Tribal sovereignty in the United States

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Indian reservations
  • Also known as:
  • Domestic dependent nation
Indian reservations in the Continental United States.png
Category Autonomous administrative divisions
Location United States
Created
Number326 [1] (map includes the 310 as of May 1996)
Populations123 (several) – 173,667 (Navajo Nation) [2]
AreasRanging from the 1.32-acre (0.534 hectare) Pit River Tribe's cemetery in California to the 16 million–acre (64,750 square kilometer) Navajo Nation Reservation located in Arizona, New Mexico, and Utah [1]
Map of the contiguous United States with reservation lands excluded as of 2003 Indian reservations.gif
Map of the contiguous United States with reservation lands excluded as of 2003
Reservation lands in the contiguous United States as of 2019 Indian reservations in the Continental United States.png
Reservation lands in the contiguous United States as of 2019

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.

Contents

Originally, the U.S. federal government recognized American Indian tribes as independent nations and came to policy agreements with them via treaties. As the U.S. accelerated its westward expansion, internal political pressure grew for "Indian removal", but the pace of treaty-making grew regardless. The Civil War forged the U.S. into a more centralized and nationalistic country, fueling a "full bore assault on tribal culture and institutions", and pressure for Native Americans to assimilate. [3] In the Indian Appropriations Act of 1871, Congress prohibited any future treaties. This move was steadfastly opposed by Native Americans. [3]

Currently, the U.S. recognizes tribal nations as "domestic dependent nations" [4] and uses its own legal system to define the relationship between the federal, state, and tribal governments.

Native American sovereignty and the Constitution

The United States Constitution mentions Native American tribes three times:

These constitutional provisions, and subsequent interpretations by the Supreme Court (see below), are today often summarized in three principles of U.S. Indian law: [9] [10] [11]

Early history

The Marshall Trilogy, 1823–1832

Hassanamisco Nipmuc Indian Reservation sign Hassanamisco Nipmuc Indian Sign.jpg
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.

Indian Appropriations Act of 1871

Originally, the United States had recognized the Indian Tribes as independent nations, but after the Civil War, the U.S. suddenly changed its approach. [3]

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 [14] [15]

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.[ citation needed ]

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. 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.

United States v. Kagama (1886)

The 1871 Act was affirmed in 1886 by the U.S. 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". [16] The Supreme Court affirmed that the U.S. 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." [17]

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).

Evolution of relationships: The evolution of the relationship between tribal governments and federal governments has been glued together through partnerships and agreements. Also running into problems of course such as finances which also led to not being able to have a stable social and political structure at the helm of these tribes or states. [18]

Twentieth-century developments

Revenue and Indian Citizenship acts, 1924

The Revenue Act of 1924 (Pub. L. Tooltip Public Law (United States)  68–176 , H.R. 6715, 43  Stat.   253 , enacted June 2, 1924), also known as the Mellon tax bill after U.S. Secretary of the Treasury Andrew Mellon, 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 Revenue Act was applicable to incomes for 1924. [19] 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 (Pub. L. Tooltip Public Law (United States)  68–175 , H.R. 6355, 43  Stat.   253 , enacted June 2, 1924), granted all non-citizen resident Indians citizenship. [20] [21] 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.

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. John Collier and Nathan Margold wrote the solicitor's opinion, "Powers of Indian Tribes" which was issued October 25, 1934, and commented on the wording of the Indian Reorganization Act. This opinion stated that sovereign powers inhered in Indian tribes except for where they were restricted by Congress. The opinion stated that "Conquest has brought the Indian tribes under the control of Congress, but except as Congress has expressly restricted or limited the internal powers of sovereignty vested in the Indian tribes such powers are still vested in the respective tribes and may be exercised by their duly constituted organs of government." [22]

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, the 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 on fee-simple lands within its reservation when their "conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."

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). [13]

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).

Iron Crow v. Oglala Sioux Tribe (1956)

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 , 231F.2d89 (8th Cir.1956)("including pay and other expenses of judges of Indian courts").

