Tribal Governance

Federal Indian law involves a distinct body of law that relates to the legal relationships between the federal government and Indian tribes. It is dynamic, evolving and encompasses several hundred years of federal policies and interaction with tribes. The sources of federal Indian law include principles of international law, the United States Constitution, treaties with Indian tribes, federal statutes and regulations, executive orders, and judicial opinions.

Federal Indian law is described as ‘complex’ for three main reasons:

1. There is a tremendous amount of federal Indian law, thousands and thousands of statutes, regulations, treaties, and court decisions, created by centuries of interaction between the federal government and tribes. Tribal laws and some state statutes dealing with Indians adds to the complexity.
2. Federal Indian law is sometimes contradictory to itself because federal policy swings back and forth. Federal policies are sometimes supportive of tribal sovereignty and sometimes not, creating a ‘pendulum swing’ of federal policy. Laws are created on both sides of the pendulum swing and often remain in effect.
3. There is a wide variety of tribal sovereign powers throughout the country and of how those powers are exercised. Federal Indian law can be tribal specific. For example, there are specific treaty provisions or statutes affecting just one tribe or a group of tribes. It is often said that Alaska tribes are unique, primarily because the land settlement went to corporations rather than set aside in reservations, which has a big impact on tribal jurisdiction.
   In spite of the complexity of Indian law, there are several fundamental themes and principles of Federal Indian law that apply to the federal relationship with all tribes in the United States:

Inherent Sovereignty: The sovereignty, self-governing powers, that tribes have are inherent powers. ‘Inherent sovereignty’ is based on the fact that tribes were already governing themselves before settlers came to America, and the United States recognizes those retained self-governing powers. Felix Cohen, author of the Handbook of Federal Indian Law, summarizes inherent sovereignty well in his quote: “Perhaps the most basic principle of all Indian law supported by a host of decisions….is the principle that those powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished. What is not expressly limited [by Congress] remains within the domain of tribal sovereignty.”

Domestic Dependent Nations: Although tribes are recognized as having inherent sovereignty, they are recognized as being ‘domestic dependant nations.’ Tribes are ‘domestic’ because they are within the boundaries of the United States. They are ‘dependent’ because they are subject to the power and responsibility of the federal government. They are ‘nations’ because they exercise sovereign powers over their people, property, and activities that affect them.

Plenary Power of Congress: Congress has broad power over Indian tribes and can limit tribal powers, enhance them by delegating new powers to tribes, or even terminate tribal status. The power that Congress has comes from authority delegated to Congress by the Indian Commerce Clause of the United States Constitution. The power Congress has over tribes is not unlimited, however, as the U.S. Supreme Court has the right to review Congressional action over tribes.

Government-to-Government Relationship: Federally recognized tribes have a government-to-government relationship with the federal government. This is a political relationship based on their retained inherent sovereignty rather than one based on race.

Federal Trust Responsibility: The federal government has an obligation to protect tribes, their way of life, and to provide services such as education, housing and health care to ensure their survival and welfare. This obligation is primarily based on treaty promises to protect tribes, and on the fact that American Indians and Alaska Natives had aboriginal claims to all land in America. Through treaties and other settlements, tribes received only small parcels of their original land base. In exchange, the federal government promised to protect tribes and provide services. This federal obligation is known as the ‘doctrine of trust responsibility,’ and applies to all tribes, not just treaty tribes.

U.S. Bill of Rights, Indian Civil Rights Act: The United States Constitution, Bill of Rights, does not apply to the activities of the tribal governments. This is because the sovereign powers of tribes predate the Constitution. Tribal powers come from their own inherent sovereignty and not from the United States Constitution. However, Congress passed the Indian Civil Rights Act in 1968 which applies to all tribes in the United States. The Indian Civil Rights Act is very similar to the U.S. Bill of Rights. The Act requires tribes to provide due process for anyone who falls under their jurisdiction and tribes may not impose cruel or unusual punishment. One difference from the Bill of Rights is that the Indian Civil Rights Act does not require tribes to separate church and state. Another difference is that the Indian Civil Rights Act limits sentencing options for all tribes. While previously imposing limits of 1 year in jail and $5000 per offense, the Act was amended through the Tribal Law and Order Act of 2010 so that tribes cannot impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of 3 years or a fine of up to $15,000 or both.

Indian country: ‘Indian country’ is the territorial area over which tribes have jurisdiction. It was defined by congressional statute in 1948 to include reservations, dependent Indian communities, and allotments. In general, tribes have more jurisdiction within Indian country than outside it. The decision of the United States Supreme Court in the Venetie Tax case of 1998 held that land that went through the Alaska Native Claims Settlement Act is no longer Indian country. However, there is some Indian country in Alaska, including the Metlakatla Indian Reservation and some parcels held in trust such as in the Village of Kake. There are thousands of Native allotments in Alaska, as well as restricted townsite lots which may be Indian country as well. The presence of Indian country may be significant for some tribes in Alaska or in the facts of particular tribal court cases, but in general, the jurisdiction of Alaska tribes is largely based on membership rather than on a territorial area.

Cannons of Construction: Over time, through many conflicts between tribes and the U.S. government, guidelines for interpreting Indian law cases were developed. These types of guidelines are called ‘cannons of construction.’ The three basic guidelines for interpreting Indian law cases are that ambiguities in treaties must be resolved in favor of the Indians; Indian treaties must be interpreted as the Indians would have understood them; and Indian treaties, agreements, and laws must be construed liberally in favor of the Indians.

Double Jeopardy: When both tribes and the state or federal government have jurisdiction over a matter, a person may be tried for the same offense in both tribal and state court or federal court, and the double jeopardy clause of the U.S. Constitution does not apply. This is because tribes are ‘separate sovereigns.’

Criminal Jurisdiction over Non-Natives: Tribes do not have criminal jurisdiction over non-Natives and cannot incarcerate them. This is due to a U.S. Supreme Court decision in a case called Oliphant v. Suquamish Indian Tribe in 1978. However, tribes may regulate non-Natives through civil actions, who affect the health, safety, and welfare of the tribe and tribal members.