Omar Bennett
The legal landscape of Native American reservations in the United States is a complex tapestry of Tribal, state, and federal jurisdictions. Tribal members are citizens of their respective tribes and the United States, resulting in a unique set of legal rights and responsibilities. While Tribal members must adhere to federal laws, their status as sovereign nations grants them jurisdiction over their members, with the authority to establish their own rules and regulations. This has led to a nuanced interplay between Tribal and state laws, with federal law sometimes taking precedence in specific situations. The United States Constitution mentions American Indians three times, recognising their distinct status and granting Congress the power to regulate commerce with Indian tribes. This complex legal dynamic has evolved through various acts, policies, and court rulings, shaping the rights and sovereignty of Native American tribes within the broader US legal framework.
| Characteristics | Values |
|---|---|
| Tribal members' citizenship | Citizens of their respective tribes and citizens of the United States |
| Tribal members and federal law | Tribal members must adhere to federal law |
| Tribal members and state law | Tribal members are subject to state law to an extent that is not always clear |
| Tribal sovereignty | Tribal authority on Indian land is organic and is not granted by the states in which Indian lands are located |
| Tribal authority | Tribal governments have the power to establish their rules and regulations, including those related to civil and criminal matters |
| Tribal jurisdiction | Tribal jurisdiction is limited by a complex web of legal precedents and legislation |
| Tribal law and state law interaction | Tribal law takes precedence over state law on reservations |
| Tribal courts | Tribal courts play a significant role in adjudicating disputes among Tribal members and between Tribal members and non-members |
| Tribal police | Tribal police are cross-deputized with state/local cops and have a cooperative relationship with them |
| Tribal police and the US Constitution | The US Constitution may not apply to tribal police on tribal land |
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What You'll Learn
Tribal sovereignty
The first treaty signed between the US and a Native American tribe was with the Delaware Indians in 1783, which borrowed heavily from British Indian policies before the Revolutionary War. The Indian Reorganization Act of 1934 is also significant, as it gave legitimacy to tribal authority and courts, stating that sovereign powers were vested in Indian tribes except where restricted by Congress.
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Tribal members' dual citizenship
The legal landscape of the United States with respect to Native Americans is complex, with Tribal members living on reservations having dual citizenship and a complex array of legal rights and responsibilities. Tribal members are citizens of their respective tribes and the United States.
Tribal Sovereignty
The sovereignty of Native American tribes plays a crucial role in defining the scope and limits of Tribal, state, and federal legal systems. Each tribe has its own distinct legal framework. Tribal sovereignty means that tribes have the inherent right to operate under their own governmental systems. Many have adopted constitutions, while others operate under articles of association or other bodies of law, and some have traditional systems of government.
Tribal Law
Tribal law applies to members of the tribe on federal Indian reservations, unless Congress decides otherwise. Each tribe has jurisdiction over its members and the authority to establish its own rules and regulations, including those related to civil and criminal matters. Tribal courts play a significant role in adjudicating disputes among Tribal members and between Tribal members and non-members. However, the power of Tribal jurisdiction is not absolute and is determined by a complex web of legal precedents and legislation.
Federal Law
Tribal members must adhere to federal law, which takes precedence over Tribal and state law in certain areas. The Major Crimes Act and the Indian Country Crimes Act are longstanding federal statutes that delineate the allocation of jurisdiction between Tribal, state, and federal governments. Federal jurisdiction applies to major crimes committed by or against Native Americans on reservations, actions involving interstate commerce, and any legal issue in which the United States is involved as a party.
State Law
The extent to which Tribal members are subject to state law is less clear-cut and depends on many factors. While Tribal members are generally subject to state law as US citizens, on federal Indian reservations, only federal and tribal laws apply unless Congress provides otherwise. The Assimilative Crimes Act makes any violation of state criminal law a federal offence on reservations.
US Constitutional Amendments
The US Constitution mentions American Indians three times, in Article I, Section 2, Clause 3, Section 8 of the Fourteenth Amendment, and Section 2 of the Fourteenth Amendment. These amendments address the handling of "Indians not taxed" in the apportionment of seats in the House of Representatives and suggest that Indians need not be taxed. Additionally, Congress is empowered to "regulate commerce with foreign nations...states...and with the Indian tribes."
Citizenship and Voting Rights
The Indian Citizenship Act of 1924 declared that Indigenous persons born within the United States are US citizens, granting citizenship to about 125,000 of the 300,000 Indigenous people in the country at the time. However, even after the Act, Native Americans in seven states still did not have full voting rights until 1948 as the right to vote was governed by state law. Today, American Indians and Alaska Natives have the same right to vote as all US citizens and can vote in state, local, and tribal elections. They also have the right to hold public office, and several American Indians and Alaska Natives have served in elected and appointed offices at all levels of government.
