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In the United States, tribal sovereignty refers to the status of federally recognized American Indian tribes and pueblos, for which court decisions since the ratification of the United States Constitution have established legal doctrines that presume them to be sovereign "domestic dependent nations."
Wards of the United States
During the American Revolution, the Continental Congress established three regional departments of Indian affairs, charged with negotiating treaties and alliances with native tribes, most of which sided with the British during the American Revolutionary War. With the creation of the U.S. Constitution in 1789, the new Congress transferred those duties to the newly established United States Department of War.
For the outnumbered and increasingly surrounded Indian nations, often confronting on their lands instability prompted by cultural encroachment, their legal status in the new United States remained unresolved. In writing the majority opinion for the U.S. Supreme Court in an 1831 case, Cherokee Nation v. Georgia, Chief Justice John Marshall stated: "the majority is of opinion that an Indian tribe or nation within the United States is not a foreign state in the sense of the constitution, and cannot maintain an action in the courts of the United States." The opinion characterized the tribes as "domestic dependent nations." In Worcester v. Georgia the next year, the Marshall court established the doctrine that only the national government of the United States—and not the individual states—had authority in Indian affairs.
United States jurisprudence first affirmed the enduring rights of indigenous landholders in 1823, but the ruling did not answer questions of jurisdiction. In Johnson and Braham's Lessee v. McIntosh the Supreme Court said the countries of England, France, Holland and Spain had lawful exclusive right to grant lands to their citizens from areas of the Americas they had occupied.
"These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy" Chief Justice John Marshal wrote. The ruling recognized the United States plenary power to govern Indian affairs in lands it received from European nations. The ruling effectively compromised between recognizing tribal rights to their lands and recognizing legitimacy of tribal lands acquired by citizens of the United States.
For the time being, tribes were without access to U.S. Courts. A March 3, 1871 act of Congress established that tribes could no longer enter into treaties with the United States, but held the United States liable to honor all of the treaties it previously had signed with Indian Nations. In 1886, a U.S. District Court, asked to decide where two Indian murder suspects should stand trial, observed that "the constitution of the United States is almost silent in regard to the relations of the government which was established by it to the numerous tribes of Indians within its borders." The court concluded the Indian nations were wards of the United States.
Empowerment of tribal courts
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." 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 original nations of the continent now occupied by the US.
From the mid-19th Century, 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. 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.
In 1956, a U.S. Court concluded no law had ever established tribal courts, but nonetheless, decades of federal funding implied that they were legitimate courts.
Though Congress on June 2, 1924 extended national citizenship to include members of enrolled tribes, the court concluded two Oglala Sioux defendants convicted of adultery under tribal laws did not enjoy legal protection afforded to other citizens by the US Constitution. 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 one sui juris (not under the power of another), 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.
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 U.S. Court of Appeals, Ninth Circuit, concluded that no law had ever extended provisions of the US 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, 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 U.S., clarified that tribal nations possess inherent power over their internal affairs, and civil authority over non-members within tribal lands to the extent necessary to protect health, welfare, economic interests or political integrity of the tribal nation.
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, 1990, the Supreme Court held that a tribal court could not exert 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."
Tribal governments today
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 state or not. In states not under PL280, minor crimes by Indians against Indians are tried in tribal court, major crimes committed by Indians on a reservation are tried in U.S. courts. When crimes are committed by non-Indians against non-Indians on the reservation, the case goes to state court. Cases involving crimes committed by non-Indians against Indians on the reservation are tried in U.S. courts. In allegations of crimes committed by Indians against non-Indians on the reservation, except for major crimes, trials are set in tribal courts.
Even in public law 280 states, many if not most tribes still maintain court systems that enforce tribal ordinances, much the same way municipal courts prosecute infractions that do not rise to the level of crimes under state law. Cases routinely appearing on tribal court dockets in public law 280 states include child custody cases, petty crimes, hunting violations and traffic violations.
While tribal nations do not enjoy direct access to U.S. courts to bring cases against states, as sovereigns they do enjoy immunity against many lawsuits (Santa Clara Pueblo v. Martinez, 1980), unless a plaintiff is granted a waiver by the tribe or by congressional abrogation (Oklahoma Tax Comm. v. Citizen Band Potawatomi Indian Tribe, 1978). The sovereignty extends to tribal enterprises (Local IV-302 Int=l Woodworkers Union of Am. V. Menominee Tribal Enterprises 1984), and tribal casinos or gaming commissions (Barker v. Menominee Nation Casino, 1995). The Indian Civil Rights Act does not allow actions against an Indian tribe in federal court for deprivation a substantive rights, except for habeas corpus proceedings (Santa Clara Pueblo v. Martinez, 1978).
Tribal and pueblo governments today launch far-reaching economic ventures, operate growing law enforcement agencies and adopt codes to govern conduct within their jurisdiction but 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 BIA.
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