9.3 Tribal sovereignty and the relationship between state and tribal governments

Tribal sovereignty is a cornerstone of Native American rights in the U.S. It gives tribes the power to govern themselves within their lands. In New Mexico, this plays out in complex ways as 23 federally recognized tribes navigate their relationships with state and federal governments.

The dynamic between tribal and state governments in New Mexico is marked by both conflict and cooperation. While jurisdictional disputes arise over issues like taxation and law enforcement, there are also successful collaborations in areas such as education, public health, and environmental protection.

Tribal Sovereignty and its Legal Basis

Definition and Inherent Rights

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• Tribal sovereignty is the right of American Indian tribes to govern themselves as independent nations within the borders of the United States
• Tribes possess inherent powers of self-government as distinct political entities
  • Inherent powers are not granted by the federal government but are pre-existing rights that have never been extinguished
  • Examples of inherent powers include the authority to determine tribal membership, establish tribal courts, and regulate activities on tribal lands

Constitutional Recognition and Federal Obligations

• The legal basis for tribal sovereignty is rooted in the U.S. Constitution, treaties, federal statutes, and Supreme Court decisions
  • The Constitution recognizes tribes as distinct political entities through the Indian Commerce Clause (Article I, Section 8, Clause 3) and the Treaty Clause (Article II, Section 2, Clause 2)
  • Treaties between the federal government and tribes are considered the "supreme law of the land" under the Supremacy Clause (Article VI, Clause 2)
• The federal government has a trust responsibility to protect tribal lands, resources, and rights
  • This trust responsibility is derived from treaties and the unique government-to-government relationship between tribes and the United States
  • The federal government is obligated to act in the best interests of tribes and to ensure their welfare and sovereignty

Landmark Supreme Court Decisions

• Key Supreme Court cases have affirmed tribal sovereignty and clarified the relationship between tribes, states, and the federal government
  • Worcester v. Georgia (1832) held that tribes are "distinct, independent political communities" with exclusive authority over their internal affairs and territory
  • United States v. Wheeler (1978) recognized tribes' inherent power to exercise criminal jurisdiction over their members as an aspect of their retained sovereignty
• Other important cases include Ex parte Crow Dog (1883), which upheld tribal criminal jurisdiction, and Williams v. Lee (1959), which limited state authority on reservations
  • These decisions established the principle that state laws generally do not apply on tribal lands unless Congress expressly grants such authority

State-Tribal Relations in New Mexico

Historical Context and Treaties

• New Mexico is home to 23 federally recognized tribes, including 19 Pueblos, three Apache tribes (Jicarilla, Mescalero, and Fort Sill), and the Navajo Nation
• Spanish colonizers and later the Mexican government recognized the sovereignty of Pueblo nations through land grants and treaties
  • The United States upheld these agreements after the Mexican-American War (1846-1848) under the Treaty of Guadalupe Hidalgo
  • The treaty guaranteed property rights and religious freedoms for Pueblos and other inhabitants of the territory

Statehood and Federal Legislation

• The New Mexico Enabling Act of 1910, which granted statehood to New Mexico, included provisions to protect tribal lands and rights
  • The act prohibited the sale of alcohol on Indian lands without tribal consent and required the state to maintain Indian trust lands
  • It also established the basis for state-tribal relations by recognizing the federal government's authority over Indian affairs
• In 1924, Congress passed the Pueblo Lands Act to settle land disputes between Pueblos and non-Indian settlers
  • While the act provided some compensation for lost lands, it also resulted in the loss of significant portions of Pueblo lands
  • The act demonstrated the complex and often contentious nature of state-tribal relations, as both entities sought to protect their interests and assert their jurisdiction