Tribal governments today

Map of states with US federally recognized tribes marked in yellow. Hawaii and the states that removed all of their tribes are marked in gray. Federally recognized tribes by state.png
Map of states with US federally recognized tribes marked in yellow. Hawaii and the states that removed all of their tribes are marked in gray.
Great Seal of the Navajo Nation Great Seal of the Navajo Nation.svg
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 (PL280) state (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin).

The U.S. Supreme Court ruled in the 1978 decision Oliphant v. Suquamish Indian Tribe that tribes have no jurisdiction over non-Indians. Tribal courts maintain much criminal jurisdiction over their members, and because of the Duro fix, also over non-member Indians regarding crime on tribal land. The Violence Against Women Reauthorization Act of 2013 expanded the criminal jurisdiction of tribes over non-Indian perpetrators of domestic violence that occur in Indian Country when the victim is Indian. [23]

The 1968 Indian Civil Rights Act limited tribal punishment to one year in jail and a $5,000 fine, [24] but this was expanded by the Tribal Law and Order Act of 2010.

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, [25] unless a plaintiff is granted a waiver by the tribe or by congressional abrogation. [26] The sovereignty extends to tribal enterprises [27] and tribal casinos or gaming commissions. [28] 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. [25]

Tribal and pueblo governments today launch far-reaching economic ventures, operate growing law enforcement agencies, and adopt codes to govern conduct within their jurisdiction, while 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.

With crime twice as high on Indian lands, federal funding of tribal courts has been criticized by the United States Commission on Civil Rights and the Government Accountability Office as inadequate to allow them to perform necessary judicial functions, such as hiring officials trained in law, and prosecuting cases neglected by the federal government. [29]

Nation to nation: tribes and the federal government

The United States Constitution specifically mentions American Indians three times. Article I, Section 2, Clause 3 and the Section 2 of the Fourteenth Amendment 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. [30] Self-determination promoted the ability of tribes to self-govern and make decisions concerning their people. 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. [31] Current federal policy in the United States recognizes this sovereignty and stresses the government-to-government relations between the United States and Federally recognized tribes. [32] However, most Native American land is held in trust by the United States, [33] and federal law still regulates the economic rights of tribal governments and political rights. Tribal jurisdiction over persons and things within tribal borders are often at issue. While tribal criminal jurisdiction over Native Americans is reasonably well settled, tribes are still striving to achieve criminal jurisdiction over non-Native persons who commit crimes in Indian Country. This is largely 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-Natives who commit crimes on their lands (see below for additional discussion on this point.)

As a result of a pair of treaties in 1830s, 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 U.S. territory or the federal district); the Choctaw have never exercised their right to do so since they were given the power and the Cherokee had not done so until appointing a delegate in 2019, though this delegate has not been accepted by Congress. [34] [35] [36]

Tribal state relations: sovereign within a sovereign

Otoe-Missouria Tribal Seal Otoe Tribal Seal.jpg
Otoe-Missouria 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". [6] 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. [37] 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". [38] 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." [39] As determined in the Supreme Court case United States v. Nice (1916), [40] U.S. citizens are subject to all U.S. laws even if they also have tribal citizenship.

In July 2020, the U.S Supreme Court ruled in McGirt v. Oklahoma that the state of Oklahoma acted outside its jurisdiction when trying a member of the Muscogee (Creek) Nation in 1997 for rape and that the case should have been tried in federal court since Congress had never officially dissolved the reservation in question. [41] The ruling's expansion of jurisdiction sovereignty also opened the possibility for Native Americans to obtain more power in alcohol regulation and casino gambling. [42]

Similar to the promised non-voting tribal delegates in the United States House of Representatives, the Maine House of Representatives maintains three state-level non-voting seats for representatives of the Passamaquoddy, Maliseet, and the Penobscot. [43] Two of the seats are currently not filled in protest over issues of tribal sovereignty and rights. [44]

