6.8 Contemporary sovereignty issues

Contemporary Native American sovereignty issues reflect ongoing struggles for self-governance and rights. Tribes navigate complex relationships with federal and state governments, balancing traditional practices with modern challenges in areas like economic development, jurisdiction, and environmental protection.

Key issues include federal recognition processes, tribal governance structures, and economic initiatives like gaming. Land rights, cultural preservation, and urban Native experiences also shape current sovereignty debates, as tribes assert their rights in diverse contexts.

Definition of tribal sovereignty

• Tribal sovereignty forms a cornerstone of Native American rights and self-governance in the United States
• Encompasses the inherent authority of indigenous tribes to govern themselves within the borders of the United States
• Reflects the complex historical and legal relationship between Native American tribes and the federal government

Historical context of sovereignty

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• Predates the formation of the United States, rooted in tribes' status as independent nations
• Underwent significant changes through treaties, federal laws, and Supreme Court decisions
• Doctrine of Discovery used by European colonizers to claim indigenous lands
• Marshall Trilogy of Supreme Court cases (1823-1832) established foundational principles of tribal sovereignty

Legal basis for sovereignty

• U.S. Constitution recognizes tribes as distinct political entities
• Affirmed through numerous treaties, federal statutes, and executive orders
• Defined as "domestic dependent nations" by the Supreme Court
• Includes rights to self-government, jurisdiction over tribal members and lands, and immunity from state laws

Federal recognition process

• Federal recognition officially establishes a government-to-government relationship between a tribe and the United States
• Process administered by the Bureau of Indian Affairs within the Department of the Interior
• Crucial for tribes to access federal programs, services, and protections

Criteria for recognition

• Continuous existence as an Indian entity since 1900
• Distinct community and political authority over members
• Governing documents or description of membership criteria
• List of current members descended from historical tribe
• Not subject to congressional termination
• Petitioning group is not already federally recognized
• No legislation forbidding a federal relationship

Benefits of federal recognition

• Access to federal funding for health care, education, and housing
• Right to operate gaming facilities under the Indian Gaming Regulatory Act
• Ability to place land into federal trust, removing it from state jurisdiction
• Enhanced authority to regulate internal affairs and economic development
• Eligibility for federal environmental and cultural resource protection programs

Tribal governance structures

• Tribal governance reflects the diversity of Native American cultures and histories
• Balances traditional practices with modern administrative needs
• Plays a crucial role in exercising and maintaining tribal sovereignty

Traditional vs modern systems

• Traditional systems often based on clan structures, hereditary leadership, or consensus decision-making
• Modern systems frequently adopt elements of U.S. governmental structures
• Some tribes maintain dual systems, incorporating both traditional and modern elements
• Examples of traditional systems:
  • Iroquois Confederacy's Grand Council
  • Pueblo's theocratic governance
• Examples of modern systems:
  • Elected tribal councils
  • Separation of powers (executive, legislative, judicial branches)

Tribal constitutions and laws

• Many tribes adopted constitutions under the Indian Reorganization Act of 1934
• Constitutions define governmental structure, citizenship criteria, and rights of tribal members
• Tribal laws cover areas such as criminal justice, family law, and economic regulation
• Some tribes incorporate customary law or traditional dispute resolution methods
• Tribal courts interpret and apply tribal laws, often blending indigenous and Western legal concepts

Economic development on reservations

• Economic development crucial for tribal self-sufficiency and sovereignty
• Challenges include remote locations, limited infrastructure, and complex legal frameworks
• Tribes pursue diverse strategies to create jobs and generate revenue

Gaming and casinos

• Indian Gaming Regulatory Act of 1988 allowed tribes to operate casinos on tribal lands
• Transformed economies of many tribes (Mashantucket Pequot, Seminole)
• Revenue used for tribal services, infrastructure, and cultural preservation
• Controversies over market saturation and social impacts on tribal communities

Natural resource management

• Many reservations rich in natural resources (oil, gas, minerals, timber, water)
• Tribes develop resource extraction and management plans
• Challenges include balancing economic benefits with environmental and cultural concerns
• Examples:
  • Navajo Nation's coal mining and power generation
  • Confederated Salish and Kootenai Tribes' sustainable forestry practices

