Community Property Laws: Tribal Land Exemption

The United States has a unique legal relationship with Native American tribal governments, recognizing them as domestic dependent nations under federal protection. Tribal law is distinct from federal Indian law, which governs the relationship between tribes and federal and state governments. Each tribe has its own laws and governments, with inherent sovereign powers over their members and territories. Tribal laws are developed and applied by tribes to their members and territories, and while they are often structured similarly to the federal three-branch system, they are not published in a consolidated resource. This raises the question of whether community property laws, which vary by state, apply on tribal lands.

Tribal land and state taxation

The United States has a unique and distinctive political and legal relationship with Native American tribal governments. Native American tribes are recognised as domestic dependent nations under US protection and exercise sovereign powers over their members and territory.

Federally recognised tribes are sovereign legal entities and are therefore exempt from state and local taxation. However, this does not extend to individuals, who are generally subject to the same income taxes as other US citizens.

There are, however, some exceptions to this rule. Native Americans do not pay property taxes if they live on a reservation, as these lands are usually held in tax-exempt trusts by the government. Similarly, revenue from lands held in trust is not taxed by the US government.

In addition, Native Americans do not pay taxes on income derived from a specific trust or treaty. The US government holds land in trust for tribes, which can be leased out to corporations. Federal taxes are not levied on income from such arrangements, although interest income, capital gains, and some royalties are subject to federal (and state) taxes.

While states cannot impose taxes on tribes or tribal members on their reservations, they can levy certain taxes on non-tribal members in these areas. For example, states can collect sales tax from transactions to non-tribal members, even when the purchase occurs on tribal land.

Due to the high levels of poverty and unemployment on tribal lands, advocates argue that these sources of tax revenue are inadequate to fund basic tribal government services. As a result, different tribes have different policies, and some indigenous people are exempt from obligations like sales taxes for purchases that occur on reservations.

To address these issues, a coalition of tribes, intertribal organisations, and federal officials have been pushing for a clear articulation of federal Indian tax policy that would eliminate jurisdictional questions and reinstate tribal governments' exclusive taxation authority on reservations.

Tribal sovereignty and state interests

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 U.S. federal government initially recognized American Indian tribes as independent nations, signing treaties with them. However, as the country expanded westward, internal political pressure grew for "Indian removal", and after the Civil War, the U.S. changed its approach, prohibiting any future treaties in the Indian Appropriations Act of 1871.

Today, the U.S. recognizes tribal nations as "domestic dependent nations", with the relationship between federal, state, and tribal governments defined by U.S. law. Tribal sovereignty is a complex and fraught issue, with a long history of U.S. legislation and court decisions limiting Native American sovereignty and rights.

The principal attributes of tribal sovereignty are inherent tribal power (not derived from the federal government) over internal affairs, state inability to interfere in tribal self-government, and Congressional power to limit tribal sovereignty. Tribal governments are sovereign but exist within the U.S. legal system, and so must work with various U.S. agencies.

The U.S. Constitution mentions Native American tribes three times, each time in relation to the apportionment of representatives and taxes, and Congress's ability to "regulate commerce with foreign nations and among the several states, and with the Indian tribes". This established that Indian tribes were separate from federal and state governments, and that states did not have the power to regulate commerce with or interfere with the tribes.

The Supreme Court affirmed the legal and political standing of Indian nations in the Marshall Trilogy of the early nineteenth century. In particular, Worcester v. Georgia (1832) laid out the relationship between tribes and federal and state governments, stating that the federal government was the sole authority to deal with Indian nations.

However, in the Indian Appropriations Act of 1871, Congress ended U.S. recognition of additional Native American tribes or independent nations and prohibited additional treaties. This required the federal government to interact with the tribes through statutes, rather than treaties.

In 1953, Public Law 280 gave certain states extensive jurisdiction over criminal and civil controversies involving Indians on Indian lands. This was seen as unfair by many Native Americans, as it imposed a system of laws on the tribal nations without their approval.

