Tribal sovereignty

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Tribal sovereignty refers to the inherent authority of indigenous tribes to govern themselves. Current federal policy in the United States recognizes this sovereignty and stresses the government to government relations between Washington and the American Indian tribes. [1] However, all Indian land is held in trust by the United States and Federal law still regulates the political and economic rights of tribal governments.

Contents 1 Wards of the United States 2 Empowerment of tribal courts 3 Defining jurisdiction 4 Tribal governments today 5 See also 6 External links 7 References

[edit] Wards of the United States

Before the American Revolution, tribes entered into treaties with the British Crown as sovereign governments. During the Revolution, the Continental Congress established three regional departments of Indian affairs, charged with negotiating treaties and alliances with native tribes, most of which sided with the British during the war. With the creation of the U.S. Constitution in 1789, the new Congress transferred those duties to the newly established United States Department of War.

While government to government treaties, like the 1785 Cherokee Treaty of Hopewell [2], were still relied on to define rights for the tribes, the legal status of Indian Nations as sovereigns began to change in the early years of the new Republic. The U.S. Supreme Court recognized the rights of indigenous landholders for the first time in its 1823 decision, Johnson v. McIntosh, but the ruling did not answer the lingering questions of tribal sovereignty. Chief Justice John Marshall's decision was primarily concerned with establishing the doctrine that only the federal government had the authority to enter into land deals with the tribes. However, the Court did recognize an indigenous right to occupy and use the land, though the legal title was held by the U.S. government. Marshall explained that Indian lands in the U.S. were granted to the federal government through treaty with Great Britain and that "these grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy." The Court acknowledged that, despite the U.S. holding title to the lands, tribal rights to occupy an area could not be extinguished unless the tribe ceded its right to the government.

The question of the tribes' status as sovereign nations was ultimately decided by the Supreme Court's decision Cherokee Nation v. Georgia in 1831. In writing the majority opinion Chief Justice Marshall stated: "an Indian tribe or nation within the United States is not a foreign state in the sense of the constitution, and cannot maintain an action in the courts of the United States." Marshall characterized the tribes as "domestic dependent nations." He elaborated on this concept and determined that these domestic nations "are in a state of pupilage" and that "their relations to the US resemble that of a ward to his guardian." The next year, in Worcester v. Georgia, the Marshall court established the doctrine that only the national government of the United States—and not the individual states—had authority in Indian affairs.

For the time being, tribes were without access to U.S. Courts. A March 3, 1871 act of Congress established that tribes could no longer enter into treaties with the United States, but held the United States liable to honor all of the treaties it previously had signed with Indian Nations. In 1886, a U.S. District Court, asked to decide where two Indian murder suspects should stand trial, observed that "the constitution of the United States is almost silent in regard to the relations of the government which was established by it to the numerous tribes of Indians within its borders." The court concluded the Indian nations were wards of the United States.

[edit] Empowerment of tribal courts

On April 10, 1883, five years after establishing Indian police powers throughout the various reservations, the Indian Commissioner approved rules for a "court of Indian offenses." The court provided a venue for prosecuting criminal charges, but afforded no relief for tribes seeking to resolve civil matters. The new courts' rules specifically targeted tribal religious practices which it called "heathenish rites" and the commissioner urged courts to "destroy the tribal relations as fast as possible." Another five years later, Congress began providing funds to operate the Indian courts.

While U.S. courts clarified some of the rights and responsibilities of states and the federal government toward the Indian nations within the new nation's first century, it was almost another century before United States courts determined what powers remained vested in the original nations of the continent now occupied by the US.

From the mid-19th Century, as a trustee charged with protecting their interests and property, the federal government was legally entrusted with ownership and administration of the assets, land, water and treaty rights of the tribal nations. In 1934 the Indian Reorganization Act, codified as Title 25, Section 476 of the U.S. Code, allowed Indian nations to select from a catalogue of constitutional documents that enumerated powers for tribes and for tribal councils. Though the Act did not specifically recognize the Courts of Indian Offenses, 1934 is widely considered to be the year when tribal authority, rather than United States authority, gave the tribal courts legitimacy.

In 1956, a U.S. Court concluded no law had ever established tribal courts, but nonetheless, decades of federal funding implied that they were legitimate courts.

[edit] Defining jurisdiction

Though Congress on June 2, 1924, extended national citizenship to include members of enrolled tribes, the court concluded two Oglala Sioux defendants convicted of adultery under tribal laws did not enjoy legal protection afforded to other citizens by the US Constitution. The court cited case law from a pre-1924 case that said, "when Indians are prepared to exercise the privileges and bear the burdens of one sui juris (not under the power of another), the tribal relation may be dissolved and the national guardianship brought to an end, but it rests with Congress to determine when and how this shall be done, and whether the emancipation shall be complete or only partial ..." (U.S. v. Nice, 1916). The court further determined, based on the earlier Lone Wolf v. Hitchcock case, that, "It is thoroughly established that Congress has plenary authority over Indians." The court held that, "the granting of citizenship in itself did not destroy ... jurisdiction of the Indian tribal courts and ... there was no intention on the part of Congress to do so." The adultery conviction and the power of tribal courts were upheld.

In 1953, Congress enacted Public Law 280, which gave some states extensive jurisdiction over the criminal and civil controversies involving Indians on Indian lands. Many, especially Indians, continue to believe the law unfair because it imposed a system of laws on the tribal nations without their approval.

