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Native Americans

Tribal Governance
Contemporary federal court decisions, statutes, and presidential statements often provide strong support for tribal self-government. According to U.S. judicial doctrine, for example, tribal legal regimes survive as manifestations of indigenous sovereign powers, rather than as creations of federal law. In keeping with this notion, the Bill of Rights of the Constitution does not applyto actions of tribal governments because the first ten amendments to the Constitution bind only the federal government and its agencies, not independentsovereigns such as Indian nations. Furthermore, a criminal defendant can be convicted for the same crime in federal and tribal court without being placedin double jeopardy, because the protection against double jeopardy in the U.S. Constitution does not apply to situations where a person is convicted for the same crime by two separate sovereigns.
If Native American tribes are not federal agencies, however, neither are theymere voluntary associations, like private clubs, whose powers are limited toadmitting and excluding members. Instead, they are governing bodies with thepower to direct and coerce individuals engaged in activities within their territory, more like cities and states. The U.S. Supreme Court has affirmed, for example, that tribes may impose taxes on activities by Native Americans andnon-Native Americans alike in Indian Country.
The Supreme Court has also tried to place some limits on tribes' sovereign powers, particularly where non-Native Americans or Native Americans who are members of other tribes are involved. Finding that the incorporation of tribes into the United States necessarily reduced the scope of tribal powers, the Supreme Court has held that tribal sovereignty does not include the power to engage in foreign relations, to wage war, to alienate (transfer an ownership interest in) tribal land, or to impose criminal punishments on non-members of the tribe. The Court has also restricted the power of tribes to regulate the activities of non-members on land that is owned by non-members but is located within the reservation, at least if those activities have no substantial bearing on the health or well-being of tribal members. These determinations by theSupreme Court are judge-made law, drawing on the history and practices of federal Native American law, but not directly tied to language of the U.S. Constitution or specific federal statutes. Consequently, the Court ordinarily acknowledges in its decisions limiting tribal powers that Congress can restore those powers by enacting legislation that offers a contrary interpretation ofthe history and practice.
Monitoring Government Interference
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 makechoices 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 ithas 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 fortribal authority; where the tribe has not attempted to regulate the activityat 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 betaxed by the state. The Court has also affirmed state power to zone parts ofreservations 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, inpart, 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 revenuethrough taxes, guide economic development, or provide for child welfare. Furthermore, uncertainty concerning which government has jurisdiction has led tocostly 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 in1988, 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.
Support for Tribal Sovereignty
In recent decades, Congress, like the Supreme Court, has often recognized andsupported tribal sovereignty. Since the 1960s self-determination for NativeAmerican tribes has been the official federal policy, as is reflected in numerous pieces of congressional legislation. In 1975, for example, Congress enacted the Indian Self-Determination and Education Assistance Act. This statuteauthorizes federal agencies providing services to Native Americans to contract with tribes so that the tribes can deliver the services themselves. The purpose of this statute was to liberate Native American tribes from some of thebureaucratic control exercised by the Bureau of Indian Affairs. Another congressional affirmation of tribal sovereignty is the Indian Child Welfare Act of1978. This statute requires that cases involving foster care and adoptive placement of Native American children be heard in tribal rather than state courts when the children are living or have their permanent home on the reservation. Even in some cases where the Native American children live off-reservation, the Indian Child Welfare Act requires that the cases be transferred from state to tribal court. This act affirms both the value of tribal courts and the importance to Native American tribes of controlling the fate of their children when those children must be separated from their parents. Support for tribal sovereignty is also apparent in various federal environmental laws, suchas the Clean Air Act and the Clean Water Act, that accord tribes the same status as states in implementing their regulatory schemes. Finally, Congress reinforced tribal sovereignty in 1991 when it adopted a statute affirming tribalcriminal jurisdiction over non-member Native Americans, overriding an earlier ruling to the contrary by the United States Supreme Court.
Statements of the president of the United States, especially since the 1970s,have declared support for tribal sovereignty as well. The most memorable phrase from these presidential statements recognizes a "government-to-government" relationship between the United States and the Native American tribes. Thislanguage cautions the other branches of government that Native American tribes should be treated with the respect due other governmental entities.
