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Lindsay G. Robertson, June 2001

Native Americans and the Law: Native Americans Under Current United States Law

Native American tribal governments are an integral part of the political fabric of the United States. As the Supreme Court of the United States determined in its 1831 decision in Cherokee Nation v. Georgia, 30 U.S. (5 Peters) 1, tribal governments are not "states" in a constitutional sense, nor are they "foreign states," at least for purposes of Article III original jurisdiction. Instead, they are "domestic dependent nations," with many sovereign powers retained from the pre-contact period. As tribal governments have grown in political and economic power, the Supreme Court, the United States Congress, the federal executive, and the tribes have engaged in an increasingly important discussion to determine the scope of their powers. States, municipalities and individual citizens have all contributed to this conversation. The result is a legal regime of fascinating complexity.

More than 500 tribal governments are recognized by the United States government. Some have large membership bases and control vast domains. The Navajo, for example, comprise a population of more than 225,000 and govern lands totaling in excess of 15 million acres spread over three Southwestern states. The largest tribe in terms of membership is the Cherokee Nation, which has more than 300,000 citizens. Most tribes, however, have fewer than 1000 members. Approximately 40% of all federally recognized tribes are village groups in Alaska. The smallest tribal reservation is smaller than 100 acres. The state with the largest Indian population is California, with Oklahoma a close second. Alaska is the state with the highest percentage of Native Americans residing within its borders.

Each tribal government operates according to its own constitutional rules. Most tribes have written constitutions. Many of these are modeled after form constitutions prepared by the United States Department of the Interior pursuant to the Indian Reorganization Act of 1934, a New Deal initiative designed to strengthen tribal government. Tribes that operate under these

constitutions are called "IRA" tribes. By electing, according to the terms of the Indian Reorganization Act, not to opt out of the Act's coverage, these tribes were empowered by Congress to borrow funds for economic development and form tribal corporations. Some tribes, most notably the Navajo, voted to opt out of the IRA's coverage. The Oklahoma tribes were not covered by the Act; instead, they were made were subject to a similar statute, the Oklahoma Indian Welfare Act. IRA tribes ordinarily have strong executives, although constitutional amendment has replaced many of these with balanced executives, legislatures and judiciaries. Tribal governments exercise power that has been diminished over time by acts of the federal government. Congress, which has "plenary" power over Indian affairs (Lone Wolf v.Hitchcock, 187 U.S. 553 (1903)), has repeatedly acted to limit the scope of tribal power. Perhaps the most dramatic instance occurred in 1968 with the passage of the Indian Civil Rights Act. As non-parties to the United States Constitution, the tribes are not subject to the restrictions contained in the Bill of Rights or subsequent amendments. Talton v. Maves, 163 U.S.. 376 (1896). Thus tribes have been free historically to legislate to the extent allowed by their own constitutions. Many of these constitutions contained provisions equivalent or analogous to the Bill of Rights provisions. Nevertheless, in 1968, inspired by the Civil Rights movement, Congress passed a statute imposing on tribal governments many of the Bill of Rights provisions and other limitations as well. Some of the Bill of Rights provisions were not included in the Indian Civil Rights Act. The Act does not, for example, prohibit the establishment of religion by tribal governments. On the other hand, in some instances the Act is more limiting than the Bill of Rights. Under the Act in its present version, for example, tribal courts are denied the power to impose sentences in criminal cases in excess of $5000 and/or one year in jail. This restriction has made it difficult for many tribal courts to address criminal activity in their jurisdictions. The Indian Civil Rights Act provides statutory, but not constitutional, limitations. Individuals who feel their Indian Civil Rights Act rights have been violated by a tribal government cannot bring a federal civil rights suit to challenge the allegedly violating act. Instead, as the Supreme Court made clear in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), persons wishing to bring Indian Civil Rights Act claims may do so only in tribal court, and then only if the tribe has accorded that court jurisdiction. Congress has also limited the power of tribes by making tribal governments subject to certain laws of general application, for example, environmental protection laws. Where these laws fail to mention tribes and their application impinges on treaty rights, courts must make individual deterrninations to assess whether a given law applies to a tribe. Congress has the power to abrogate Indian treaty rights, but when it does so it is liable to pay the tribe compensation under the Fifth Amendment to the United States Constitution. Before a court will find a Fifth Amendment taking to have occurred it will look to Congress' intent. Current federal circuit court splits include tribal accountability under the Occupational Safety and Health Act and the federal collective bargaining laws. Since the late 1970s, the Supreme Court has also been an active participant in placing limits on the scope of tribal sovereign power. The Supreme Court is the architect and custodian of a federal common law doctrine called the "discovery doctrine." Introduced in the 1823 case of Johnson v. M'Intosh, 2 1 U.S. (8 Wheat.) 543, the discovery doctrine provided that at the discovery of the New World by Europeans, title to all discovered lands vested in the discovering European sovereign, while the tribes retained an occupancy right alienable only to the same discovering sovereign. Discovery had deprived the tribes of the power to alienate their lands freely. In 1978, in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, the Supreme Court held that discovery also deprived the tribes of the power to conduct criminal prosecutions of non-Indians. In 1990, in Duro v. Reina, 495 U.S. 676, the Oliphant holding was expanded to proscribe tribal criminal prosecutions of non-member Indians. The Duro decision prompted a federal legislative override; the constitutionality of this override has been questioned, and its effect remains uncertain. Other discovery-related limitations on tribal power involve the exercise of civil jurisdiction. In Montana v. United States, 450 U.S. 544 (198 l), the Supreme Court held that tribes could not exercise civil regulatory jurisdiction over non-Indian activities on non-Indian-owned lands within the bounds of reservations, unless the non-Indian had some commercial relationship with the tribe or the activity threatened or had some direct upon the tribe's political integrity, economic security, or health or welfare. In Strate v.

