⚖️Native American Law Unit 2 – Tribal Sovereignty & Federal Trust Relations

Historical Context

• Prior to European colonization, Indigenous nations exercised inherent sovereignty over their territories and peoples
• European powers (Spain, France, England) claimed sovereignty over Indigenous lands through the Doctrine of Discovery
• The United States continued this practice, asserting authority over Native American tribes while recognizing their right to self-governance
  • Early treaties between the U.S. and tribes acknowledged tribal sovereignty and established government-to-government relationships
  • However, the U.S. often failed to honor these treaties and sought to undermine tribal autonomy through policies of assimilation and termination
• The Marshall Trilogy of Supreme Court cases in the early 19th century laid the foundation for federal Indian law and the trust relationship
• The Indian Reorganization Act of 1934 marked a shift towards supporting tribal self-determination and preserving Native American culture

Defining Tribal Sovereignty

• Tribal sovereignty refers to the inherent right of Indigenous nations to govern themselves and their territories
• This sovereignty predates the formation of the United States and is not granted by the federal government
• Tribes possess the authority to establish their own governments, laws, and court systems
  • They can determine membership criteria, regulate economic activities, and manage natural resources within their jurisdictions
• However, tribal sovereignty is not absolute and can be limited by federal law or treaty provisions
• The U.S. Constitution recognizes tribes as distinct political entities, separate from states and foreign nations
• Tribal sovereignty is a key principle in federal Indian law and shapes the unique legal status of Native American tribes within the U.S. system

Federal Trust Responsibility

• The federal trust responsibility is a legal obligation of the United States to protect tribal sovereignty, lands, assets, and resources
• This responsibility arises from the historical relationship between the U.S. and tribes, as established through treaties, laws, and court decisions
• The trust doctrine requires the federal government to act in the best interests of tribes and their members
  • This includes managing tribal trust lands, providing essential services (healthcare, education), and defending tribal rights and resources
• The Bureau of Indian Affairs (BIA) within the Department of the Interior is the primary agency charged with carrying out the trust responsibility
• Tribes can enforce the trust responsibility through legal action, holding the U.S. accountable for breaches of its duties
• The trust relationship has been described as a "ward-guardian" dynamic, with the U.S. acting as a fiduciary for tribal interests

Key Legal Doctrines

• The Doctrine of Discovery, based on European colonial principles, asserted that Christian nations could claim lands occupied by non-Christians
  • This doctrine was used to justify U.S. sovereignty over Native American territories
• The Doctrine of Plenary Power holds that Congress has broad authority over Indian affairs, including the ability to modify or terminate tribal rights
• The Reserved Rights Doctrine states that tribes retain all rights not explicitly ceded in treaties or taken away by federal legislation
  • This includes water rights, hunting and fishing rights, and other aboriginal rights tied to their ancestral lands
• The Canons of Construction are rules for interpreting treaties and laws related to tribes
  • Ambiguities must be resolved in favor of the tribes, and treaties should be understood as the tribes would have understood them at the time
• The Doctrine of Tribal Sovereign Immunity protects tribes from lawsuits unless Congress has authorized the suit or the tribe has waived its immunity

Major Court Cases

• Johnson v. M'Intosh (1823): Established the Doctrine of Discovery as a legal principle, giving the U.S. authority over tribal lands
• Cherokee Nation v. Georgia (1831): Defined tribes as "domestic dependent nations" with a relationship to the U.S. resembling that of a ward to a guardian
• Worcester v. Georgia (1832): Affirmed tribal sovereignty and held that states have no power over tribal affairs within their borders
• Ex parte Crow Dog (1883): Recognized tribal criminal jurisdiction over crimes committed by Indians against Indians on reservations
• United States v. Winans (1905): Upheld tribal treaty rights, including off-reservation hunting and fishing rights
• Williams v. Lee (1959): Strengthened tribal court authority, holding that state courts lack jurisdiction over civil cases involving Indians on reservations
• California v. Cabazon Band of Mission Indians (1987): Confirmed tribal sovereignty in the context of gaming, leading to the growth of the Indian gaming industry

Modern Tribal Governance

• Today, there are 574 federally recognized tribes in the United States, each with its own distinct culture, history, and government
• Tribes have the authority to establish their own constitutions, laws, and court systems
  • Many tribes have adopted written constitutions and have established legislative, executive, and judicial branches of government
• Tribal governments provide a range of services to their members, including healthcare, education, housing, and public safety
  • They also manage tribal enterprises, such as casinos, natural resource extraction, and tourism
• Tribal courts have jurisdiction over civil and criminal matters involving Indians on reservations, with some limitations based on federal law
• Tribes engage in intergovernmental relations with federal, state, and local authorities to address issues of mutual concern
  • This can involve negotiating compacts, agreements, and memoranda of understanding on topics like law enforcement, environmental protection, and revenue sharing

Federal-Tribal Relations Today

• The federal government recognizes tribes as sovereign entities and maintains government-to-government relationships with them
• Congress has the power to enact legislation specific to tribes, which can affirm, modify, or limit tribal sovereignty
• Executive agencies, such as the BIA and the Indian Health Service (IHS), administer programs and services for tribes under the trust responsibility
• Federal funding for tribal programs is provided through a combination of direct appropriations, grants, and self-determination contracts
  • The Indian Self-Determination and Education Assistance Act of 1975 allows tribes to assume control over federal programs and services intended for their benefit
• Consultation with tribes is required for federal actions that may impact tribal interests, as outlined in Executive Order 13175 (2000)
• The White House Council on Native American Affairs, established in 2013, coordinates federal policies and programs related to tribes across multiple agencies

Challenges and Future Outlook

• Despite progress in tribal self-determination, many Native American communities continue to face significant challenges
  • These include high rates of poverty, unemployment, health disparities, and limited access to quality education and infrastructure
• Jurisdictional conflicts between tribes, states, and the federal government can complicate law enforcement, taxation, and regulation on reservations
• The underfunding of federal trust responsibilities, such as healthcare and education, remains a persistent issue
  • Tribes often lack sufficient resources to meet the needs of their members and must rely on inadequate federal funding
• Cultural preservation and language revitalization are ongoing priorities for many tribes, as they work to maintain their unique identities in the face of assimilation pressures
• Climate change poses significant risks to tribal communities, particularly those dependent on natural resources and traditional subsistence practices
• Strengthening tribal sovereignty, economic development, and self-determination will be critical to improving the well-being of Native American communities in the future
  • This may involve further enhancing tribal governance capacity, diversifying tribal economies, and advocating for full federal recognition and support