Kara Sears
Federal Indian reservations are generally exempt from state jurisdiction, including taxation, except when Congress specifically authorizes such jurisdiction. The U.S. Constitution recognizes that tribal nations are sovereign governments, and while tribal sovereignty is limited today by the United States under treaties, acts of Congress, and court decisions, federally recognized tribes maintain their right to make decisions regarding their property and citizens. This includes the right to form their own governments, make and enforce laws, and establish tribal citizenship. With regards to age of consent laws, the Ute Indian Tribe of the Uintah and Ouray Reservation, for example, requires that individuals over 14 years of age but under 18 years of age have the written consent of their parent or guardian to marry. Thus, the topic of whether Indian reservations have their own age of consent laws is complex and varies across different tribal nations.
| Characteristics | Values |
|---|---|
| Tribal sovereignty | Limited by the United States under treaties, acts of Congress, Executive Orders, federal administrative agreements, and court decisions |
| Tribal sovereignty ensures | Any decisions about the tribes regarding their property and citizens are made with their participation and consent |
| Types of reserved federal lands | Military, public, and Indian |
| Federal Indian reservation | An area of land reserved for a tribe or tribes under treaty or other agreements with the United States |
| Executive order, federal statute, or administrative action as permanent tribal homelands | |
| The federal government holds title to the land in trust on behalf of the tribe | |
| Reservations | Remnants of a tribe's original land base |
| Created by the federal government for the resettling of Indian people forcibly relocated from their homelands | |
| Not every federally recognized tribe has a reservation | |
| Federal Indian reservations | Generally exempt from state jurisdiction, including taxation, except when Congress specifically authorizes such jurisdiction |
| States required by Public Law 280 to assume civil and criminal jurisdiction over federal Indian lands | Alaska (except the Metlakatla Indian Community on the Annette Island Reserve, which maintains criminal jurisdiction), California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), and Wisconsin |
| States that elected to assume full or partial jurisdiction | Arizona (1967), Florida (1961), Idaho (1963, subject to tribal consent), Iowa (1967), Montana (1963), Nevada (1955), North Dakota (1963, subject to tribal consent), South Dakota (1957-1961), Utah (1971), and Washington (1957-1963) |
| Ute Indian Tribe of the Uintah and Ouray Reservation | Persons over 14 years of age but less than 18 years of age must have written consent from a parent or guardian to marry |
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What You'll Learn
The legal status of Indian reservations
The relationship between tribal and federal law is intricate. Tribal sovereignty is limited by treaties, acts of Congress, Executive Orders, federal administrative agreements, and court decisions. Tribal members must adhere to federal law, and federal jurisdiction applies to major crimes, issues involving interstate commerce, and any legal matter involving the United States as a party. Tribal jurisdiction, while not absolute, is determined by a complex web of legal precedents and legislation, with tribal law taking precedence over state law in many cases. Tribal courts play a significant role in adjudicating disputes among tribal members and between tribal members and non-members.
The history of land allocation and the establishment of reservations has been fraught with injustice and fragmentation. The Dawes Act of 1887, or the General Allotment Act, authorised the breaking up of reservation land into small allotments for individuals, resulting in the diminishment of tribal territories. Historical land allocations facilitated sales to non-Native Americans, leading to the severe fragmentation of some reservations.
Despite these challenges, federally recognised tribes possess inherent powers of self-government and are entitled to certain federal benefits and protections due to the special trust relationship between the United States and the tribes. Tribal members have the same rights as all citizens, including the right to hold public office, and they participate in state, local, and tribal elections.
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Criminal jurisdiction over federal Indian lands
Federal Indian reservations are generally exempt from state jurisdiction, including taxation, unless Congress specifically authorises it. The Constitution vested the Legislative Branch with plenary power over Indian Affairs, so states have no authority over tribal governments unless expressly authorised by Congress.
Federally recognised tribes have the right and authority to regulate activities on their lands independently from state governments. They can enact and enforce laws and regulations that are stricter or more lenient than those of the surrounding state(s). Tribes possess all powers of self-government except those relinquished under treaty with the United States, those expressly extinguished by Congress, and those 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 tribal citizenship, license and regulate activities within their jurisdiction, zone, and exclude persons from tribal lands.
In 1953, Congress enacted Public Law 83-280 (67 Stat. 588) to grant certain states criminal jurisdiction over American Indians on reservations. The states required to assume civil and criminal jurisdiction over federal Indian lands were Alaska (except the Metlakatla Indian Community on the Annette Island Reserve, which maintains criminal jurisdiction), California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), and Wisconsin. In these states, the federal government gave up all special criminal jurisdiction over Indian offenders and victims.
The FBI works with Tribal police and other law enforcement agencies to investigate and enforce laws related to major crimes, such as homicides, kidnappings, and drug trafficking, that occur within its jurisdiction on Tribal lands. The FBI's jurisdiction primarily comes from two federal laws: the General Crimes Act and the Major Crimes Act. Tribal law enforcement handles matters related to tribal codes and regulations.
