Tribal Sovereignty And The Us Constitution: Who's In Charge?

The United States Constitution mentions Native American tribes three times, establishing a structure for federal-tribal relations. However, the Bill of Rights does not directly apply to the tribes, and the tribes are not subject to state jurisdiction. This has led to questions about the extent to which tribal governments are constrained by the Bill of Rights and comparable restrictions, and how this relates to the power of Congress to modify tribal rights. The Supreme Court has been an active participant in placing limits on the scope of tribal sovereign power, and each tribal government operates according to its own constitutional rules.

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Tribal sovereignty and independence from state jurisdiction

The United States Constitution mentions Native American tribes three times. Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States...excluding Indians not taxed." Article I, Section 8 of the Constitution also states that "Congress shall have the power to regulate Commerce...with the Indian tribes," determining that Indian tribes were separate from the federal government, the states, and foreign nations.

The Bill of Rights does not directly apply to the tribes via the Constitution, and questions remain about the extent to which tribal governments are constrained by it. However, Congress has addressed this gap through statutes. The 1968 Indian Civil Rights Act, for example, limited tribal punishment to one year in jail and a $5,000 fine, but this was expanded by the Tribal Law and Order Act of 2010.

Tribal sovereignty is dependent on and subordinate to only the federal government, not the states. Indian tribes are considered "domestic, dependent nations" under federal law, and the federal government has a responsibility to protect tribal lands and resources, defend tribal rights to self-government, and provide services necessary for tribal survival. As sovereign entities, Indian nations have the right to determine their form of government, define citizenship, make and enforce laws, collect taxes, and regulate property use.

In the 1978 case of Oliphant v. Suquamish Indian Tribe, the Supreme Court concluded that tribal courts do not have jurisdiction over non-Indians. However, 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."

In the modern legal era, the courts and Congress have further refined the often-competing jurisdictions of tribal nations, states, and the United States in regard to Indian law. 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 unless a waiver is granted.

Tribal authority and tribal courts

The United States Constitution mentions Native American tribes three times and establishes a structure for federal-tribal relations. However, the Bill of Rights does not directly apply to the tribes, and questions remain about the extent to which tribal governments are constrained by it.

Tribal courts, also known as Courts of Indian Offenses or CFR Courts, are established by agreement between the BIA and the Tribe or in cases where the Assistant Secretary of Indian Affairs determines there are health and safety concerns. There are approximately 225 tribes that contract with the BIA to perform the Secretary's adjudicatory function, and 23 CFR Courts that exercise federal authority. The CFR Courts are mandated to apply the customs of the Tribe when consistent with the Code of Federal Regulations.

Tribal courts have exclusive jurisdiction over certain matters, such as child custody proceedings for Indian children domiciled in Indian country, and determining guardianship, child support, paternity, and sanctioning adoptions, marriages, and divorces. They can also hear civil cases involving both Indians and non-Indians arising in "Indian country" with the consent of the defendant to the personal jurisdiction of the court.

However, tribal courts do not have jurisdiction over non-Indians, and when an Indian nation files suit against a state in a US court, they must do so with the approval of the Bureau of Indian Affairs.

Tribal rights and the Bill of Rights

The United States Constitution mentions Native American tribes three times, establishing a structure for federal-tribal relations. However, the Constitution does not directly apply to Indian tribes, and they are not subject to the restrictions contained in the Bill of Rights or subsequent amendments. This has resulted in questions about the extent to which tribal governments are constrained by the Bill of Rights and how it relates to inherent tribal sovereignty.

The history of federal Indian law and tribal sovereignty is complex and multifaceted. Indian tribes have been recognised as retaining an occupancy right to their lands, but the discovery of the New World by Europeans vested title to those lands in the discovering European sovereign, depriving tribes of the power to alienate their lands freely. This dynamic has resulted in hundreds of treaties and governmental policies designed to protect Indian tribes and their lands from encroachment, often situating them on reservations.

Indian tribes have been recognised as having inherent sovereignty, with powers of self-government. The 1934 Indian Reorganisation Act affirmed this, stating that "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." However, Congress has the power to abrogate Indian treaty rights and has limited the scope of tribal power over time. For example, in 1968, Congress passed a statute imposing on tribal governments many of the Bill of Rights provisions and other limitations.

