9.3 Tribal sovereignty and the relationship between state and tribal governments
10 min read•august 14, 2024
is a cornerstone of Native American rights in the U.S. It gives tribes the power to govern themselves within their lands. In New Mexico, this plays out in complex ways as 23 federally recognized tribes navigate their relationships with state and federal governments.
The dynamic between tribal and state governments in New Mexico is marked by both conflict and cooperation. While jurisdictional disputes arise over issues like taxation and law enforcement, there are also successful collaborations in areas such as education, public health, and environmental protection.
Tribal Sovereignty and its Legal Basis
Definition and Inherent Rights
Top images from around the web for Definition and Inherent Rights
Tribal sovereignty in the United States - Wikipedia View original
Is this image relevant?
What's tribal sovereignty and what does it mean for Native Americans? View original
Is this image relevant?
Tribal sovereignty in the United States - Wikipedia View original
Is this image relevant?
What's tribal sovereignty and what does it mean for Native Americans? View original
Is this image relevant?
1 of 2
Top images from around the web for Definition and Inherent Rights
Tribal sovereignty in the United States - Wikipedia View original
Is this image relevant?
What's tribal sovereignty and what does it mean for Native Americans? View original
Is this image relevant?
Tribal sovereignty in the United States - Wikipedia View original
Is this image relevant?
What's tribal sovereignty and what does it mean for Native Americans? View original
Is this image relevant?
1 of 2
Tribal sovereignty is the right of American Indian tribes to govern themselves as independent nations within the borders of the United States
Tribes possess inherent powers of self-government as distinct political entities
Inherent powers are not granted by the federal government but are pre-existing rights that have never been extinguished
Examples of inherent powers include the authority to determine tribal membership, establish tribal courts, and regulate activities on tribal lands
Constitutional Recognition and Federal Obligations
The legal basis for tribal sovereignty is rooted in the U.S. Constitution, treaties, federal statutes, and Supreme Court decisions
The Constitution recognizes tribes as distinct political entities through the Indian Commerce Clause (Article I, Section 8, Clause 3) and the Treaty Clause (Article II, Section 2, Clause 2)
Treaties between the federal government and tribes are considered the "supreme law of the land" under the Supremacy Clause (Article VI, Clause 2)
The federal government has a trust responsibility to protect tribal lands, resources, and rights
This trust responsibility is derived from treaties and the unique government-to-government relationship between tribes and the United States
The federal government is obligated to act in the best interests of tribes and to ensure their welfare and sovereignty
Landmark Supreme Court Decisions
Key Supreme Court cases have affirmed tribal sovereignty and clarified the relationship between tribes, states, and the federal government
Worcester v. Georgia (1832) held that tribes are "distinct, independent political communities" with exclusive authority over their internal affairs and territory
(1978) recognized tribes' inherent power to exercise criminal jurisdiction over their members as an aspect of their retained sovereignty
Other important cases include Ex parte Crow Dog (1883), which upheld tribal criminal jurisdiction, and Williams v. Lee (1959), which limited state authority on reservations
These decisions established the principle that state laws generally do not apply on tribal lands unless Congress expressly grants such authority
State-Tribal Relations in New Mexico
Historical Context and Treaties
New Mexico is home to 23 federally recognized tribes, including 19 Pueblos, three Apache tribes (Jicarilla, Mescalero, and Fort Sill), and the
Spanish colonizers and later the Mexican government recognized the sovereignty of Pueblo nations through land grants and treaties
The United States upheld these agreements after the Mexican-American War (1846-1848) under the
The treaty guaranteed property rights and religious freedoms for Pueblos and other inhabitants of the territory
Statehood and Federal Legislation
The New Mexico Enabling Act of 1910, which granted statehood to New Mexico, included provisions to protect tribal lands and rights
The act prohibited the sale of alcohol on Indian lands without tribal consent and required the state to maintain Indian trust lands
It also established the basis for state-tribal relations by recognizing the federal government's authority over Indian affairs
In 1924, Congress passed the Pueblo Lands Act to settle land disputes between Pueblos and non-Indian settlers
While the act provided some compensation for lost lands, it also resulted in the loss of significant portions of Pueblo lands
The act demonstrated the complex and often contentious nature of state-tribal relations, as both entities sought to protect their interests and assert their jurisdiction
Dynamics of State and Tribal Governments
Jurisdictional Conflicts and Limitations