Tourism and cultural enterprises

• Tribes develop museums, cultural centers, and eco-tourism initiatives
• Promotes cultural preservation while generating income
• Challenges include balancing cultural authenticity with commercial viability
• Examples:
  • Taos Pueblo's UNESCO World Heritage site
  • Cherokee Nation's cultural tourism programs

Jurisdictional issues

• Complex web of tribal, federal, and state jurisdictions on reservations
• Stems from unique legal status of tribes and historical federal policies
• Significant impact on law enforcement, economic development, and tribal sovereignty

Criminal jurisdiction complexities

• Determined by factors such as nature of crime, identity of perpetrator and victim, and location
• Major Crimes Act (1885) gives federal government jurisdiction over certain serious crimes on reservations
• Public Law 280 (1953) transferred federal criminal jurisdiction to some states
• Tribal courts generally limited to misdemeanors involving tribal members
• 2013 Violence Against Women Act reauthorization allowed some tribal prosecution of non-Indians for domestic violence

Civil jurisdiction challenges

• Tribes generally have civil jurisdiction over members and activities on tribal lands
• Montana v. United States (1981) limited tribal civil jurisdiction over non-members on non-Indian fee lands within reservations
• Exceptions include consensual relationships and activities that threaten tribal welfare
• Ongoing disputes over regulatory authority (zoning, taxation, environmental regulations)

Public Law 280 states

• Passed in 1953, transferred federal criminal jurisdiction to six states (Alaska, California, Minnesota, Nebraska, Oregon, Wisconsin)
• Optional for other states to assume jurisdiction (partially adopted by several)
• Intended to reduce federal responsibility and increase law enforcement on reservations
• Criticized for undermining tribal sovereignty and creating jurisdictional confusion
• Some states have retroceded jurisdiction back to the federal government and tribes

Land rights and claims

• Land forms the physical basis for tribal sovereignty and cultural continuity
• Complex history of dispossession, allotment, and restoration shapes current land issues
• Ongoing efforts to protect, reclaim, and effectively manage tribal lands

Trust land vs fee land

• Trust land held by federal government for benefit of tribes or individual Indians
• Protected from taxation and sale, subject to federal and tribal jurisdiction
• Fee land owned outright, can be sold and is generally subject to state jurisdiction
• Checkerboard pattern of ownership on many reservations due to allotment era policies
• Fractionation of individual allotments creates management challenges

Land into trust process

• Allows tribes to petition Department of Interior to take land into trust status
• Removes land from state and local jurisdiction, enhances tribal sovereignty
• Criteria include need for land, purposes of acquisition, and impacts on state and local governments
• Carcieri v. Salazar (2009) decision limited land-into-trust for tribes recognized after 1934
• Ongoing legislative efforts to address Carcieri decision's impacts

Land claim settlements

• Result of tribes seeking redress for historical land losses through treaty violations or illegal takings
• Often involve complex negotiations between tribes, federal government, and states
• May include monetary compensation, land returns, or other benefits
• Examples:
  • Maine Indian Claims Settlement Act of 1980
  • Cobell v. Salazar (2009) settlement for individual Indian trust accounts

Tribal-state relations

• Evolving from historical conflict to increased cooperation in many areas
• Reflects growing recognition of tribal sovereignty and mutual interests
• Varies significantly based on state policies and tribal-state histories

Compacts and agreements

• Formal agreements between tribes and states on various issues
• Gaming compacts required under Indian Gaming Regulatory Act for Class III gaming
• Other areas include environmental protection, law enforcement, and social services
• Examples:
  • Washington State-tribal fuel tax agreements
  • Michigan's government-to-government accord with tribes

Taxation issues

• Complex area due to overlapping jurisdictions and sovereignty principles
• General rule: states cannot tax tribes or tribal members on reservation
• Exceptions and gray areas for non-member activities on reservations
• Some tribes and states negotiate tax agreements to avoid conflicts and share revenue
• Examples of tax issues:
  • Cigarette sales on reservations
  • Property taxes on fee lands within reservations

