over tribal members)
Maynard v. Narrangansett Indian Tribe, 798 F. Supp. 94 (1992) (holding that tribes have sovereign immunity against state tort claims)
Venetie I.R.A. Council v. Alaska, 798 F. Supp. 94 (holding that tribes have power to recognize and legislate adoptions)
Native American Church v. Navajo Tribal Council, 272 F.2d 131 (holding that the First Amendment does not apply to Indian nations unless it is applied by Congress)
Teague v. Bad River Band, 236 Wis. 2d 384 (2000) (holding that tribal courts deserve full faith and credit since they are the court of an independent sovereign; however, in order to end confusion, cases that are filed in state and tribal courts require consultation of both courts before they are decided.)
Inyo County v. Paiute-Shoshone Indians (U.S. 2003) (holding that tribal sovereign power precludes the right to private property and against search and seizure by the state)

External links

Kussel, Wm. F. Jr. Tribal Sovereignty and Jurisdiction (It’s a Matter of Trust)
The Avalon Project: Treaties Between the United States and Native Americans
Cherokee Nation v. the State of Georgia, 1831
Prygoski, Philip J. From Marshall to Marshall: The Supreme Court's Changing Stance on Tribal Sovereignty
From War to Self Determination, the Bureau of Indian Affairs
NiiSka, Clara, Indian Courts, A Brief History, parts I, II, and III
Public Law 280
Religious Freedom with Raptors - details racism and attack on tribal sovereignty regarding eagle feathers
* San Diego Union Tribune, 17 December 2007: Tribal justice not always fair, critics contend (Tort cases tried in tribal courts)

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