Tribal sovereignty in the United States

Tribal sovereignty in the United States is the concept of the inherent authority of indigenous tribes to govern themselves within the borders of the United States. The U.S. federal government recognizes tribal nations as "domestic dependent nations" and has established a number of laws attempting to clarify the relationship between the federal, state, and tribal governments.

Indian reservations
Map of the contiguous United States with reservation lands excluded
Bia-map-indian-reservations-usa
Reservation lands in the Continental United States

Native American sovereignty and the Constitution

The United States Constitution mentions Native American tribes three times:

  • Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed."[1] According to Story's Commentaries on the U.S. Constitution, "There were Indians, also, in several, and probably in most, of the states at that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states."
  • Article I, Section 8 of the Constitution states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes",[2] determining that Indian tribes were separate from the federal government, the states, and foreign nations;[3] and
  • The Fourteenth Amendment, Section 2 amends the apportionment of representatives in Article I, Section 2 above.[4]

These basic provisions have been changed or clarified by various federal laws over the history of the United States. Regulate historically meant facilitate, rather than control or direct in the more modern sense. Therefore, the Congress of these United States was to be the facilitator of commerce between the states and the tribes.[5]

These Constitutional provisions, and subsequent interpretations by the Supreme Court (see below), are today often summarized in three principles of U.S. Indian law:[6][7][8]

  • Territorial sovereignty: Tribal authority on Indian land is organic and is not granted by the states in which Indian lands are located.
  • Plenary power doctrine: Congress, and not the Executive Branch or Judicial Branch, has ultimate authority with regard to matters affecting the Indian tribes. Federal courts give greater deference to Congress on Indian matters than on other subjects.
  • Trust relationship: The federal government has a "duty to protect" the tribes, implying (courts have found) the necessary legislative and executive authorities to effect that duty.[9]

Early history

The Marshall Trilogy, 1823–1832

Hassanamisco Nipmuc Indian Sign
Hassanamisco Nipmuc Indian Reservation Sign

The Marshall Trilogy is a set of three Supreme Court decisions in the early nineteenth century affirming the legal and political standing of Indian nations.

  • Johnson v. M'Intosh (1823), holding that private citizens could not purchase lands from Native Americans.
  • Cherokee Nation v. Georgia (1831), holding the Cherokee nation dependent, with a relationship to the United States like that of a "ward to its guardian".
  • Worcester v. Georgia (1832), which laid out the relationship between tribes and the state and federal governments, stating that the federal government was the sole authority to deal with Indian nations.

Indian Appropriations Act of 1871

The Indian Appropriations Act of 1871 had two significant sections. First, the Act ended United States recognition of additional Native American tribes or independent nations, and prohibited additional treaties. Thus it required the federal government no longer interact with the various tribes through treaties, but rather through statutes:

That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, that nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.

— Indian Appropriations Act of 1871[10][11]

Before 1871, the United States had recognized the Indian Tribes as semi-independent.

The 1871 Act also made it a federal crime to commit murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny within any Territory of the United States.

United States v. Kagama (1886)

The 1871 Act was affirmed in 1886 by the US Supreme Court, in United States v. Kagama, which affirmed that the Congress has plenary power over all Native American tribes within its borders by rationalization that "The power of the general government over these remnants of a race once powerful ... is necessary to their protection as well as to the safety of those among whom they dwell".[12] The Supreme Court affirmed that the US Government "has the right and authority, instead of controlling them by treaties, to govern them by acts of Congress, they being within the geographical limit of the United States. ... The Indians owe no allegiance to a State within which their reservation may be established, and the State gives them no protection."[13]

Empowerment of tribal courts, 1883

On April 10, 1883, five years after establishing Indian police powers throughout the various reservations, the Indian Commissioner approved rules for a "court of Indian offenses". The court provided a venue for prosecuting criminal charges, but afforded no relief for tribes seeking to resolve civil matters. The new courts' rules specifically targeted tribal religious practices which it called "heathenish rites" and the commissioner urged courts to "destroy the tribal relations as fast as possible". Another five years later, Congress began providing funds to operate the Indian courts.

While U.S. courts clarified some of the rights and responsibilities of states and the federal government toward the Indian nations within the new nation's first century, it was almost another century before United States courts determined what powers remained vested in the tribal nations. In the interim, as a trustee charged with protecting their interests and property, the federal government was legally entrusted with ownership and administration of the assets, land, water, and treaty rights of the tribal nations.

The General Allotment Act (Dawes Act), 1887

Passed by Congress in 1887, the "Dawes Act" was named for Senator Henry L. Dawes of Massachusetts, Chairman of the Senate's Indian Affairs Committee. It came as another crucial step in attacking the tribal aspect of the Indians of the time. In essence, the act broke up the land of most all tribes into modest parcels to be distributed to Indian families, and those remaining were auctioned off to white purchasers. Indians who accepted the farmland and became "civilized" were made American citizens. But the Act itself proved disastrous for Indians, as much tribal land was lost and cultural traditions destroyed. Whites benefited the most; for example, when the government made 2 million acres (8,100 km2) of Indian lands available in Oklahoma, 50,000 white settlers poured in almost instantly to claim it all (in a period of one day, April 22, 1889).

