Gavin Howe
American Indian Law is a broad term used to describe the field of law covering the relationship between tribal governments and federal and state governments, as well as the laws specific to individual tribes. It is an expansive subject shaped by various sources, including the United States Constitution, treaties, federal and state statutes, court decisions, administrative regulations, and laws created, enforced, and adjudicated by sovereign tribal governments. Federal statutes are the primary mechanism used by the federal government to regulate Indian affairs, with hundreds of statutes governing American Indian Law on a range of issues. The United States Constitution recognises the inherent authority of tribal sovereignty, or the power of self-government, although this is subject to an overriding federal authority.
| Characteristics | Values |
|---|---|
| Definition | A broad term used across the United States to describe the field of law covering the relationship between tribal governments and federal and state governments, as well as the laws specific to individual tribes. |
| Scope | An expansive subject shaped by the United States Constitution, treaties, federal and state statutes, court decisions, administrative regulations, and laws created, enforced, and adjudicated by sovereign tribal governments. |
| Tribal Sovereignty | The right to tribal sovereignty, or the power of self-government, is a key principle of American Indian law. |
| Tribal Recognition | The federal government recognises over 570 American Indian tribes and Alaska Native Villages across the United States. |
| Treaties | Treaties established the earliest pattern of legal and political interaction between the federal government and Indian tribes. |
| Federal Statutes | Federal statutes are the primary mechanism used by the federal government to regulate Indian affairs. |
| Tribal Courts | Indian tribal courts adjudicate matters relating to Indian affairs, but their jurisdiction does not extend to non-Indians on Indian reservations unless the activity threatens the tribe's welfare. |
| Tribal Land | The policy of allotment reduced the amount of land owned by tribes, and trust status restrictions further limited tribal control over their land. |
| Tribal Self-Governance | The Tribal Self-Governance Act of 1994 transferred control to tribal governments over funding and decision-making for certain federal programs intended to benefit Indians. |
| Tribal Children | The ICWA establishes federal standards for state child-custody proceedings involving Indian children to protect their best interests and promote tribal stability. |
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What You'll Learn
Tribal sovereignty and self-governance
American Indian Law is a broad term used across the United States to describe the field of law covering the relationship between tribal governments and federal and state governments, as well as the laws specific to individual tribes. The term "Indian" refers to Indigenous peoples who lived in North America before the arrival of European settlers.
Tribal sovereignty ensures that any decisions about the tribes concerning their property and citizens are made with their participation and consent. Tribal governments have the power to determine their governance structures and enforce laws through police departments and tribal courts. They exercise these rights by developing distinct forms of government, determining citizenship, establishing civil and criminal laws, and regulating their territories.
While tribal sovereignty is limited today by the United States through treaties, acts of Congress, Executive Orders, federal administrative agreements, and court decisions, federally recognised tribes protect and maintain their sovereignty against further encroachment by other sovereign entities, such as states.
The jurisdictional framework between tribal nations, the federal government, and states is complex, especially regarding criminal jurisdiction. Congress and the courts consider variables such as the type of crime, tribal membership of the defendant and victim, and land ownership status before determining which entity will exercise criminal jurisdiction.
In recent decades, there has been a trend to affirm tribal sovereignty and strengthen tribal governments' ability to protect public safety within their reservations. Examples include amendments to the Indian Civil Rights Act, the Tribal Law and Order Act, and the reauthorisation of the Violence Against Women Act, all of which enhance tribal jurisdiction and authority in criminal matters.
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Treaties and agreements
From 1832 to 1871, American Indian nations were regarded as "domestic, dependent tribes". While treaties continued to be negotiated between tribes and the US, they still needed congressional approval. However, in 1871, a pivotal shift occurred as the House of Representatives ceased recognising individual tribes within the US as independent nations capable of entering into treaties. Congress enacted a law prohibiting the federal government from forging new treaties with American Indian tribes.
Despite this prohibition, the law did not nullify or alter any obligations arising from treaties ratified before March 3, 1871. Subsequently, federal and state governments have continued to engage with tribes through contracts and agreements spanning various subjects, such as healthcare, education, and economic opportunities. These agreements are memorialised through acts of Congress, land claims settlement acts, and executive orders.
American Indian treaties from this era are preserved in key resources, notably Charles Kappler's Indian Affairs: Laws and Treaties, a seven-volume compilation of treaties, statutes, and executive documents related to American Indian tribes. Treaties and agreements are chronologically organised in volume 2. Another critical resource is Documents in American Indian Diplomacy: Treaties, Agreements, and Conventions, 1775-1979, which includes treaties from the Revolutionary War, unratified agreements, and other pertinent materials.
The National Archives and Records Administration (NARA) houses original treaties between the United States and American Indian nations, along with related records such as instructions to treaty commissioners and minutes of treaty councils. The online exhibit "Rights of Native Americans" offers a visual timeline of treaty history and Native American activism for tribal sovereignty. The American Indian Law Collection, with over 700 titles and 350,000 pages, encompasses treaties, federal statutes, tribal codes, constitutions, and jurisprudence, providing a comprehensive resource for researchers.