Dynamics of State and Tribal Governments

Jurisdictional Conflicts and Limitations

• The relationship between state and tribal governments is often characterized by tensions over jurisdiction, resources, and cultural differences
• States generally lack authority to regulate activities on tribal lands or to enforce state laws against tribal members on reservations
  • Tribes are subject to federal law and their own tribal laws, which supersede state law on reservations
  • However, the extent of tribal jurisdiction over non-Indians on reservations is limited by Supreme Court decisions such as Montana v. United States (1981) and Nevada v. Hicks (2001)
• Conflicts can arise over issues such as taxation, gaming, environmental regulation, and law enforcement
  • For example, states may seek to tax businesses on reservations or to regulate tribal gaming operations, while tribes assert their sovereign right to manage their own affairs

Balancing Sovereignty and Cooperation

• Despite jurisdictional tensions, state and tribal governments often recognize the need for cooperation and collaboration to address common challenges
  • Many states have established formal government-to-government relationships with tribes through executive orders, legislative actions, or memoranda of understanding
  • These agreements can provide a framework for consultation, data sharing, and joint decision-making on issues of mutual concern
• Successful state-tribal partnerships require a delicate balance between respecting tribal sovereignty and promoting intergovernmental coordination
  • States must recognize tribes as equal partners and avoid imposing their will or values on tribal communities
  • Tribes must be willing to engage with state agencies and officials in a spirit of mutual respect and open communication

Issues in State-Tribal Relations

Water Rights and Resource Management

• Disputes over access to and control of water resources are common, as many tribal communities rely on surface water and groundwater for agricultural, domestic, and cultural purposes
  • Tribes often hold senior water rights based on the Winters Doctrine, which holds that the federal government implicitly reserved sufficient water to fulfill the purposes of reservations
  • Conflicts can arise when state water laws and policies fail to recognize or accommodate tribal water rights, leading to litigation and political tensions
• Tribal governments also seek to protect their natural resources, such as minerals, timber, and wildlife, from exploitation or degradation
  • States may seek to regulate resource development on reservations or to tax revenues from such activities, while tribes assert their sovereign right to manage their resources and to benefit from their use

Economic Development and Infrastructure

• Tribes often face challenges in attracting investment and creating jobs on reservations due to factors such as remote locations, limited infrastructure, and complex regulatory environments
  • Many reservations lack adequate roads, utilities, and telecommunications networks, which can hinder economic growth and quality of life
  • The overlapping and sometimes conflicting jurisdictions of federal, state, and tribal governments can create uncertainty and bureaucratic obstacles for businesses seeking to operate on reservations
• State and tribal governments can work together to promote economic development by investing in infrastructure, streamlining regulations, and providing incentives for businesses
  • For example, New Mexico has established the Native American Economic Development Fund to provide grants and loans for tribal businesses and entrepreneurs
  • The state has also worked with tribes to develop joint tourism initiatives, such as the Trail of the Ancients Scenic Byway, which showcases Native American cultural sites and attractions

Public Safety and Law Enforcement

• The high rates of crime and violence on some reservations have led to debates over the effectiveness of tribal justice systems and the need for greater cooperation between tribal, state, and federal law enforcement agencies
  • Tribal courts often lack the resources and jurisdiction to prosecute serious crimes, which fall under federal jurisdiction under the Major Crimes Act
  • The complex web of jurisdictional authorities can lead to confusion, delays, and gaps in law enforcement coverage, particularly when crimes involve non-Indian perpetrators or occur in checkerboard areas with mixed land ownership
• State and tribal governments have sought to address these challenges through cross-deputization agreements, which allow tribal and state officers to enforce each other's laws, and through joint task forces and training programs
  • For example, the Navajo Nation has entered into agreements with several counties in New Mexico to provide mutual aid and to coordinate responses to emergencies and crimes
  • The state has also established the New Mexico Tribal-State Judicial Consortium to promote communication and cooperation between tribal and state court systems

Cultural Preservation and Sacred Sites

• Tribes seek to protect their cultural heritage, sacred sites, and traditional practices from encroachment or damage by development projects or state policies
  • Many tribes have cultural preservation offices and historic preservation plans to identify and safeguard important cultural resources
  • Conflicts can arise when state or federal projects, such as highways, pipelines, or mines, threaten to disturb or destroy sacred sites or cultural properties
• State and tribal governments can work together to ensure that cultural resources are respected and protected through consultation, mitigation measures, and joint management agreements
  • For example, the state of New Mexico has worked with the Navajo Nation to develop a cultural resources protection plan for the Greater Chaco Landscape, which includes Chaco Culture National Historical Park and surrounding tribal lands
  • The plan seeks to balance the preservation of cultural sites with the development of oil and gas resources in the area through buffer zones, viewshed protections, and tribal consultation requirements