Treaty-making before 1871
From 1776 to 1871, the United States made more than 400 treaties with NativeAmerican tribes, and nearly all of them were ratified by the Senate in the same manner as treaties with foreign nations. American expansion encountered varying levels of resistance, from guerrilla warfare in the swamps of Florida to great cavalry battles on the plains in the 1860s. In some instances, the government simply used treaties to create the appearance of legality for what was actually a confiscation of land at gunpoint. In other parts of the country, treaties were part of a long process of diplomacy, accommodation, and confrontation that lasted for decades. Some treaties were very strong, others weak, and each must be understood in the context of the time and circumstances inwhich it was made.
Until the 1820s, the United States was preoccupied with securing its borderswith Native American tribes. This was not motivated by Christian morality asmuch as by the need to legitimize the new American state in the eyes of European powers; to establish superior American claims to the Great Lakes, the Mississippi valley, and Florida, which were also claimed by Britain, France, andSpain; and to create peaceful conditions for the development of its existingsettlements still east of the Appalachian Mountains.
During the Revolutionary War itself, the new American government negotiated treaties of alliance with the Wabanaki confederacy and with the tribes of theOhio River valley. Once peace had been restored by the Treaty of Paris in 1783, American diplomats entered into alliances with the Haudenosaunee and withthe southern confederacy of Cherokee, Creek, Choctaw, and Chicksaw, hoping tosecure a safe, pro-American frontier. In the treaties of this period, tribessimply accepted U.S. "protection" and U.S. authority to regulate Native American trade. In other words, they agreed to be included in a new American sphere of influence. Apart from trade issues, however, they gave up none of theirright to self-government, as the U.S. Supreme Court concluded in its famous1832 decision, Worcester v. Georgia.
The Haudenosaunee and Ohio valley nations also continued to renew their treaties with Britain, however. As far as they were concerned, everything west ofthe Appalachians was still Indian Country; the U.S.-Canadian border did not extend into that region. American settlements west of the Appalachians led toa great uprising under Tecumseh, which coincided with the War of 1812. Once again, tribes fought on both sides, and their future was a major issue at thepeace negotiations. The Treaty of Ghent (1814) made it clear that the U.S.-Canadian border did indeed divide Indian Country, and that only the U.S. couldmake treaties with the tribes south of that line.
The Treaty of Ghent secured the northern border of the States, while the U.S.purchase of Florida and Louisiana eliminated competition for tribal alliances with France and Spain as far west as the Mississippi. American diplomacy shifted from securing peace to acquiring lands for settlement, chiefly from tribes already under U.S. protection, between the Appalachian crest and the Mississippi. At first, tribes attempted to keep some of their main villages and farmland, selling only small parcels on the fringes of their territories. Beginning in the 1830s, however, the U.S. aimed for their complete "removal." Toacquire lands for the relocation of eastern nations such as the Cherokee andDelaware, the U.S. made treaties with tribes west of the Mississippi, such asthe Osage and Comanche. Treaties with the eastern tribes worked out the details of their move, which included the sale of their homelands to help pay forexpenses, and for the development of new schools, farms, and roads in the west. Needless to say, many eastern tribes resisted, and those who left their homes did so only to avoid war.
American leaders still believed that the plains were economically worthless,and did not hesitate to promise the removed tribes that they would enjoy security and self-government in their new western homes forever. The U.S. even pledged that this western "Indian Territory" would remain exclusively Native American and would never be included within any state. At the same time, theseremoval treaties involved the U.S. more directly in internal tribal affairs than ever before. After arranging for the sale of the tribes' homelands, federal officials spent the proceeds on education, health, and social programs, asspecified by each treaty. The federal government became a banker for removedtribes under these treaties. In legal terms, it became a trustee, managing tribal funds and property.
By the 1840s, American settlements had begun on the Pacific coast and on theedges of the Great Plains. Mexico had won its independence from Spain, and was viewed as the main obstacle to American expansion. In the Mexican War, theU.S. seized all Mexican territory north of the Rio Grande, and quickly made treaties with the largest nomadic Native American tribes of the Southwest-- the Navajo, Apache, and Ute - to secure the new international border. In the ten years following the Mexican War, the U.S. made treaties for the first timewith the tribes of the West Coast, from California to Washington, although the Senate never ratified California treaties and some Oregon treaties. The Puget Sound (Washington State) treaties were particularly important for U.S. policy, because they helped settle the western border between the U.S. and British North America (Canada), a border so hotly disputed that it almost led to athird British-American war in 1854. Small and chiefly dependent on fishing,West Coast tribes generally agreed to cede most of their lands in exchange for the protection of their fishing rights.