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Tribal police jurisdiction
Indian tribal police are police officers hired by Native American tribes. The largest tribal police agency is the Navajo Nation Police Department, and the second largest is the Cherokee Nation Marshal Service.
In 1978, the U.S. Supreme Court ruled in Oliphant v. Suquamish Indian Tribe that tribal nations lacked criminal jurisdiction over non-Natives. This ruling created a complex system where tribal police can detain non-Natives but do not have the authority to arrest them. This has led to challenges in law enforcement on tribal lands, as non-tribal law enforcement may not always be willing or able to respond to incidents involving non-Natives.
To address these challenges, cross-deputization agreements have been implemented in some areas, allowing tribal police and local, state, or federal law enforcement officers to cross jurisdictions and work together to enforce the law. These agreements enable tribal police to have jurisdiction on tribal land and, in some cases, on city or county property. However, it is important to note that cross-deputization agreements may vary depending on the specific tribe and location.
While tribal courts can handle misdemeanor-level crimes, they are limited in their authority to prosecute felony-level offenses. The Tribal Law and Order Act (TLOA) expanded the tribes' authority to create and enforce felony-level offenses within their tribal laws. Despite this progress, jurisdictional issues remain a complex and challenging aspect of law enforcement and judicial systems in Indian Country.
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Tribal authority on Indian land
The US Constitution mentions Native American tribes three times, and the Fourteenth Amendment addresses the handling of "Indians not taxed" in the apportionment of the House of Representatives. The US Supreme Court affirmed in 1886 that Congress has the ultimate authority over Native American tribes, and the federal government has a "duty to protect" them.
Federally recognized tribes have a government-to-government relationship with the federal government, based on their inherent sovereignty. While Tribal members must adhere to federal law, the extent to which they are subject to state law is less clear and depends on various factors. Tribal courts play a significant role in disputes among members and with non-members, but their jurisdiction is limited. The 1978 case of Oliphant v. Suquamish Indian Tribe concluded that tribal courts do not have jurisdiction over non-Indians, but left some questions unanswered.
Tribes are sovereign over tribal members and land, and they can regulate activities on their lands independently from state governments. They can enact and enforce laws and regulations that differ from those of the surrounding states. Tribal criminal jurisdiction over Native Americans is well-settled, but tribes are still striving for criminal jurisdiction over non-Natives who commit crimes on their land.
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Tribal governments' economic development
The economic development of tribal governments has been a focus of the US government, with the recognition that tribal communities have historically experienced higher rates of unemployment and poverty. The US government has identified that tribal economic development can help address these challenges and provide benefits to tribes and surrounding areas.
The US government has implemented various initiatives to support the economic development of tribal governments. The Indian Self-Determination and Education Assistance Act of 1975 allowed tribal governments to assume control over areas such as housing, education, healthcare, and land management, with funding provided by the federal government. This act empowered tribal governments to become more responsive to the needs of their communities and facilitated the creation of economic and employment opportunities.
The Indian Gaming Regulatory Act, one of several pro-tribal sovereignty policies, has also played a significant role in economic development. It affirmed the tribes' right to pursue economic development on their lands through gaming revenues, stabilising tribal economies and making them economic anchors. However, this has led to a reliance on gaming and recreation enterprises, making tribal governments susceptible to volatile economic changes.
To further support economic development, the US government has provided grants, loan guarantees, and tax incentives. The Economic Development Administration (EDA) has been instrumental in this regard, working closely with Tribal Nations to advance their vision for economic opportunity. The EDA has expanded Tribal eligibility to include for-profit Tribal entities and corporations wholly owned by and established for the benefit of Tribes. Additionally, the Department of Commerce, through its various bureaus, offers resources and partnerships to assist tribes in creating jobs, developing infrastructure, and seizing economic opportunities in America and abroad.
Despite these efforts, income gaps and economic inequality persist for American Indians, particularly those residing on reservations. Addressing these issues requires continued support for tribal sovereignty and industry innovation, improved data collection, and the removal of bureaucratic barriers that hinder tribal lands from being utilised productively.
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Frequently asked questions
The US Constitution applies to citizens of the United States, of which American Indians and Alaska Natives are included. However, on federal Indian reservations, only federal and tribal laws apply to members of the tribe unless Congress provides otherwise.
The relationship between state and tribal law is complex and nuanced. Tribal members must adhere to federal law, but the extent to which they are subject to state law is less clear and depends on many factors. In certain areas, federal law takes precedence over tribal and state law.
As non-parties to the US Constitution, tribes are not subject to the restrictions contained in the Bill of Rights or subsequent amendments. However, Congress has the "plenary power" over Indian affairs and can limit the scope of tribal power.
Tribal courts play a significant role in adjudicating disputes among tribal members and between tribal members and non-members. They also have jurisdiction over criminal matters involving tribal members on reservations.
