🏛️Native American Tribal Governments Unit 9 – Tribal-State Intergovernmental Relations

Historical Context

• Native American tribes have a unique political and legal status in the United States based on their inherent sovereignty and government-to-government relationship with the federal government
• The U.S. Constitution recognizes tribes as distinct political entities, separate from states, in the Commerce Clause (Article I, Section 8, Clause 3) and the Treaty Clause (Article II, Section 2, Clause 2)
• Early treaties between the U.S. government and Native American tribes established the foundation for the federal trust responsibility and government-to-government relationship
  • For example, the Treaty of Hopewell (1785) and the Treaty of New Echota (1835) recognized Cherokee Nation sovereignty and established a trust relationship
• The Marshall Trilogy, a series of Supreme Court decisions in the early 19th century (Johnson v. M'Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia), defined the legal framework for tribal sovereignty and the federal-tribal relationship
• The Indian Removal Act of 1830 and the subsequent Trail of Tears (1838-1839) exemplified the U.S. government's efforts to relocate Native American tribes from their ancestral lands to designated Indian Territory west of the Mississippi River
• The General Allotment Act of 1887 (Dawes Act) aimed to assimilate Native Americans into mainstream society by dividing tribal lands into individual allotments, resulting in significant land loss for tribes
• The Indian Reorganization Act of 1934 (Wheeler-Howard Act) marked a shift in federal policy, encouraging tribal self-government and land restoration

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 federal and state governments
• Tribes possess inherent sovereignty that predates the formation of the United States and is not granted by the federal government
• Tribal sovereignty is limited by the federal government's plenary power over Indian affairs, as established by the U.S. Constitution and Supreme Court decisions
• Tribes have the authority to establish their own form of government, create laws, and enforce those laws within their jurisdictional boundaries
  • For instance, tribes can establish tribal courts, police departments, and other governmental institutions
• Tribal sovereignty includes the right to determine tribal membership, regulate domestic relations (marriages, divorces, and child custody), and manage tribal resources
• The U.S. government has a trust responsibility to protect tribal sovereignty, lands, assets, and resources, which stems from the unique historical relationship between the federal government and tribes
• Tribal sovereign immunity protects tribes from lawsuits in federal, state, and tribal courts without their consent or a waiver by Congress

Federal Indian Law

• Federal Indian law encompasses the body of law that governs the relationship between the federal government, Native American tribes, and individual Native Americans
• The U.S. Constitution grants Congress plenary power over Indian affairs, which includes the authority to legislate on matters affecting tribes and their members
• The trust doctrine is a fundamental principle of federal Indian law, obligating the federal government to protect tribal sovereignty, lands, assets, and resources and to act in the best interests of tribes
• The canons of construction in federal Indian law require that treaties, statutes, and executive orders be interpreted in favor of tribes, with ambiguities resolved to their benefit
• Key federal legislation in Indian law includes the Indian Reorganization Act of 1934, the Indian Self-Determination and Education Assistance Act of 1975, and the Indian Gaming Regulatory Act of 1988
  • These laws aim to support tribal self-governance, economic development, and cultural preservation
• The Supreme Court has played a significant role in shaping federal Indian law through decisions such as Worcester v. Georgia (1832), which affirmed tribal sovereignty, and Montana v. United States (1981), which limited tribal civil jurisdiction over non-members on non-Indian fee lands within reservations
• Executive orders, such as the Executive Order on Consultation and Coordination with Indian Tribal Governments (2000), require federal agencies to consult with tribes on policies and actions that may affect them

State-Tribal Jurisdictional Issues

• Jurisdictional conflicts often arise between states and tribes due to the complex interplay of federal, state, and tribal authority in Indian Country
• Indian Country, as defined by 18 U.S.C. § 1151, includes reservations, dependent Indian communities, and Indian allotments, and is generally subject to tribal and federal jurisdiction
• The extent of state jurisdiction in Indian Country is limited and varies depending on the specific context, such as criminal jurisdiction, civil jurisdiction, and taxation
• In general, states lack criminal jurisdiction over Native Americans in Indian Country, as established by the Major Crimes Act of 1885 and the Indian Country Crimes Act of 1948
  • However, Public Law 280 (1953) granted certain states (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin) criminal jurisdiction over Indian Country
• Civil jurisdiction in Indian Country is governed by the Montana v. United States (1981) decision, which held that tribes generally lack civil regulatory authority over non-members on non-Indian fee lands within reservations, with exceptions for consensual relationships and conduct threatening tribal welfare
• Taxation in Indian Country is a complex issue, with tribes having the authority to tax activities and transactions within their jurisdiction, while states are generally precluded from taxing Native Americans and tribal businesses in Indian Country
• The Indian Gaming Regulatory Act of 1988 requires tribes to enter into compacts with states to conduct certain types of gaming, creating a framework for state-tribal cooperation and revenue sharing

