⚖️Native American Legal Studies Unit 5 – Jurisdiction in Tribal Lands

Historical Context

• Indigenous peoples inhabited North America for thousands of years before European colonization
• European settlers and the U.S. government made treaties with Native American tribes recognizing them as sovereign nations
• The Marshall Trilogy, a series of Supreme Court decisions in the early 1800s, established the legal framework for tribal sovereignty and the federal-tribal relationship
  • Johnson v. M'Intosh (1823) defined Native American land rights and established the Doctrine of Discovery
  • Cherokee Nation v. Georgia (1831) defined tribes as "domestic dependent nations" under the protection of the federal government
  • Worcester v. Georgia (1832) affirmed tribal sovereignty and the exclusive authority of the federal government in dealing with tribes
• The Indian Removal Act of 1830 and the Trail of Tears resulted in the forced relocation of many Native American tribes from their ancestral lands
• The General Allotment Act of 1887 (Dawes Act) divided tribal lands into individual allotments, leading to significant land loss for Native American tribes
• The Indian Reorganization Act of 1934 aimed to restore tribal sovereignty and promote self-governance

Foundations of Tribal Sovereignty

• Tribal sovereignty is the inherent right of Native American tribes to govern themselves and their territories
• The U.S. Constitution recognizes tribes as distinct political entities, separate from states and foreign nations (Commerce Clause, Article I, Section 8)
• Treaties between the U.S. government and Native American tribes are considered the "supreme law of the land" under the Supremacy Clause (Article VI, Clause 2)
• The trust responsibility is the federal government's obligation to protect tribal lands, resources, and the well-being of Native American people
  • Originates from treaties, laws, and court decisions
  • Includes duties such as providing health care, education, and managing tribal assets
• Tribal sovereignty is not granted by the federal government but is an inherent right of tribes as pre-existing, self-governing nations
• The federal government has a government-to-government relationship with federally recognized tribes
• Tribal governments have the authority to create and enforce laws, establish courts, and determine membership criteria

Federal Indian Law Basics

• Federal Indian law is the body of law that governs the relationship between the federal government, states, and Native American tribes
• The U.S. Constitution grants Congress plenary power over Indian affairs (Commerce Clause, Article I, Section 8)
• The Indian Civil Rights Act of 1968 (ICRA) extends many, but not all, of the protections of the Bill of Rights to tribal governments
  • Tribes are not subject to the U.S. Constitution's Bill of Rights because they are separate sovereigns
  • ICRA provides due process and equal protection rights, but allows for cultural considerations in tribal courts
• The Indian Self-Determination and Education Assistance Act of 1975 promotes tribal self-governance by allowing tribes to assume control over federal programs and services
• The Indian Child Welfare Act of 1978 (ICWA) gives tribes jurisdiction over child custody cases involving Native American children
• The Indian Gaming Regulatory Act of 1988 (IGRA) establishes the framework for tribal gaming operations and state-tribal gaming compacts
• Executive Order 13175 (2000) requires federal agencies to consult with tribes on policies that have tribal implications

Jurisdictional Boundaries

• Jurisdiction in Indian Country is a complex interplay between federal, state, and tribal authority
• Indian Country is defined in 18 U.S.C. § 1151 as:
  • All land within a reservation
  • Dependent Indian communities
  • Indian allotments
• The Major Crimes Act of 1885 grants the federal government jurisdiction over certain serious crimes committed by Native Americans in Indian Country
• Public Law 280 (1953) transferred criminal and some civil jurisdiction from the federal government to certain states (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin)
  • Other states may assume jurisdiction with tribal consent
• The Indian Country Crimes Act (18 U.S.C. § 1152) extends federal criminal law to Indian Country, with exceptions for crimes committed by Native Americans against other Native Americans and crimes punished by tribal law
• Tribal courts have inherent jurisdiction over civil matters involving tribal members and non-members on tribal lands, subject to limitations imposed by federal law

