Tribal sovereignty in the United States

Last updated

Indian reservations
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. 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 nevertheless. Then 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, without any input from Native Americans, 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.

Contents

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 [13] [14]

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". [15] 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." [16]

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". [ citation needed ] 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).

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. [17]

Twentieth-century developments

Revenue and Indian Citizenship acts, 1924

The Revenue Act of 1924 (Pub.L.   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. [18] 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.   68–175 , H.R. 6355, 43  Stat.   253 , enacted June 2, 1924), granted all non-citizen resident Indians citizenship. [19] [20] 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 (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").

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, 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).

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.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). 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 Indian Civil Rights Act, however, limits tribal punishment to one year in jail and a $5,000 fine. [21] 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; MCA). Indian on non-Indian crime in Indian country will be prosecuted in federal court, either from the MCA or the Indian Country Crimes Act (ICCA; §1152), unless the Indian was punished by the tribe. Non-Indian on Indian crime in Indian country is prosecuted in federal court under the ICCA. Non-Indian on non-Indian crime in Indian country is 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, [22] unless a plaintiff is granted a waiver by the tribe or by congressional abrogation. [23] The sovereignty extends to tribal enterprises [24] and tribal casinos or gaming commissions. [25] 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. [22]

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.

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. [26] 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.[ citation needed ] 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. [27] 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. [28] However, most Native American land is held in trust by the United States, [29] 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 US 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. [30] [31] [32]

Tribal state relations: sovereign within a sovereign

Otoe Tribal Seal Otoe Tribal Seal.jpg
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". [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. [33] 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". [34] 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." [35] As determined in the Supreme Court case United States v. Nice (1916), [36] 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 because Congress had never officially dissolved the reservation in question. [37] The ruling's expansion of jurisdiction sovereignty also opened the possibility for Native Americans to obtain more power in alcohol regulation and casino gambling. [38]

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. [39] Two of the seats are currently not filled in protest over issues of tribal sovereignty and rights. [40]

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. Onecle (November 8, 2005). "Indian Treaties" . Retrieved March 31, 2009.
  14. 25 U.S.C. § 71. Indian Appropriation Act of March 3, 1871, 16 Stat. 544, 566
  15. "U.S. v Kagama, 118 U.S. 375 (1886), Filed May 10, 1886". FindLaw, a Thomson Reuters business. Retrieved April 29, 2012.
  16. "United States v. Kagama – 118 U.S. 375 (1886)". Justia. Retrieved April 29, 2012.
  17. "Historical Tribal Sovereignty & Relations | Native American Financial Services Association" . Retrieved October 11, 2019.
  18. "Statistics of Income, 1926 - FRASER - St. Louis Fed". fraser.stlouisfed.org.
  19. "The 1924 Indian Citizenship Act". Nebraskastudies.org. June 2, 1924. Retrieved March 31, 2014.
  20. Oklahoma State University Library. "Indian Affairs: Laws And Treaties. Vol. Iv, Laws". Digital.library.okstate.edu. Retrieved March 31, 2014.
  21. Robert J. McCarthy, Civil Rights in Tribal Courts; The Indian Bill of Rights at 30 Years, 34 IDAHO LAW REVIEW 465 (1998).
  22. 1 2 Santa Clara Pueblo v. Martinez , 436 U.S. 49 (1978)
  23. Oklahoma Tax Comm'n v. Citizen Band of Potawatomi Tribe of Okla. , 498 U.S. 505 (1991)
  24. Local IV-302 Int'l Woodworkers Union of Am. v. Menominee Tribal Enterprises,595F.Supp.859(E.D. Wis.1984).
  25. Barker v. Menominee Nation Casino, et al,897F.Supp.389(E.D. Wis.1995).
  26. Wilkinson, Charles. Blood Struggle: The Rise of Modern Indian Nations. p 189. New York: W.W. Norton & Company, 2005.
  27. Light, Steven Andrew, and Kathryn R.L. Rand. Indian Gaming and Tribal Sovereignty: The Casino Compromise. University Press of Kansas, 2005. (19)
  28. "Memorandum for the Heads of Executive Departments and Agencies". georgewbush-whitehouse.archives.gov.
  29. Some tribal lands, most commonly in Oklahoma, are held by the tribe according to the original patent deed and thus are not trust property.
  30. 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.
  31. 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.
  32. 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.
  33. Wilkinson, Charles. Blood Struggle: The Rise of Modern Indian Nations. p151. New York: W.W. Norton & Company, 2005.
  34. Canby Jr., William C. American Indian Law. p449. St. Paul, MN: West Group 1998.
  35. 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.
  36. Lemont, Eric D. American Indian Constitutional Reform and the Rebuilding of Native Nations. University of Texas Press, 2006.
  37. Wolf, Richard; Johnson, Kevin (July 9, 2020). "Supreme Court gives Native Americans jurisdiction over eastern half of Oklahoma". USA Today. Retrieved July 9, 2020.
  38. Hurley, Lawrence (July 9, 2020). "U.S. Supreme Court deems half of Oklahoma a Native American reservation". Reuters. Retrieved July 9, 2020.
  39. Starbird, Jr., S. Glenn (1983). "Brief History of Indian Legislative Representatives". Maine Legislature. Retrieved January 4, 2021.
  40. Moretto, Mario (May 26, 2015). "Passamaquoddy, Penobscot tribes withdraw from Maine Legislature". Bangor Daily News.