Despite this, federal government rulings have continuously ruled in favor of tribal sovereignty, and federal law still recognizes tribal nations' sovereignty and stresses the government-to-government relations between the U.S. and Federally recognized tribes.

In summary, the relationship between tribal governments and the U.S. government is complex and filled with legal anomalies. Tribal sovereignty is an inherent right of Indigenous peoples to govern themselves, which predates U.S. sovereignty. While tribal governments are sovereign, they exist within the U.S. legal system and must navigate complex relationships with various U.S. agencies. The U.S. Constitution and Supreme Court decisions have affirmed tribal sovereignty, but legislation such as Public Law 280 has given states jurisdiction over certain tribal matters.

Tribal court systems

The United States has a unique and distinctive political and legal relationship with Native American tribal governments, recognising Native American tribes as domestic dependent nations under its protection. The federal government has enacted statutes and regulations that establish and define a trust relationship with Native American tribes, who in turn exercise sovereign powers over their members and territory.

There are approximately 400 Tribal justice systems throughout the United States, which are partially funded through Public Law 638 Tribal Priority Allocations (TPA). The Bureau of Indian Affairs (BIA) provides training, technical support, and funding to Tribal courts, including CFR Courts. The Tribal Justice Support (TJS) Directorate furthers the development and enhancement of Tribal justice systems, including respecting traditional justice systems and supporting coordination between federal, state, and tribal courts.

Tribal courts are established under the Indian Reorganization Act of 1934, which recognised the right of tribes to enact their own laws and establish their own formal courts. Some tribes have developed hybrid or blended judicial systems, incorporating a more formal focus to ensure due process and dispute resolution elements. Formal tribal courts are under tribal control and are directly oriented to the needs of tribal members. Tribes without sufficient funding to set up their own courts have retained CFR courts, which are operated by the BIA. In some cases, a consortium of tribal governments will share a court, joining their resources to ensure that each tribe has access to a court system.

Criminal cases heard in Tribal courts include misdemeanour cases involving Native Americans that occur within Tribal jurisdiction, including lands defined as "Indian country". This includes land within Indian reservation boundaries, dependent Indian communities, and Indian allotments. Felonies involving Native Americans within Indian country that are federal crimes must be heard in a Federal court, while criminal cases involving non-Native Americans in Indian Country are usually brought to state court. Criminal punishments may include labour, imprisonment, and/or the payment of court costs and fines. Tribal courts also hear civil cases, including divorce, guardianship, custody, child support, determination of paternity, name changes, business contracts, personal injury, and probate of non-trust property, among other civil disputes.

Tribal law and federal Indian law

Federal Indian law is a distinct body of law that covers the legal relationships between the federal government and Indian tribes. It is a complex and dynamic area of law that has evolved over several hundred years of federal policies and interactions with tribes. The sources of federal Indian law include international law principles, the United States Constitution, treaties with Indian tribes, federal statutes and regulations, executive orders, and judicial opinions.

One fundamental principle of federal Indian law is inherent sovereignty, which recognises that tribes had self-governing powers before settlers arrived in America, and the United States continues to recognise these retained powers. While tribes are considered "domestic dependent nations", exercising sovereign powers over their people, property, and activities, they are subject to the power and responsibility of the federal government.

The relationship between the federal government and federally recognised tribes is based on government-to-government relations, acknowledging the tribes' inherent sovereignty rather than race. The federal government has a trust responsibility to protect tribes and their way of life, and to provide services such as education, housing, and healthcare. This obligation arises from treaty promises and the fact that American Indians and Alaska Natives had aboriginal claims to all land in America.

The Indian Civil Rights Act of 1968, similar to the U.S. Bill of Rights, applies to all tribes in the United States. It requires tribes to provide due process and prohibits cruel or unusual punishment. The Act was amended in 2010 to expand sentencing options for tribes, allowing for up to 3 years of imprisonment and/or a fine of up to $15,000 per offence.

The Tribal Law and Order Act of 2010 addresses crime in tribal communities, with a focus on reducing violence against American Indian and Alaska Native women. It enhances tribal authority to prosecute and punish criminals, encourages the hiring of more law enforcement officers, and provides additional tools for addressing public safety needs.

