9.2 Tribal sovereignty and nation-to-nation relationships

Tribal sovereignty and nation-to-nation relationships are foundational concepts in Indigenous-US relations. These principles recognize tribes as sovereign entities with inherent rights to self-govern, predating the formation of the United States.

The complex web of federal, state, and tribal jurisdictions shapes modern Indigenous governance. While tribes exercise sovereignty, they face ongoing challenges from state encroachment, federal policies, and court decisions that impact their self-determination and economic development efforts.

Tribal sovereignty

• Tribal sovereignty is the inherent right of Indigenous nations to govern themselves and their territories, predating the formation of the United States
• Tribal sovereignty is a critical component of the political and legal status of federally recognized tribes in the United States
• The recognition and respect for tribal sovereignty is essential for maintaining the unique government-to-government relationship between tribes and the federal government

Inherent right to self-govern

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• Tribal sovereignty is an inherent right, meaning it is not granted by the federal government but is a pre-existing right of Indigenous nations
• The inherent right to self-govern includes the authority to establish tribal governments, create laws, and maintain jurisdiction over tribal lands and citizens
• Tribes have the power to determine their own membership, regulate domestic relations, and manage their natural resources

Sovereignty vs autonomy

• Sovereignty is the ultimate authority of a nation to govern itself, while autonomy refers to the degree of self-governance granted by a higher authority
• Tribes are sovereign nations, not merely autonomous entities within the United States
• The distinction between sovereignty and autonomy is crucial in understanding the legal and political status of tribes and their relationship with the federal government

Limitations on tribal sovereignty

• While tribes have inherent sovereignty, it is not absolute and is subject to certain limitations imposed by the federal government
• Congress has the power to limit tribal sovereignty through legislation, such as the Major Crimes Act of 1885 and Public Law 280
• The Supreme Court has also placed limitations on tribal sovereignty through decisions such as Oliphant v. Suquamish Indian Tribe (1978), which held that tribes do not have criminal jurisdiction over non-Indians

Federal recognition of tribes

• Federal recognition is the process by which the United States government acknowledges the sovereignty and government-to-government relationship with a tribe
• Federal recognition is a critical issue for tribes, as it determines their eligibility for various federal programs, services, and protections
• The federal recognition process has been criticized for being lengthy, complex, and sometimes inconsistent

Federally recognized tribes

• Federally recognized tribes are those that have been acknowledged by the federal government through treaties, congressional legislation, or the administrative process of the Bureau of Indian Affairs
• As of 2021, there are 574 federally recognized tribes in the United States
• Federally recognized tribes are eligible for a wide range of federal programs and services, including healthcare, education, housing, and economic development assistance

State recognized tribes

• State recognized tribes are those that have been acknowledged by individual states but not by the federal government
• State recognition does not confer the same rights and benefits as federal recognition, but it can provide some level of acknowledgment and support from the state government
• Examples of state recognized tribes include the Lumbee Tribe of North Carolina and the Pamunkey Indian Tribe of Virginia

Unrecognized tribes

• Unrecognized tribes are those that have not been acknowledged by either the federal or state governments
• Many unrecognized tribes are seeking federal recognition, but the process can be lengthy and challenging
• Unrecognized tribes often face significant challenges in accessing resources, preserving their cultural heritage, and asserting their rights as Indigenous peoples

Nation-to-nation relationships

• The relationship between federally recognized tribes and the United States government is a nation-to-nation relationship, based on the inherent sovereignty of tribes and the trust responsibility of the federal government
• This unique relationship is grounded in the Constitution, treaties, federal statutes, and Supreme Court decisions
• Understanding the nation-to-nation relationship is essential for appreciating the legal and political status of tribes within the United States

Government-to-government relations

• The government-to-government relationship between tribes and the federal government is based on the recognition of tribes as sovereign nations
• This relationship requires the federal government to engage with tribes on a government-to-government basis, respecting their inherent right to self-governance and decision-making authority
• Government-to-government relations are carried out through consultation, negotiation, and collaboration between tribal leaders and federal officials

Trust responsibility

• The trust responsibility is a legal obligation of the federal government to protect tribal sovereignty, lands, assets, and resources
• This responsibility arises from the historical treaties and agreements between tribes and the federal government, in which tribes ceded vast amounts of land in exchange for protection and support
• The trust responsibility requires the federal government to act in the best interests of tribes and to ensure that federal actions do not harm tribal well-being