The relationship between state and tribal governments is often characterized by tensions over jurisdiction, resources, and cultural differences
States generally lack authority to regulate activities on tribal lands or to enforce state laws against tribal members on reservations
Tribes are subject to federal law and their own tribal laws, which supersede state law on reservations
However, the extent of tribal jurisdiction over non-Indians on reservations is limited by Supreme Court decisions such as (1981) and Nevada v. Hicks (2001)
Conflicts can arise over issues such as taxation, gaming, environmental regulation, and law enforcement
For example, states may seek to tax businesses on reservations or to regulate tribal gaming operations, while tribes assert their sovereign right to manage their own affairs
Balancing Sovereignty and Cooperation
Despite jurisdictional tensions, state and tribal governments often recognize the need for cooperation and collaboration to address common challenges
Many states have established formal government-to-government relationships with tribes through executive orders, legislative actions, or memoranda of understanding
These agreements can provide a framework for consultation, data sharing, and joint decision-making on issues of mutual concern
Successful state-tribal partnerships require a delicate balance between respecting tribal sovereignty and promoting intergovernmental coordination
States must recognize tribes as equal partners and avoid imposing their will or values on tribal communities
Tribes must be willing to engage with state agencies and officials in a spirit of mutual respect and open communication
Issues in State-Tribal Relations
Water Rights and Resource Management
Disputes over access to and control of water resources are common, as many tribal communities rely on surface water and groundwater for agricultural, domestic, and cultural purposes
Tribes often hold senior water rights based on the Winters Doctrine, which holds that the federal government implicitly reserved sufficient water to fulfill the purposes of reservations
Conflicts can arise when state water laws and policies fail to recognize or accommodate tribal water rights, leading to litigation and political tensions
Tribal governments also seek to protect their natural resources, such as minerals, timber, and wildlife, from exploitation or degradation
States may seek to regulate resource development on reservations or to tax revenues from such activities, while tribes assert their sovereign right to manage their resources and to benefit from their use
Economic Development and Infrastructure
Tribes often face challenges in attracting investment and creating jobs on reservations due to factors such as remote locations, limited infrastructure, and complex regulatory environments
Many reservations lack adequate roads, utilities, and telecommunications networks, which can hinder economic growth and quality of life
The overlapping and sometimes conflicting jurisdictions of federal, state, and tribal governments can create uncertainty and bureaucratic obstacles for businesses seeking to operate on reservations
State and tribal governments can work together to promote economic development by investing in infrastructure, streamlining regulations, and providing incentives for businesses
For example, New Mexico has established the Native American Economic Development Fund to provide grants and loans for tribal businesses and entrepreneurs
The state has also worked with tribes to develop joint tourism initiatives, such as the Trail of the Ancients Scenic Byway, which showcases Native American cultural sites and attractions
Public Safety and Law Enforcement
The high rates of crime and violence on some reservations have led to debates over the effectiveness of tribal justice systems and the need for greater cooperation between tribal, state, and federal law enforcement agencies
Tribal courts often lack the resources and jurisdiction to prosecute serious crimes, which fall under federal jurisdiction under the Major Crimes Act
The complex web of jurisdictional authorities can lead to confusion, delays, and gaps in law enforcement coverage, particularly when crimes involve non-Indian perpetrators or occur in checkerboard areas with mixed land ownership
State and tribal governments have sought to address these challenges through cross-deputization agreements, which allow tribal and state officers to enforce each other's laws, and through joint task forces and training programs
For example, the Navajo Nation has entered into agreements with several counties in New Mexico to provide mutual aid and to coordinate responses to emergencies and crimes
The state has also established the New Mexico Tribal-State Judicial Consortium to promote communication and cooperation between tribal and state court systems
Cultural Preservation and Sacred Sites
Tribes seek to protect their cultural heritage, sacred sites, and traditional practices from encroachment or damage by development projects or state policies
Many tribes have cultural preservation offices and historic preservation plans to identify and safeguard important cultural resources
Conflicts can arise when state or federal projects, such as highways, pipelines, or mines, threaten to disturb or destroy sacred sites or cultural properties