The complexity of federal Indian law is further illustrated by the concept of "tribal sovereignty", which recognises the inherent authority of Indigenous tribes to govern themselves within the borders of the United States. While the U.S. Constitution mentions Native American tribes, it does not grant them direct access to U.S. courts. The Supreme Court has ruled on the extent of tribal sovereignty, such as in the case of Oliphant v. Suquamish Indian Tribe, which determined that tribes lack criminal jurisdiction over non-Natives who commit crimes on their lands.

Tribal constitutions

The United States has a unique and distinctive political-legal relationship with Native American tribal governments as set forth in the constitution, treaties, statutes, executive orders, and court decisions. Native American tribes are recognised as domestic dependent nations under the protection of the United States and exercise inherent sovereign powers over their members and territory.

The Memory Hole 2 published the Constitutions of 440 Native American Tribes, including 612 tribal constitution documents obtained through a Freedom of Information Act request. Most of these documents are historical in nature. The Indigenous Governance Database, developed by the University of Arizona, is another online resource that contains articles, case studies, videos, and other resources focused on governance, sovereignty, leadership, and sustainable economic and community development.

The process of drafting a constitution is a collective journey of self-discovery and reflection for any nation, including Indigenous nations. It involves new governing opportunities, changes in intergovernmental relations, heightened awareness of the importance of culturally legitimate governing institutions, and reforms in international law. Nation-building toolboxes are online, mixed-media learning tools that can assist Indigenous leaders and decision-makers in implementing and sustaining best practices in community self-governance.

The following tribal nations post their constitutions on their websites, providing transparency and accessibility to their governing documents:

• Poarch Band of Creek Indians Constitution – Muni Code
• Central Council of Tlingit and Haida Indian Tribes of Alaska Constitution
• Chilkat Indian Village Constitution
• Kenaitze Indian Tribe Constitution
• Sitka Tribe of Alaska Constitution
• Colorado River Indian Tribes of the Colorado River Indian Reservation Constitution and Bylaws
• Fort McDowell Yavapai Nation Constitution
• Hopi Tribe Constitution and Bylaws
• Hualapai Constitution
• Kaibab Paiute Tribe Constitution
• Pascua Yaqui Tribe Constitution
• Quechan Tribe of the Fort Yuma Reservation Constitution and Bylaws
• Salt River Pima-Maricopa Indian Community Constitution
• Tohono O’odham Nation Constitution
• White Mountain Apache Tribe of the Fort Apache Indian Reservation Constitution
• Yavapai-Apache Nation Constitution
• Blue Lake Rancheria Constitution
• Coyote Valley Band of Pomo Indians Constitution
• Federated Indians of Graton Rancheria Constitution
• Greenville Rancheria Constitution
• Habematolel Pomo of Upper Lake Constitution
• Hoopa Valley Tribe of the Hoopa Valley Indian Reservation Constitution and Bylaws
• Hopland Band of Pomo Indians Constitution
• Karuk Tribe Constitution
• Kashia Band of Pomo Indians of the Stewart Point Rancheria Constitution
• Paskenta Band of Nomlaki Indians Constitution
• Pit River Tribe Constitution
• Quechan Tribe of the Fort Yuma Reservation Constitution and Bylaws
• Resighini Rancheria Constitution
• Round Valley Indian Tribes Constitution
• Susanville Indian Rancheria Constitution
• Timbisha Shoshone Tribe (Death Valley) Constitution
• Tolowa Dee-Ni’ Nation (Smith River Rancheria) Constitution
• Tule River Indian Tribe Constitution and Bylaws
• Washoe Tribe Constitution and Bylaws
• Yurok Tribe Constitution
• Mashantucket (Western) Pequot Tribal Nation Constitution and Bylaws
• Mohegan Tribe of Indians of Connecticut Constitution – Muni Code
• Shoshone-Bannock Tribes Constitution and Bylaws

Frequently asked questions