Consultation requirements

• Consultation is a key component of the government-to-government relationship between tribes and the federal government
• Federal agencies are required to consult with tribes on policies, projects, and actions that may affect tribal interests, such as land use decisions, environmental regulations, and cultural resource protection
• Effective consultation requires meaningful dialogue, respect for tribal sovereignty, and a commitment to incorporating tribal input into federal decision-making processes

Tribal governance structures

• Tribal governance structures are the political and legal systems through which tribes exercise their inherent right to self-government
• These structures vary among tribes, reflecting their unique histories, cultures, and contemporary needs
• Understanding tribal governance structures is essential for appreciating the diversity and complexity of Indigenous political systems in the United States

Tribal constitutions and laws

• Many tribes have adopted written constitutions that outline their system of government, powers, and responsibilities
• Tribal constitutions often establish the branches of government (executive, legislative, and judicial), define citizenship criteria, and protect individual rights
• Tribes also have the authority to create and enforce their own laws, which can cover a wide range of issues, such as land use, environmental protection, and family law

Tribal courts and justice systems

• Tribal courts are an essential component of tribal sovereignty and self-governance
• These courts have jurisdiction over a wide range of civil and criminal matters arising within tribal lands and involving tribal members
• Tribal justice systems often incorporate traditional values, customs, and methods of dispute resolution, such as peacemaking and restorative justice

Tribal law enforcement

• Tribes have the authority to establish and maintain their own law enforcement agencies to ensure public safety and enforce tribal laws
• Tribal law enforcement officers are responsible for patrolling tribal lands, investigating crimes, and apprehending suspects
• Effective tribal law enforcement requires collaboration and coordination with federal, state, and local law enforcement agencies, particularly in cases involving non-Indian offenders or multi-jurisdictional crimes

Jurisdiction in Indian Country

• Jurisdiction in Indian Country is a complex and often overlapping web of federal, state, and tribal authority
• The term "Indian Country" refers to all land within the limits of any Indian reservation, all dependent Indian communities, and all Indian allotments
• Understanding the jurisdictional landscape in Indian Country is crucial for ensuring public safety, protecting tribal sovereignty, and providing access to justice for Indigenous communities

Criminal jurisdiction

• Criminal jurisdiction in Indian Country is governed by a complex set of federal statutes and Supreme Court decisions
• In general, tribes have jurisdiction over crimes committed by Indians within Indian Country, while the federal government has jurisdiction over certain major crimes and crimes involving non-Indians
• The Tribal Law and Order Act of 2010 and the Violence Against Women Reauthorization Act of 2013 have expanded tribal criminal jurisdiction in some cases, particularly those involving domestic violence

Civil jurisdiction

• Civil jurisdiction in Indian Country is also a complex issue, with tribes, states, and the federal government all potentially having a role depending on the parties involved and the nature of the case
• In general, tribes have jurisdiction over civil matters arising within their territories and involving tribal members
• However, the Supreme Court has placed some limitations on tribal civil jurisdiction, particularly in cases involving non-Indians and fee lands within reservations

Jurisdictional conflicts

• The overlapping and sometimes conflicting jurisdictional authorities in Indian Country can lead to significant challenges in ensuring public safety and providing access to justice
• Jurisdictional conflicts can arise between tribes and states, tribes and the federal government, and even among different tribes
• Efforts to clarify and streamline jurisdiction in Indian Country, such as the Tribal Law and Order Act and the Violence Against Women Reauthorization Act, have aimed to address some of these conflicts and improve coordination among jurisdictions

Tribal treaty rights

• Tribal treaty rights are the rights and privileges granted to tribes through treaties with the United States government
• Treaties are considered the supreme law of the land under the U.S. Constitution and are a critical component of the nation-to-nation relationship between tribes and the federal government
• Understanding the historical context and modern interpretations of tribal treaty rights is essential for appreciating the ongoing struggles of Indigenous peoples to protect their lands, resources, and ways of life

Historical context of treaties

• Between 1778 and 1871, the United States government entered into more than 500 treaties with Indigenous nations
• These treaties often involved tribes ceding large amounts of land in exchange for promises of protection, support, and the recognition of certain rights, such as hunting, fishing, and gathering rights
• The treaty-making process was often marked by coercion, fraud, and misunderstanding, with many tribes facing pressure to sign treaties under duress or without fully understanding their implications