Twentieth-century developments

Revenue and Indian Citizenship acts, 1924

The Revenue Act of 1924 (43 Stat. 253) (June 2, 1924), also known as the Mellon tax bill, cut federal tax rates and established the U.S. Board of Tax Appeals, which was later renamed the United States Tax Court in 1942. The bill was named after U.S. Secretary of the Treasury Andrew Mellon. The Revenue Act was applicable to incomes for 1924.[14] The bottom rate, on income under $4,000, fell from 1.5% to 1.125% (both rates are after reduction by the "earned income credit"). A parallel act, the Indian Citizenship Act of 1924 (43 Stat. 253, Ch. 233 (1924)), granted all non-citizen resident Indians citizenship.[15][16] Thus the Revenue Act declared that there were no longer any "Indians, not taxed" to be not counted for purposes of United States Congressional apportionment. President Calvin Coolidge signed the bill into law.

Iron Crow v. Oglala Sioux Tribe

In Iron Crow v. Oglala Sioux Tribe, the United States Supreme Court concluded that two Oglala Sioux defendants convicted of adultery under tribal laws, and another challenging a tax from the tribe, were not exempted from the tribal justice system because they had been granted U.S. citizenship. It found that tribes "still possess their inherent sovereignty excepting only when it has been specifically taken from them by treaty or Congressional Act". This means American Indians do not have exactly the same rights of citizenship as other American citizens. The court cited case law from a pre-1924 case that said, "when Indians are prepared to exercise the privileges and bear the burdens of" sui iuris, i.e. of one's own right and not under the power of someone else, "the tribal relation may be dissolved and the national guardianship brought to an end, but it rests with Congress to determine when and how this shall be done, and whether the emancipation shall be complete or only partial" (U.S. v. Nice, 1916). The court further determined, based on the earlier Lone Wolf v. Hitchcock case, that "It is thoroughly established that Congress has plenary authority over Indians." The court held that, "the granting of citizenship in itself did not destroy ... jurisdiction of the Indian tribal courts and ... there was no intention on the part of Congress to do so." The adultery conviction and the power of tribal courts were upheld.

Further, the court held that whilst no law had directly established tribal courts, federal funding "including pay and other expenses of judges of Indian courts" implied that they were legitimate courts. Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 (8th Cir. 1956) ("including pay and other expenses of judges of Indian courts").

Indian Reorganization Act, 1934

In 1934 the Indian Reorganization Act, codified as Title 25, Section 476 of the U.S. Code, allowed Indian nations to select from a catalogue of constitutional documents that enumerated powers for tribes and for tribal councils. Though the Act did not specifically recognize the Courts of Indian Offenses, 1934 is widely considered to be the year when tribal authority, rather than United States authority, gave the tribal courts legitimacy.

Public Law 280, 1953

In 1953, Congress enacted Public Law 280, which gave some states extensive jurisdiction over the criminal and civil controversies involving Indians on Indian lands. Many, especially Indians, continue to believe the law unfair because it imposed a system of laws on the tribal nations without their approval.

In 1965 the United States Court of Appeals for the Ninth Circuit concluded that no law had ever extended provisions of the U.S. Constitution, including the right of habeas corpus, to tribal members brought before tribal courts. Still, the court concluded, "it is pure fiction to say that the Indian courts functioning in the Fort Belknap Indian community are not in part, at least, arms of the federal government. Originally they were created by federal executive and imposed upon the Indian community, and to this day the federal government still maintains a partial control over them." In the end however, the Ninth Circuit limited its decision to the particular reservation in question and stated, "it does not follow from our decision that the tribal court must comply with every constitutional restriction that is applicable to federal or state courts."

While many modern courts in Indian nations today have established full faith and credit with state courts, the nations still have no direct access to U.S. courts. When an Indian nation files suit against a state in U.S. court, they do so with the approval of the Bureau of Indian Affairs. In the modern legal era, courts and congress have, however, further refined the often competing jurisdictions of tribal nations, states and the United States in regard to Indian law.

In the 1978 case of Oliphant v. Suquamish Indian Tribe, the Supreme Court, in a 6–2 opinion authored by Justice William Rehnquist, concluded that tribal courts do not have jurisdiction over non-Indians (the Chief Justice of the Supreme Court at that time, Warren Burger, and Justice Thurgood Marshall filed a dissenting opinion). But the case left unanswered some questions, including whether tribal courts could use criminal contempt powers against non-Indians to maintain decorum in the courtroom, or whether tribal courts could subpoena non-Indians.

A 1981 case, Montana v. United States, clarified that tribal nations possess inherent power over their internal affairs, and civil authority over non-members within tribal lands to the extent necessary to protect health, welfare, economic interests or political integrity of the tribal nation.

Other cases of those years precluded states from interfering with tribal nations' sovereignty. Tribal sovereignty is dependent on, and subordinate to, only the federal government, not states, under Washington v. Confederated Tribes of Colville Indian Reservation (1980). Tribes are sovereign over tribal members and tribal land, under United States v. Mazurie (1975).