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Tribal sovereignty
The US Constitution recognises that tribes possess all powers of self-government except those relinquished under treaty with the United States, 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 and make and enforce their own laws, both civil and criminal. They can also tax, establish and determine membership (tribal citizenship), and license and regulate activities within their jurisdiction.
The Indian Self-Determination and Education Assistance Act of 1975 expanded tribal control over reservation programs and authorised federal funds to build public school facilities on or near Indian reservations. The Indian Child Welfare Act of 1978 gave tribal courts jurisdiction over children living on reservations.
While tribal sovereignty is limited today by the United States under treaties, acts of Congress, Executive Orders, federal administrative agreements, and court decisions, what remains is nevertheless protected and maintained by federally recognised tribes against further encroachment by other sovereigns, such as states.
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Adoption and marriage laws
The laws regarding marriage and adoption on Indian reservations vary from tribe to tribe. While tribal sovereignty is limited by the United States government, tribes are still able to make decisions regarding their citizens and property with their participation and consent.
Marriage Laws
Marriage laws on Indian reservations differ across tribes. For example, the Citizen Potawatomi Nation bans same-sex marriage, requiring that "marriage [...] consist only of the union of one man and one woman". The tribe also does not recognize marriages performed under the jurisdiction of another tribe or in the rest of the United States. Meanwhile, the Domestic Code of the Hoopa Valley Tribe states that "two consenting persons over the age of 18 may marry if they have lived within reservation boundaries for 90 days". The Tribal Code of the Nisqually Indian Tribe provides that the marriage ceremony chosen by the persons who are marrying may be conducted in any reasonable manner, provided they verbally agree to be husband and wife.
Some tribes have also established laws regarding the process of obtaining a marriage certificate and license. For instance, the Ute Indian Tribe of the Uintah and Ouray Reservation states that parties to marriages performed on the Reservation prior to the effective date of this Code may obtain a marriage certificate upon proof to the Clerk by affidavit or otherwise of the validity of their marriage, and payment of a $2.00 fee. The Ute Indian Tribe also requires that persons wishing to marry meet certain qualifications, including being at least 14 years old and, if over 14 but less than 18, having the written consent of their parent or guardian to marry.
Adoption Laws
Adoption laws on Indian reservations are largely governed by the Indian Child Welfare Act (ICWA), a federal law passed in 1978. ICWA applies to any child who is a member of a federally recognized Indian tribe or is eligible for membership. The Act prioritizes the placement of Native American children with Native American families and emphasizes the preservation of the child's Native American culture and heritage. ICWA also includes strict requirements for notifying and obtaining consent from the child's parents and tribe.
In addition to ICWA, individual tribes may have their own adoption laws and procedures. For example, the Ute Indian Tribe of the Uintah and Ouray Reservation outlines specific requirements for persons wishing to adopt a child through the Ute Indian Tribal Juvenile Court, including providing the full names, addresses, and ages of the adopting parents, as well as proof of parental or guardian consent to the adoption.
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Tribal control over reservation programs
While tribal sovereignty is limited by the United States under treaties, acts of Congress, Executive Orders, federal administrative agreements, and court decisions, federally recognized tribes possess limited tribal sovereignty and are able to exercise the right of self-governance. This includes the ability to pass laws, regulate power and energy, create treaties, and hold tribal court hearings.
Tribal sovereignty ensures that any decisions about the tribes concerning their property and citizens are made with their participation and consent. Federally recognized Native American tribes can enact and enforce stricter or more lenient laws and regulations than those of the surrounding or neighboring states wherein they are located. The tribal council, not the local government or the United States federal government, often has jurisdiction over reservations.
Tribes generally have authority over other forms of economic development, such as ranching, agriculture, tourism, and casinos. They hire both members and non-members in varying capacities, and they may run tribal stores, gas stations, and museums. For example, there is a gas station and general store at Fort Hall Indian Reservation in Idaho, and a museum at Foxwoods, on the Mashantucket Pequot Indian Reservation in Connecticut.
Tribal courts are responsible for appointing guardians, determining competency, awarding child support from Individual Indian Money (IIM) accounts, determining paternity, sanctioning adoptions, marriages, and divorces, making presumptions of death, and adjudicating claims involving trust assets.
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Frequently asked questions
Indian reservations are exempt from state jurisdiction, including taxation, except when Congress authorizes such jurisdiction. However, tribal sovereignty is limited by the United States under treaties, acts of Congress, Executive Orders, federal administrative agreements, and court decisions. While tribes possess the right to make and enforce their own civil and criminal laws, it is unclear if this includes age of consent laws.
Tribal sovereignty refers to the right of tribes to govern themselves and make decisions about their property and citizens with their participation and consent.
Federal Indian reservations are areas of land reserved for tribes under treaties or other agreements with the United States. The federal government holds the title to the land in trust on behalf of the tribe.
No, not every federally recognized tribe has a reservation. Some reservations are remnants of a tribe's original land base, while others were created by the federal government for the resettling of Indian people forcibly relocated from their homelands.
The Indian Child Welfare Act of 1978 established US policy to promote the stability and security of Indian tribes and families by giving tribal courts jurisdiction over children living on reservations.
