Kara Sears
Indian tribes are considered by federal law to be domestic, dependent nations, with the authority to govern themselves and establish their own laws and customs within the borders of their reservations. Tribal members are citizens of their respective tribes and of the United States, resulting in a complex array of legal rights and responsibilities. While tribal members must adhere to federal law, the extent to which they are subject to state law is nuanced and dependent on various factors. Each tribe has its own distinct legal framework, with laws developed by the tribes themselves, applying to their members and individuals within their territories.
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What You'll Learn
Tribal sovereignty
The sovereignty of tribal nations is dependent on and subordinate to the federal government, and tribal members must adhere to federal law. Tribal governments are responsible for a broad range of governmental activities on tribal lands, including law enforcement, judicial systems, healthcare, and natural resource management. The United States Constitution mentions Native American tribes three times, with Article I, Section 8 stating that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes".
The Supreme Court has ruled on several cases that have clarified the relationship between state and tribal law. For example, Montoya v. United States (1901) affirmed tribal sovereignty, United States v. Wheeler (1978) upheld tribal authority to prosecute its members, and Duro v. Reina (1990) held that tribal courts do not have criminal jurisdiction over non-member Indians.
In recent years, there have been efforts to grant full tribal sovereignty to certain nations, such as the Wabanaki Nations, who are currently treated more like municipalities than sovereign nations due to the 1980 Maine Indian Claims Settlement Act.
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Tribal jurisdiction
Tribal laws are distinct from federal American Indian laws, which govern the relationship between tribes and federal and state governments. Each tribe has its own laws and government, structured similarly to the federal three-branch system, with executive, legislative, and judicial branches. These laws are developed by the tribes and apply to their members and individuals within their territories.
Tribal courts have civil jurisdiction over Indians and non-Indians residing or doing business on federal Indian reservations. They also have criminal jurisdiction over violations of tribal laws committed by tribal members on the reservation. Tribal courts are responsible for various matters, including guardianship, competency, child support, paternity, adoptions, marriages, divorces, and claims involving trust assets.
The extent of tribal jurisdiction has been shaped by Supreme Court cases and federal statutes. For example, the 2001 Nevada v. Hicks case limited tribal jurisdiction by excluding state officials who commit crimes on reservation trust lands. The Indian Civil Rights Act of 1968 amended Public Law 280, requiring tribes' consent for states to hold civil and criminal jurisdiction over Indian country.
While tribal sovereignty is crucial, tribal members must adhere to federal law, and the extent to which they are subject to state law depends on various factors. The relationship between tribal and state laws is nuanced, and each state with federally recognized tribes has unique enabling acts, constitutions, and PL-280 provisions.
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Tribal citizenship
The relationship between Tribal Nations and the US federal government is governed by treaties, which uphold the sovereignty of Tribal Nations. While Tribal members must adhere to federal law, their citizenship also grants them rights and privileges under federal law, such as federal benefits and protections. The legal landscape for Tribal members is a complex fusion of Tribal, state, and federal jurisdictions, with each tribe possessing its own distinct legal framework.
The Bureau of Indian Affairs (BIA) recognises 574 federally recognised American Indian Tribes and Alaska Native tribes, and provides resources for individuals seeking tribal membership or tracing their ancestry. The process of tribal enrollment helps preserve the unique character and traditions of each tribe, and individuals must meet the specific membership criteria set by each tribe to become citizens of a Tribal Nation.
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Tribal court systems
The Indian Reorganization Act of 1934 was a significant piece of legislation that recognised the right of tribes to enact their own laws and establish their own formal tribal courts. This Act promoted tribal self-government and the preservation of Native American culture and traditions. It allowed tribes to adopt constitutions and bylaws, creating the foundation for their own legal systems and independent tribal courts. The Act also provided funding for tribal courts and enabled tribes to contract with the federal government for law enforcement services.
Funding for tribal courts comes from diverse sources, including federal support through the Indian Tribal Justice Support program, which assists in improving court operations, training, and addressing specific issues such as domestic violence and child abuse. The Tribal Law and Order Act of 2010 further enhanced federal support for tribal courts by increasing their authority and providing additional funding to address crime and violence in Native American communities.
While tribal court systems play a crucial role in tribal self-governance, they also face challenges, including limited jurisdiction and funding constraints. The complex interplay between tribal, state, and federal laws adds to the complexity of the legal landscape for tribal members, with federal law taking precedence in certain cases, especially major crimes committed on reservations.
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Tribal self-governance
The Office of Self-Governance (OSG) was established in 1994 to promote, advance, and advocate for tribal self-governance with dignity, integrity, and respect for tribal governments. The OSG serves federally recognized tribes that have applied to participate in the Self-Governance Program and met the statutory criteria, which include successfully completing the planning phase, requesting participation through an official resolution, and demonstrating financial stability.
The OSG provides financial management, budgeting, accounting, and contracting services to self-governance tribes, assisting them in developing and implementing regulations, policies, and guidance. It also advocates for the transfer of federal programs, authorities, and resources to tribal governments, in accordance with tribal self-governance statutes and policies. The OSG negotiates annual funding agreements, coordinates budget and performance data collection, and distributes funding to self-governance tribes, allowing them greater flexibility to meet their social, economic, and cultural needs.
Tribes possess all powers of self-government except those relinquished under treaties with the United States, expressly extinguished by Congress, or ruled by federal courts as subject to existing federal law or inconsistent with national policies. Tribal members hold dual citizenship of their tribes and the United States, resulting in a complex array of legal rights and responsibilities. While tribal members must adhere to federal law, the extent to which they are subject to state law is nuanced and depends on various factors. Federal jurisdiction applies to major crimes involving Native Americans on reservations, actions involving interstate commerce, and legal issues involving the United States as a party.
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Frequently asked questions
Yes, tribes have their own laws and governments, which are structured similarly to the federal three-branch system. However, they are subject to federal law and, to a more nuanced extent, state law.
Tribal law is passed by a tribal government and applies to their land and, to varying degrees, the persons on that land. Federal Indian law governs the relationship between tribes and federal and state governments.
Tribal law does not apply to non-Indian owned land or non-Indian persons' conduct, even within the boundaries of a reservation, except in very rare circumstances. Tribal jurisdiction over non-members who commit crimes on reservations is also limited.
Yes, tribes have the power to enforce their laws through police departments and tribal courts.