Tribal sovereignty over land and natural resources

Following industrialization, the 1800s brought many challenges to tribal sovereignty over tribal members' occupied lands in the United States. In 1831, Cherokee Nation v. Georgia established a trust relationship between the United States and tribal territories. This gave the U.S. federal government primary jurisdictional authority over tribal land use, while maintaining tribal members' rights to reside on their land and access its resources. [45] Similarly, in 1841, a treaty between the U.S. federal government and the Mole Lake Band of Sokaogon Chippewa resulted in the Chippewa ceding extensive lands to the U.S., but maintaining usufructuary rights to fishing, hunting, and gathering in perpetuity on all ceded land. [46]

Wartime industry of the early 1900s introduced uranium mining and the need for weapons testing sites, for which the U.S. federal government often selected former and current tribal territories in the southwestern deserts. [47] Uranium mines were constructed upstream of Navajo and Hopi reservations in Arizona and Nevada, measurably contaminating Native American water supply through the 1940s and 1950s with lasting impacts to this day. [48] The Nevada desert was also a common nuclear testing site for the U.S. military through World War II and the Cold War, the closest residents being Navajo Nation members. [49]

In 1970, President Richard Nixon established the federal government's Environmental Protection Agency (EPA). [50] In 1974, the EPA became the first U.S. federal agency to release an Indian Policy, which established the model of environmental federalism operational today. Under this model, the federal EPA sets water, air, and waste disposal standards, but delegates enforcement authority and the opportunity to design stricter environmental regulations to each state. Enforcement authority over Native American territory, however, remains under federal EPA jurisdiction, unless a given tribe applies for and is granted Treatment as State (TAS) status. [51]

With the emergence of environmental justice movements in the United States through the 1990s, President Bill Clinton released executive orders 12898 (1994) and 13007 (1996). EO 12898 affirmed disparate impacts of climate change as stratified by socioeconomic status; EO 13007 ordered the protection of Native American cultural sites. [49] Since the passage of EO 12898 and EO 13007, tribal prosecutors have litigated extensively against the federal government and industry polluters over land use and jurisdiction with varying degrees of success.

In 2007, the U.N. adopted the Declaration on the Rights of Indigenous People ("The Declaration"), despite the United States voting against it along with Australia, New Zealand, and Canada. [52] [49] In 2010, President Barack Obama revisited The Declaration and declared that the U.S. government now supported it; [49] however, as of December 2022, the requirements of The Declaration have still not been adopted into U.S. law. As recently as 2015, the Gold King Mine contaminated three million gallons of water in the Colorado River which serves as drinking water for the Navajo and Hopi downstream. The federal EPA appropriated $156,000 in reparations for Gold King Mine, while the Flint, Michigan water crisis in 2014 received $80 million in federal funds. [53]

A recent challenge faced by Native Americans regarding land and natural resource sovereignty has been posed by the modern real estate market. While Native Nations have made substantial progress in land and resource sovereignty, such authority is limited to land classified as 'Native American owned.' In the private real estate market, however, big industry polluters and hopeful miners have made a practice of buying out individual landowners in Native American residential areas, subsequently using that land to build mines or factories which increase local pollution. There is not regulation or legislation in place to sufficiently curb this practice at the rate necessary to preserve Native American land and natural resources. [49]

In 2023, the federally-recognized Resighini Rancheria of the Yurok People, Tolowa Dee-ni' Nation, and Cher-Ae Heights Indian Community of the Trinidad Rancheria announced that as territorial governments they have protected the Yurok-Tolowa-Dee-ni' Indigenous Marine Stewardship Area of 700 square miles (1,800 km2) of ocean waters and coastline reaching from Oregon to just south of Trinidad in the Redwood National and State Parks. [54]