Intergovernmental Agreements

• Intergovernmental agreements (IGAs) are formal agreements between tribes and states or local governments that outline the terms of their cooperation on issues of mutual concern
• IGAs can cover a wide range of topics, such as law enforcement, emergency services, environmental protection, taxation, and economic development
• These agreements are based on the government-to-government relationship between tribes and states and recognize the sovereign status of both parties
• IGAs provide a mechanism for tribes and states to address jurisdictional conflicts, share resources, and collaborate on projects that benefit both communities
  • For example, cross-deputization agreements allow tribal and state law enforcement officers to enforce laws in each other's jurisdictions
• The Indian Self-Determination and Education Assistance Act of 1975 (Public Law 93-638) authorizes tribes to enter into contracts and compacts with federal agencies to assume control over programs and services that would otherwise be administered by the federal government
• Successful IGAs require effective communication, mutual respect, and a willingness to compromise and find solutions that accommodate the interests of both tribes and states
• Challenges in developing and implementing IGAs can include historical mistrust, cultural differences, and conflicting legal and political frameworks

Economic Development and Taxation

• Economic development is crucial for Native American tribes to achieve self-sufficiency, improve the well-being of their members, and exercise their sovereign rights
• Tribes have the authority to pursue various economic development strategies, such as natural resource extraction, tourism, and gaming
• The Indian Gaming Regulatory Act of 1988 (IGRA) provides a framework for tribes to conduct gaming operations on tribal lands, subject to state compacts for certain types of gaming
  • Gaming has become a significant source of revenue for many tribes, supporting tribal government operations, infrastructure, and social services
• Tribes have the power to tax activities and transactions within their jurisdiction, including sales taxes, excise taxes, and severance taxes on natural resources
• However, states are generally prohibited from taxing Native Americans and tribal businesses in Indian Country, as affirmed by the U.S. Supreme Court in cases such as McClanahan v. Arizona State Tax Commission (1973) and Oklahoma Tax Commission v. Chickasaw Nation (1995)
• Dual taxation, where both the tribe and the state seek to tax the same activity or transaction, can create economic disincentives and hinder tribal economic development
• To address taxation conflicts, tribes and states can enter into tax agreements that outline the division of tax revenues and coordinate tax administration
• Other economic development challenges for tribes include limited access to capital, infrastructure deficiencies, and the need for workforce development and training programs

Environmental and Natural Resource Management

• Native American tribes have a deep cultural and spiritual connection to their lands and natural resources, and effective management of these resources is essential for tribal sovereignty and self-determination
• Tribes have the authority to regulate environmental protection and natural resource management within their jurisdictional boundaries, subject to federal laws and regulations
• The U.S. Environmental Protection Agency (EPA) recognizes tribal sovereignty and works with tribes to develop and implement environmental programs through the Indian Environmental General Assistance Program (GAP) and other initiatives
• Tribes can assume primary regulatory authority over environmental programs on tribal lands, such as air quality, water quality, and waste management, through the "treatment as a state" (TAS) process under various federal environmental laws
  • For example, the Clean Water Act and the Clean Air Act allow tribes to be treated similarly to states for the purposes of implementing and enforcing environmental regulations
• Collaborative resource management agreements between tribes, states, and federal agencies can help coordinate conservation efforts, share data and expertise, and address transboundary environmental issues
• Natural resource development, such as mining, oil and gas extraction, and timber harvesting, can provide economic opportunities for tribes but also raise concerns about environmental impacts and cultural preservation
• Tribes have the right to consultation and free, prior, and informed consent (FPIC) regarding projects and policies that may affect their lands, resources, and communities, as outlined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

Contemporary Challenges and Opportunities

• Native American tribes continue to face significant challenges in their relationships with federal and state governments, including ongoing threats to tribal sovereignty, underfunding of federal trust responsibilities, and jurisdictional conflicts
• The COVID-19 pandemic has disproportionately affected Native American communities, highlighting the need for improved healthcare infrastructure, economic support, and intergovernmental coordination
• The McGirt v. Oklahoma (2020) Supreme Court decision, which affirmed the continued existence of the Muscogee (Creek) Nation reservation in eastern Oklahoma, has significant implications for criminal jurisdiction and tribal sovereignty in the state
• The Missing and Murdered Indigenous Women (MMIW) crisis has gained increased attention, prompting calls for improved data collection, law enforcement coordination, and support services for victims and families
• Climate change poses significant risks to tribal communities, particularly those in coastal areas or dependent on natural resources, and requires collaborative efforts to develop adaptation and mitigation strategies
• The Biden administration has pledged to strengthen the federal government's nation-to-nation relationship with tribes, increase funding for Indian Country, and address long-standing issues such as the protection of sacred sites and the promotion of Native language revitalization
• Opportunities for tribes include the expansion of renewable energy projects on tribal lands, the development of cultural tourism programs, and the strengthening of tribal institutions and self-governance capacities
• Continued dialogue, education, and collaboration among tribes, states, and the federal government are essential for addressing contemporary challenges and building a more equitable and prosperous future for Native American communities