Native Americans

The U.S. Congress asserts the right to define and limit, indeed to abolish, tribal law and government. It rests this power on Article I of the Constitution, which authorizes Congress to regulate commerce "with the Native American tribes," to enter into treaties, to make war, and to exercise power over federal lands. Congress and the Supreme Court sometimes justify federal power by invoking the existence of a federal guardianship toward the Native Americans, which resulted from the weakening of tribal governments by historic U.S. policy. Many Native American groups and modern legal scholars do not accept the federal government's understanding of the scope of congressional power over Native American affairs. Adopting a narrow interpretation of the Indian Commerce Clause, they would limit that federal power to the regulation of trade and commerce between Native Americans and non-Native Americans, excluding all internal tribal matters. Whatever the source and scope of Congress' power, however, all agree that it excludes overlapping state authority in Indian Country. The Supreme Court has acknowledged state authority over Native American affairs only in isolated instances involving non-Native Americans and where the exercise of state power would not thwart tribal self-government.

Exercising its powers, Congress has enacted criminal laws that apply to Native American/non-Native American crimes and specified "major" crimes in Indian Country, has made certain state laws applicable in Indian Country in some states, has restricted the sale or lease of tribally-owned lands, has regulated trading and the sale of liquor in Indian Country, has required that tribal governments afford individuals some of the civil rights enumerated in the Bill of Rights, and has even terminated the legal status of some tribes. Most of Congress' laws affecting Native Americans can be found in Title 25 of the United States Code, which compiles all Congressional enactments relating to Native Americans. These statutes indicate the range of Native American groups to which they apply by the way they define the term "tribe." Some definitions--such as in the portion of the Non-Intercourse Act prohibiting transfers of Native American land without federal permission--are quite broad. Others are narrower, limiting the application of federal law to tribes that have been officially recognized by the Department of the Interior as generally entitled to federal benefits.

Because of its power of judicial review, the U.S. Supreme Court can set limits on Congressional power respecting tribal law and government. It has largely declined to do so. In the nineteenth century, the Court described congressional power as all-encompassing, or "plenary," and dismissed challenges to particular federal actions as entailing "political questions" unsuitable for judicial resolution. On these bases, the Court rejected Native American suits protesting the forcible break-up of communal tribal lands in violation of specific treaty promises.

Modern Supreme Court doctrine acknowledges more room for judicial intervention. First, any federal action that might impair Native American rights must be interpreted in the manner most favorable to the Native Americans. This rule of statutory interpretation prevents Congress from diminishing Native American self-government or treaty rights unless it is quite explicit about its intent to do so. Thus, for example, certain federal criminal laws that prohibit the killing of wildlife are not applied to Native Americans with treaty rights to hunt those particular animals or to use them for ritual purposes, because the laws do not contain language that denies the Native Americans' rights. Second, federal law that operates to deny Native Americans their property must be accompanied by the payment of "just compensation" in accordance with the Fifth Amendment to the Constitution, at least if that property has been recognized by the federal government through treaty or by statute. Third, congressional action regarding Native Americans and tribes can be challenged under the Due Process Clause of the Fifth Amendment if it does not rationally further the federal government's fiduciary relationship (a relationship founded in trust) toward the Native Americans. Although the Supreme Court has never actually used this language to reject an act of Congress, it has invoked the same principle to invalidate actions by federal administrative agencies that adversely affect Native American interests. If, for example, the federal agencies that must approve leases of Native American lands and minerals do not carefully oversee compliance with the lease provisions by the lessees, or the federal agencies responsible for investing Native American trust funds do not invest the funds prudently, Native American tribes may sue the federal government for breach of trust.