Cameron Miranda
The legal landscape of the United States is a complex tapestry of laws and jurisdictions, with Tribal members living on reservations facing a unique legal world where they are subject to both federal and tribal laws. Native American tribes are considered sovereign nations, with their own inherent sovereignty, and thus have the authority to govern themselves and establish their own laws and customs within their reservations. This means that in many cases, Tribal law, rather than state law, applies on reservations. However, Tribal members must adhere to federal law, and Congress has broad power over Indian tribes, including the ability to limit or enhance tribal powers. The interaction between Tribal, state, and federal laws is further nuanced by a complex web of legal precedents and legislation, with federal law taking precedence in certain areas.
| Characteristics | Values |
|---|---|
| Tribal powers | Tribal powers come from their inherent sovereignty, not the United States Constitution. |
| Tribal laws | Tribal laws govern the inner workings of specific tribes and are distinct from federal laws. |
| Tribal sovereignty | Tribes are recognised as "separate sovereigns" and have a government-to-government relationship with the federal government. |
| Tribal authority | Tribal authority is recognised in the United States Constitution and by the Supreme Court. |
| Tribal courts | Tribal courts have legitimacy, but their powers are limited in criminal cases and sentencing. |
| Tribal jurisdiction | Tribes have jurisdiction over their members and individuals within their territories but not over non-natives. |
| Tribal independence | Tribes can regulate activities on their lands independently but often collaborate with states on mutual concerns. |
| Tribal recognition | There are over 570 federally recognised tribes across the United States. |
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What You'll Learn
Tribal sovereignty
The federal government recognises the political status of Indian tribes as a government, and all executive agencies deal with tribes as governments, not special interest groups. Federally recognised tribes have a government-to-government relationship with the federal government, and this relationship is not based on race. The federal government has a duty to protect tribes and their way of life, and to provide services such as education, housing, and healthcare.
Tribal laws are developed by tribes or Indian nations and apply to their members and individuals within tribal territories. Each tribe has its own laws and government, structured similarly to the federal three-branch system, with an executive, legislature, and judiciary.
In 1934, tribal authority gave legitimacy to tribal courts, and a solicitor's opinion stated that sovereign powers were inherent in Indian tribes, except where restricted by Congress. In 1953, Public Law 280 gave states jurisdiction over criminal and civil controversies involving Indians on Indian lands, which was criticised as unfair by many Native Americans. The Indian Civil Rights Act of 1968 applies to all tribes in the US and requires tribes to provide due process and prohibits cruel or unusual punishment.
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Tribal authority and legitimacy
Tribal authority in the United States is derived from their inherent sovereignty, which is distinct from the authority granted by the United States Constitution. This distinction is crucial in understanding the legitimacy of tribal law. While the Constitution vests Congress with the authority to engage in relations with tribes, tribal powers are not derived from it. This recognition of tribal sovereignty forms the basis of federal Indian law, which governs the relationship between tribes and federal and state governments.
The sovereignty of tribal nations and their right to self-governance have been affirmed by the United States Supreme Court, which has declared them "domestic dependent nations" with retained sovereign powers from the pre-contact period. This sovereignty is territorially based, meaning that tribal authority on Indian land is inherent and not granted by the states in which those lands are located. This territorial sovereignty is further reinforced by the plenary power doctrine, which grants Congress ultimate authority over matters pertaining to Indian tribes. However, Congress's power is not unlimited, and it cannot unilaterally infringe upon the inherent rights of tribes without their consent or just compensation.
Tribal governments have their own legislative, executive, and judicial branches, mirroring the federal system. They possess the authority to regulate activities on their lands, enact and enforce laws, define membership conditions, regulate domestic relations, levy taxes, and administer justice. Tribal laws are developed by tribes or Indian nations and apply to their members and individuals within their territories. However, tribal authority has limitations, particularly in criminal matters involving non-natives, where tribes do not have jurisdiction due to Supreme Court decisions.
The complex interplay between tribal law and federal Indian law has evolved over centuries of interaction and is shaped by treaties, statutes, regulations, and court decisions. While tribal courts have been recognised as legitimate since 1934, they are not bound by all the restrictions applicable to federal or state courts. The Indian Civil Rights Act, similar to the U.S. Bill of Rights, sets limitations on tribal sentencing powers and prohibits cruel and unusual punishment. However, individuals cannot bring federal civil rights suits against tribal governments for alleged violations of the Act and must instead pursue claims within the tribal court system.
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Tribal governments and self-governance
Tribal governments and their self-governance have had a long and complex history in the United States. Tribal powers are derived from their inherent sovereignty, separate from the United States Constitution, and have been recognised as such in court rulings. The United States Constitution, while largely silent on tribal relations, does mention American Indians three times, and Congress has the power to "regulate commerce with... Indian tribes".