List of cases

See also

Notes

  1. 1 2 "Frequently Asked Questions, Bureau of Indian Affairs". Department of the Interior. Retrieved August 8, 2015.
  2. "Navajo Population Profile 2010 U.S. Census" (PDF). Retrieved October 7, 2018.
  3. 1 2 3 "1871: The End of Indian Treaty-Making". NMAI Magazine. Retrieved July 11, 2020.
  4. "Native American Policies". www.justice.gov. June 16, 2014. Retrieved July 7, 2019.
  5. Constitution of the United States of America: Article. I.
  6. 1 2 American Indian Policy Center. 2005. St. Paul, MN. 4 October 2008
  7. Cherokee Nations v. Georgia , 30 U.S. (5 Pet.) 1 (1831)
  8. Additional amendments to the United States Constitution
  9. Charles F. Wilkinson, Indian tribes as sovereign governments: a sourcebook on federal-tribal history, law, and policy, AIRI Press, 1988
  10. Conference of Western Attorneys General, American Indian Law Deskbook, University Press of Colorado, 2004
  11. N. Bruce Duthu, American Indians and the Law, Penguin/Viking, 2008
  12. Robert J. McCarthy, The Bureau of Indian Affairs and the Federal Trust Obligation to American Indians, 19 BYU J. PUB. L. 1 (December, 2004)
  13. 1 2 Miller, Robert J. (March 18, 2021). "The Most Significant Indian Law Decision in a Century | The Regulatory Review". The Regulatory Review. University of Pennsylvania Law School. Retrieved December 1, 2022.
  14. Onecle (November 8, 2005). "Indian Treaties" . Retrieved March 31, 2009.
  15. 25 U.S.C. § 71. Indian Appropriation Act of March 3, 1871, 16 Stat. 544, 566
  16. "U.S. v Kagama, 118 U.S. 375 (1886), Filed May 10, 1886". FindLaw, a Thomson Reuters business. Retrieved April 29, 2012.
  17. "United States v. Kagama – 118 U.S. 375 (1886)". Justia. Retrieved April 29, 2012.
  18. "Historical Tribal Sovereignty & Relations | Native American Financial Services Association". August 7, 2012. Retrieved October 11, 2019.
  19. "1926". Statistics of Income, 1926 - FRASER - St. Louis Fed. 1926.{{cite book}}: |website= ignored (help)
  20. "The 1924 Indian Citizenship Act". Nebraskastudies.org. June 2, 1924. Archived from the original on June 5, 2009. Retrieved March 31, 2014.
  21. Oklahoma State University Library. "Indian Affairs: Laws And Treaties. Vol. Iv, Laws". Digital.library.okstate.edu. Retrieved March 31, 2014.
  22. Margold, Nathan R. "Powers of Indian Tribes". Solicitor's Opinions. University of Oklahoma College of Law. Retrieved February 24, 2023.
  23. 25 U.S.C.   § 1304, VAWA Reauthorization Act available at www.gpo.gov
  24. Robert J. McCarthy, Civil Rights in Tribal Courts; The Indian Bill of Rights at 30 Years, 34 IDAHO LAW REVIEW 465 (1998).
  25. 1 2 Santa Clara Pueblo v. Martinez , 436 U.S. 49 (1978)
  26. Oklahoma Tax Comm'n v. Citizen Band of Potawatomi Tribe of Okla. , 498 U.S. 505 (1991)
  27. Local IV-302 Int'l Woodworkers Union of Am. v. Menominee Tribal Enterprises,595F.Supp.859(E.D. Wis.1984).
  28. Barker v. Menominee Nation Casino, et al,897F.Supp.389(E.D. Wis.1995).
  29. United States Commission on Civil Rights (December 2018). "Broken Promises: Continuing Federal Funding Shortfall for Native Americans" (PDF).
  30. Wilkinson, Charles. Blood Struggle: The Rise of Modern Indian Nations. p 189. New York: W.W. Norton & Company, 2005.
  31. Light, Steven Andrew, and Kathryn R.L. Rand. Indian Gaming and Tribal Sovereignty: The Casino Compromise. University Press of Kansas, 2005. (19)