Native American treaties made after the Mexican War contained some crucial new provisions, reflecting the growing military power and expansionism of Euro-Americans. Instead of merely accepting U.S. "protection," the Southwest and West Coast tribes agreed to "submit" to federal laws or regulations concerningNative Americans. Never before had the U.S. tried to extend its legislativepower to Native Americans inside Native American territory. In a growing number of treaties in the 1850s, moreover, tribes agreed that the president couldtake land for roads and railroads, and divide the remaining Native Americanland into individual family farms ("allotments"). Any land left over was to be sold to pay for farming equipment, schools, and hospitals, which would be managed by the Office of Indian Affairs. Some tribal leaders believed that individualizing land ownership would give Native Americans stronger legal rightsto keep their lands. Others simply felt they had no choice but to accept these new conditions. Allotment was carried out chiefly in Iowa, Kansas, Nebraska, and other valuable farming areas on the fringes of the Great Plains, wheresettlers created the greatest pressure. Most tribes of the desert and West Coast were not allotted, although their treaties authorized allotment. These tribes had little good farmland, and settlers in their regions were more interested in mining, logging and fishing.
By 1860, then, the U.S. employed treaties to establish total social programsunder federal administration, which were aimed at "civilizing" Native Americans and assimilating them into the general population. Tribal territories became "reservations," and tribal laws were subject to federal laws. But these treaty provisions did not apply everywhere. An exception to this trend was theIndian Territory (Oklahoma), where removal treaties expressly guaranteed theright of tribes to complete self-government. These tribes observed the changes surrounding them - particularly the growing tide of settlers in Texas, Colorado and New Mexico - with alarm. When the first shots of the Civil War werefired at Fort Sumter, most tribes in the Indian Territory shifted their allegiances to the South. Treaties with the Confederated States of America, concluded in 1861, guaranteed the permanent independence of the Native American nations, were the South to win the war. As in the Revolutionary War and the Warof 1812, then, Native American tribes fought on both sides to fulfill their treaty obligations.
As a result of the Union's victory in 1865, Oklahoma tribes, like the South itself, were forced to sign surrenders and to undergo the federally supervised"reconstruction" of their economies and political systems. Former slaves became tribal members under many of these treaties, and had the right to take shares of tribal lands and funds. On the whole, the U.S. renewed its old treatycommitments to tribal self-government in the Indian Territory, but subjectedthe tribal councils to special federal "governors" or Native American agents, or to a federal veto over their laws. This made tribes such as the Cherokeeand Chickasaw more like present-day Puerto Rico or the Virgin Islands: partly self-governing, but still within the U.S. political system.
The Sioux of Minnesota and Dakota, together with allied tribes as far south as Colorado, also launched an offensive against encroaching settlements from 1864 to 1865. Although the Minnesota Sioux fared badly, and their leaders werehanged by President Lincoln, the plains war continued until 1868. Anxious toacquire additional lands on the plains for the resettlement of Civil War veterans and the post-war flood of European immigrants, the U.S. made more treaties and purchased more Native American land in the period between 1865 and 1868 than it previously had during any comparable period. At the same time, U.S. negotiators were forced to give the main plains tribes stronger assurancesof the finality and permanence of their new reservation borders. In particular, the U.S. agreed that no more Native American land could be sold or openedfor settlement, except with the approval of three-fourths of the adult men ofthe tribe. Tribal leaders hoped this would prevent the U.S. from trying to make future "treaties" with a handful of friendly individuals who did not represent the whole tribe.
Congressional Control after 1871
At the end of the treaty era, Native American tribes still controlled one-tenth of the contiguous 48 states, or about one-fourth of the land between the Mississippi and the Rocky Mountains. Immigration from Europe accelerated, however, reaching its peak in the 1880s. The Indian Territory, and the large plains reservations, posed barriers to further settlement, but were protected bystrong treaties, under which the U.S. had promised to provide the tribes withsubstantial financial aid for their development. Further allotment was impossible under the final round of plains treaties, and tribes were unwilling topart with any more of their reservations. Concerned by the increasing costs and difficulties of negotiating for more Native American land, Congress ordered the president to stop making Native American treaties in 1871.
