🏛️Native American Tribal Governments Unit 14 – Tribal Sovereignty: Modern Challenges

Historical Context

• Native American tribes have a unique political and legal status rooted in their inherent sovereignty as self-governing entities predating European colonization
• Early treaties between European powers and Native American tribes recognized tribal sovereignty and established government-to-government relationships (Treaty of Greenville, 1795)
• The U.S. Constitution acknowledges the sovereign status of tribes through the Commerce Clause and the Treaty Clause
• The Marshall Trilogy of Supreme Court cases in the early 19th century (Johnson v. M'Intosh, Cherokee Nation v. Georgia, Worcester v. Georgia) established the legal framework for tribal sovereignty and the federal-tribal relationship
  • Defined tribes as "domestic dependent nations" with inherent sovereignty subject to the overarching authority of the federal government
• Federal policies towards Native American tribes have fluctuated over time, from the removal and assimilation eras of the 19th century to the self-determination era of the late 20th century
• The Indian Reorganization Act of 1934 marked a shift towards greater tribal self-governance and the recognition of tribal governments
• The termination era of the 1950s sought to end the federal-tribal relationship and assimilate Native Americans into mainstream society, but was met with resistance and ultimately repudiated

Defining Tribal Sovereignty

• Tribal sovereignty refers to the inherent right of Native American tribes to govern themselves, manage their internal affairs, and engage in government-to-government relationships with other entities
• Sovereignty is an inherent attribute of tribes as distinct political communities that predates the formation of the United States
• Tribal sovereignty is not granted by the federal government, but rather is recognized and affirmed through treaties, legislation, and court decisions
• The scope of tribal sovereignty has been shaped by the federal-tribal relationship and the plenary power of Congress over Indian affairs
  • Plenary power doctrine holds that Congress has broad authority to legislate on matters affecting Native American tribes
• Tribal sovereignty includes the power to determine membership, establish tribal governments, enact laws, administer justice, and manage tribal lands and resources
• The exercise of tribal sovereignty is subject to certain limitations imposed by federal law and the overarching trust responsibility of the federal government towards tribes
• Tribal sovereignty is a dynamic concept that continues to evolve through political, legal, and social developments

Key Legal Precedents

• The Marshall Trilogy of Supreme Court cases (Johnson v. M'Intosh, 1823; Cherokee Nation v. Georgia, 1831; Worcester v. Georgia, 1832) established the foundational principles of tribal sovereignty and the federal-tribal relationship
  • Recognized tribes as distinct political communities with inherent sovereignty
  • Defined the federal-tribal relationship as one of a trust, with the federal government having a duty to protect tribal rights and interests
• Ex parte Crow Dog (1883) affirmed tribal jurisdiction over crimes committed by Native Americans on tribal lands
• United States v. Kagama (1886) upheld the constitutionality of the Major Crimes Act, which extended federal criminal jurisdiction over certain crimes committed by Native Americans on tribal lands
• Lone Wolf v. Hitchcock (1903) affirmed the plenary power of Congress over Indian affairs and the ability to abrogate treaties with tribes
• The Indian Reorganization Act of 1934 encouraged tribal self-government and the establishment of tribal constitutions and business councils
• Williams v. Lee (1959) recognized tribal court jurisdiction over civil cases involving non-Indians on tribal lands
• McClanahan v. Arizona State Tax Commission (1973) held that states generally lack authority to tax Native Americans living and working on tribal lands
• California v. Cabazon Band of Mission Indians (1987) affirmed tribal sovereignty in the context of gaming and the ability of tribes to conduct gaming operations on tribal lands

Contemporary Challenges

• Tribes face ongoing challenges in asserting and defending their sovereignty in the face of encroachment by federal, state, and local governments
• The complex patchwork of federal, state, and tribal jurisdiction on Indian reservations creates challenges for law enforcement, public safety, and the administration of justice
• Tribes often lack adequate funding and resources to fully exercise their sovereign powers and provide essential services to their members
• The trust relationship between the federal government and tribes is often strained by issues of underfunding, bureaucratic inefficiencies, and failures to properly manage trust assets
• Tribes face challenges in protecting their natural resources, cultural heritage, and sacred sites from development, pollution, and other threats
• The legacy of historical trauma, discrimination, and socioeconomic disparities continues to impact Native American communities and pose challenges for tribal governments
• Conflicts over land rights, water rights, and other resources persist between tribes, states, and private interests
• The legal landscape surrounding tribal sovereignty is complex and often in flux, with ongoing debates over the scope and limits of tribal authority

