🏛️Native American Tribal Governments Unit 4 – Federal Indian Law and Policy

Historical Context

• Native American tribes inhabited North America for thousands of years before European colonization
• European colonization led to displacement, disease, and cultural assimilation of Native peoples
• Treaties between Native tribes and European powers (later the U.S. government) established nation-to-nation relationships
  • Early treaties often involved land cessions in exchange for protection and services
  • Many treaties were broken or violated by the U.S. government
• The Doctrine of Discovery, a legal concept from the 15th century, was used to justify European claims to Native lands
• The Marshall Trilogy, a series of Supreme Court cases in the early 19th century, established key principles of Federal Indian Law
  • Johnson v. M'Intosh (1823) recognized Native tribes' right of occupancy but not ownership of land
  • Cherokee Nation v. Georgia (1831) defined Native tribes as "domestic dependent nations"
  • Worcester v. Georgia (1832) affirmed tribal sovereignty and federal authority over Indian affairs
• The Indian Removal Act of 1830 authorized the forced relocation of Native tribes from their ancestral lands
  • Led to the Trail of Tears, the forced march of the Cherokee Nation to Indian Territory (present-day Oklahoma)

Key Legal Concepts

• Plenary power doctrine holds that Congress has broad authority over Indian affairs
• Trust responsibility obligates the federal government to protect tribal resources and act in the best interests of Native tribes
• Tribal sovereignty recognizes Native tribes as distinct political entities with inherent powers of self-government
• Reserved rights doctrine states that Native tribes retain all rights not explicitly ceded in treaties or taken away by Congress
• Canons of construction require that ambiguities in treaties and laws be interpreted in favor of Native tribes
• Diminishment and disestablishment refer to the reduction or elimination of reservation boundaries by Congress
• Indian Country includes reservations, dependent Indian communities, and Indian allotments
• Concurrent jurisdiction allows both tribal and state/federal courts to have authority over certain cases

Major Federal Policies

• The Civilization Fund Act of 1819 provided funding for the education and assimilation of Native peoples
• The General Allotment Act (Dawes Act) of 1887 divided tribal lands into individual allotments to promote assimilation
  • Surplus lands were sold to non-Native settlers, resulting in significant land loss for tribes
• The Indian Reorganization Act (IRA) of 1934 ended allotment and supported tribal self-government
  • Encouraged tribes to adopt constitutions and establish tribal governments
• The Termination Era (1940s-1960s) sought to end the federal-tribal relationship and assimilate Native peoples
  • House Concurrent Resolution 108 (1953) called for the termination of federal supervision over certain tribes
  • Public Law 280 (1953) transferred jurisdiction over criminal and civil matters from federal to state governments in certain states
• The Indian Self-Determination and Education Assistance Act of 1975 promoted tribal control over federal programs and services
• The Indian Gaming Regulatory Act (IGRA) of 1988 established the framework for tribal gaming operations

Landmark Court Cases

• Ex parte Crow Dog (1883) affirmed tribal jurisdiction over crimes committed by Native individuals on reservations
• United States v. Kagama (1886) upheld the constitutionality of the Major Crimes Act, which extended federal jurisdiction over certain crimes committed by Native individuals on reservations
• Lone Wolf v. Hitchcock (1903) affirmed Congress's plenary power over Indian affairs, including the ability to abrogate treaties
• Oliphant v. Suquamish Indian Tribe (1978) held that tribes do not have inherent criminal jurisdiction over non-Native individuals on reservations
• Montana v. United States (1981) established the "Montana test" for determining tribal civil jurisdiction over non-members on reservations
  • Tribes retain jurisdiction over non-members who enter into consensual relationships with the tribe or whose conduct threatens the political integrity, economic security, or health and welfare of the tribe
• California v. Cabazon Band of Mission Indians (1987) affirmed tribal sovereignty in the context of gaming, leading to the passage of IGRA
• McGirt v. Oklahoma (2020) held that much of eastern Oklahoma remains Native American reservation land, as Congress never explicitly disestablished the reservations

Tribal Sovereignty

• Inherent sovereignty predates European contact and is not granted by the federal government
• Tribes have the right to self-government, including the power to make and enforce laws, establish courts, and regulate commerce
• Tribal sovereignty is subject to limitations imposed by Congress and the Supreme Court
• Tribes have sovereign immunity, which protects them from lawsuits unless Congress has abrogated that immunity or the tribe has waived it
• Tribes have the authority to tax individuals and businesses within their jurisdiction
• Tribal citizenship (enrollment) is determined by each tribe, often based on blood quantum or lineal descent
• Tribes can enter into contracts and agreements with other governments and entities
• Tribal governments are not bound by the U.S. Constitution, but many have adopted their own constitutions and bills of rights

Federal-Tribal Relationships

• The federal-tribal relationship is based on the Constitution, treaties, laws, and court decisions
• The Bureau of Indian Affairs (BIA), within the Department of the Interior, is the primary federal agency responsible for administering Indian affairs
• The Indian Health Service (IHS), within the Department of Health and Human Services, provides healthcare services to Native communities
• The federal government has a trust responsibility to protect tribal resources, including land, water, and minerals
• Federal agencies must consult with tribes on actions that may affect them, as outlined in Executive Order 13175 (2000)
• Tribes can enter into self-determination contracts and self-governance compacts to assume control over federal programs and services
• The federal government provides funding for various tribal programs, including education, housing, and social services
• Tribes can petition the federal government for recognition, which establishes a government-to-government relationship and provides access to federal programs and services

Contemporary Issues

• Land into trust involves the federal government taking land into trust status for tribes, which can be a lengthy and complex process
• Gaming has become a significant source of revenue for many tribes, but it has also led to conflicts with states and local governments
• Natural resource development (oil, gas, minerals) on tribal lands can provide economic benefits but also raises environmental and cultural concerns
• Native American mascots and cultural appropriation remain controversial issues, with many tribes advocating for their removal and greater cultural respect
• Violence against Native American women is a significant problem, with high rates of domestic violence, sexual assault, and murder
  • The Violence Against Women Act (VAWA) of 2013 restored tribal jurisdiction over certain domestic violence crimes committed by non-Natives on reservations
• Native American voting rights have been suppressed through various means, including voter ID laws, polling place closures, and gerrymandering
• The Indian Child Welfare Act (ICWA) of 1978 seeks to keep Native American children with their families and tribes, but it has faced legal challenges
• Climate change disproportionately affects Native communities, many of which rely on natural resources for subsistence and cultural practices

Impact on Native Communities

• Historical trauma, resulting from centuries of colonization, displacement, and assimilation policies, continues to affect Native communities
• Native Americans experience higher rates of poverty, unemployment, and health disparities compared to the general U.S. population
• The legacy of boarding schools, which sought to assimilate Native children by removing them from their families and culture, has led to intergenerational trauma
• Native languages and cultural practices have been suppressed or lost due to assimilation policies and lack of support
• The complex jurisdictional framework in Indian Country can create challenges for law enforcement and access to justice
• Native communities have shown resilience and resistance in the face of adversity, maintaining their cultures, languages, and traditions
• Tribal self-determination and cultural revitalization efforts have led to increased economic development, language preservation, and cultural pride
• Native American activism and advocacy have brought greater attention to issues affecting Native communities and pushed for policy changes at the federal, state, and local levels