Kara Sears
Native Americans, also known as American Indians or Indians, are the indigenous people who inhabited the territory now known as the United States before colonisation. Today, their descendants make up many distinct tribes or nations, many of which are officially recognised by the federal government and have been granted specific economic, political, social, and cultural rights. Native Americans are citizens of their respective Native nations and of the United States, and those nations are characterised under United States law as domestic dependent nations. Federal law recognises a special kind of Indian sovereign authority to govern themselves, subject to an overriding federal authority. Native Americans have faced issues regarding civil rights, such as sovereignty, hunting and fishing rights, and voting rights. Native American law is an expansive subject shaped by the United States Constitution, treaties, federal and state statutes, court decisions, and laws created by tribal governments.
| Characteristics | Values |
|---|---|
| Relationship with federal and state governments | Tribal governments are considered "domestic, dependent nations" with a special kind of sovereign authority to govern themselves, subject to overriding federal authority. |
| Recognition | Many Native American tribes have received official recognition from the US federal or state governments and have been granted specific rights. |
| Land ownership | Native American Nations have the right to control the use of their land, but there are restrictions on this right, and it is a major issue. |
| Civil rights | Native Americans have the right to vote, freedom of religion and speech, protection from double jeopardy, and the right to a jury trial for offences punishable by imprisonment. |
| Tribal membership | Tribal governments can decide who is a member of the tribe and exclude non-members from their lands. |
| Tribal courts | Tribal courts have civil and criminal jurisdiction over Native Americans and non-Native Americans living or doing business on reservations. |
| Child custody | Tribal jurisdiction over decisions for Native American children in state child custody proceedings is recognised. |
| Self-governance | Native American tribes are encouraged to create tribal governments styled after the federal three-branch system and tribal constitutions. |
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What You'll Learn
Tribal sovereignty and US citizenship rights
Tribal sovereignty in the United States refers to the inherent authority of tribal nations to self-govern, including the right to establish their own form of government, determine citizenship, preserve cultural identity, and make and enforce laws. There are currently 574 federally recognized tribal nations in the US, each of which is acknowledged by the federal government as a sovereign government.
The foundation of federal Indian law and the federal-tribal relationship is formed by treaties, the US Constitution, and Supreme Court decisions. Treaties established the earliest pattern of legal and political interaction between the federal government and Indian tribes, with the first treaty signed in 1600 by European settlers and the first treaty signed by the US government in 1778.
Federal law recognizes a special kind of Indian sovereign authority to govern themselves, subject to an overriding federal authority. Indian tribes are considered "domestic, dependent nations" by federal law, and Congress enacted this sovereign authority to protect Indian groups from state authority. This sovereignty includes the right to form 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 limited by the US government under treaties, acts of Congress, Executive Orders, federal administrative agreements, and court decisions, federally recognized tribes work to protect and maintain what sovereignty remains. The Indian Civil Rights Act of 1968 limited tribal punishment to one year in jail and a $5,000 fine, but this was expanded by the Tribal Law and Order Act of 2010. Tribal nations are sovereign and enjoy immunity from many lawsuits, but they do not have direct access to US courts to bring cases against individual states.
In terms of US citizenship rights, Native Americans and Alaska Natives are citizens of the US and the individual states and localities in which they reside. They were granted US citizenship in 1924 with the Indian Citizenship Act, and they have the right to vote just as all other US citizens do. Native Americans can also become citizens of their tribes or villages as enrolled tribal members.
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Land ownership and control
Native American land ownership involves a complex patchwork of titles, restrictions, obligations, statutes, and regulations. There are two major types of Native American land: Trust land and restricted-fee land. Trust land is land held in trust by the federal government, with the beneficial interest remaining with the individual or tribe. Natural resources on trust land are held in trust for the Native American tribe or individual who benefits from the land. On the other hand, natural resources on restricted-fee land are directly owned by the tribe.
The concept of land held in trust for Native Americans by the federal government originated from Supreme Court decisions in the early 19th century, specifically the 1830s. Justice John Marshall established several important principles of Native American law, including the federal Native American trust responsibility, where the government charged itself with "moral obligations of the highest responsibility and trust" toward Native American tribes. This trust relationship means that the federal government has a "duty to protect" the tribes, and the necessary legislative and executive authorities to effect that duty.
The laws and regulations governing Native American land and the federal government's relationship to it are grounded in this trust responsibility. While tribal governments have the right to make and enforce laws, both civil and criminal, tax, establish and determine membership, license and regulate activities within their jurisdiction, zone, and exclude persons from tribal lands, they require federal approval to develop their natural resources.
Over time, restrictions on tribal authority over natural resources have loosened. The Indian Reorganization Act of 1934 directed the Secretary of the Interior to restore any remaining non-allotted lands to tribes and signaled support for tribal self-government. The Indian Mineral Leasing Act of 1938 (IMLA) increased tribal control over extraction on their land, requiring leases for extraction to be subject to tribal consent. The Indian Mineral Development Act of 1982 (IMDA) further increased Native American self-governance, allowing tribes and individuals to negotiate their own "mineral development agreements" (MDAs) with companies in the extractive industries.
Additionally, the Tribal Energy Development and Self-Determination Act of 2005 allows Native American tribes to create tribal energy resource agreements with the Secretary of the Interior, enabling them to set up agreements and leases for energy resource development without the Secretary's approval.
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Tribal courts and jurisdiction
Federal law recognises a special kind of Indian sovereign authority for Native Americans to govern themselves, subject to an overriding federal authority. Native American tribes are considered by federal law to be "domestic, dependent nations". This sovereign authority extends to tribal courts, which deal with matters relating to Native American affairs.