Criminal Jurisdiction on Tribal Lands

• Criminal jurisdiction in Indian Country is divided among federal, state, and tribal authorities based on the type of crime, the identity of the perpetrator and victim, and the location of the crime
• The Major Crimes Act (18 U.S.C. § 1153) grants the federal government exclusive jurisdiction over certain serious crimes (murder, manslaughter, kidnapping, etc.) committed by Native Americans in Indian Country
• Tribal courts have jurisdiction over crimes committed by Native Americans against other Native Americans or tribal property in Indian Country
• States generally do not have criminal jurisdiction in Indian Country, unless granted by Public Law 280 or other federal laws
• The Tribal Law and Order Act of 2010 (TLOA) enhances tribal court sentencing authority and requires federal prosecutors to share information with tribes about declinations
• The Violence Against Women Reauthorization Act of 2013 (VAWA) restores tribal criminal jurisdiction over non-Native perpetrators of domestic violence, dating violence, and violation of protection orders

Civil Jurisdiction in Indian Country

• Tribal courts have inherent civil jurisdiction over matters involving tribal members and non-members on tribal lands
• The U.S. Supreme Court has limited tribal civil jurisdiction over non-members in certain cases:
  • Montana v. United States (1981) established the "Montana test," which presumes that tribes do not have civil jurisdiction over non-members on non-Indian fee lands within a reservation, unless one of two exceptions applies:
    1. The non-member has a consensual relationship with the tribe or its members
    2. The non-member's conduct threatens the political integrity, economic security, or health and welfare of the tribe
• Tribes have the authority to tax and regulate activities on tribal lands, including those of non-members
• Tribal sovereign immunity protects tribes from lawsuits in federal and state courts, unless the tribe waives immunity or Congress abrogates it
• The Indian Child Welfare Act (ICWA) gives tribes exclusive jurisdiction over child custody proceedings involving Native American children who reside or are domiciled on the reservation

Regulatory Authority and Environmental Issues

• Tribes have inherent authority to regulate activities on tribal lands, including environmental protection and natural resource management
• The Clean Water Act and Clean Air Act authorize the Environmental Protection Agency (EPA) to treat tribes as states for the purposes of implementing and enforcing environmental programs
• Tribes may develop their own water quality standards, air quality standards, and other environmental regulations
• The Safe Drinking Water Act and the Surface Mining Control and Reclamation Act also provide for tribal primacy in enforcing standards on tribal lands
• Tribes have the authority to regulate hunting, fishing, and gathering on tribal lands, subject to treaty rights and federal conservation laws
• The Native American Graves Protection and Repatriation Act (NAGPRA) requires federal agencies and institutions receiving federal funds to return Native American cultural items and human remains to lineal descendants or culturally affiliated tribes
• Tribal-state cooperative agreements and memoranda of understanding (MOUs) can facilitate collaboration on environmental issues that cross jurisdictional boundaries

Contemporary Challenges and Case Studies

• The U.S. Supreme Court's decision in McGirt v. Oklahoma (2020) affirmed the continued existence of the Muscogee (Creek) Nation's reservation in eastern Oklahoma, impacting criminal jurisdiction in the state
• The Tribal Supreme Court Project, a joint initiative of the Native American Rights Fund (NARF) and the National Congress of American Indians (NCAI), monitors and coordinates tribal advocacy before the U.S. Supreme Court
• The Indian Gaming Regulatory Act (IGRA) has led to conflicts between tribes and states over the scope of gaming activities and revenue sharing
• The Keystone XL Pipeline and the Dakota Access Pipeline have raised concerns about tribal sovereignty, treaty rights, and environmental protection
  • Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers highlighted the need for meaningful tribal consultation in federal decision-making processes
• The opioid epidemic has disproportionately affected Native American communities, leading to tribal lawsuits against pharmaceutical companies and distributors
• The COVID-19 pandemic has exposed disparities in health care access and funding for Indian Health Service (IHS) facilities on tribal lands
• The Missing and Murdered Indigenous Women (MMIW) crisis has prompted calls for improved coordination among federal, state, and tribal law enforcement agencies to address violence against Native American women