Related Research Articles

Public Law 280 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).

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.

Indian reservation Land managed by Native American tribes under the US Bureau of Indian Affairs

An Indian reservation is a legal designation for an area of land managed by a federally recognized Native American tribe under the U.S. Bureau of Indian Affairs rather than the state governments of the United States in which they are physically located. Each of the 326 Indian reservations in the United States is associated with a particular Native American nation. Some of the country's 574 federally recognized tribes have more than one reservation, while some share reservations, and others have no reservations at all. In addition, because of past land allotments, leading to some sales to non–Native Americans, some reservations are severely fragmented, with each piece of tribal, individual, and privately held land being a separate enclave. This jumble of private and public real estate creates significant administrative, political, and legal difficulties.

Indian Gaming Regulatory Act

The Indian Gaming Regulatory Act is a 1988 United States federal law that establishes the jurisdictional framework that governs Indian gaming. There was no federal gaming structure before this act. The stated purposes of the act include providing a legislative basis for the operation/regulation of Indian gaming, protecting gaming as a means of generating revenue for the tribes, encouraging economic development of these tribes, and protecting the enterprises from negative influences. The law established the National Indian Gaming Commission and gave it a regulatory mandate. The law also delegated new authority to the U.S. Department of the Interior and created new federal offenses, giving the U.S. Department of Justice authority to prosecute them.

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 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 cases of Indian-on-Indian crimes, even if the crimes 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.

Indian country jurisdiction

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, and Montana v. United States.

Montana v. United States, 450 U.S. 544 (1981), was a Supreme Court case that addressed two issues: (1) Whether the title of the Big Horn Riverbed rested with the United States, in trust for the Crow Nation or passed to the State of Montana upon becoming a state and (2) Whether Crow Nation retained the power to regulate hunting and fishing on tribal lands owned in fee-simple by a non-tribal member. First, the Court held that Montana held title to the Big Horn Riverbed because the Equal Footing Doctrine required the United States to pass title to the newly incorporated State. Second, the Court held that Crow Nation lacked the power to regulate nonmember hunting and fishing on fee-simple land owned by nonmembers, but within the bounds of its reservation. More broadly, the Court held that Tribes could not exercise regulatory authority over nonmembers on fee-simple land within the reservation unless (1) the nonmember entered a "consensual relationship" with the Tribe or its members or (2) the nonmember's "conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."

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. Along with the watershed cases, United States v. Wheeler and Oliphant v. Suquamish Indian Tribe, Santa Clara completed the trilogy of seminal Indian law cases to come down in the 1978 term.

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.

City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005), was a US Supreme Court case in which the Court held that repurchase of traditional tribal lands 200 years later did not restore tribal sovereignty to that land. Justice Ruth Bader Ginsburg wrote the majority opinion.

Bryan v. Itasca County, 426 U.S. 373 (1976), was a case in which the Supreme Court of the United States held that a state did not have the right to assess a tax on the property of a Native American (Indian) living on tribal land absent a specific Congressional grant of authority to do so.

Aboriginal title in the United States 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.

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982), was a case in which the Supreme Court of the United States holding that an Indian tribe has the authority to impose taxes on non-Indians that are conducting business on the reservation as an inherent power under their tribal sovereignty.

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.

Oneida Indian Nation of New York v. County of Oneida, 414 U.S. 661 (1974), is a landmark decision by the United States Supreme Court concerning aboriginal title in the United States. The original suit in this matter was the first modern-day Native American land claim litigated in the federal court system rather than before the Indian Claims Commission. It was also the first to go to final judgement.

Oklahoma Tax Commission v. Sac & Fox Nation, 508 U.S. 114 (1993), was a case in which the Supreme Court of the United States held that absent explicit congressional direction to the contrary, it must be presumed that a State does not have jurisdiction to tax tribal members who live and work in Indian country, whether the particular territory consists of a formal or informal reservation, allotted lands, or dependent Indian communities.

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.

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