This did not stop the president from making "agreements" with the tribes fortheir land, usually at the request of Congress. Agreements made after 1871 were essentially the same as treaties, except they did not imply that Native American tribes were independent nations. Often, they were made with tribal leaders chosen by the U.S., in violation of the tribes' own political processes,or in violation of the tribes' earlier treaties. The 1874 agreement for thepurchase of the gold-rich Black Hills of South Dakota was typical. The 1874 agreement was negotiated with a few individual Sioux, although the 1868 Siouxtreaty required the approval of three-fourths of the men of the tribe. Congress then passed a law ruling that the agreement overrode the treaty. The Siouxwent to war over this - the war in which Custer fell - but the U.S. had themilitary power to wear down Sioux resistance and hold onto the Black Hills.
At the same time, the U.S. began to build railways through tribal lands in violation of treaties, and to establish federally controlled Native American courts and police on the reservations in order to enforce federal laws. Many ofthese laws were designed to destroy Native American culture rather than to protect Native Americans from settlers; one such example is a provision prohibiting any kind of traditional religious ceremonies, or "medicine men." In 1887, Congress passed the Dawes Severalty Act (General Allotment Act), which authorized allotments and the sale of "surplus" lands on those reservations where the tribes had not already agreed to this by treaty. A separate law, the Curtis Act, provided for the allotment of the Indian Territory as well. The Oklahoma tribes vigorously opposed this as a violation of their treaties, and they brought their objections to the U.S. Supreme Court. In two crucial decisions, Cherokee Nation v. Hitchcock (1902) and Lone Wolf v. Hitchcock (1903), the Supreme Court held that Congress has the power to modify or terminate Native American treaties without the Native Americans' consent.
This opened the way for Congress to treat all Native Americans the same, regardless of the treaties they have signed. Throughout the nineteenth century, Congress appropriated funds for Native American schools, hospitals, and otherprograms treaty-by-treaty. Treaties determined how much federal aid each tribe received, and how it was used. In 1921, the Snyder Act abolished this practice. All services and programs were combined into a single annual appropriation, broken down by objects (such as "health care") rather than by treaties. As a result, Native American tribes with weak treaties got more than they hadbargained for, and tribes with strong treaties got less. More importantly, tribes could no longer use their treaties to demand any services at all. The Snyder Act and subsequent federal laws left Native American social programs tothe discretion of Congress. After purchasing most of the country by treaty, the U.S. was no longer willing to pay the agreed price.
In the final days of World War II, in fact, Congress decided that it was timeto "wind up" the Native American business. Many believed that Native Americans stayed on reservations only because they expected to be repaid someday forall of their broken treaties. This led Congress to establish the Indian Claims Commission in 1946. Although the commission was supposed to complete its work in ten years, it was still not finished when Congress decided to reassignits cases to the U.S. Court of Claims in 1978. The commission was not giventhe power to enforce Native American treaties, only to decide how much compensation each tribe should receive for broken promises. The Commission adopteda general rule of taking the value of the land or money promised to tribes acentury ago, and adding interest. For example, if the U.S. had promised to set aside a reservation in 1868, and the land could have been sold for $1,000 in 1868, the tribe was awarded $1,000 plus interest from 1868. Land values were artificially low in the nineteenth century, however, since Native Americantribes were being forced to give up so much of it, creating a temporary market surplus. Thus tracts worth billions today, like the Black Hills, were valued at 1 percent of their current price; with interest, this figure increased to about 10 percent. If tribal land had been taken without a treaty, moreover,the commission did not add the interest.