Modern interpretations of treaties

• The interpretation and enforcement of tribal treaty rights have been ongoing sources of conflict and litigation between tribes, states, and the federal government
• Modern interpretations of treaties often involve questions of resource access, environmental protection, and the scope of tribal sovereignty
• The Supreme Court has played a significant role in interpreting treaty rights, with decisions such as Washington v. Washington State Commercial Passenger Fishing Vessel Association (1979) and Minnesota v. Mille Lacs Band of Chippewa Indians (1999) affirming the ongoing validity of treaty rights

Abrogation of treaty rights

• Despite the supreme law status of treaties, the United States government has a history of abrogating or breaking treaty promises to Indigenous nations
• Congress has the power to abrogate treaties through legislation, often in the name of national interest or the assimilation of Indigenous peoples
• Examples of treaty abrogation include the Dawes Act of 1887, which broke up tribal landholdings into individual allotments, and the termination policies of the 1950s, which ended the federal recognition of many tribes

Tribal economic development

• Tribal economic development is the process by which tribes work to build and sustain their economies, create jobs, and improve the well-being of their communities
• Economic development is a critical issue for many tribes, as they often face significant challenges related to poverty, unemployment, and limited access to resources
• Understanding the strategies and challenges of tribal economic development is essential for appreciating the ongoing efforts of Indigenous communities to build sustainable and self-determined futures

Tribal businesses and enterprises

• Many tribes have established businesses and enterprises to generate revenue, create jobs, and promote economic self-sufficiency
• These businesses can range from small-scale ventures, such as artisan cooperatives and tourism operations, to large-scale industries, such as energy production and manufacturing
• Successful tribal businesses often incorporate cultural values and practices, such as environmental stewardship and community reinvestment

Gaming and casinos

• Gaming and casinos have become significant sources of revenue for many tribes, following the passage of the Indian Gaming Regulatory Act (IGRA) in 1988
• IGRA established a framework for tribes to operate gaming enterprises on their lands, subject to certain regulations and state compacts
• While gaming has provided economic opportunities for some tribes, it has also been a source of controversy and debate, particularly around issues of social impact and state-tribal relations

Taxation in Indian Country

• Taxation in Indian Country is a complex issue, with overlapping and sometimes conflicting jurisdictions between tribes, states, and the federal government
• In general, tribes have the authority to tax activities and transactions within their territories, while states are limited in their ability to tax tribal lands and members
• The Supreme Court has issued several decisions on taxation in Indian Country, such as Merrion v. Jicarilla Apache Tribe (1982) and Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe (1991), which have affirmed tribal tax sovereignty while also recognizing some state taxation authority

Challenges to tribal sovereignty

• Despite the inherent and legally recognized sovereignty of Indigenous nations, tribes continue to face significant challenges to their self-governance and self-determination
• These challenges come from a variety of sources, including state governments, federal policies, and Supreme Court decisions
• Understanding the ongoing threats to tribal sovereignty is essential for appreciating the resilience and resistance of Indigenous communities in the face of colonialism and assimilation

State encroachment on tribal rights

• States have a long history of encroaching on tribal rights and jurisdiction, often in the name of economic development or public safety
• Examples of state encroachment include attempts to tax tribal lands and businesses, assertions of criminal jurisdiction over tribal members, and challenges to tribal regulatory authority
• Tribes have fought back against state encroachment through litigation, political advocacy, and the exercise of their inherent sovereignty

Federal policies impacting sovereignty

• Federal policies have also posed significant challenges to tribal sovereignty, particularly during eras of assimilation and termination
• The Dawes Act of 1887, for example, sought to break up tribal landholdings and promote the assimilation of Indigenous peoples into mainstream American society
• The termination policies of the 1950s, which ended the federal recognition of many tribes, had devastating impacts on tribal communities and their ability to govern themselves

Supreme Court decisions on sovereignty

• The Supreme Court has played a significant role in shaping the contours of tribal sovereignty through its decisions on issues such as jurisdiction, taxation, and treaty rights
• Some Supreme Court decisions, such as Oliphant v. Suquamish Indian Tribe (1978) and Montana v. United States (1981), have placed limitations on tribal sovereignty, particularly in cases involving non-Indians and fee lands within reservations
• Other decisions, such as McGirt v. Oklahoma (2020), have affirmed the ongoing validity of tribal sovereignty and the importance of honoring treaty obligations