The Doctrine Of Tribal Sovereignty
Indian governmental powers, with some exceptions, are not delegated powers granted by express acts of Congress, but are inherent powers of a limited sovereignty that have never been extinguished. This doctrine first was articulated in this country by Chief Justice John Marshall in Worcester v. Georgia (1832).
In modern times the Supreme Court has found that tribal governments are “unique aggregations possessing attributes of sovereignty over both their members and their territory.” Powers not limited by federal statute, by treaty, by restraints implicit in the protectorate relationship, or by inconsistency with their status remain with tribal governments or reservation communities. Certain implied divestitures of tribal powers have occurred where the tribes’ independent freedom to determine their external relations is deemed necessarily inconsistent with their dependent status. For example, by 1831, Johnson v. M’Intosh (1823) and Cherokee Nation v. Georgia (1831) had established firmly that Indian tribes impliedly had been divested of the power to alienate their lands and the power to make treaties with foreign nations. In 1978, the Supreme Court held in Oliphant v. Suquamish Indian Tribes that criminal jurisdiction over non-Indians also was subject to the implied divestiture doctrine. Therefore, tribes today possess no criminal jurisdiction over non-Indians. But, as discussed more fully below, most tribes retain the inherent sovereign power to exercise most forms of civil jurisdiction over non-Indians. In Merrion v. Jicarilla Apache Tribe (1982), the Supreme Court said this:
To state that Indian sovereignty is different than that of Federal, State, or local Governments, does not justify ignoring the principles announced by this Court for determining whether a sovereign has waived its taxing authority in cases involving city, state, and federal taxes imposed under similar circumstances. Each of these governments has different attributes of sovereignty, which also may derive from different sources. These differences, however, do not alter the principles for determining whether any of these governments has waived a sovereign power through contract, and we perceive no principled reason for holding that the different attributes of Indian sovereignty require different treatment in this regard.
Fundamental Powers Of Indian Tribes
As mentioned above most tribal governments possess inherent powers of self-government and may exercise them to the extent they have not been extinguished. Therefore, powers of tribes cannot be described completely by reference to specific delegations from Congress. The following discussion will identify fundamental categories of tribal governmental power that have been recognized under federal law.
Power To Establish A Form Of Government
The power to establish a form of government is a basic element of sovereignty. Federal law recognizes that Indian tribes may adopt whatever form of government best suits their own practical, cultural, or religious needs. Tribes are not required to adopt forms of government patterned after the forms of the United States government. Since Indian tribes are not limited by the United States Constitution, they are not subject to such principles as the separation of powers or the religious establishment clause.
The constitutions adopted by the majority of tribes following passage of the Indian Reorganization Act (IRA) were based on sample governing documents developed by the Bureau of Indian Affairs. It has been held consistently that the exercise of these powers pursuant to IRA constitutions is founded not on delegated authority, but on a tribe’s inherent power of sovereignty. Other tribes have organized their formal governments pursuant to their inherent sovereignty, outside the IRA framework, and the courts have upheld the validity of such governments, whether or not a written constitution has been developed.
Power To Determine Membership
Also fundamental is the right of tribes to determine tribal membership. Membership determines, among other things, the right to vote in tribal elections, to hold tribal office, to receive tribal resource rights such as grazing and residence privileges on tribal lands, and to participate in distribution of per capita payments when they occur. In Santa Clara Pueblo v. Martinez (1968), the Supreme Court found that the 1968 Indian Civil Rights Act did not require tribes to follow Anglo-American concepts of equal protection and due process in determining their membership, even when the denial of membership rights meant the denial of federal health and education benefits. Eligibility for federal benefits and assistance provided to Indians because of their status as Indians often is based on tribal membership. Depending on the statute at issue, however, this determination may involve a minimum quantum of Indian blood higher than the tribal membership provision.
The authority of Indian tribes to legislate or otherwise adopt substantive civil and criminal laws follows from their status as sovereign political entities. This authority includes, but is not limited to, the power to regulate the conduct of individuals within the tribal government’s jurisdiction, the power to determine domestic rights and relations, the power to dispose of non-trust property and to establish rules for inheritance, the power to regulate commercial and business relations, the power to raise revenues for the operation of the government through taxation, and the power to administer justice through law enforcement and judicial branches.
Tribal authority, as noted above, has been limited from time to time by actions of the Congress and by actions of the states exercising federally delegated powers. Tribal authority also can be limited by tribal action. Many tribal constitutions expressly limit tribal legislatures or courts.
Although federal statutes control most aspects of trust or restricted Indian property inheritances, tribal laws prescribing the manner of descent and distribution of such property have been recognized. As an attribute of property control, tribal authority to regulate land use through zoning also has been upheld. Tribal authority to levy taxes has been recognized in a variety of circumstances, including license and use fees, property taxes, sales taxes, and, most recently, mineral extraction or severance taxes.
Power To Administer Justice
The maintenance of law and order on the reservation is another element of tribal government that has been upheld firmly by the courts. Tribal criminal jurisdiction has been limited statutorily in terms of sentencing power (Indian Civil Rights Act limits fines to $5,000 and imprisonment to one year) and has been denied as applied to non-Indians since the Supreme Court’s 1978 decision in Oliphant v. Suquamish Indian Tribe. Tribes nevertheless possess broad authority to administer civil and criminal justice in Indian Country.