In House Concurrent Resolution 108 (1953), Congress declared its goal of terminating federal responsibilities for Native Americans as quickly as possible,and of making Native Americans ordinary citizens of the states. This "termination" program was very selective, targeted at tribes who were relatively prosperous and well-educated, such as the Menominee of Wisconsin and Klamath ofOregon. Congress assumed that "termination" not only ended tribes' eligibility for special Native American social programs, but also abolished (or "abrogated") their treaties. A 1968 Supreme Court decision involving the Menominee disagreed. Native American treaties continue in effect unless expressly abrogated by Congress, the Court explained. Since Congress had not specifically mentioned the Menominee treaty in its legislation "terminating" the tribe, Menominee treaty rights, such as hunting and fishing rights, could still be exercised by the members of the tribe. This decision paved the way for federal court decisions in the 1970s, reaffirming Native American treaty rights that bothCongress and the States had believed to be extinct.
The decade from 1968 to 1978 was critical for the development of Native American treaty law. President Nixon declared an end to the termination policy ofHouse Concurrent Resolution 108, and made a clear commitment to restoring andstrengthening tribal self-government. Federal courts in Oregon and Washington handed Northwest tribes stunning victories in treaty fishing-rights disputes. Despite years of violence and efforts to overturn these decisions legislatively, both the Supreme Court and Congress eventually upheld them. On the other hand, Congress imposed a land-claims settlement on Alaska in 1971, which was intended to end tribal self-government in that state. In 1978, furthermore, the Bureau of Indian Affairs adopted rules for deciding which tribes are "recognized as eligible to receive federal services," and treaties were not mentioned as having any role in these decisions. The decade ended, as it began,with a surprise decision by the Supreme Court. In Oliphant v. Suquamish Indian Tribe (1978), the Court held that tribal rights may be lost by "implication," even rights that were never given up by treaty or taken away by Congress.
As the 1970s ended, then, there were signs of greater respect for Native American treaty rights, although Congress, the president, and the courts reservedtheir power to disregard treaties. The fishing-rights cases had demonstratedthat at least some provisions in treaties could still have considerable economic significance. At the same time, the major Native American policy issuesof the 1970s and 1980s - education, health, better resource management, and stronger tribal governments - were being addressed through a growing number offederal aid programs, rather than through the enforcement of treaties.
Indian Reorganization Act as a Springboard
Despite the often undermining influence of federal law, derivations of the earliest encountered Native American legal systems continue to function today in land set aside under federal protection for the residence of tribal NativeAmericans and in other areas collectively described in federal law as "IndianCountry." Native American legal regimes have been transformed after years ofcontact with non-Native American law and culture, so that the formal institutions more closely resemble U.S. courts, legislative bodies, and regulatory apparatus; the formal rules of everyday conduct, too, codified in ordinances,more closely parallel U.S. norms. On some reservations, for example, there are tribal environmental protection agencies that regulate pollution, and tribal taxing authorities that levy and collect taxes.
Much of this transformation of tribal governments has occurred as a result ofthe Indian Reorganization Act of 1934, a federal statute that offered tribessome freedom from federal bureaucratic control if they would organize themselves under constitutions modeled after the U.S. Constitution. The Indian Reorganization Act provided that tribal members could take a vote on whether to accept its terms, and about three-fourths of the tribes that held referenda agreed to develop tribal constitutions under the act. The federal rules settingforth who could vote and how many votes were needed to accept the act did not always produce results that reflected the general wishes of tribal communities. Nonetheless, constitutions stimulated by the Indian Reorganization Act continue to prevail on many reservations. Some Native American nations, like the Navajo, preferred to develop their governing systems independent of the act; nothing in the act prevented them from doing so.
The protections of individual rights found in amendments to the U.S. Constitution do not apply to modern tribal governments, because those constitutionalprovisions control only activities of the federal government and of the states. However, a federal statute enacted in 1968, known as the Indian Civil Rights Act, limits the punishments that tribal courts may impose, and requires that tribal legal institutions comply with some, but not all, of the provisionsof the Bill of Rights in the U.S. Constitution. For example, the federal constitutional prohibition against the establishment of religion and the federalrequirement that criminal defendants be provided with free counsel do not apply to Native American tribes through the Indian Civil Rights Act. The reasonfor these and other exceptions was Congress' desire to preserve distinctivefeatures of tribal cultures and to protect tribes against financially burdensome requirements that they could not reasonably fulfill. Furthermore, even when the Indian Civil Rights Act does incorporate provisions of the Bill of Rights, those requirements are interpreted, wherever possible, to accommodate the special features of tribal cultures. Thus, for example, the requirement ofequal protection of the laws in the Indian Civil Rights Act uses the same language as a comparable Constitution. Equality, however, does not necessarily mean the same thing for the tribes as it does for the federal or state governments; one such example is when the issue is whether an Native American tribemay exclude non-Native Americans from juries or from voting in tribal elections.