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Federal recognition and rights
Federal recognition of American Indian law is a complex and intricate topic. The term "Indian" refers to Indigenous peoples who lived in North America before the arrival of European settlers. Federal law recognises a unique kind of Indian sovereign authority, allowing them to govern themselves, but this is subject to overriding federal authority. This is a key principle of American Indian law, with the right to tribal sovereignty, or the power of self-government, recognised by the United States Constitution.
The relationship between federal and tribal governments is a central issue in American Indian law. Treaties, the US Constitution, and Supreme Court decisions form the foundation of federal Indian law and shape the federal-tribal dynamic. The US Constitution gives the federal government primary responsibility for dealing with tribes, and federal statutes are the main way the federal government regulates Indian affairs. Treaties established the earliest pattern of legal and political interaction between the federal government and Indian tribes, with the first signed in the early 1600s.
The Tribal Self-Governance Act of 1994 strengthened tribal sovereignty by transferring control to tribal governments over funding and decision-making for certain federal programs. This was an important step in implementing the federal policy of government-to-government relations with Indian tribes. However, it is important to note that the federal trust relationship was terminated for many tribes in the past, with the intention of assimilating Native Americans into mainstream American society. This Termination Policy led to a loss of federal services and resources for those tribes, and while some have had their federal recognition restored, the policy reduced the amount of land owned by tribes.
American Indian law covers a wide range of topics, including criminal and civil jurisdiction, natural resources, sacred site protection, and tribal recognition. It is shaped by various sources, including the US Constitution, treaties, federal and state statutes, court decisions, and laws created and enforced by tribal governments. The Indian Reorganization Act and the Indian Civil Rights Act are examples of federal statutes dealing with Indian rights and governance.
American Indian law is a broad term that covers the relationship between tribal governments and federal and state governments, as well as the laws specific to individual tribes. It is an expansive and complex field of law that continues to evolve, with new policies and shifts in federal-tribal relations.
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State laws and tribal jurisdiction
American Indian Law is a broad term used across the United States to describe the field of law covering the relationship between tribal governments and federal and state governments, as well as the laws specific to individual tribes. It is an expansive subject shaped by various sources, including the United States Constitution, treaties, federal and state statutes, court decisions, administrative regulations, and laws created, enforced, and adjudicated by sovereign tribal governments.
Federal law recognises a special kind of Indian sovereign authority to govern themselves, subject to an overriding federal authority. Indian tribes are considered "domestic, dependent nations", with Congress enacting this sovereign authority to protect Indian groups from state authority. This extends to Indian tribal courts, which handle matters relating to Indian affairs.
The Indian Civil Rights Act, passed by Congress in 1968, applies to all tribes in the United States. It requires tribes to provide due process for anyone under their jurisdiction and prohibits cruel or unusual punishment. The Act does not require the separation of church and state and limits sentencing options for tribes.
In the United States Supreme Court case Plains Commerce Bank v. Long Family Cattle Co. (07-411), the Court reaffirmed that tribes do not have jurisdiction over non-Indians on a non-Indian fee simple, even on an Indian reservation, unless the activity threatens the tribe's welfare.
Additionally, in the 1998 Venetie Tax case, the Supreme Court ruled that land that went through the Alaska Native Claims Settlement Act is no longer considered Indian country, impacting the jurisdiction of Alaskan tribes.
The complexities of state laws and tribal jurisdiction are further illustrated by the concept of "double jeopardy," where both tribes and state or federal governments have jurisdiction over a matter, allowing for a person to be tried in both tribal and state or federal court for the same offense.
The intricacies of state laws and tribal jurisdiction in American Indian Law are extensive and varied, reflecting the diverse nature of tribal relationships with federal and state governments across the United States.
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Tribal court systems
The Indian Reorganization Act of 1934 had a significant impact on how Native American tribal courts operate. The 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. It also provided funding for tribal courts and allowed tribes to contract with the federal government for law enforcement services.
Tribal courts are funded through the Indian Tribal Justice Support program, which provides funding for training, technical assistance, and specific programs and initiatives. The program aims to support the development of effective and efficient tribal justice systems that align with tribal traditions and values. Additionally, the Tribal Law and Order Act of 2010 was enacted to address crime and violence in Native American communities. It aims to improve public safety in Indian Country by increasing the authority of tribal courts and law enforcement agencies and providing additional funding.
The Bureau of Justice Statistics collects statistical information and publications about tribal courts in the United States. The National Survey of Tribal Court Systems (NSTCS) helps gather administrative and operational data from tribal courts, prosecutors' offices, and indigent defence providers.
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Frequently asked questions
American Indian Law is a broad term used to describe the field of law covering the relationship between tribal governments and federal and state governments, as well as the laws specific to individual tribes.
The right to tribal sovereignty, or the power of self-government.
Tribal sovereignty refers to the inherent sovereignty of Indian tribes and nations. While tribes have the right to self-government, that sovereignty is subject to an overriding federal authority.
Some examples include the Indian Reorganization Act, the Indian Civil Rights Act, and the Tribal Self-Governance Act of 1994.