In Duro v. Reina, 495 U.S. 676 (1990), the Supreme Court held that a tribal court does not have criminal jurisdiction over a non-member Indian, but that tribes "also possess their traditional and undisputed power to exclude persons who they deem to be undesirable from tribal lands. ... Tribal law enforcement authorities have the power if necessary, to eject them. Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain and transport him to the proper authorities." In response to this decision, Congress passed the 'Duro Fix', which recognizes the power of tribes to exercise criminal jurisdiction within their reservations over all Indians, including non-members. The Duro Fix was upheld by the Supreme Court in United States v. Lara, 541 U.S. 193 (2004).

Tribal governments today

Great Seal of the Navajo Nation
Great Seal of the Navajo Nation

Tribal courts

At the dawn of the 21st century, the powers of tribal courts across the United States varied, depending on whether the tribe was in a Public Law 280 state (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin) or not. Tribal courts maintain much criminal jurisdiction over their members, and because of the Duro Fix, over non-member Indians regarding crime on tribal land. The Indian Civil Rights Act, however, limits tribal punishment to one year in jail and a $5,000 fine.[17] Tribal Courts have no criminal jurisdiction over non-Indians. In PL280 states, the state has been granted criminal and civil adjudicatory jurisdiction over activities in Indian Country. In non-PL280 states, Indian on Indian crime in Indian Country may be prosecuted in federal court if the crime is one of those listed in the Major Crimes Act (18 USC §1153). Indian on non-Indian crime in Indian Country will be prosecuted in federal court, either from the MCA, or the Indian Country Crimes Act (§1152) (unless the Indian was punished by the tribe). Non-Indian on Indian crime in Indian Country will be prosecuted in federal court using ICCA. Non-Indian on non-Indian crime in Indian Country will be prosecuted by the state.

While tribal nations do not enjoy direct access to U.S. courts to bring cases against individual states, as sovereign nations they do enjoy immunity against many lawsuits,[18] unless a plaintiff is granted a waiver by the tribe or by congressional abrogation.[19] The sovereignty extends to tribal enterprises[20] and tribal casinos or gaming commissions.[21] The Indian Civil Rights Act does not allow actions against an Indian tribe in federal court for deprivation of substantive rights, except for habeas corpus proceedings.[18]

Tribal and pueblo governments today launch far-reaching economic ventures, operate growing law enforcement agencies and adopt codes to govern conduct within their jurisdiction but the United States retains control over the scope of tribal law making. Laws adopted by Native American governments must also pass the Secretarial Review of the Department of Interior through the Bureau of Indian Affairs.

Nation to nation: tribes and the federal government

When the United States government formed, it replaced the British government as the other sovereignty coexisting in America with the American Indians.[22] The U.S. constitution specifically mentions American Indians three times. Article I, section 2, clause 3 and the fourteenth amendment section 2 address the handling of "Indians not taxed" in the apportionment of the seats of the House of Representatives according to population and in so doing suggest that Indians need not be taxed. In Article I section 8, clause 3, Congress is empowered to "regulate commerce with foreign nations…states…and with the Indian tribes." Technically, Congress has no more power over Indian nations than it does over individual states. In the 1970s Native American self-determination replaced Indian termination policy as the official United States policy towards Native Americans.[23] Self-determination promoted the ability of tribes to self-govern and make decisions concerning their people. It has been argued that American Indian matters should be handled through the United States Secretary of State, the official responsible for foreign policy. However, in dealing with Indian policy, a separate agency, the Bureau of Indian Affairs has been in place since 1824.

The idea that tribes have an inherent right to govern themselves is at the foundation of their constitutional status — the power is not delegated by congressional acts. Congress can, however, limit tribal sovereignty. Unless a treaty or federal statute removes a power, however, the tribe is assumed to possess it.[24] Current federal policy in the United States recognizes this sovereignty and stresses the government-to-government relations between Washington, D.C. and the American Indian tribes.[25] However, most Indian land is held in trust by the United States,[26] and federal law still regulates the political and economic rights of tribal governments. Tribal jurisdiction over persons and things within tribal borders are often at issue. While tribal criminal jurisdiction over Indians is reasonably well settled, Tribes are still striving to achieve criminal jurisdiction over non-Indian persons who commit crimes in Indian Country. This is mostly due to the Supreme Court's ruling in 1978 in Oliphant v. Suquamish Indian Tribe that tribes lack the inherent authority to arrest, try and convict non-Indians who commit crimes on their lands (see below for additional discussion on this point.)

As a result of a pair of treaties, two tribal nations (the Cherokee and Choctaw) each have the right to send non-voting members to the United States House of Representatives (similar to a non-state US territory or the federal district), however neither tribe has ever exercised their right to do so since they were given the power in the 1830s.[27][28]

Tribal state relations: sovereign within a sovereign

Otoe Tribal Seal
Otoe Tribal Seal

Another dispute over American Indian government is its sovereignty versus that of the states. The federal U.S. government has always been the government that makes treaties with Indian tribes – not individual states. Article 1, Section 8 of the Constitution states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes".[2] This determined that Indian tribes were separate from the federal or state governments and that the states did not have power to regulate commerce with the tribes, much less regulate the tribes. The states and tribal nations have clashed over many issues such as Indian gaming, fishing, and hunting. American Indians believed that they had treaties between their ancestors and the United States government, protecting their right to fish, while non-Indians believed the states were responsible for regulating commercial and sports fishing.[29] In the case Menominee Tribe v. United States in 1968, it was ruled that "the establishment of a reservation by treaty, statute or agreement includes an implied right of Indians to hunt and fish on that reservation free of regulation by the state".[30] States have tried to extend their power over the tribes in many other instances, but federal government ruling has continuously ruled in favor of tribal sovereignty. A seminal court case was Worcester v. Georgia. Chief Justice Marshall found that "England had treated the tribes as sovereign and negotiated treaties of alliance with them. The United States followed suit, thus continuing the practice of recognizing tribal sovereignty. When the United States assumed the role of protector of the tribes, it neither denied nor destroyed their sovereignty."[31] As determined in the Supreme Court case United States v. Nice (1916),[32] U.S. citizens are subject to all U.S. laws even if they also have tribal citizenship.