Out of respect for tribal sovereignty, Congress generally provided that whenan individual wants to challenge tribal actions as contrary to the terms of the Indian Civil Rights Act, she or he must do so in tribal court. There is norecourse to a federal court to enforce the Indian Civil Rights Act unless the individual is in a position to bring a petition for a writ of habeas corpus (a claim that she or he is being held in custody in violation of law). Normally this writ is only available to criminal defendants who have been convicted in tribal courts and who claim that their convictions were obtainedwithout adherence to the Indian Civil Rights Act (for example, if evidence was improperly seized or if the criminal statute used as the basis for conviction violated the right to free speech).
Some tribes have protection for individual rights built into their own constitutions and fundamental laws. The Navajo, for example, have their own requirement that individuals be afforded due process of law if the government is acting to deprive them of life, liberty, or property. Thus, an individual who isunhappy with the actions of the tribal government can appeal to tribal law as well as to the Indian Civil Rights Act for redress. The Indian Civil RightsAct has been controversial among Native American people because it can be used to erode distinctive tribal cultures and legal systems, especially when those systems reflect values favoring informality, communal belonging and responsibility, and decision-making by consensus (universal agreement) rather thanmajority rule. As tribal governments have become more like the non-Native American U.S. government, however, it is possible that a corresponding need forthe protection of individual rights has arisen.
Federal measures such as the Indian Reorganization Act and the Indian Civil Rights Act have put great pressure on tribal governments to conform to U.S. institutions. Nonetheless, tribal legal systems still have some distinctive features. First, informal traditional institutions and norms persist amidst themore formal legal systems. In some tribes, for example, religious leaders oversee dispute resolution despite the existence of tribal courts, and clan-based local groups control policy-making despite the existence of a centralized tribal council. Second, the values and procedures that are reflected in even formal tribal law sometimes differ from those embodied in U.S. law. Navajo inheritance law, for example, recognizes oral wills and prefers individuals whohave cared for the deceased in his or her final years; American law does not.Also, many tribal legal systems reject the separation of powers and judicialreview that are so fundamental to U.S. law. Some distinctive qualities of Native American justice, such as the emphasis on restitution to victims in criminal cases and special sensitivity to the interests of grandparents in childcustody disputes, are finding a receptive audience among non-Native Americanstoday.
Thus, despite European and American claims to conquest and dominion over Native American lands and peoples, Native American law and government have not been extinguished. Tribal legal institutions perform important functions of defining tribal membership and office-holding requirements, regulating the use of tribal resources, establishing rules for everyday conduct, and resolving disputes. However, because of their different traditions and values, lack of resources, and the need to reconcile American and Native American forms, tribalgovernments need not and do not always behave like their non-Native Americancounterparts.
Jurisdiction of U.S. Government
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 andcommerce 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 IndianCountry, has made certain state laws applicable in Indian Country in some states, has restricted the sale or lease of tribally-owned lands, has regulatedtrading and the sale of liquor in Indian Country, has required that tribal governments afford individuals some of the civil rights enumerated in the Billof 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 largelydeclined 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 beinterpreted in the manner most favorable to the Native Americans. This ruleof 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 rightsto hunt those particular animals or to use them for ritual purposes, becausethe laws do not contain language that denies the Native Americans' rights. Second, federal law that operates to deny Native Americans their property mustbe accompanied by the payment of "just compensation" in accordance with theFifth 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 furtherthe 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 sameprinciple to invalidate actions by federal administrative agencies that adversely affect Native American interests. If, for example, the federal agenciesthat 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 governmentfor breach of trust.

Further Readings

  • Malinowski, Sharon, and Anna Sheets, eds. The Gale Encyclopedia ofNative American Tribes. Detroit: Gale Research, Inc., 1998.
  • Thornton, Russell. American Indian Holocaust and Survival: A Population History Since 1492. Norman, OK: University of Oklahoma Press, 1990.

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