🏛️Native American Tribal Governments Unit 6 – Tribal Constitutions and Governance

Historical Context

• Many tribal constitutions were developed under the Indian Reorganization Act (IRA) of 1934 which aimed to promote tribal self-government
• The IRA encouraged tribes to adopt constitutions and establish elected tribal councils modeled after the U.S. government structure
• Prior to the IRA, tribal governance was often based on traditional systems (clan-based leadership, hereditary chiefs)
• The U.S. government's assimilation policies (allotment, boarding schools) disrupted traditional governance structures
• Some tribes had written constitutions before the IRA (Cherokee Nation in 1827, Iroquois Confederacy's Great Law of Peace)
• The IRA constitutions were often boilerplate and did not always reflect tribal cultural and political traditions leading to ongoing challenges
• Amendments to the IRA in the 1970s (Indian Self-Determination and Education Assistance Act) allowed for greater tribal control over constitutions

Key Concepts in Tribal Governance

• Tribal sovereignty refers to the inherent right of tribes to govern themselves as distinct political entities
  • Sovereignty is not granted by the U.S. government but is inherent to tribes as pre-existing nations
• Self-determination involves tribes exercising their sovereignty to make decisions about their own affairs (economic development, education, healthcare)
• Tribal jurisdiction is the authority of tribes to make and enforce laws within their territories
  • Jurisdiction can be complex and overlap with federal and state jurisdiction in some areas (criminal justice, taxation)
• Tribal citizenship determines who is a member of a tribe and can access tribal services and participate in governance
  • Citizenship criteria vary by tribe (blood quantum, lineal descent, residency)
• Separation of powers divides government functions among branches (executive, legislative, judicial) to provide checks and balances
• Tribal councils are the legislative branch of tribal governments often consisting of elected representatives from districts or at-large
• Tribal courts interpret and apply tribal laws and can have broad or limited jurisdiction depending on the tribe

Structure of Tribal Constitutions

• Preamble states the purpose and guiding principles of the constitution
• Bill of Rights protects individual liberties (free speech, due process) and can incorporate cultural values (respect for elders, environmental stewardship)
• Membership article defines eligibility for tribal citizenship and enrollment procedures
• Branches of government are outlined (executive, legislative, judicial)
  • Executive branch is headed by a chief, chairman, or president who is often elected directly by the tribe
  • Legislative branch is the tribal council with powers to pass laws and budgets
  • Judicial branch interprets laws and can include trial and appellate courts
• Elections and terms of office for tribal officials are specified (staggered terms, recall provisions)
• Amendment procedures allow for changes to the constitution through tribal member approval (referendum, supermajority vote)

Powers and Responsibilities

• Tribal governments have the power to determine their own form of government and enact laws for the welfare of the tribe
• Tribes can tax individuals and businesses within their jurisdiction to raise revenue for tribal operations
• Providing essential services (education, healthcare, public safety) to tribal members is a key responsibility
  • Many tribes operate their own schools, clinics, and police departments
• Tribes manage natural resources (water, timber, minerals) within their territories for economic development and conservation
• Intergovernmental agreements with federal, state, and local entities can address issues of overlapping jurisdiction and shared interests
• Tribal governments often oversee economic development (casinos, tourism, agriculture) to provide jobs and revenue
• Cultural preservation (language programs, sacred sites protection) is a central role of tribal governments in maintaining indigenous identities

Sovereignty and Self-Determination

• Tribal sovereignty is recognized in the U.S. Constitution (Commerce Clause, Treaty Clause) and early Supreme Court decisions (Worcester v. Georgia)
• Self-determination allows tribes to make decisions based on their own priorities and values rather than federal dictates
  • Tribes can choose to adopt IRA constitutions or develop their own governance structures
• Tribes have the right to determine their own citizenship and are not subject to U.S. immigration laws
• Tribal sovereign immunity protects tribes from lawsuits in many cases unless waived by the tribe or abrogated by Congress
• Government-to-government relationships between tribes and the federal government are based on treaties and the trust responsibility
  • The trust responsibility obligates the federal government to protect tribal resources and act in the best interests of tribes
• Exercising sovereignty can be challenging due to underfunding, jurisdictional disputes, and infringements by federal and state governments
• The United Nations Declaration on the Rights of Indigenous Peoples affirms the right to self-determination for indigenous nations globally

Contemporary Challenges

• Inadequate federal funding for tribal programs and services (housing, healthcare, education) hinders tribal governance
• Conflicts between traditional and IRA governance structures can create political instability and hinder decision-making
• Balancing cultural preservation with economic development pressures (natural resource extraction, tourism) is an ongoing challenge
• Jurisdictional disputes with states over taxation, gaming, and criminal jurisdiction complicate intergovernmental relationships
• Protecting tribal sovereignty from federal and state encroachment requires ongoing legal and political advocacy
  • Recent Supreme Court decisions have limited tribal jurisdiction over non-members within reservations (Oliphant v. Suquamish Indian Tribe, Montana v. United States)
• Ensuring separation of powers and checks and balances within tribal governments can be difficult in small, close-knit communities
• Maintaining tribal languages and cultural practices is challenging due to assimilation pressures and limited resources for language programs

Case Studies and Examples

• The Navajo Nation has a three-branch government with a president, tribal council, and tribal courts serving over 300,000 citizens
  • The Navajo Nation has used its sovereignty to develop a robust judicial system that incorporates Navajo common law and peacemaking traditions
• The Citizen Potawatomi Nation's constitution separates business and governance functions to insulate enterprises from political influences
• The Cherokee Nation's constitution includes a bill of rights that protects freedom of the press and incorporates Cherokee language and cultural values
• The Pueblo of Santa Clara has used its sovereignty to enact strict environmental regulations to protect sacred sites and natural resources
• The Muscogee (Creek) Nation's National Council has used its legislative powers to create a comprehensive health system for tribal members
• The Confederated Tribes of the Umatilla Indian Reservation have negotiated agreements with state and federal agencies to co-manage fisheries and protect water rights
• The Hopi Tribe's constitution emphasizes consensus-based decision making and the importance of religious traditions in governance

Impact on Tribal Communities

• Effective tribal governance can improve quality of life for tribal members through better services, economic opportunities, and cultural preservation
• Tribal constitutions that reflect cultural values and traditions can increase legitimacy and participation in government
• Exercising sovereignty can be empowering for tribal communities and contribute to nation-building and decolonization efforts
• Tensions between traditional and IRA governance structures can create political divisions within tribes
• Limitations on tribal jurisdiction and inadequate federal funding can frustrate efforts to address social problems (substance abuse, domestic violence)
  • Tribal-state agreements and tribal-federal partnerships can help to fill gaps in services and jurisdiction
• Tribal economic development can provide jobs and revenue but also raise concerns about cultural and environmental impacts
• Constitutions that are difficult to amend can hinder tribes' ability to adapt to changing circumstances and address emerging issues
• Tribal governance can foster a sense of cultural identity and pride, especially among youth, by connecting them to traditional values and practices