List of cases

  • United States v. Holiday, 70 U.S. 407 (1866) (holding that a Congressional ban on selling liquor to the Indians was Constitutional)
  • Sarlls v. United States, 152 U.S. 570 (1894) (holding that lager beer is not spiritous liquor nor wine within the meaning of those terms as used in Revised Statutes § 2139)
  • In re Heff, 197 U.S. 488 (1905) (holding that Congress has the power to place the Indians under state law if it chooses, and the ban on selling liquor does not apply to Indians subject to the Allotment acts)
  • Iron Crow v. Ogallala Sioux Tribe, 129 F. Supp. 15 (1955) (holding that tribes have power to create and change their court system and that power is limited only by Congress, not the courts)
  • United States v. Washington (1974) also known as the Boldt Decision (concerning off-reservation fishing rights: holding that Indians had an easement to go through private property to their fishing locations, that the state could not charge Indians a fee to fish, that the state could not discriminate against the tribes in the method of fishing allowed, and that the Indians had a right to a fair and equitable share of the harvest)
  • Wisconsin Potowatomies of Hannahville Indian Community v. Houston, 393 F. Supp. 719 (holding that tribal law and not state law governs the custody of children domiciled on reservation land)
  • Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) (holding that Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized to do so by Congress.)
  • Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) (holding that Indian Nations have the power to tax Non-Native Americans based on their power as a nation and treaty rights to exclude others; this right can be curtailed only by Congress.)
  • American Indian Agricultural Credit Consortium, Inc. v. Fredericks, 551 F. Supp. 1020 (1982) (holding that federal, not state courts have jurisdiction over tribal members)
  • Maynard v. Narrangansett Indian Tribe, 798 F. Supp. 94 (1992) (holding that tribes have sovereign immunity against state tort claims)
  • Venetie I.R.A. Council v. Alaska, 798 F. Supp. 94 (holding that tribes have power to recognize and legislate adoptions)
  • Native American Church v. Navajo Tribal Council, 272 F.2d 131 (holding that the First Amendment does not apply to Indian nations unless it is applied by Congress)
  • Teague v. Bad River Band, 236 Wis. 2d 384 (2000) (holding that tribal courts deserve full faith and credit since they are the court of an independent sovereign; however, in order to end confusion, cases that are filed in state and tribal courts require consultation of both courts before they are decided.)
  • Inyo County v. Paiute-Shoshone Indians (U.S. 2003) (holding that tribal sovereignty may override the search and seizure powers of a state)