Cross-deputization arrangements

• Agreements allowing tribal and state/local law enforcement to exercise each other's authority
• Addresses jurisdictional gaps and improves public safety on reservations
• Requires careful negotiation of terms and respect for tribal sovereignty
• Examples:
  • Oglala Sioux Tribe and State of South Dakota cross-deputization agreement
  • Swinomish Indian Tribal Community and Skagit County (Washington) law enforcement agreement

Environmental sovereignty

• Growing area of tribal sovereignty assertion and exercise
• Reflects deep cultural connections to land and natural resources
• Intersects with broader environmental and climate change concerns

Natural resource protection

• Tribes develop and enforce environmental regulations on tribal lands
• Treatment as State (TAS) status under federal environmental laws allows tribes to set standards
• Challenges include limited resources and jurisdictional complexities
• Examples:
  • Confederated Salish and Kootenai Tribes' comprehensive resource management plan
  • Pueblo of Isleta's water quality standards stricter than state of New Mexico

Climate change impacts

• Many tribal lands particularly vulnerable to climate change effects
• Impacts on traditional subsistence practices, sacred sites, and tribal economies
• Tribes develop climate adaptation plans and participate in climate policy discussions
• Examples:
  • Alaska Native villages facing coastal erosion and relocation needs
  • Swinomish Climate Change Initiative addressing sea level rise impacts

Environmental regulation authority

• Tribes assert authority to regulate environmental quality on reservations
• EPA's 1984 Indian Policy recognizes tribal role in environmental protection
• Tribal authority extends to non-Indian activities that affect tribal resources
• Ongoing legal challenges and negotiations over extent of tribal authority
• Examples:
  • Gila River Indian Community's air quality program
  • Navajo Nation's regulation of uranium mining and cleanup

Cultural sovereignty

• Focuses on preserving and revitalizing Native American cultures
• Asserts tribes' right to define and practice their cultural traditions
• Challenges historical policies of forced assimilation and cultural suppression

Language preservation efforts

• Many Native languages at risk of extinction due to historical suppression and ongoing pressures
• Tribes develop language immersion programs, documentation efforts, and teaching materials
• Federal support through Native American Languages Act (1990) and grant programs
• Examples:
  • Cherokee Nation's language immersion schools
  • Hawaiʻi's ʻAha Pūnana Leo Hawaiian language nest program

Sacred site protection

• Efforts to preserve and protect places of cultural and spiritual significance
• Challenges include sites located off reservation or on public/private lands
• Legal tools include National Historic Preservation Act and Executive Order 13007
• Ongoing conflicts with development projects and resource extraction
• Examples:
  • Protection of Bear's Ears National Monument in Utah
  • Struggles over development near Mount Taylor in New Mexico

Repatriation of cultural items

• Return of human remains, sacred objects, and cultural patrimony to tribes
• Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 key federal law
• Ongoing process involving museums, federal agencies, and tribes
• Challenges include identification of cultural affiliation and international repatriation
• Examples:
  • Return of wampum belts to Onondaga Nation
  • Repatriation of Kennewick Man/Ancient One to Columbia River tribes

Sovereignty in urban settings

• Addresses needs and rights of Native Americans living outside reservations
• Challenges traditional notions of tribal sovereignty tied to specific territories
• Growing focus due to large urban Native population resulting from relocation policies and economic factors

Off-reservation tribal members

• Maintain cultural and political connections to tribes while living in urban areas
• Tribes extend services and voting rights to off-reservation members
• Challenges in maintaining community cohesion and cultural practices
• Examples:
  • Cherokee Nation's at-large tribal council representatives
  • Navajo Nation's outreach programs for urban Diné

Urban Indian organizations

• Non-profit organizations serving Native Americans in urban areas
• Provide cultural programs, health services, and social support
• Often serve pan-tribal populations from diverse tribal backgrounds
• Examples:
  • Indian Health Board of Minneapolis
  • United American Indian Involvement in Los Angeles