Economic Development and Self-Determination

• Economic development is crucial for tribes to assert their sovereignty, provide for the well-being of their members, and reduce dependence on federal funding
• The Indian Self-Determination and Education Assistance Act of 1975 marked a significant shift towards tribal self-governance and the ability of tribes to assume control over federal programs and services
• Tribes have pursued a range of economic development strategies, including gaming, natural resource extraction, tourism, and small business development
• The Indian Gaming Regulatory Act of 1988 established a framework for the regulation of tribal gaming and has been a major source of revenue for many tribes
  • Gaming has provided employment opportunities, funded essential services, and supported cultural preservation efforts for many tribes
• Tribes have also engaged in energy development, such as oil and gas extraction, renewable energy projects, and energy infrastructure
• Tribal governments have established their own enterprises, such as tribal corporations and economic development authorities, to promote business growth and job creation
• Challenges to tribal economic development include limited access to capital, infrastructure deficiencies, workforce development needs, and regulatory barriers

Jurisdictional Issues

• The complex web of federal, state, and tribal jurisdiction on Indian reservations creates challenges for law enforcement, public safety, and the administration of justice
• Criminal jurisdiction on tribal lands is divided between federal, state, and tribal authorities depending on the nature of the crime, the identity of the perpetrator and victim, and the specific location
  • The Major Crimes Act of 1885 grants federal jurisdiction over certain serious crimes committed by Native Americans on tribal lands
  • Public Law 280 of 1953 transferred criminal and some civil jurisdiction from the federal government to certain states, creating a patchwork of jurisdictional arrangements
• Tribal courts have inherent jurisdiction over civil cases involving Native Americans on tribal lands, but their authority over non-Indians is more limited and subject to federal court review
• The Indian Civil Rights Act of 1968 extends many, but not all, of the protections of the U.S. Bill of Rights to tribal governments and tribal court proceedings
• Tribes have worked to enhance their law enforcement and judicial capacities through cross-deputization agreements, tribal police departments, and the development of tribal courts
• Domestic violence and sexual assault are major challenges on many reservations, and tribes have sought to assert greater jurisdiction over these crimes through the Violence Against Women Act and other measures
• Jurisdictional disputes between tribes and states over issues such as taxation, regulation, and land use are common and often require federal intervention or litigation to resolve

Federal-Tribal Relations Today

• The federal-tribal relationship continues to evolve and is shaped by a complex mix of treaties, legislation, court decisions, and political realities
• The federal trust responsibility towards tribes, rooted in treaties and the historical relationship between the U.S. government and Native American nations, obligates the federal government to protect tribal rights, resources, and interests
• The Bureau of Indian Affairs (BIA) within the Department of the Interior is the primary federal agency responsible for administering the trust responsibility and overseeing federal programs and services for tribes
• The Indian Health Service (IHS) within the Department of Health and Human Services is responsible for providing healthcare services to Native American communities
• Tribes engage with Congress and the executive branch through government-to-government consultation, lobbying, and advocacy efforts to shape federal policies and legislation affecting their interests
• Executive orders and memoranda, such as Executive Order 13175 on Consultation and Coordination with Indian Tribal Governments, provide guidance on federal-tribal interactions and the trust responsibility
• Funding for tribal programs and services is a perennial issue, with many tribes arguing that federal funding levels are inadequate to meet the needs of their communities and fulfill the trust responsibility
• Tribes have pushed for greater self-determination and control over federal programs and services through mechanisms such as self-governance compacts and 638 contracts under the Indian Self-Determination and Education Assistance Act

Future Outlook and Emerging Trends

• The future of tribal sovereignty will be shaped by ongoing legal, political, and social developments at the federal, state, and tribal levels
• Tribes continue to assert their sovereignty through litigation, political advocacy, and the exercise of their inherent governmental powers
• The United Nations Declaration on the Rights of Indigenous Peoples, adopted in 2007, provides an international framework for the recognition and protection of indigenous rights and self-determination
• Climate change and environmental challenges pose significant threats to tribal communities and resources, and tribes are working to develop adaptation and mitigation strategies
• The COVID-19 pandemic has highlighted the health and socioeconomic disparities faced by many Native American communities and the need for greater investment in tribal public health and infrastructure
• Movements such as Indigenous Peoples' Day and the Land Back campaign reflect growing public awareness and support for Native American rights and sovereignty
• Tribal nations are increasingly engaging in inter-tribal cooperation and forming coalitions to advance their collective interests and address common challenges
• The future of the federal-tribal relationship will depend on the commitment of both parties to meaningful consultation, respect for tribal sovereignty, and the fulfillment of the trust responsibility
• Emerging technologies, such as broadband internet and renewable energy, offer new opportunities for tribal economic development and self-sufficiency
• The next generation of Native American leaders, activists, and scholars will play a crucial role in shaping the future of tribal sovereignty and the ongoing struggle for self-determination and equality