See also

Notes

  1. ^ Constitution of the United States of America: Article. I.
  2. ^ a b American Indian Policy Center. 2005. St. Paul, MN. 4 October 2008
  3. ^ Cherokee Nation v. Georgia
  4. ^ Additional amendments to the United States Constitution
  5. ^ Black's Law Dictionary, regulate meant that Congress should in principle assist with Commerce disputes between the States, but did not grant Congress the power of law to inflict criminal penalties, Article 2 of the Kentucky Resolutions of 1798 by Thomas Jefferson
  6. ^ Charles F. Wilkinson, Indian tribes as sovereign governments: a sourcebook on federal-tribal history, law, and policy, AIRI Press, 1988
  7. ^ Conference of Western Attorneys General, American Indian Law Deskbook, University Press of Colorado, 2004
  8. ^ N. Bruce Duthu, American Indians and the Law, Penguin/Viking, 2008
  9. ^ Robert J. McCarthy, The Bureau of Indian Affairs and the Federal Trust Obligation to American Indians, 19 BYU J. PUB. L. 1 (December, 2004)
  10. ^ Onecle (November 8, 2005). "Indian Treaties". Retrieved March 31, 2009.
  11. ^ 25 U.S.C. § 71. Indian Appropriation Act of March 3, 1871, 16 Stat. 544, 566
  12. ^ "U.S. v Kagama, 118 U.S. 375 (1886), Filed May 10, 1886". FindLaw, a Thomson Reuters business. Retrieved April 29, 2012.
  13. ^ "United States v. Kagama – 118 U.S. 375 (1886)". Justia. Retrieved April 29, 2012.
  14. ^ "Statistics of Income, 1926 - FRASER - St. Louis Fed". fraser.stlouisfed.org.
  15. ^ "The 1924 Indian Citizenship Act". Nebraskastudies.org. June 2, 1924. Retrieved March 31, 2014.
  16. ^ Oklahoma State University Library. "Indian Affairs: Laws And Treaties. Vol. Iv, Laws". Digital.library.okstate.edu. Retrieved March 31, 2014.
  17. ^ Robert J. McCarthy, Civil Rights in Tribal Courts; The Indian Bill of Rights at 30 Years, 34 IDAHO LAW REVIEW 465 (1998).
  18. ^ a b Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)
  19. ^ Oklahoma Tax Comm'n v. Citizen Band of Potawatomi Tribe of Okla., 498 U.S. 505 (1991)
  20. ^ Local IV-302 Int'l Woodworkers Union of Am. v. Menominee Tribal Enterprises, 595 F.Supp. 859 (E.D. Wis. 1984).
  21. ^ Barker v. Menominee Nation Casino, et al, 897 F.Supp. 389 (E.D. Wis. 1995).
  22. ^ Green, Michael D. and Perdue, Theda. The Cherokee Nation and the Trail of Tears. p87. Viking, 2007.
  23. ^ Wilkinson, Charles. Blood Struggle: The Rise of Modern Indian Nations. p 189. New York: W.W. Norton & Company, 2005.
  24. ^ Light, Steven Andrew, and Kathryn R.L. Rand. Indian Gaming and Tribal Sovereignty: The Casino Compromise. University Press of Kansas, 2005. (19)
  25. ^ "Memorandum for the Heads of Executive Departments and Agencies". georgewbush-whitehouse.archives.gov.
  26. ^ Some tribal lands, most commonly in Oklahoma, are held by the tribe according to the original patent deed and thus are not trust property.
  27. ^ Ahtone, Tristan (January 4, 2017). "The Cherokee Nation Is Entitled to a Delegate in Congress. But Will They Finally Send One?". YES! Magazine. Bainbridge Island, Washington. Retrieved January 4, 2019.
  28. ^ Pommersheim, Frank (September 2, 2009). Broken Landscape: Indians, Indian Tribes, and the Constitution. Oxford, England: Oxford University Press. p. 333. ISBN 978-0-19-970659-4. Retrieved January 4, 2019.
  29. ^ Wilkinson, Charles. Blood Struggle: The Rise of Modern Indian Nations. p151. New York: W.W. Norton & Company, 2005.
  30. ^ Canby Jr., William C. American Indian Law. p449. St. Paul, MN: West Group 1998.
  31. ^ Green, Michael D. and Perdue, Theda. However, England ceased to exist as a sovereign entity in 1707 to be replaced by Great Britain. Chief Justice Marshall's incorrect use of terminology appears to weaken the argument. The Cherokee Nation and the Trail of Tears. Viking, 2007.
  32. ^ Lemont, Eric D. American Indian Constitutional Reform and the Rebuilding of Native Nations. University of Texas Press, 2006.

References

  • Davies, Wade & Clow, Richmond L. (2009). American Indian Sovereignty and Law: An Annotated Bibliography. Lanham, MD: Scarecrow Press.
  • Hays, Joel Stanford. "Twisting the Law: Legal Inconsistencies in Andrew Jackson's Treatment of Native-American Sovereignty and State Sovereignty." Journal of Southern Legal History, 21 (no. 1, 2013), 157–92.
  • Macklem, Patrick (1993). "Distributing Sovereignty: Indian Nations and Equality of Peoples". Stanford Law Review. 45: 1311. doi:10.2307/1229071.

External links

Aboriginal title in the United States

The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title (also known as "original Indian title" or "Indian right of occupancy"). Native American tribes and nations establish aboriginal title by actual, continuous, and exclusive use and occupancy for a "long time." Individuals may also establish aboriginal title, if their ancestors held title as individuals. Unlike other jurisdictions, the content of aboriginal title is not limited to historical or traditional land uses. Aboriginal title may not be alienated, except to the federal government or with the approval of Congress. Aboriginal title is distinct from the lands Native Americans own in fee simple and occupy under federal trust.

The power of Congress to extinguish aboriginal title—by "purchase or conquest," or with a clear statement—is plenary and exclusive. Such extinguishment is not compensable under the Fifth Amendment, although various statutes provide for compensation. Unextinguished aboriginal title provides a federal common law cause of action for ejectment or trespass, for which there is federal subject-matter jurisdiction. Many potentially meritorious tribal lawsuits have been settled by Congressional legislation providing for the extinguishment of aboriginal title as well as monetary compensation or the approval of gaming and gambling enterprises.

Large-scale compensatory litigation first arose in the 1940s, and possessory litigation in the 1970s. Federal sovereign immunity bars possessory claims against the federal government, although compensatory claims are possible by statute. The Eleventh Amendment bars both possessory and compensatory claims against states, unless the federal government intervenes. The US Supreme Court rejected nearly all legal and equitable affirmative defenses in 1985. However, the Second Circuit—where most remaining possessory claims are pending—has held that laches bars all claims that are "disruptive."

Duro v. Reina

Duro v. Reina, 495 U.S. 676 (1990), was a United States Supreme Court case in which the Court concluded that Indian tribes could not prosecute Indians who were members of other tribes for crimes committed by those nonmember Indians on their reservations. The decision was not well received by the tribes, because it defanged their criminal codes by depriving them of the power to enforce them against anyone except their own members. In response, Congress amended a section of the Indian Civil Rights Act, 25 U.S.C. § 1301, to include the power to "exercise criminal jurisdiction over all Indians" as one of the powers of self-government.

