⚖️Native American Legal Studies Unit 3 – Tribal Sovereignty & Self-Determination

Key Concepts & Definitions

• Tribal sovereignty refers to the inherent right of Native American tribes to govern themselves and manage their internal affairs
• Self-determination encompasses the rights of tribes to freely determine their political status and pursue their economic, social, and cultural development
• Federally recognized tribes have a government-to-government relationship with the United States and are eligible for federal benefits, services, and protections
  • As of 2021, there are 574 federally recognized tribes in the United States
• Tribal jurisdiction is the authority of tribes to make and enforce laws within their territories
• Trust responsibility is the legal obligation of the federal government to protect tribal treaty rights, lands, assets, and resources
• Plenary power refers to the broad authority of Congress to legislate on matters affecting Native American tribes
• Tribal citizenship is determined by each tribe and can be based on factors such as blood quantum, lineal descent, or tribal enrollment criteria

Historical Context

• Native American tribes have existed as sovereign nations long before the formation of the United States
• Early treaties between tribes and European colonial powers recognized tribal sovereignty and established nation-to-nation relationships
  • The Treaty of Fort Pitt (1778) was the first treaty between the United States and a Native American tribe (the Lenape or Delaware Nation)
• The U.S. Constitution, through the Commerce Clause and Treaty Clause, acknowledges the sovereign status of tribes
• The Marshall Trilogy, a series of Supreme Court decisions in the early 1800s, established the legal framework for tribal sovereignty
  • Johnson v. M'Intosh (1823) recognized tribal rights to occupy and use their lands
  • Cherokee Nation v. Georgia (1831) defined tribes as "domestic dependent nations" under the protection of the federal government
  • Worcester v. Georgia (1832) affirmed that tribes retain their inherent sovereignty and that state laws generally do not apply within tribal territories
• The Indian Removal Act of 1830 and subsequent policies led to the forced relocation of many tribes from their ancestral lands (Trail of Tears)
• The General Allotment Act of 1887 (Dawes Act) aimed to break up tribal lands and assimilate Native Americans into mainstream society

Legal Framework

• The U.S. Constitution provides the foundation for the federal government's relationship with Native American tribes
• Treaties between the U.S. government and tribes are considered the "supreme law of the land" under the Supremacy Clause
  • Treaties often established reservations, hunting and fishing rights, and other guarantees for tribes
• Federal statutes, such as the Indian Reorganization Act of 1934 and the Indian Self-Determination and Education Assistance Act of 1975, have shaped tribal sovereignty and self-governance
• Supreme Court decisions have further defined the scope and limits of tribal sovereignty
  • Ex parte Crow Dog (1883) recognized tribal jurisdiction over crimes committed by Native Americans on reservations
  • United States v. Wheeler (1978) affirmed that tribes possess inherent sovereign power to prosecute tribal members for criminal offenses
• The trust doctrine requires the federal government to act in the best interests of tribes and protect their rights and resources
• The doctrine of reserved rights holds that tribes retain all rights not expressly relinquished in treaties or taken away by federal legislation

Tribal Governance Structures

• Tribes have the right to establish their own forms of government and create laws governing their territories and citizens
• Traditional governance structures vary among tribes and can include hereditary chiefdoms, clan systems, and consensus-based decision-making
• The Indian Reorganization Act of 1934 encouraged tribes to adopt constitutions and establish elected tribal councils
  • Many tribes have since developed their own constitutions, courts, and governmental departments
• Tribal courts have jurisdiction over civil and criminal matters involving Native Americans on tribal lands
  • Some tribes have established specialized courts, such as wellness courts and peacemaking programs, that incorporate traditional dispute resolution practices
• Tribal law enforcement agencies, such as tribal police departments and conservation officers, help maintain public safety and enforce tribal laws
• Intergovernmental agreements between tribes and local, state, or federal agencies can address issues of shared concern and coordinate services

Economic & Resource Management

• Tribes have the right to manage and develop their natural resources, including land, water, minerals, and wildlife
• The Indian Gaming Regulatory Act of 1988 established the framework for tribal gaming operations and has provided a significant source of revenue for many tribes
  • Gaming revenue is often used to fund tribal government operations, infrastructure, healthcare, education, and social services
• Tribes engage in a variety of economic development initiatives, such as tourism, agriculture, energy production, and manufacturing
• The Bureau of Indian Affairs (BIA) and other federal agencies provide technical assistance and funding for tribal economic development projects
• Tribes have the authority to levy taxes within their jurisdictions and enter into contracts and leases for resource extraction and other business ventures
• The Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA) supports tribal self-determination in addressing housing needs

Challenges to Sovereignty

• Throughout history, federal policies have often undermined tribal sovereignty and self-determination (assimilation, termination, relocation)
• State governments sometimes challenge tribal jurisdiction and assert authority over tribal lands and citizens
  • Public Law 280 (1953) granted certain states criminal and civil jurisdiction over tribal lands, diminishing tribal sovereignty in those areas
• The U.S. Supreme Court has issued decisions limiting tribal jurisdiction over non-Indians on reservations (Oliphant v. Suquamish Indian Tribe, 1978)
• Inadequate funding and resources can hinder tribes' ability to fully exercise their sovereign rights and address community needs
• Conflicts over land rights, natural resources, and cultural heritage sites can arise between tribes, governments, and private interests (Dakota Access Pipeline, Bears Ears National Monument)
• Historical trauma, socioeconomic disparities, and systemic inequities continue to impact Native American communities and challenge tribal self-determination

Contemporary Issues & Case Studies

• The Violence Against Women Reauthorization Act of 2013 (VAWA) restored tribal jurisdiction over certain domestic violence crimes committed by non-Indians on reservations
  • The Act aimed to address the high rates of violence against Native American women and the jurisdictional gaps that often left crimes unprosecuted
• The opioid epidemic has disproportionately affected Native American communities, prompting tribes to develop culturally responsive prevention and treatment programs
• The McGirt v. Oklahoma decision (2020) affirmed that the Muscogee (Creek) Nation's reservation boundaries remain intact, impacting criminal jurisdiction in eastern Oklahoma
• Tribes have been at the forefront of climate change adaptation and mitigation efforts, drawing on traditional ecological knowledge and asserting their sovereign rights
  • The Swinomish Indian Tribal Community in Washington has developed a climate adaptation action plan to protect their coastal lands and resources
• The COVID-19 pandemic has highlighted the importance of tribal sovereignty in responding to public health crises and ensuring access to resources and healthcare
• Efforts to revitalize Native languages and preserve cultural heritage demonstrate the resilience and self-determination of tribal communities

Future Outlook & Emerging Trends

• Tribes continue to assert their sovereign rights and push for greater self-determination in areas such as healthcare, education, and economic development
• The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007, provides a framework for advancing indigenous rights and self-determination globally
  • The U.S. endorsed UNDRIP in 2010, but its implementation remains a work in progress
• Collaborative management agreements between tribes and federal agencies, such as the Bears Ears Inter-Tribal Coalition and the U.S. Forest Service, offer models for shared stewardship of public lands and resources
• Renewable energy development on tribal lands presents opportunities for economic diversification and environmental sustainability
  • The Navajo Nation's Kayenta Solar Project is one of the largest tribally owned renewable energy projects in the country
• Tribal nations are increasingly engaging in international diplomacy and advocacy to protect their rights and interests
• The movement to address missing and murdered Indigenous women and girls (MMIWG) has gained momentum, with tribes leading efforts to raise awareness and improve justice system responses
• Ongoing efforts to strengthen tribal self-governance, build institutional capacity, and develop the next generation of Native leaders will shape the future of tribal sovereignty and self-determination