State and tribal governments can work together to ensure that cultural resources are respected and protected through consultation, mitigation measures, and joint management agreements
For example, the state of New Mexico has worked with the Navajo Nation to develop a cultural resources protection plan for the Greater Chaco Landscape, which includes Chaco Culture National Historical Park and surrounding tribal lands
The plan seeks to balance the preservation of cultural sites with the development of oil and gas resources in the area through buffer zones, viewshed protections, and tribal consultation requirements
Successful State-Tribal Collaborations
Government-to-Government Relations
The New Mexico State-Tribal Collaboration Act (2009) requires state agencies to develop policies that promote communication and cooperation with tribes and to designate tribal liaisons to facilitate government-to-government relations
The act establishes a framework for consultation, information sharing, and dispute resolution between state agencies and tribal governments
It also requires state agencies to provide training to their employees on tribal sovereignty, cultural competency, and effective communication with tribal communities
Other states have adopted similar laws or policies to formalize their relationships with tribes and to ensure that tribal interests are considered in state decision-making processes
For example, the state of Washington has a Centennial Accord (1989) and a Millennium Agreement (1999) with federally recognized tribes that establish principles for government-to-government relations and cooperative problem-solving
These agreements have led to successful collaborations on issues such as fish and wildlife management, child welfare, and economic development
Education and Language Preservation
The New Mexico Indian Education Act (2003) aims to improve educational outcomes for Native American students by requiring the state to work with tribes to develop culturally relevant curricula and to provide resources for tribal language programs
The act establishes an Indian Education Advisory Council to advise the state on issues related to Native American education and to ensure that tribal perspectives are included in policy decisions
It also provides for the creation of tribal education departments and the appointment of tribal education liaisons to coordinate with state and local school districts
Tribes and states have also collaborated on language preservation and revitalization efforts, recognizing the importance of Native languages to cultural identity and continuity
For example, the Navajo Nation has worked with the states of New Mexico, Arizona, and Utah to develop a comprehensive Navajo language curriculum for K-12 schools
The curriculum includes textbooks, multimedia resources, and teacher training materials that are aligned with state and tribal education standards
Public Health and Emergency Management
The Navajo Nation and the state of New Mexico have collaborated on initiatives to address public health issues, such as the COVID-19 pandemic, by sharing data, coordinating testing and vaccination efforts, and providing mutual aid
The state and the tribe established a joint information center to provide consistent and accurate information to the public and to coordinate public health messaging
The state also provided personal protective equipment, testing supplies, and medical personnel to support the tribe's response to the pandemic
Tribes and states have also worked together on emergency management and disaster response efforts, recognizing the need for coordinated and timely action to protect lives and property
For example, the Pueblo of Acoma and the state of New Mexico have a joint powers agreement that allows for mutual aid and resource sharing during emergencies, such as wildfires or floods
The agreement includes provisions for joint training exercises, communication protocols, and reimbursement procedures to ensure effective and efficient response to disasters
Environmental Protection and Conservation
Tribes and state agencies have worked together on environmental projects, such as the restoration of the Rio Grande cutthroat trout, which is sacred to many Pueblos, through habitat conservation and fish stocking programs
The New Mexico Department of Game and Fish has worked with the Pueblos of Taos, Santa Clara, and San Felipe to develop a conservation plan for the trout, which includes monitoring, research, and habitat improvement projects
The plan seeks to balance the cultural and ecological significance of the trout with the recreational and economic interests of the state and local communities
Other examples of successful state-tribal environmental collaborations include:
The Navajo Nation and the state of New Mexico have worked together to clean up abandoned uranium mines and to address the health impacts of uranium contamination on Navajo communities
The Pueblos of Jemez and Santa Ana have worked with the state to develop a watershed restoration plan for the Jemez River, which has been impacted by wildfires, erosion, and invasive species
These collaborations demonstrate the potential for state and tribal governments to work together to address complex environmental challenges and to promote sustainable resource management practices