Executive Order 13175

Executive Order 13175, "Consultation and Coordination with Indian Tribal Governments," was issued by U.S. President Bill Clinton on November 6, 2000. This executive order required federal departments and agencies to consult with Indian tribal governments when considering policies that would impact tribal communities. Executive Order 13175 reiterated the federal government's previously acknowledged commitment to tribal self-government and limited autonomy.

Golden Checkerboard

Golden Checkerboard (1965) is a book by Ed Ainsworth. Its subject matter concerns the mid-20th century economic conditions of the Agua Caliente Band of Cahuilla Indians of Palm Springs, California, and the history of the 99-year lease law which enabled them to commercially develop tribal owned lands. It focuses on Indio Superior Court Judge Hilton McCabe, who is described as "The Little White Father of the Indians of Palm Springs", and recalls the steps taken by McCabe to set up conservatorships and leases that would give the tribe investment opportunities and economic self-sufficiency. The title of the book refers to the Agua Caliente Band of Cahuilla Indians' reservation checkerboard pattern, originating from land grants to the Southern Pacific Railroad as an incentive to build rail lines through the region, when President Ulysses S. Grant signed an Executive Order granting "San Bernardino Base and Meridian, Township 4 South, Range 4 East, Section 14" to the Agua Caliente Indians.

Iroquois passport

The Iroquois passport or Haudenosaunee passport is a form of identification and an "expression of sovereignty" used by the nationals of the Iroquois League (Iroquois: Haudenosaunee).

Native American gaming

Native American gaming comprises casinos, bingo halls, and other gambling operations on Indian reservations or other tribal land in the United States. Because these areas have tribal sovereignty, states have limited ability to forbid gambling there, as codified by the Indian Gaming Regulatory Act of 1988. As of 2011, there were 460 gambling operations run by 240 tribes, with a total annual revenue of $27 billion.

Native American self-determination

Native American self-determination refers to the social movements, legislation, and beliefs by which the Native American tribes in the United States exercise self-governance and decision making on issues that affect their own people.

Navajo Nation Council

The Navajo Nation Council (Navajo: Béésh bąąh dah siʼání) is the legislative branch of the Navajo Nation government. The council meets four times per year, with additional special sessions, at the Navajo Nation Council Chamber, which is in Window Rock, Arizona.

The council is composed of 24 district delegates, or councilors, chosen by direct election, who represent 110 municipal chapters within the states of Arizona, New Mexico, and Utah. Delegates must be members of the Navajo Nation and be at least twenty-five years of age. Delegate offices are at the Navajo Nation governmental campus in Window Rock.

The council selects a speaker, chosen from among all delegates, to preside over the day-to-day functions of the council for a two-year term.

Northwest Ordinance

The Northwest Ordinance (formally An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio, and also known as The Ordinance of 1787) enacted July 13, 1787, was an organic act of the Congress of the Confederation of the United States. It created the Northwest Territory, the first organized territory of the United States, from lands beyond the Appalachian Mountains, between British North America and the Great Lakes to the north and the Ohio River to the south. The upper Mississippi River formed the territory's western boundary.

In the Treaty of Paris (1783), which formally ended the American Revolutionary War, Great Britain yielded this region to the United States. However, the Confederation Congress faced numerous problems gaining control of the land; these included: the unsanctioned movement of American settlers into the Ohio Valley, violent confrontations with the region's indigenous peoples, the ongoing presence of the British Army which continued to occupy forts in the region, and an empty U.S. treasury. The ordinance superseded the Land Ordinance of 1784 (which declared that states would one day be formed within the region) and the Land Ordinance of 1785 (which described how the Confederation Congress would sell the land to private citizens). Designed to serve as a blueprint for the development and settlement of the region, what the 1787 ordinance lacked was a strong central government to implement it. This need was addressed shortly thereafter, when the new federal government came into existence in 1789. The 1st United States Congress reaffirmed the 1787 ordinance, and, with slight modifications, renewed it through the Northwest Ordinance of 1789.Considered one of the most important legislative acts of the Confederation Congress, it established the precedent by which the Federal government would be sovereign and expand westward with the admission of new states, rather than with the expansion of existing states and their established sovereignty under the Articles of Confederation. It also set legislative precedent with regard to American public domain lands. The U.S. Supreme Court recognized the authority of the Northwest Ordinance of 1789 within the applicable Northwest Territory as constitutional in Strader v. Graham, but did not extend the Ordinance to cover the respective states once they were admitted to the Union.

The prohibition of slavery in the territory had the practical effect of establishing the Ohio River as the geographic divide between slave states and free states from the Appalachian Mountains to the Mississippi River (an extension of the Mason–Dixon line). It also helped set the stage for later political conflicts over slavery at the federal level in the 19th century until the Civil War.

Outline of United States federal Indian law and policy

The following outline is provided as an overview of and topical guide to United States federal Indian law and policy:

Federal Indian policy – establishes the relationship between the United States Government and the Indian Tribes within its borders. The Constitution gives the federal government primary responsibility for dealing with tribes. Law and U.S. public policy related to Native Americans have evolved continuously since the founding of the United States. David R. Wrone argues that the failure of the treaty system was because of the inability of an individualistic, democratic society to recognize group rights or the value of an organic, corporatist culture represented by the tribes.