  32. "Memorandum for the Heads of Executive Departments and Agencies". georgewbush-whitehouse.archives.gov.
  33. Some tribal lands, most commonly in Oklahoma, are held by the tribe according to the original patent deed and thus are not trust property.
  34. 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.
  35. 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.
  36. Krehbiel-Burton, Lenzy (August 23, 2019). "Citing treaties, Cherokees call on Congress to seat delegate from tribe". Tulsa World. Tulsa, Oklahoma. Retrieved August 24, 2019.
  37. Wilkinson, Charles. Blood Struggle: The Rise of Modern Indian Nations. p151. New York: W.W. Norton & Company, 2005.
  38. Canby Jr., William C. American Indian Law. p449. St. Paul, MN: West Group 1998.
  39. 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.
  40. Lemont, Eric D. American Indian Constitutional Reform and the Rebuilding of Native Nations. University of Texas Press, 2006.
  41. Wolf, Richard; Johnson, Kevin (July 9, 2020). "Supreme Court gives Native Americans jurisdiction over eastern half of Oklahoma". USA Today. Retrieved July 9, 2020.
  42. Hurley, Lawrence (July 9, 2020). "U.S. Supreme Court deems half of Oklahoma a Native American reservation". Reuters. Retrieved July 9, 2020.
  43. Starbird, Jr., S. Glenn (1983). "Brief History of Indian Legislative Representatives". Maine Legislature. Retrieved January 4, 2021.
  44. Moretto, Mario (May 26, 2015). "Passamaquoddy, Penobscot tribes withdraw from Maine Legislature". Bangor Daily News.
  45. Teodoro, Manuel P.; Haider, Mellie; Switzer, David (October 24, 2016). "U.S. Environmental Policy Implementation on Tribal Lands: Trust, Neglect, and Justice". Policy Studies Journal. 46 (1): 37–59. doi:10.1111/psj.12187. ISSN   0190-292X.
  46. Mandleco, Sarah (2002). "Surviving a State's Challenge to the EPA's Grant of Treatment as State Status under the Clean Water Act: One Tribe's Story State of Wisconsin v. EPA and Sokaogon Chippewa Community". Wisconsin Environmental Law Journal. 8: 197–224.
  47. Rock, Tommy (2020). "Traditional Ecological Knowledge Policy Considerations for Abandoned Uranium Mines on Navajo Nation". Human Biology. 92 (1): 19–26. doi:10.13110/humanbiology.92.1.01. PMC   8477793 . PMID   33231023 via Wayne State University Press.
  48. "Environmental Impacts". Navajo Nation. Retrieved December 3, 2021.
  49. 1 2 3 4 5 Ornelas, Roxanne T. (October 21, 2011). "Managing the Sacred Lands of Native America". The International Indigenous Policy Journal. 2 (4). doi: 10.18584/iipj.2011.2.4.6 . ISSN   1916-5781.
  50. "U.S. Environmental Protection Agency | US EPA". www.epa.gov. Retrieved December 3, 2021.
  51. Diver, Sybil (2019). "Engaging Colonial Entanglements: "Treatment as a State" Policy for Indigenous Water Co-Governance". Global Environmental Politics. 19 (3): 33–56. doi: 10.1162/glep_a_00517 . S2CID   199537244.
  52. UN adopts Declaration on Rights of Indigenous Peoples Archived September 25, 2014, at the Wayback Machine United Nations News Centre, 13 September 2007.
  53. Examining EPA's Unacceptable Response to Indian Tribes. Congressional Hearing, 2016-04-22, 2016.
  54. Hill, Jos; Hayden, Bobby (January 26, 2024). "Tribal Nations Designate First US Indigenous Marine Stewardship Area". Pew Charitable Trusts . Retrieved January 30, 2024.

