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Tribal sovereignty map of the United States, with non-reservation land highlighted.

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 US federal government recognizes tribal nations as "domestic dependent nations" and has established a number of laws attempting to clarify the relationship between the United States federal and state governments and the tribal nations. The Constitution and later federal laws grant to tribal nations more sovereignty than is granted to states or other local jurisdictions, yet do not grant full sovereignty equivalent to foreign nations, hence the term "domestic dependent nations".

Contents

Native American Sovereignty and the Constitution

The United States Constitution 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.[1]
  • 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” [2], determining that Indian tribes were separate from both the federal and state governments, and
  • The Fourteenth Amendment, Section 2 amends the apportionment of representatives in Article I, Section 2 above.[3]

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. [4]. States maintain a singular sovereignty which the tribes themselves do not maintain as 'Domestic Dependent Nations'.

Early history

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.

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

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. 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, 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. 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, 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 concluded that no law had ever extended provisions of the U.S. Constitution, including the right of habeas corpus, 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. 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, the Supreme Court, in a 6-2 opinion authored by Justice William Rehnquist 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 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, 495 U.S. 676 (1990), 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 one year 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 (§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 (Santa Clara Pueblo v. Martinez, 1978), unless a plaintiff is granted a waiver by the tribe or by congressional abrogation (Oklahoma Tax Comm'n v. Citizen Band of Potawatomi Tribe of Okla., 1991). The sovereignty extends to tribal enterprises (Local IV-302 Int'l Woodworkers Union of Am. v. Menominee Tribal Enterprises 1984), and tribal casinos or gaming commissions (Barker v. Menominee Nation Casino, 1995). 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 proceedings (Santa Clara Pueblo v. Martinez, 1978).

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

Tribes vs. Federal Government

When the United States government formed, it replaced the British government as the other sovereignty coexisting in America with the American Indians [5]. The U.S. constitution specifically mentions American Indians three times. Article I, section 2, clause 3 and the fourteenth amendment section 2 states that Indians are not to 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 1970’s Native American self-determination replaced Indian termination policy as the official United States policy towards Native Americans.[6] Self-determination 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, the official responsible for foreign policy. However, in dealing with Indian policy, a separate department, the 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.[7] Current federal policy in the United States recognizes this sovereignty and stresses the government-to-government relations between Washington, D.C. and the American Indian tribes.[8] However, most Indian land is held in trust by the United States,[9] 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 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..."[10]

Tribes vs. States

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” [11]. 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 [12]. In the case Menominee Tribe v. United States in 1968, it was ruled that “the establishment of a reservation by treaty, statue or agreement includes an implied right of Indians to hunt and fish on that reservation free of regulation by the state” [13]. 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 major determining 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.” [14]. However, it is important to also note that individuals with U.S. citizenship are subject to all U.S. laws even if they have tribal membership as well, as determined in the Supreme Court case United States v. Nice (1916) [15].

Notes

  1. ^ http://en.wikisource.org/wiki/Constitution_of_the_United_States_of_America#Article_I
  2. ^ American Indian Policy Center. 2005. St. Paul, MN. 4 Oct. 2008 <http://www.airpi.org/index.html>.
  3. ^ http://en.wikisource.org/wiki/Additional_amendments_to_the_United_States_Constitution
  4. ^ Black’s Law Dictionary, regulate meant that Congress should in principle assist with Commerce disputes between the States, but did not grant Congress the power of law to inflict criminal penalties, Article 2 of the Kentucky Resolutions of 1798 by Thomas Jefferson
  5. ^ Green, Michael D. and Perdue, Theda. The Cherokee Nation and the Trail of Tears. p87. Viking, 2007.
  6. ^ Wilkinson, Charles. Blood Struggle: The Rise of Modern Indian Nations. p 189. New York: W.W. Norton & Company, 2005.
  7. ^ Light, Steven Andrew, and Kathyryn R.L. Rand. Indian Gaming and Tribal Sovereignty: The Casino Compromise. University Press of Kansas, 2005. (19)
  8. ^ White House Press Release: "Memorandum for the Heads of Executive Departments and Agencies"
  9. ^ Some tribal lands, most commonly in Oklahoma, are held by the tribe according to the original patent deed and thus are not trust property.
  10. ^ Duthu, N. Bruce (2008). American Indians and the Law. New York: Penguin Group. p. 21. ISBN 978-0-670-01857-4. 
  11. ^ American Indian Policy Center. 2005. St. Paul, MN. 4 Oct. 2008 <http://www.airpi.org/index.html>.
  12. ^ Wilkinson, Charles. Blood Struggle: The Rise of Modern Indian Nations. p151. New York: W.W. Norton & Company, 2005.
  13. ^ Canby Jr., William C. American Indian Law. p449. St. Paul, MN: West Group 1998.
  14. ^ Green, Michael D. and Perdue, Theda. The Cherokee Nation and the Trail of Tears. Viking, 2007.
  15. ^ Lemont, Eric D. American Indian Constitutional Reform and the Rebuilding of Native Nations. University of Texas Press, 2006.

See also

References

  • Davies, Wade and Clow, Richmond L., American Indian Sovereignty and Law: An Annotated Bibliography (Lanham,MD: Scarecrow Press, 2009).
  • Macklem, Patrick, Distributing Sovereignty: Indian Nations and Equality of Peoples. 45 Stan. L. Rev. 1311 (1993)

External links








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