A-l Contractors,

520 U.S. 438 (1997), the Court expanded this rule to deny a tribal court the right to hear a civil dispute brought by a non-Indian against another non-Indian for a tort arising on a state right-of way within the reservation. Tribes exercise jurisdiction over Indian Country, as defined in 11 U.S.C. 8 115 1. Indian Country includes all land within the limits of Indian reservations, all "dependent Indian communities", and all restricted Indian allotments, i.e., individual restricted parcels formerly part of reservations but allotted to Individual tribal members pursuant to the General Allotment Act of 1887 or similar statute. Reservations, for the most part, resulted from treaties. Conceptually,

"reservations" were not lands given to the tribes, but tribal lands reserved by the tribes from larger tracts other parts of which were ceded to the United States. This applies to other treaty rights as well: where the rights - e.g., the right to hunt and fish - are not expressly ceded by the

tribe, they are deemed "reserved." In most instances - the lands of the Five Civilized Tribes in Oklahoma and the Pueblos are the most notable exceptions - the tribes do not own the underlying fee title to reservation land. Instead, that title is held to have passed to the United States by way of the original European discovery of the land. As noted above, the doctrine that supports this rule, the "discovery doctrine", was adopted by the Supreme Court of the United States in Johnson v. M'Intosh.

The situation of the Alaska Natives is sufficiently different to warrant brief digression. In 1971, Congress settled tribal claims to most of Alaska by passing the Alaska Native Claims Settlement Act ("ANCSA"), pursuant to which, in exchange for relinquishing their claims to 365 million acres, Alaska Natives received land selection rights to 44 million acres plus cash payments equaling $962.5 million. Title to these new native lands was vested not in tribal governments, but in tribal village corporations, chartered under state law, and individual Alaska Natives became corporate shareholders. According to the Supreme Court, most Alaska Native land ceased at that time to be Indian Country. Alaska v. Native Village of Venetie Tribal

Government, 522 U.S. 520 (1998).







The United States is trustee or guardian for the tribes. This role traces to the Supreme Court's opinion in Cherokee Nation v. Georgia, in which Chief Justice John Marshall wrote that the relationship of the tribes to the United States resembles that of a "ward to its guardian." Because of this role, the United States holds the underlying fee title to tribal lands in trust for the tribes. For this reason, they are styled "trust lands." The role of the United States as guardian or trustee has several consequences. When managing tribal or individual Indian property, the United States is held to a high standard of care. The tribal status as ward entitles tribes to sue officers of the United States when that standard of care is violated. In addition, because they are federal wards, tribes may seek United States assistance in litigating against states or private





parties. As the Supreme Court decided in United States v. Kagama, 118 U.S. 375 (1886), the guardianship responsibility also serves as an extra-constitutional source of authority for Congress to pass legislation affecting Indians. The principal federal agency charged with carrying out the trust responsibility is the Bureau of Indian Affairs in the Department of the Interior. The Bureau is headed by the Assistant Secretary for Indian Affairs. Other offices charged with carrying out the trust responsibility include the Indian Resources Section of the Environment and Natural Resources Division of the United States Department of Justice. The trust responsibility runs to all federally recognized tribes. Some tribes are not federally recognized. Many of these are recognized by the states in which they are located. Others are not officially recognized by either the state or federal governments. The Department of the Interior has established a procedure whereby such groups





can petition for federal recognition. The process involves demonstrating political cohesiveness and continuity. Currently, the process is overseen by the Branch of Acknowledgment and Research of the Bureau of Indian Affairs. Alternatively, non-federally-recognized tribes can petition Congress for recognition.