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Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), is a United States Supreme Court case deciding that Indian tribal courts have no criminal jurisdiction over non-Indians. The case was decided on March 6, 1978 with a 6–2 majority. The court opinion was written by William Rehnquist, and a dissenting opinion was written by Thurgood Marshall, who was joined by Chief Justice Warren Burger. Justice William J. Brennan did not participate in the decision.

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An American Indian reservation is an area of land held and governed by a U.S. federal government-recognized Native American tribal nation, whose government is autonomous, subject to regulations passed by the United States Congress and administered by the United States Bureau of Indian Affairs, and not to the U.S. state government in which it is located. Some of the country's 574 federally recognized tribes govern more than one of the 326 Indian reservations in the United States, while some share reservations, and others have no reservation at all. Historical piecemeal land allocations under the Dawes Act facilitated sales to non–Native Americans, resulting in some reservations becoming severely fragmented, with pieces of tribal and privately held land being treated as separate enclaves. This jumble of private and public real estate creates significant administrative, political, and legal difficulties.

<span class="mw-page-title-main">Cherokee Nation</span> Native American tribe in Oklahoma, United States

The Cherokee Nation, also known as the Cherokee Nation of Oklahoma, is the largest of three Cherokee federally recognized tribes in the United States. It includes people descended from members of the Old Cherokee Nation who relocated, due to increasing pressure, from the Southeast to Indian Territory and Cherokee who were forced to relocate on the Trail of Tears. The tribe also includes descendants of Cherokee Freedmen, Absentee Shawnee, and Natchez Nation. As of 2023, over 450,000 people were enrolled in the Cherokee Nation.

<span class="mw-page-title-main">Cultural assimilation of Native Americans</span> By the US, into European–American culture

A series of efforts were made by the United States to assimilate Native Americans into mainstream European–American culture between the years of 1790 and 1920. George Washington and Henry Knox were first to propose, in the American context, the cultural assimilation of Native Americans. They formulated a policy to encourage the so-called "civilizing process". With increased waves of immigration from Europe, there was growing public support for education to encourage a standard set of cultural values and practices to be held in common by the majority of citizens. Education was viewed as the primary method in the acculturation process for minorities.

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.

United States v. Kagama, 118 U.S. 375 (1886), was a landmark United States Supreme Court case that upheld the constitutionality of the Major Crimes Act of 1885. This Congressional act gave the federal courts jurisdiction in certain Indian-on-Indian crimes, even if they were committed on an Indian reservation. Kagama, a Yurok Native American (Indian) accused of murder, was selected as a test case by the Department of Justice to test the constitutionality of the Act.

<i>Talton v. Mayes</i> 1896 United States Supreme Court case

Talton v. Mayes, 163 U.S. 376 (1896), was a landmark United States Supreme Court case, in which the court decided that the individual rights protections, which limit federal, and later, state governments, do not apply to tribal government. It reaffirmed earlier decisions, such as the 1831 Cherokee Nation v. Georgia case, that gave Indian tribes the status of "domestic dependent nations," the sovereignty of which is independent of the federal government.

<span class="mw-page-title-main">Indian country jurisdiction</span>

Indian country jurisdiction, or the extent which tribal powers apply to legal situations in the United States, has undergone many drastic shifts since the beginning of European settlement in America. Over time, federal statutes and Supreme Court rulings have designated more or less power to tribal governments, depending on federal policy toward Indians. Numerous Supreme Court decisions have created important precedents in Indian country jurisdiction, such as Worcester v. Georgia, Oliphant v. Suquamish Tribe, Montana v. United States, and McGirt v. Oklahoma.

United States v. Lara, 541 U.S. 193 (2004), was a United States Supreme Court landmark 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.

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), was a landmark case in the area of federal Indian law involving issues of great importance to the meaning of tribal sovereignty in the contemporary United States. The Supreme Court sustained a law passed by the governing body of the Santa Clara Pueblo that explicitly discriminated on the basis of sex. In so doing, the Court advanced a theory of tribal sovereignty that weighed the interests of tribes sufficient to justify a law that, had it been passed by a state legislature or Congress, would have almost certainly been struck down as a violation of equal protection.

Menominee Tribe v. United States, 391 U.S. 404 (1968), is a case in which the Supreme Court ruled that the Menominee Indian Tribe kept their historical hunting and fishing rights even after the federal government ceased to recognize the tribe. It was a landmark decision in Native American case law.

<span class="mw-page-title-main">Aboriginal title in the United States</span> First country to recognize aboriginal title

The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title. 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.