Service provision challenges

• Limited federal funding for urban Indian programs compared to reservation-based services
• Difficulties in coordinating services between tribes, urban organizations, and local governments
• Cultural competency issues in mainstream urban service providers
• Examples of challenges:
  • Access to culturally appropriate health care in cities
  • Maintaining Native language and cultural education for urban youth

International indigenous rights

• Growing recognition of indigenous rights at global level
• Provides context and support for tribal sovereignty efforts in U.S.
• Allows tribes to engage in international forums and build solidarity with other indigenous peoples

UN Declaration on Indigenous Rights

• Adopted by UN General Assembly in 2007, initially opposed but later endorsed by U.S.
• Affirms indigenous peoples' right to self-determination, lands, and cultural practices
• Non-binding but influential in shaping international norms and domestic policies
• Used by tribes to advocate for stronger recognition of sovereignty and rights

Indigenous sovereignty globally

• Diverse models of indigenous autonomy and self-governance worldwide
• Ranges from territorial autonomy to cultural and linguistic rights within nation-states
• Comparisons and contrasts with U.S. tribal sovereignty model
• Examples:
  • Sami Parliaments in Nordic countries
  • Maori representation in New Zealand parliament

Tribal participation in world affairs

• Increasing engagement of U.S. tribes in international forums and diplomacy
• Participation in UN Permanent Forum on Indigenous Issues and other bodies
• Development of intertribal and transnational indigenous alliances
• Examples:
  • Iroquois Nationals lacrosse team's use of Haudenosaunee passports
  • Tribal involvement in international climate change negotiations

Challenges to tribal sovereignty

• Ongoing threats to tribal self-governance and autonomy
• Reflect tensions between tribal, federal, and state interests
• Require constant vigilance and legal/political advocacy by tribes

Supreme Court decisions

• Trend of decisions limiting tribal sovereignty in recent decades
• Key cases narrowing tribal jurisdiction over non-members (Oliphant v. Suquamish Indian Tribe, 1978)
• Decisions impacting tribal civil regulatory authority (Nevada v. Hicks, 2001)
• Challenges to tribal court jurisdiction (Dollar General v. Mississippi Band of Choctaw Indians, 2016)

Congressional plenary power

• Doctrine asserting broad congressional authority over Indian affairs
• Used historically to both protect and limit tribal sovereignty
• Ongoing debates over extent and legitimacy of plenary power
• Examples of congressional actions:
  • Indian Civil Rights Act of 1968 imposing certain constitutional provisions on tribes
  • Tribal Law and Order Act of 2010 enhancing tribal criminal jurisdiction

State encroachment attempts

• Ongoing efforts by some states to assert jurisdiction or authority on tribal lands
• Challenges to tribal tax immunity and regulatory authority
• Disputes over natural resources and environmental regulation
• Examples:
  • State attempts to tax non-Indian businesses on reservations
  • Conflicts over tribal water rights in western states

Future of tribal sovereignty

• Evolving concept adapting to changing political, economic, and environmental landscapes
• Continued assertion and expansion of tribal self-governance and rights
• Balancing tradition with innovation in governance and economic development

Emerging technologies impact

• Opportunities and challenges presented by digital technologies and e-commerce
• Tribal regulation of internet activities and online gaming
• Use of blockchain and cryptocurrency in tribal economic development
• Examples:
  • Tribal digital currency initiatives (MazaCoin)
  • Online tribal lending enterprises and associated legal challenges

Climate change considerations

• Increasing focus on tribal roles in climate change mitigation and adaptation
• Potential for expanded tribal authority in environmental protection
• Challenges of protecting tribal lands and resources from climate impacts
• Examples:
  • Tribal participation in carbon markets and renewable energy projects
  • Relocation plans for tribes facing immediate climate threats (Isle de Jean Charles, Louisiana)

Evolving federal Indian policy

• Shifts in federal approach to tribal sovereignty and self-determination
• Potential for strengthened government-to-government relationships
• Ongoing efforts to address historical injustices and support tribal development
• Examples of potential policy directions:
  • Enhanced tribal jurisdiction over non-Indians in criminal matters
  • Increased tribal control over federal programs through self-governance compacts