Native Americans

In order to make tribal sovereignty more meaningful, the U.S. Supreme Court has had to reject efforts by states and local governments to regulate activities in Indian Country. Like any other government, a tribe must be free to make choices about matters such as environmental quality, family life, and economic organization without outside interference. The Supreme Court has been emphatic that states lack authority over Native Americans on reservations, but it has been less clear about state authority over non-Native Americans. Particularly in situations where non-Native Americans engage in activity on non-Native American owned land, the federal government has not shown a preference for tribal authority; where the tribe has not attempted to regulate the activity at issue, where tribal interests will not be seriously compromised, and where the activity jeopardized off-reservation interests, the Supreme Court has shown some inclination to permit state power over non-Native Americans on reservations. For example, the Court has upheld state sales taxes on non-Native American purchasers of cigarettes that are sold by tribal smokeshops on reservations, even though tribal members who purchase the same cigarettes cannot be taxed by the state. The Court has also affirmed state power to zone parts of reservations that are owned by non-Native Americans and that have been opened to the public. The Court has not, however, allowed states to regulate certain gambling on Native American lands, at least where the revenue from gambling funds important tribal functions, and where the state does not totally prohibit that type of gambling off the reservation.

By making the issue of tribal versus state authority on reservations turn, in part, on questions of who owns the land and who is being regulated, the Supreme Court has made it difficult to govern Indian Country. Many tribes complain that unless they have complete control over the territory of their reservations, they cannot effectively regulate air and water pollution, raise revenue through taxes, guide economic development, or provide for child welfare. Furthermore, uncertainty concerning which government has jurisdiction has led to costly litigation. Increasingly, states and tribes have found it in their mutual interest to negotiate and agree about the allocation of power to regulate reservation activities. Furthermore, because Congress has the power to override Supreme Court decisions determining state and tribal authority over Native Americans or non-Native Americans in Indian Country, states and tribes sometimes appeal to Congress to make an allocation. Congress took such action in 1988, when it enacted the Indian Gaming Regulatory Act. This statute established a complex scheme of tribal and state jurisdiction over different types of gambling on reservations.