Us Law On Indian Reservations: Who's In Charge?

The legal landscape of the United States is a complex tapestry of laws and jurisdictions, with citizens subject to federal, state, and local laws. However, the situation is less clear-cut when it comes to Tribal members living on reservations. While Tribal members are citizens of both their respective Tribes and the United States, the unique legal status of Native American reservations introduces complexities in terms of the laws that apply. This paragraph will explore the topic of whether US law, specifically federal and state law, applies on Indian reservations.

Tribal sovereignty

The U.S. Constitution mentions Native American tribes three times, each time affirming their distinct status:

• Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States...excluding Indians not taxed."
• Article I, Section 8 states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes."
• The Fourteenth Amendment, Section 2 amends the apportionment of representatives in Article I, Section 2.

These constitutional provisions, along with Supreme Court interpretations, form the basis of U.S. Indian law, which can be summarized in three principles:

• Territorial sovereignty: Tribal authority on Indian land is inherent and not granted by the states where the lands are located.
• Plenary power doctrine: Congress has the ultimate authority over matters affecting Indian tribes, and federal courts give greater deference to Congress on Indian matters.
• Trust relationship: The federal government has a "duty to protect" the tribes, which implies the necessary legislative and executive authorities to carry out that duty.

The recognition of tribal sovereignty has evolved over time, with significant shifts occurring after the Civil War. The Indian Appropriations Act of 1871 ended the recognition of additional tribes and prohibited new treaties, requiring the federal government to interact with tribes through statutes instead. Despite this, tribal sovereignty has been affirmed in numerous Supreme Court cases throughout the 19th and 20th centuries, including the Marshall Trilogy (1823-1832), United States v. Kagama (1886), and Oliphant v. Suquamish Indian Tribe (1978).

Today, there are 574 federally recognized tribal nations in the U.S., 229 of which are in Alaska. Tribal sovereignty is dependent on and subordinate to the federal government, not the states. While tribal members must adhere to federal law, the extent to which they are subject to state laws is less clear and depends on various factors. On federal Indian reservations, only federal and tribal laws apply to tribal members unless Congress specifies otherwise. Tribal sovereignty allows tribes to govern themselves and establish their own laws and customs within their reservations.

Dual citizenship

The concept of dual citizenship is complex and varies across different countries and contexts. In the context of the United States and Indian reservations, the discussion of dual citizenship pertains to the legal status of Tribal members, who are considered both citizens of their respective Tribes and citizens of the United States. This dual citizenship carries a unique set of legal rights and responsibilities.

On federal Indian reservations, the interplay of legal systems becomes crucial. Native American tribes are recognised as sovereign nations, which grants them the authority to establish their own laws and customs within the borders of their reservations. This sovereignty significantly shapes the interaction between Tribal, state, and federal laws. Generally, Tribal laws and federal laws take precedence over state laws on reservations. Tribal courts play a significant role in resolving disputes among Tribal members and between Tribal members and non-members.

However, it is important to note that Tribal jurisdiction is not absolute. The extent of Tribal law's interaction with state law is determined by a complex web of legal precedents and legislation. Federal law takes precedence in certain areas, such as major crimes, actions involving interstate commerce, and legal issues involving the United States as a party. This federal jurisdiction encompasses voting rights, social security, and military service for Tribal members.

In the context of India, dual citizenship is approached differently. The Constitution of India does not allow individuals to hold Indian citizenship and the citizenship of a foreign country simultaneously. However, recognising the unique circumstances of the Indian diaspora, the Government of India introduced the concept of Overseas Citizenship of India (OCI), commonly referred to as 'dual citizenship'. This status is granted to Persons of Indian Origin (PIOs) who migrated from India and acquired foreign citizenship, excluding those who hold citizenship of Pakistan or Bangladesh. OCI status provides benefits such as a multiple-entry lifelong visa to visit India, exemption from reporting to police authorities during their stay, and parity with Non-Resident Indians (NRIs) in financial, economic, and educational fields. While OCI status does not confer voting rights or the ability to hold constitutional posts, it enables individuals to apply for Indian citizenship after being registered as OCI for five years and residing in India for one of those five years.

Federal Indian law

At its core, federal Indian law recognises the inherent sovereignty of tribes, or their right to self-government. This sovereignty is based on the fact that tribes were already governing themselves before settlers arrived in America. The United States Constitution, specifically the Indian Commerce Clause (Article I, Section 8, Clause 3), acknowledges this inherent authority, granting Congress the power to "regulate Commerce [...] with the Indian Tribes". While federal courts have interpreted this clause as subjecting tribal sovereignty to federal authority, it remains a fundamental principle that tribal powers are inherent and have never been extinguished.

The sources of federal Indian law include principles of international law, the United States Constitution, treaties with Indian tribes, federal statutes and regulations, executive orders, and judicial opinions. One notable example is the Indian Civil Rights Act of 1968, which applies to all tribes and is similar to the U.S. Bill of Rights, requiring tribes to provide due process and prohibiting cruel or unusual punishment.

The interplay between federal, tribal, and state laws can be intricate, especially when it comes to criminal jurisdiction. While tribal members are generally subject to federal and state laws as U.S. citizens, on federal Indian reservations, only federal and tribal laws apply to tribal members unless Congress specifies otherwise. Tribal courts play a crucial role in adjudicating disputes among tribal members and between tribal members and non-members, with each tribe having its own distinct legal framework.

Tribal courts

The Indian Reorganization Act of 1934 recognized the right of tribes to enact their own laws and establish their own formal tribal courts. This Act aimed to promote tribal self-government and preserve Native American culture and traditions. It allowed tribes to establish their own governments, adopt constitutions and bylaws, and create their own legal systems.

There are approximately 400 Tribal justice systems across the United States, with most tribes now maintaining their own court systems. The Bureau of Justice Statistics' National Survey of Tribal Court Systems (NSTCS) collects administrative and operational information from these courts, helping to establish a tribal crime data collection system.

Assimilative Crimes Act

Native American tribes are considered sovereign nations, meaning they have the authority to govern themselves and establish their own laws and customs within their reservation borders. On federal Indian reservations, tribal members must adhere to federal and tribal laws unless Congress states otherwise.

The Assimilative Crimes Act (ACA) is a federal statute that fills in the gaps in federal criminal law. It applies when a person is guilty of an act or omission on federal property that is not a crime according to federal law but is a crime under the state's law in which the federal property is located. In other words, the ACA adopts state criminal laws for areas under federal jurisdiction if the crime in question is not punishable under federal law.

For example, as there is no federal law prohibiting driving under the influence (DUI), the ACA is often used to prosecute individuals for DUI on federal lands. The ACA has also been used to prosecute individuals for second-degree murder on an army base, where there is no federal law regarding this type of murder.

The ACA does not assimilate state laws that are not considered crimes but are instead subject to civil or administrative penalties. For instance, in the case of United States v. Davenport, the court held that Wisconsin's DUI statute for first-time offenders, which only imposes civil penalties, could not be prosecuted under the ACA.

The ACA ensures that criminal acts that are not explicitly prohibited by federal law but are illegal under state law can still be prosecuted when they occur on federal property.

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