Public Law 280

Public Law 280 (Pub.L. 83–280, August 15, 1953, codified as 18 U.S.C. § 1162, 28 U.S.C. § 1360, and 25 U.S.C. §§ 1321–1326) is a federal law of the United States establishing "a method whereby States may assume jurisdiction over reservation Indians," as stated in McClanahan v. Arizona State Tax Commission. 411 U.S. 164, 177 (1973).

The Act mandated a transfer of federal law enforcement authority within certain tribal nations to state governments in six states: California, Minnesota (except the Red Lake Nation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin (except later the Menominee Indian Reservation) and, upon its statehood, Alaska. Other states were allowed to elect similar transfers of power if the Indian tribes affected give their consent. Since then, Nevada, South Dakota, Washington, Florida, Idaho, Montana, North Dakota, Arizona, Iowa, and Utah have assumed some jurisdiction over crimes committed by tribal members on tribal lands.

The Act added to a complex matrix of jurisdictional conflict that defined tribal governance at the end of the 20th century. In various states, local police, tribal police, BIA police, and the FBI are the arms of a law enforcement system that enforces laws of tribes, states and the federal government.

Under the Act, states, local sheriffs and state law enforcement agencies take tribal members to state courts for prosecution in cases arising from criminal matters within reservation boundaries. But most tribal governments and pueblos have also adopted their own codes, and administer court systems to adjudicate violations of the code.

In states where the Act has not been applied, Bureau of Indian Affairs (BIA) police respond to major crimes on reservations or pueblos. The FBI joins in investigations of the most serious criminal matters such as murders or kidnappings. In those states, when allegations against tribal members arise from crimes on a reservation, the United States Attorney cites violations of the United States Code in a United States district court. Tribal and pueblo police also enforce local codes in "non-PL 280" states.

Reconstruction Treaties

On the eve of the American Civil War in 1861, a significant number of Indigenous peoples of the Americas had been relocated from the Southeastern United States to Indian Territory, west of the Mississippi. The inhabitants of the eastern part of the Indian Territory, the Five Civilized Tribes, were suzerain nations with established tribal governments, well established cultures, and legal systems that allowed for slavery. Before European Contact these tribes were generally matriarchial societies, with agriculture being the primary economic pursuit. The bulk of the tribes lived in towns (some covering hundreds of acres and containing thousands of people) with planned streets, residential and public areas. The people were ruled by complex hereditary chiefdoms of varying size and complexity with high levels of military organization.By the middle of the 19th century, the United States Government had started leasing land from the Five Civilized Tribes (ex. Choctaw and Chickasaw)

in the western, more arid, part of Indian Territory. These leased lands were used to resettle several Plains Indian tribes that tended to be nomadic in nature, embracing the Horse culture. At the extreme, the Comanche society was based on patrilinear and patrilocal extended family sharing a common language; they did not develop the political idea of forming a nation or tribe until their relocation to Indian Territory.

At the beginning of the Civil War, the Union Army was withdrawn from Indian Territory exposing the Five Civilized Tribes to aggression from the Plains Indians. The Confederacy filled the vacuum. All of the Five Civilized Tribes as well as other surrounding tribes signed treaties with the Confederacy. As a part of reconstruction, the Southern Treaty Commission was created by Congress to write new treaties with the Tribes that sided with the Confederacy.

Sovereign (disambiguation)

A sovereign is the supreme lawmaking authority within a particular jurisdiction.

Sovereign may also refer to:

Head of state

Monarch, the sovereign of a monarchy

Sovereign, head of local government (historical)

Fount of honour for honours and decorations

Sovereign, Saskatchewan, community in Canada

Sovereign, West Virginia, community in the United States

Sovereign Bank, banking institution in the United States

Sovereign (English coin), minted from 1489 to 1604

Sovereign (British coin), minted from 1817 to the present

Sovereign Hill, Victoria, Australia

Sovereign Limited, Insurances company of New Zealand

Sovereign Pontiff, a title for the Pope

Sovereign wealth fund, type of investment funds

Sovereign (building), a building in Burnaby, Canada

Supreme Court of the Navajo Nation

The Supreme Court of the Navajo Nation is the highest judicial Native American authority of the Navajo Nation, the largest American Indian nation in the United States. According to Harvard Law School, "the judicial system of the Navajo Nation is the most active tribal judicial system in the United States, with a case load that rivals, and in some instances exceeds, many municipal, county, and state judicial systems."The Supreme Court of the Navajo Nation sits in Window Rock. It is a three-member body consisting of the Chief Justice Allen Sloan, and one Associate Justice, Eleanor Shirley. The third seat is currently vacant; a district court judge temporarily fills the seat by designation when the Court hears a case.

The Cherokee Tobacco

The Cherokee Tobacco Case, 78 U.S. (11 Wall.) 616 (1870), is a United States court case with implications relating to tribal sovereignty in the United States.

Two Cherokee men, Elias C. Boudinot and Stand Watie, refused to pay taxes on tobacco manufactured in the Cherokee Nation, as required by the Internal Revenue Act 1868. They argued that they were exempt from paying the taxes by the Cherokee Treaty of 1866. The Supreme Court decided against the men, stating that a law of Congress can supersede the provisions of a treaty.Boudinot and Watie, with the help of attorneys A. Pike, R. W. Johnson, and B.F. Butler, argued that they were exempt from paying the tax on the tobacco. They used the argument that Article 10 of the Treaty of 1866 with the Cherokee Nation stated,

“Every Cherokee and freed person resident in the Cherokee nation shall have the right to sell any products of his farm, including his or her live stock or any merchandise or manufactured products, and to ship and drive the same to market without restraint, paying any tax thereon which is now or may be levied by the United States on the quantity sold outside of the Indian Territory.”

