Cameron Miranda
Indian reservations in the United States are areas of land held and governed by Native American tribal nations recognised by the federal government. While Native Americans are generally subject to federal, state and local laws, on federal Indian reservations, only federal and tribal laws apply to members of the tribe, unless Congress provides otherwise. Tribal sovereignty is dependent on and subordinate to the federal government, not states, and tribes possess the right to form their own governments, make and enforce laws, tax, establish tribal citizenship, license and regulate activities within their jurisdiction, zone, and exclude persons from tribal lands.
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What You'll Learn
Tribal sovereignty
Despite recognition of tribal sovereignty, there have been instances where state interference with tribal nations' sovereignty has occurred. For example, in Maine, the Wabanaki Nations are treated more like municipalities than sovereign nations due to the 1980 Maine Indian Claims Settlement Act. However, tribal leaders have advocated for full tribal sovereignty, and some political candidates have pledged to introduce legislation to grant it if elected.
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Federal law and tribal sovereignty
Tribal sovereignty in the United States is the concept of the inherent authority of Indigenous tribes to govern themselves within the country's borders. The US federal government has recognized American Indian tribes as independent nations and entered into policy agreements with them via treaties. As such, tribal sovereignty includes the right to govern one's community, the ability to preserve one's culture, and the right to control one's economy.
The idea that tribes have an inherent right to govern themselves is at the foundation of their constitutional status. This power is not delegated by congressional acts, and Congress can only limit tribal sovereignty if authorized by a treaty or federal statute. Current federal policy in the United States recognizes this sovereignty and emphasizes the government-to-government relations between the US and federally recognized tribes.
Tribes possess all powers of self-government except those relinquished under a treaty with the US, those expressly extinguished by Congress, and those that federal courts have ruled are subject to existing federal law or inconsistent with overriding national policies. Tribes have the right to form their own governments, make and enforce laws, tax, establish and determine membership, license and regulate activities within their jurisdiction, zone, and exclude persons from tribal lands.
While tribal sovereignty is subordinate only to the federal government and not to states, Congress has broad power over Indian tribes. Congress can limit tribal powers, enhance them by delegating new powers, or even terminate tribal status. The power Congress has over tribes is not unlimited, as the US Supreme Court has the right to review Congressional action over tribes. The federal government has an obligation to protect tribes, defend their rights to self-government, and provide services necessary for their survival and welfare.
Federal Indian law can sometimes be contradictory, as federal policy swings back and forth between supporting and opposing tribal sovereignty. There is a wide variety of tribal sovereign powers throughout the country, and federal Indian law can be tribal-specific. For example, Alaska tribes are unique because their land settlement went to corporations rather than being set aside in reservations, significantly impacting their tribal jurisdiction.
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Tribal law enforcement
Tribes have the authority to exercise criminal jurisdiction over tribal members and to arrest and detain non-Indians for handover to state or federal authorities. This authority is generally limited to the reservation, and tribal police often play a critical role in resolving criminal cases referred to state and federal agencies due to their familiarity with the community and the circumstances involved.
The largest tribal police agency is the Navajo Nation Police Department, followed by the Salt River Pima Police Department. The history of tribal police dates back to the early 1800s, when the Cherokee Nation established "regulating companies" to combat horse theft and other crimes. The first federally sponsored Indian police force, the Indian Agency Police, was tasked with enforcing federal laws and maintaining law and order on Indian agency land.
The Tribal Law and Order Act of 2010 has been instrumental in strengthening tribal law enforcement. It requires the Bureau of Indian Affairs (BIA) to submit annual reports to Congress on public safety and justice programs, staffing needs, and support provided to tribal law enforcement agencies. The Act also enhances tribal authority to prosecute and punish criminals, expands recruitment and training efforts, and provides greater access to criminal information-sharing databases.
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Tribal citizenship
Tribal Nations have the sovereign right to determine their citizenship with the approval of the Secretary of the Department of the Interior. While Tribal Nations today determine citizenship by either lineal descendancy or blood quantum, the federal government has historically used racialized definitions of "Indian-ness" to influence eligibility for federal benefits and jurisdiction under federal and tribal law. During the reservation period (1871-1887), the Bureau of Indian Affairs enforced assimilation policies to erase the identities of American Indians.
American Indians and Alaska Natives are generally subject to federal, state, and local laws as US citizens. However, on federal Indian reservations, only federal and tribal laws apply to members of the tribe, unless Congress provides otherwise. Tribal Nations possess the right to form their own governments, make and enforce laws, tax, establish and determine membership, license and regulate activities within their jurisdiction, zone, and exclude persons from tribal lands.
Tribal enrollment is the process of becoming a member of a tribe, and the criteria vary from tribe to tribe. Two common requirements for membership are lineal descendancy from someone named on the tribe's base roll or a relationship to a tribal member who descended from someone on the base roll. Other conditions, such as tribal blood quantum, tribal residency, or continued contact with the tribe, are also common. The Tribal Leaders Directory, published by the Bureau of Indian Affairs, lists all 574 federally recognized American Indian Tribes and Alaska Natives.
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Tribal court systems
Tribal courts are designed to provide a legal framework for tribes to govern themselves and resolve disputes without interference from federal or state governments. They are an important tool for preserving tribal sovereignty and self-determination, as well as maintaining legal traditions. However, tribal courts are limited in their jurisdiction and funding.
There are approximately 400 tribal justice systems across the United States, with partial funding provided through Public Law 638 Tribal Priority Allocations (TPA). The Bureau of Indian Affairs (BIA) does not manage these systems but provides training, technical support, and funding to all Tribal courts, including CFR Courts. The Tribal Justice Support (TJS) Directorate furthers the development and enhancement of these courts.
Tribes with insufficient funding to establish their own courts can opt for CFR Courts, which are operated by the BIA. These courts handle misdemeanor cases involving Native Americans within Tribal jurisdiction, including lands defined as "Indian country", dependent Indian communities, and Indian allotments. Felonies involving Native Americans within Indian country that are federal crimes are heard in Federal court.
The Tribal Law and Order Act of 2010 was enacted to address crime and violence in Native American communities, aiming to increase the authority of tribal courts and law enforcement agencies. It also provides funding to address issues such as domestic violence and child abuse.
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Frequently asked questions
Yes, US federal laws are applicable on Indian reservations. However, tribal nations are sovereign over tribal members and tribal lands, and tribal laws apply to members of the tribe unless Congress provides otherwise.
State laws do not apply on Indian reservations. However, states may regulate the activities of tribe members on tribal land under certain circumstances, such as in the context of a state's police powers.
Yes, as US citizens, American Indians and Alaska Natives are generally subject to federal, state, and local laws.