Ex parte Crow Dog, 109 U.S. 556 (1883), is a landmark decision of the Supreme Court of the United States that followed the death of one member of a Native American tribe at the hands of another on reservation land. Crow Dog was a member of the Brulé band of the Lakota Sioux. On August 5, 1881 he shot and killed Spotted Tail, a Lakota chief; there are different accounts of the background to the killing. The tribal council dealt with the incident according to Sioux tradition, and Crow Dog paid restitution to the dead man's family. However, the U.S. authorities then prosecuted Crow Dog for murder in a federal court. He was found guilty and sentenced to hang.

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

<span class="mw-page-title-main">Oklahoma Tribal Statistical Area</span> Statistical entity

Oklahoma Tribal Statistical Area is a statistical entity identified and delineated by federally recognized American Indian tribes in Oklahoma as part of the U.S. Census Bureau's 2010 Census and ongoing American Community Survey. Many of these areas are also designated Tribal Jurisdictional Areas, areas within which tribes will provide government services and assert other forms of government authority. They differ from standard reservations, such as the Osage Nation of Oklahoma, in that allotment was broken up and as a consequence their residents are a mix of native and non-native people, with only tribal members subject to the tribal government. At least five of these areas, those of the so-called five civilized tribes of Cherokee, Choctaw, Chickasaw, Creek and Seminole, which cover 43% of the area of the state, are recognized as reservations by federal treaty, and thus not subject to state law or jurisdiction for tribal members.

<span class="mw-page-title-main">Oklahoma Organic Act</span> Statute used by the United States Congress

An Organic Act is a generic name for a statute used by the United States Congress to describe a territory, in anticipation of being admitted to the Union as a state. Because of Oklahoma's unique history an explanation of the Oklahoma Organic Act needs a historic perspective. In general, the Oklahoma Organic Act may be viewed as one of a series of legislative acts, from the time of Reconstruction, enacted by Congress in preparation for the creation of a united State of Oklahoma. The Organic Act created Oklahoma Territory, and Indian Territory that were Organized incorporated territories of the United States out of the old "unorganized" Indian Territory. The Oklahoma Organic Act was one of several acts whose intent was the assimilation of the tribes in Oklahoma and Indian Territories through the elimination of tribes' communal ownership of property.

Williams v. Lee, 358 U.S. 217 (1959), was a landmark case in which the Supreme Court of the United States held that the State of Arizona does not have jurisdiction to try a civil case between a non-Indian doing business on a reservation with tribal members who reside on the reservation, the proper forum for such cases being the tribal court.

Sharp v. Murphy, 591 U.S. ___ (2020), was a Supreme Court of the United States case of whether Congress disestablished the Muscogee (Creek) Nation reservation. After holding the case from the 2018 term, the case was decided on July 9, 2020, in a per curiam decision following McGirt v. Oklahoma that, for the purposes of the Major Crimes Act, the reservations were never disestablished and remain Native American country.

McGirt v. Oklahoma, 591 U.S. ___ (2020), was a landmark United States Supreme Court case which held that the domain reserved for the Muscogee Nation by Congress in the 19th century has never been disestablished and constitutes Indian country for the purposes of the Major Crimes Act, meaning that the State of Oklahoma has no right to prosecute American Indians for crimes allegedly committed therein. After McGirt, the Oklahoma Court of Criminal Appeals applied the McGirt rationale in six similar cases, finding that Congress established reservations within the final incarnation of the Indian Territory for eight other Indigenous nations which have not been disestablished. As a result, almost the entirety of the eastern half of what is now the State of Oklahoma remains Indian country, meaning that criminal prosecutions of Native Americans for offenses therein falls outside the jurisdiction of Oklahoma’s court system. In these cases, jurisdiction properly vests within the Indigenous judicial systems and the federal district courts under the Major Crimes Act.

Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902) was a US Supreme Court case that decided the US Congress has the right to pass legislation that controls the actions and property of tribal states without their consent. The Cherokee Nation brought this case against the Secretary of the Interior because the Secretary authorized mineral and oil leases on Cherokee land, an action Congress had authorized by legislation. The Cherokee Nation argued that this action violated the treaty rights promised by the US to their Indian nation. In their decision, the Court stated this was out of the Court’s power as it was a question for the legislative branch to determine, not the judicial.

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