They used this part because to them it meant that any Cherokee and freed person living in Cherokee Nation had the right to do whatever they wished with their products of their farms and had the right to do so without being taxed.

On the other hand, Amos Akerman, U.S. Attorney General, and Benjamin Bristow, Solicitor General, on behalf of the United States, argued that, the 107th section of the Internal Revenue Act of July 20, 1868, states that,

The internal revenue laws imposing taxes on distilled spirits, fermented liquors, tobacco, snuff, and cigars, shall be construed to extend to such articles produced anywhere within the exterior boundaries of the United States, whether the same shall be within a collection district or not,

In other words that under the Internal Revenue Act of 1868, the United States had the right to tax anyone within the countries boundaries as well as within the exterior boundaries. Also because this act was passed two years after the Cherokee Nation Treaty, it overruled any previous acts.

Justice Swayne wrote the decision in this case for a deeply fractured Court; three justices concurred with Swayne, two dissented and three did not participate. Swayne indicated the legal direction he was heading by noting at the outset of the opinion that the case involved, “first the question of the intention of Congress, and second, assuming the intention to exist, the question of its power, to tax certain tobacco in the Territory of the Cherokee nation in the face of a prior treaty between that nation and the United States that such tobacco should be exempt from taxation.” His decision yielded one of the most problematic and ambiguous doctrines in Indian law- whether tribes, as preexisting entities, may be included or excluded under the scope of general laws enacted by Congress. The documentary evidence-including the preexisting political status of tribes, prior Supreme Court precedent, the treaty relationship, and the constitutional clauses acknowledging the distinctive status of tribal polities- clearly support exclusion. Indian territories, in other words, were not regarded as included in congressional enactments unless the tribe had given its explicit consent and unless they were expressly included in the law.

The Cherokee Tobacco case, however, created a new interpretation- that general congressional acts do apply to tribes unless Congress explicitly excludes them. Thus, Boudinot and Watie were required to pay the tax on the tobacco. This decision not only affected these two men, but it also affected every decision that gave weight to the idea that Indian Nations were sovereign nations. With this decision, people would argue that if countries outside the United States, sovereign countries, were not required to pay taxes to the United States then how was a nation within its borders required to pay taxes and still be a sovereign nation. The holding in this case was a huge blow to the fight for Indian sovereignty.

Treaty of Bosque Redondo

The Treaty of Bosque Redondo (also the Navajo Treaty of 1868 or Treaty of Fort Sumner, Navajo Naal Tsoos Sani or Naaltsoos Sání) was an agreement between the Navajo and the US Federal Government signed on June 1, 1868. It ended the Navajo Wars and allowed for the return of those held in internment camps at Fort Sumner following the Long Walk of 1864. The treaty effectively established the Navajo as a sovereign nation.

United States Indian Police

The United States Indian Police (USIP) were organized in 1880 by John Q. Tufts the Indian Commissioner in Muskogee, Indian Territory, to police the Five Civilized Tribes. Their mission is to "provide justice services and technical assistance to federally recognized Indian tribes." The USIP, after its founding in 1880, recruited many of their police officers from the ranks of the existing Indian Lighthorsemen. Unlike the Lighthorse who were under the direction of the individual tribe, the USIP was under the direction of the Indian agent assigned to the Union Agency. Many of the US Indian police officers were given Deputy U.S. Marshal commissions that allowed them to cross jurisdictional boundaries and also to arrest non-Indians.

United States v. Lara

United States v. Lara, 541 U.S. 193 (2004), was a United States Supreme Court case which held that both the United States and a Native American (Indian) tribe could prosecute an Indian for the same acts that constituted crimes in both jurisdictions. The Court held that the United States and the tribe were separate sovereigns; therefore, separate tribal and federal prosecutions did not violate the Double Jeopardy Clause.In the 1880s, Congress passed the Major Crimes Act, divesting tribes of criminal jurisdiction in regard to several felony crimes. In 1990, the Supreme Court ruled in Duro v. Reina that an Indian tribe did not have the authority to try an Indian criminally who was not a member of that tribe. The following year, Congress passed a law that stated that Indian tribes, because of their inherent sovereignty, had the authority to try non-member Indians for crimes committed within the tribe's territorial jurisdiction.

The defendant, Billy Jo Lara, was charged for acts that were criminal offenses under both the Spirit Lake Sioux Tribe's laws and the federal United States Code. Lara pleaded guilty to the tribal charges, but claimed double jeopardy against the federal charges. The Supreme Court ruled that double jeopardy did not apply to Lara since "the successive prosecutions were brought by separate and distinct sovereign bodies".

Worcester v. Georgia

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), was a case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Native Americans from being present on Native American lands without a license from the state was unconstitutional.

The opinion is most famous for its dicta, which laid out the relationship between tribes and the state and federal governments. It is considered to have built the foundations of the doctrine of tribal sovereignty in the United States.

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