Successful State-Tribal Collaborations

Government-to-Government Relations

• The New Mexico State-Tribal Collaboration Act (2009) requires state agencies to develop policies that promote communication and cooperation with tribes and to designate tribal liaisons to facilitate government-to-government relations
  • The act establishes a framework for consultation, information sharing, and dispute resolution between state agencies and tribal governments
  • It also requires state agencies to provide training to their employees on tribal sovereignty, cultural competency, and effective communication with tribal communities
• Other states have adopted similar laws or policies to formalize their relationships with tribes and to ensure that tribal interests are considered in state decision-making processes
  • For example, the state of Washington has a Centennial Accord (1989) and a Millennium Agreement (1999) with federally recognized tribes that establish principles for government-to-government relations and cooperative problem-solving
  • These agreements have led to successful collaborations on issues such as fish and wildlife management, child welfare, and economic development

Education and Language Preservation

• The New Mexico Indian Education Act (2003) aims to improve educational outcomes for Native American students by requiring the state to work with tribes to develop culturally relevant curricula and to provide resources for tribal language programs
  • The act establishes an Indian Education Advisory Council to advise the state on issues related to Native American education and to ensure that tribal perspectives are included in policy decisions
  • It also provides for the creation of tribal education departments and the appointment of tribal education liaisons to coordinate with state and local school districts
• Tribes and states have also collaborated on language preservation and revitalization efforts, recognizing the importance of Native languages to cultural identity and continuity
  • For example, the Navajo Nation has worked with the states of New Mexico, Arizona, and Utah to develop a comprehensive Navajo language curriculum for K-12 schools
  • The curriculum includes textbooks, multimedia resources, and teacher training materials that are aligned with state and tribal education standards

Public Health and Emergency Management

• The Navajo Nation and the state of New Mexico have collaborated on initiatives to address public health issues, such as the COVID-19 pandemic, by sharing data, coordinating testing and vaccination efforts, and providing mutual aid
  • The state and the tribe established a joint information center to provide consistent and accurate information to the public and to coordinate public health messaging
  • The state also provided personal protective equipment, testing supplies, and medical personnel to support the tribe's response to the pandemic
• Tribes and states have also worked together on emergency management and disaster response efforts, recognizing the need for coordinated and timely action to protect lives and property
  • For example, the Pueblo of Acoma and the state of New Mexico have a joint powers agreement that allows for mutual aid and resource sharing during emergencies, such as wildfires or floods
  • The agreement includes provisions for joint training exercises, communication protocols, and reimbursement procedures to ensure effective and efficient response to disasters

Environmental Protection and Conservation

• Tribes and state agencies have worked together on environmental projects, such as the restoration of the Rio Grande cutthroat trout, which is sacred to many Pueblos, through habitat conservation and fish stocking programs
  • The New Mexico Department of Game and Fish has worked with the Pueblos of Taos, Santa Clara, and San Felipe to develop a conservation plan for the trout, which includes monitoring, research, and habitat improvement projects
  • The plan seeks to balance the cultural and ecological significance of the trout with the recreational and economic interests of the state and local communities
• Other examples of successful state-tribal environmental collaborations include:
  • The Navajo Nation and the state of New Mexico have worked together to clean up abandoned uranium mines and to address the health impacts of uranium contamination on Navajo communities
  • The Pueblos of Jemez and Santa Ana have worked with the state to develop a watershed restoration plan for the Jemez River, which has been impacted by wildfires, erosion, and invasive species
  • These collaborations demonstrate the potential for state and tribal governments to work together to address complex environmental challenges and to promote sustainable resource management practices