Most tribal court systems have borrowed quite extensively from Anglo-American court systems. Many have developed quite extensive rules of procedure and evidence. On the other hand, Indian tribal courts also rely on tribal traditions and often look to informal methods of dispute resolution. Some tribal courts have asserted jurisdiction to review actions of tribal governing bodies. A number of reservation courts still operate as “Courts of Indian Offenses,” which are administrative courts established by the Secretary of the Interior rather than by the tribe.
Many tribes have created law enforcement departments. Tribal governments employ police officers with contracted federal funds under the Indian Self Determination Act of 1975 and with funds appropriated by the tribe.
Power To Exclude Persons From The Reservation
The power of Indian tribes to exclude persons from their territory, which is provided for specifically in a number of Indian treaties, has been recognized as an inherent attribute of sovereignty. This exclusionary power has been treated as a distinct right of sovereignty and given prominent recognition as a fundamental means by which Indian tribes can protect their territory against trespassers. The power to exclude persons is not unlimited, however, and non-members who hold valid federal patents to fee lands within the reservation cannot be denied access to their property. Roads constructed on the reservation with federal funds are required by federal regulation to be kept open to the public. Also, tribes may be required to give access to federal officials providing services to the tribe or its members.
Power To Charter Business Organizations
The power to charter business organizations is yet another aspect of sovereign power. Indian tribes possess the authority to establish, through charter or otherwise, business organizations for the purpose of managing tribal assets. Tribally chartered enterprises hold the same status as the tribe itself for purposes of federal income tax exemptions and sovereign immunity from suit. A tribe can waive such immunity to the extent of the non-trust assets placed in the tribal corporation.
Tribes, like states, also can charter private corporations under tribal law and regulate their activities. The tribally issued corporate charters discussed here should be distinguished from the power of the Secretary of the Interior, under 25 U.S.C. § 477 of the ERA, to issue federal corporate charters to ERA tribes for the purpose of conducting business. Tribes may waive sovereign immunity as to the assets of such IRA corporations but tribal assets not held by the corporation remain protected by immunity.
Indian tribes, like other sovereigns, cannot be sued without an “unequivocally expressed” waiver of sovereign immunity. In the case of tribes, the consent to suit can come from Congress. It is unclear whether tribal consent provisions in business contracts are sufficient, without congressional approval, to allow suit. A recent decision suggests that tribes probably possess authority to waive sovereign immunity. Tribal sovereign immunity does not extend to tribal officials acting outside of their official capacity.
Other Types Of Indian Property Interests (limited Tribal Jurisdiction)
i. Treaty Rights
Indians in Indian Country normally can exercise hunting and fishing treaty rights free of state control. Several cases have considered the question of whether non-Indians hunting and fishing on the reservation with tribal licenses are required to also purchase state licenses. This issue is similar to that of dual taxation: if non-Indians are required to pay double license fees (often very substantial for deer and elk), they may not come to the reservation at all, thus crippling tribal recreational programs. The federal courts generally have struck down the state license fees. In its 1983 decision in New Mexico v. Mescalero Apache Tribe, the Supreme Court upheld the exclusive authority of the tribe to regulate non-Indian hunting and fishing on the reservation.
In the property law of the United States, it is possible to hold several different types of interests in land or real property. If a person holds or own lands in fee simple this means that he has unqualified ownership in the land and, within the limits of the law has the power to utilize the land as he pleases. This fee simple ownership is described as legal title. Fee simple land must be distinguished from Trust land. Both fee simple and trust land can exist within a reservation.
ii. Fee Lands
Non-Indian Fee Land
Despite the language in Section 1151 (a) providing that Indian country includes “all land within the limits of any Indian reservation … notwithstanding the issuance of any patent. . ., ” the Supreme Court has held that land within an Indian reservation that has been patented in fee and is owned by non-Indians is not like Indian trust land. For purposes of tribal civil jurisdiction over non-Indians on the non-Indian fee land, the Court has determined that tribal sovereignty has been divested.
There are exceptions to the general rule, however. A tribe may have jurisdiction over non-Indians on the non-Indian fee land if the Supreme Court’s “tribal interest test” is met. This test is met when: (1) there is a “consensual relationship” between the non-Indian and the tribe or a member of the tribe; or (2) the non-Indian’s conduct threatens or directly affects the tribe’s political integrity, economic security, or health and welfare.
Treaty of 1851
The First Treaty of Fort Laramie. This treaty forced the Sioux, as well as several other Plains tribes, to allow non-Indians to pass through their territory on their way to the far west. In return, the US government declared that most of the present-day states of North and South Dakota and parts of Wyoming, Nebraska, and Montana (134 million acres) comprised the territory of the Great Sioux Nation.
Treaty of 1868
The Second Treaty of Fort Laramie. This treaty guaranteed the Sioux Indians’ rights to the Black Hills of Dakota and gave the Sioux hunting permission beyond reservation boundaries. The federal government agreed to abandon the Bozeman Trail and pledges to keep non-Indians out of the Great Sioux Reservation.
Indian Citizenship Act
Enacted in 1924, the Indian Citizenship Act gave U.S. citizenship to Native Americans, including the right to vote in national elections. However, it did not provide full protection under the Bill of Rights to Indians living under tribal governments. Assuming guardianship over Native American reservations within their borders, states could still suppress Indian rights. Several nations, including the Hopi and the Iroquois, declined citizenship in favor of retaining sovereign nationhood.