In 1965 the U.S. Court of Appeals, Ninth Circuit, concluded that no law had ever extended provisions of the US Constitution, including the right of habeas corpus, to tribal members brought before tribal courts. Still, the court concluded, "it is pure fiction to say that the Indian courts functioning in the Fort Belknap Indian community are not in part, at least, arms of the federal government. Originally they were created by federal executive and imposed upon the Indian community, and to this day the federal government still maintains a partial control over them." In the end however, the Ninth Circuit limited its decision to the particular reservation in question and stated, "it does not follow from our decision that the tribal court must comply with every constitutional restriction that is applicable to federal or state courts."

While many modern courts in Indian nations today have established full faith and credit with state courts, the nations still have no direct access to U.S. courts. When an Indian nation files suit against a state in U.S. court, they do so with the approval of the Bureau of Indian Affairs. In the modern legal era, courts and congress have, however, further refined the often competing jurisdictions of tribal nations, states and the United States in regard to Indian law.

In the 1978 case of Oliphant v. Suquamish Indian Tribe, the Supreme Court, in a 6-2 opinion authored by Justice William Rehnquist concluded that tribal courts do not have jurisdiction over non-Indians. (The Chief Justice of the Supreme Court at that time, Warren Burger, and Justice Thurgood Marshall filed a dissenting opinion.) But the case left unanswered some questions, including whether tribal courts could use criminal contempt powers against non-Indians to maintain decorum in the courtroom, or whether tribal courts could subpoena non-Indians.

A 1981 case, Montana v U.S., clarified that tribal nations possess inherent power over their internal affairs, and civil authority over non-members within tribal lands to the extent necessary to protect health, welfare, economic interests or political integrity of the tribal nation.

Other cases of those years precluded states from interfering with tribal nations' sovereignty. Tribal sovereignty is dependent on, and subordinate to, only the federal government, not states, under Washington v. Confederated Tribes of Colville Indian Reservation, (1980). Tribes are sovereign over tribal members and tribal land, under United States v. Mazurie (1975).

In Duro v. Reina, 495 U.S. 676 (1990), the Supreme Court held that a tribal court does not have criminal jurisdiction over a non-member Indian, but that tribes "also possess their traditional and undisputed power to exclude persons who they deem to be undesirable from tribal lands. . .Tribal law enforcement authorities have the power if necessary, to eject them. Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain and transport him to the proper authorities." In response to this decision, Congress passed the 'Duro Fix', which recognizes the power of tribes to exercise criminal jurisdiction within their reservations over all Indians, including non-members. The 'Duro Fix' was upheld by the Supreme Court in US v Lara [2004].

[edit] Tribal governments today

At the dawn of the 21st Century, the powers of tribal courts across the United States varied, depending on whether the tribe was in a Public Law 280 state or not. Tribal courts maintain much criminal jurisdiction over their members, and because of the Duro Fix, over nonmember Indians regarding crime on tribal land. The Indian Civil Rights Act, however, limits tribal punishment to one year in jail and a $5,000 dollar fine. Tribal Courts have no criminal jurisdiction over non-Indians. In PL280 states (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin), the state has been granted criminal and civil adjudicatory jurisdiction over activities in Indian Country. In non-PL280 states, Indian on Indian crime in Indian Country may be prosecuted in Federal Court if the crime is one of those listed in the Major Crimes Act (§1153). Indian on non-Indian crime in Indian Country will be prosecuted in Federal Court, either from the MCA, or the Indian Country Crimes Act (§1152) (unless the Indian was punished by the tribe). Non-Indian on Indian crime in Indian Country will be prosecuted in Federal court using ICCA. Non-Indian on non-Indian crime in Indian Country will be prosecuted by the state.

While tribal nations do not enjoy direct access to U.S. courts to bring cases against states, as sovereigns they do enjoy immunity against many lawsuits (Santa Clara Pueblo v. Martinez, 1980), unless a plaintiff is granted a waiver by the tribe or by congressional abrogation (Oklahoma Tax Comm. v. Citizen Band Potawatomi Indian Tribe, 1978). The sovereignty extends to tribal enterprises (Local IV-302 Int'l Woodworkers Union of Am. V. Menominee Tribal Enterprises 1984), and tribal casinos or gaming commissions (Barker v. Menominee Nation Casino, 1995). The Indian Civil Rights Act does not allow actions against an Indian tribe in federal court for deprivation of substantive rights, except for habeas corpus proceedings (Santa Clara Pueblo v. Martinez, 1978).

Tribal and pueblo governments today launch far-reaching economic ventures, operate growing law enforcement agencies and adopt codes to govern conduct within their jurisdiction but the United States retains control over the scope of tribal law making. Laws adopted by Native American governments must also pass the Secretarial Review of the Department of Interior through the BIA.

[edit] See also

• Legal systems of the world
• Native Americans in the United States
• Dawes Act
• Political divisions of the United States
• Indian Removal
• Indian Territory

[edit] External links

• TRIBAL SOVEREIGNTY AND JURISDICTION (It’s a Matter of Trust)By:William. F. Kussel Jr.
• The Avalon Project: Treaties Between the United States and Native Americans
• Cherokee Nation v. the State of Georgia, 1831
• From War to Self Determination, the Bureau of Indian Affairs
• Indian Courts, A brief history; by Clara NiiSka part I
• Indian Courts, A brief history; by Clara NiiSka part II
• Indian Courts, A brief history; by Clara NiiSka part III
• Public Law 280
• Religious Freedom with Raptors - details racism and attack on tribal sovereignty regarding eagle feathers
• George Bush famous video answering a question on tribal sovereignty

[edit] References

• Macklem, Patrick, Distributing Sovereignty: Indian Nations and Equality of Peoples. 45 Stan. L. Rev. 1311 (1993)