There are approximately 400 Tribal justice systems throughout the US. These courts are partially funded through Public Law 638 Tribal Priority Allocations (TPA). Tribal sovereignty is protected throughout the Tribal justice system. Tribal Priority Allocations funding is important because it supports Tribal self-determination contracts. Many tribes, especially those without significant sources of Tribal revenue, depend on TPA funding for the operation of Tribal government functions.
Tribal courts have civil jurisdiction over Native Americans and non-Native Americans who either reside or do business on federal Native American reservations. They also have criminal jurisdiction over violations of tribal laws committed by tribal members residing or doing business on the reservation. Under 25 C.F.R. Part 115, tribal courts are responsible for appointing guardians, determining competency, awarding child support, determining paternity, sanctioning adoptions, marriages, and divorces, making presumptions of death, and adjudicating claims involving trust assets.
The Indian Child Welfare Act (ICWA) gives tribal courts exclusive jurisdiction over child custody proceedings for Indian children domiciled in Indian country in states not governed by Public Law 280. In Public Law 280 states, tribal courts have concurrent jurisdiction with state courts, except where state law vests the tribal courts with exclusive jurisdiction. ICWA also gives the Indian child's tribe the right to intervene in a child custody proceeding.
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Tribal recognition and government contracts
Federal law recognizes a special kind of Indian sovereign authority to govern themselves, subject to an overriding federal authority. Indian tribes are considered by federal law to be "domestic, dependent nations". Congress enacted this sovereign authority to protect Indian groups from state authority. Treaties, the U.S. Constitution, and Supreme Court decisions form the foundation of federal Indian law and shape the federal-tribal relationship. From the early 1800s to the present day, federal policies have shifted several times, affecting Native Americans and the federal-tribal relationship. Treaties established the earliest pattern of legal and political interaction between the federal government and Indian tribes.
The Indian Reorganization Act (IRA) was a turning point in United States-tribal relations, focusing on Indian self-government. The statute's provisions involve tribal lands, such as sections indefinitely extending the trust status of American Indian lands, with the federal government serving as trustee. The statute also encourages Indian tribes to create tribal governments styled after the federal three-branch system, with tribal constitutions subject to the Secretary of the Interior's approval.
The 1975 Indian Self-Determination and Education Assistance Act (ISDEAA) gives Indian tribes the authority to contract with the federal government to operate programs serving their tribal members and other eligible persons. The Native 8(a) program demonstrates Congress's commitment to promoting tribal self-determination and self-sufficiency. This business development program reflects the unique character of Native communities and their responsibility to provide governmental services and other benefits to their members. It also offers a critical tool to prepare the next generation of Native leaders to lead economic enterprises that benefit all Americans.
To promote economic development for American Indian tribes and Alaska Native Regional and Village Corporations (ANCs), Congress authorized their participation in the Small Business Act's Section 8(a) Business Development program. When certified as an eligible 8(a) participant, American Indian tribes and ANC start-up businesses may contract with the federal government under terms that permit a federal agency to award a contract not subject to the competitive threshold that applies to individually owned 8(a) companies.
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Native American symbols and cultural property
Native Americans have a rich cultural history, with symbols and cultural property that hold significant meaning and value. Native American symbols and cultural expressions are considered intellectual property, encompassing traditional knowledge, cultural expressions, and genetic resources.
Native American symbols are an integral part of their culture and history. Each animal, spirit, and supernatural being depicted in their art and jewellery represents different stories, traits, personalities, and values. For example, the Zuni tribe associates the sun with warmth, life, growth, and good fortune, and it plays a critical role in their culture and spirituality. Similarly, the cactus flower symbolises a mother's protective qualities due to its medicinal properties and healing powers. Corn, another important symbol, is a significant food crop and plays a ceremonial role, with sacred corn pollen or cornmeal used as ritual adornment and spiritual offerings.
Native Americans have distinctive cultures and symbols that are recognised and protected by federal law. Federal law acknowledges the sovereignty of Native American tribes to govern themselves, and this extends to tribal courts, which handle matters relating to Native American affairs. Treaties, the US Constitution, and Supreme Court decisions form the basis of federal Native American law and shape the federal-tribal relationship.
Despite legal protections, safeguarding Native American cultures and symbols from misuse and cultural appropriation is challenging. Acts like the Indian Arts and Crafts Act (IACA) and the Native American Graves Protection and Repatriation Act (NAGPRA) aim to prevent fraud and protect cultural property, but they may not provide sufficient protection for intangible cultural heritage. Native American intellectual property, including traditional knowledge and cultural expressions, is extremely important to their way of life, and misuse can negatively impact their communities. Therefore, it is crucial to obtain authorisation from Native American communities before using their cultural property and symbols.
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Frequently asked questions
Yes, Native Americans can make their own laws. Native Americans, also called American Indians or Indians, are the indigenous peoples who inhabited the territory now encompassed by the United States before the arrival of European settlers. Native Americans are citizens of their respective Native nations as well as of the United States. Federal law recognizes a special kind of Indian sovereign authority to govern themselves, subject to an overriding federal authority.
The relationship between tribal governments and federal and state governments is complex and shaped by treaties, the U.S. Constitution, Supreme Court decisions, federal and state statutes, court decisions, administrative regulations, and laws created, enforced, and adjudicated by sovereign tribal governments. Treaties established the earliest pattern of legal and political interaction between the federal government and Indian tribes.
Tribal laws cover a range of topics, including tribal membership, land ownership, hunting and fishing rights, and cultural practices. For example, tribal governments can decide who is a member of the tribe and exclude certain non-members from entering their lands. Tribal laws also govern matters related to divorce, family law, guardianships, and trusts.