Despite these limitations, Indian tribes continue to advocate for their rights and sovereignty. Indian law cases continue to move through the federal courts at high rates, and the Supreme Court has increasingly been involved in placing limits on tribal sovereign power. Additionally, the federal government has committed to supporting and assisting Indian tribes in developing strong and stable tribal governments, including through mechanisms like the Indian Child Welfare Act (ICWA) and the Indian Self-Determination and Education Assistance Act (ISDEAA). These laws aim to promote tribal self-governance and protect the unique values and interests of Indian tribes and families.

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Tribal governments and their constitutions

The United States Constitution mentions Native American tribes three times, establishing a structure for federal-tribal relations. However, the Bill of Rights does not directly apply to the tribes. This has led to questions about the extent to which tribal governments are constrained by the Bill of Rights and how their inherent tribal sovereignty relates to Congress's power to modify tribal rights.

The history of the relationship between the US government and Native Americans is a complex one, involving wars, treaties, and the assumption of a protectorate role by the US government. The US Constitution's references to Native Americans and Indian tribes are found in Article I, Section 2, Clause 3, Section 8, and the Fourteenth Amendment, Section 2. These provisions outline the apportionment of representatives and taxes among the states, excluding "Indians not taxed," and grant Congress the power to regulate commerce with Indian tribes.

The Indian Reorganization Act of 1934 played a significant role in shaping tribal governments and their constitutions. This Act, a New Deal initiative, aimed to strengthen tribal governments by empowering tribes to borrow funds for economic development and form tribal corporations. Tribes operating under the Act are known as "IRA" tribes and often have strong executives, although some have transitioned to a more balanced structure with legislatures and judiciaries through constitutional amendments. While most tribes have written constitutions, some, like the Navajo, chose to opt out of the Indian Reorganization Act's coverage.

Tribal governments have inherent rights and a unique political relationship with the US government, separate from race or ethnicity. Tribal sovereignty has been a subject of debate, with the Supreme Court playing an active role in shaping its limits. While tribal courts have legitimacy and the power to create and change their court systems, they face restrictions, such as limited sentencing powers in criminal cases and the inability to hear cases involving non-Indians. The Indian Civil Rights Act provides statutory limitations, but individuals cannot bring federal civil rights suits against tribal governments; instead, they must pursue claims in tribal courts if the tribe has granted jurisdiction.

Federal power over tribes and the commerce clause

The United States Constitution mentions Native American tribes three times, with Article I, Section 8, Clause 3 stating that "Representatives and direct Taxes shall be apportioned among the several States...excluding Indians not taxed." This clause establishes the federal government's authority over Native American matters, recognising Native American tribes as separate from the federal government, the states, and foreign nations.

Article I, Section 8 of the Constitution further states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes." This clause, known as the Indian Commerce Clause, grants Congress the authority to regulate commerce with Native American tribes and has been interpreted by the Supreme Court to include the power to prohibit or regulate the sale and introduction of alcoholic beverages to tribal Indians.

The Indian Commerce Clause also serves as a basis for federal authority over Native American matters, along with the power of treaty-making. This clause empowers the federal government to prohibit or regulate certain activities on tribal lands, such as in the case of state police powers, where states may regulate the activities of tribe members on tribal land under certain conditions.

While the Indian Commerce Clause grants Congress significant power over Native American tribes, it is important to note that tribal sovereignty is still recognised and protected. Tribal courts have been recognised as legitimate, with the power to create and change their court systems, and tribal authority has been upheld in certain contexts, such as regulating the activities of non-members who enter consensual relationships with the tribe through commercial dealings or contracts.

However, tribal sovereignty is limited and exists "only at the sufferance of Congress." Congress has the power to remove restrictions on tribal sovereignty and has done so through specific treaty provisions and statutes. For example, in Duro v. Reina, the Court held that a tribe had no criminal jurisdiction over members of other tribes who committed crimes on the reservation, but Congress quickly enacted a statute recognising the inherent authority of tribal governments in such cases.

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