The Indian Reorganisation Act (IRA) of 1934 is seen as a significant step towards tribal self-governance, ending land allotment, encouraging tribes to adopt constitutions, and recognising tribal governments. The Indian Health Facilities Act also transferred healthcare responsibilities from the BIA to the Public Health Service, recognising the importance of tribal decision-making. The Indian Civil Rights Act of 1968, similar to the US Bill of Rights, applies to all tribes, ensuring due process and prohibiting cruel or unusual punishment.
The Indian Self-Determination and Education Assistance Act (ISDEAA) of 1975 further strengthened tribal self-governance, with subsequent amendments in 1992 and 2000, allowing tribes to enter into self-governance compacts and funding agreements. As of 2016, the Indian Health Service (IHS) and tribes negotiated 90 self-governance compacts, demonstrating the success of the program.
Tribal self-governance allows tribes to prioritise their needs and plan their future, with the federal government supporting this progress. Each tribe has its own laws and government, structured similarly to the federal system, with executive, legislative, and judicial branches. The federal government has a duty to protect tribes and provide services, and tribal courts have legitimacy, although they face challenges due to inadequate funding.
Overall, tribal self-governance in the United States has evolved through various acts and amendments, recognising the inherent sovereignty of tribes and their right to self-determination.
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Tribal laws and their sources
Tribal law, or American Indian tribal law, is distinct from federal Indian law. While federal Indian law governs the relationship between tribes and federal and state governments, tribal law covers the inner workings of specific tribes. Each of the over 570 federally-recognized tribes across the United States has its own laws and governments, which are structured similarly to the federal three-branch system. For example, a tribe may have an executive division (headed by a governor, president, or chief), a legislature (a tribal council), and a judicial branch (a tribal court).
Tribal laws are developed by tribes or Indian nations and apply to their members and individuals within tribal territories. They are notably harder to find than federal laws, as they are not published in a consolidated resource. However, in recent years, tribes, universities, and libraries have worked to make these legal materials more accessible. A good starting point for researchers new to studying tribal law is the National Indian Law Library's Tribal Law Gateway, which has links to legal resources organized by tribe and material type, such as codes, constitutions, and court opinions.
Tribal courts are courts of general jurisdiction, operating within federal Indian law and under jurisdiction conferred by tribal law. They are considered legitimate since 1934, when tribal authority, rather than United States authority, gave the tribal courts legitimacy. However, Congress has broad power over Indian tribes and can limit tribal powers, enhance them by delegating new powers, or even terminate tribal status.
The Tribal Law and Order Act of 2010 requires the Bureau of Indian Affairs (BIA) to submit an annual report to Congress on its Public Safety and Justice programs. The Act also enhances tribes' authority to prosecute and punish criminals and expands efforts to recruit, train, and retain BIA and tribal police officers.
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Tribal-state jurisdiction
Tribal powers come from their inherent sovereignty and not from the United States Constitution. However, Congress has passed laws, such as the Indian Civil Rights Act in 1968, which apply to all tribes in the United States. The Act requires tribes to provide due process for anyone under their jurisdiction and prohibits cruel or unusual punishment. Tribal laws are developed by tribes or Indian nations and apply to their members and individuals within tribal territories.
Federal Indian law, on the other hand, governs the relationship between tribes and federal and state governments. It includes principles of international law, the United States Constitution, treaties with tribes, federal statutes, and judicial opinions. While Congress has broad power over Indian tribes, it does not have unlimited power, as the Supreme Court can review Congressional actions.
The jurisdiction of federal, state, or tribal courts depends on factors such as the identity of the parties involved, the nature of the offence, and the location of the events in question. For example, tribes do not have criminal jurisdiction over non-natives and cannot incarcerate them.
In 1953, Public Law 280 gave some states extensive jurisdiction over criminal and civil matters involving Indians on Indian lands. The Civil Rights Act of 1968 amended this law, requiring tribes to consent to state jurisdiction. In 2022, the Supreme Court ruled that states could prosecute non-Indians for crimes committed against Indians in Indian country, a decision that affects tribal sovereignty.
The complexity of tribal-state jurisdiction has been further exacerbated by the lack of a centralised text on federal Indian law and the dynamic nature of federal policies over time.
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Frequently asked questions
No, tribal members must adhere to federal law. However, tribal laws are distinct from federal laws and tribal members are not subject to state laws in the same way US citizens are.
Tribal laws are developed by tribes or Indian nations and apply to their members and individuals within tribal territories. Federal Indian law governs the relationship between tribes and federal and state governments.
Yes, when both tribes and the state or federal government have jurisdiction over a matter, a person may be tried for the same offence in both tribal and state or federal court.
Yes and no. The Indian Civil Rights Act places limitations on sentencing. For example, previously tribes could impose a maximum sentence of 1 year in jail and a $5000 fine per offence, but this was amended in 2010 to a maximum sentence of 3 years in jail and a $15,000 fine per offence.
Yes, tribes are considered sovereign nations with the authority to govern themselves and establish their own laws and customs within their borders.