Tribal status is a political classification. Thus statutes and regulations providing different treatment for Indians as enrolled tribal members are not subject to challenge as racediscrimination under the equal protection clause of the Fourteenth Amendment. Morton v. Mancari, 417 U.S. 535 (1974). Statutes affecting Indians and Indian tribes are for the most part collected in Title 25 of the United States Code. Federal agencies also issue regulations affecting Indians and tribal governments.

Not all substantive tribal rights are located in statutes and regulations. Prior to 1871, the federal government dealt with tribes by treaty. Many of these pre-1871 treaties remain in force. Treaties were routinely negotiated in ways disadvantageous to tribes. United States negotiators frequently worked into these documents legal concepts and terms unfamiliar to tribal negotiators, binding tribes to obligations they did not fully understand. Treaties were often executed by tribal signatories appointed by the United States. Language difficulties confounded many tribal negotiators. For these and other reasons, when courts interpret these treaties today, they employ canons of construction similar to those used when courts interpret long corporate form adhesion contracts: ambiguous terms are interpreted in favor of the Indians; treaties are interpreted as the Indians would have understood them; and treaties are liberally construed in favor of the Indians. Application of these canons does not always meet with popular approval. In 1974, when the United States District Court for the Western District of Washington ruled that the treaties at issue in United States v. Washington, 384 F. Supp. 3 12 (1974), must be interpreted to allow the tribes 50% of the anadromous fish run in Washington State, the federal judge was hanged in effigy.



Perhaps the most complicated interaction in Federal Indian Law is that between the tribes and the states. The Supreme Court in Worcester v. Georgia, 3 1 U.S. (6 Peters) 5 15 (1832) attempted to establish a bright line rule disallowing any state authority in Indian Country. This rule has been eroded over time, however, and while Worcester still provides a benchmark, other analytical methods are employed to determine whether a state's purported exercise of jurisdiction is valid. One such method was introduced by the Court in Williams v. Lee, 358 U.S. 217 (1959). Williams involved a state court's attempt to exercise jurisdiction over a breach of contract claim brought by a non-Indian storeowner against a Navajo couple for an alleged failure to pay on an on-reservation store account. The Court held that the state had no authority to exercise jurisdiction over an on-reservation transaction if to do so would "infringe on the right of reservation Indians to make their own lawsreservation Indians to make their own laws and be governed by them." Subsequently, the Court identified an additional ground for denying state jurisdiction: federal preemption, against a backdrop of tribal sovereignty. If the United States heavily regulates timber harvesting on reservation, for example, a state cannot impose a tax on non-Indian truck operators using Bureau of Indian Affairs roads to carry timber off the reservation under contract with the tribe. White Mountain Apache Tribe v. Bracker 448 U.S. 136 (1980). The difficulty of applying these tests and enforcing the exercise of state jurisdiction even where appropriate has led many states, with the Court's encouragement, to enter into compacts with tribes setting forth terrns of resolution of jurisdictional disputes. These compacts cover a wide area, from tax revenue sharing to water rights sales.

Perhaps the most publicly discussed state-tribal compacts today are those involving Indian gaming. Indian gaming as an industry began modestly in the 1970s. Then California moved to shut down the Cabazon Band's bingo operation. The tribe took the case to the Supreme Court, which ruled that California had no authority to prohibit or regulate the operation. California v. Cabazon Band of Mission Indians ,480 U.S. 202 (1987). Overnight, other tribes moved to establish gaming facilities. In 1988, Congress responded to complaints from states that without some regulation lawlessness would result by passing the Indian Gaming Regulatory Act. The Act divides gaming into three classes: traditional tribal games with nominal prizes are Class I; bingo and like games are Class II; and all other games (including slot machines, horse racing and card games played against the house) are Class III. Before a tribe can open a facility offering Class III games, it must compact the terms of operation (including law enforcement) with the state. In addition to tribal supervision and compacted state supervision, Indian gaming facilities are subject to federal supervision through the National Indian Gaming Commission. As a result, Indian gaming facilities are among the most heavily regulated such facilities in the world. While only a minority of tribes are located in areas sufficiently close to large urban areas to draw large clienteles, many tribes have received economic benefit from gaming. These benefits pass directly to tribal members and the surrounding community as a result of federal requirements that revenues go to public functions.

Tribal economic development has long been an expressed purpose of federal Indian policy. In the Indian Reorganization Act of 1934, Congress provided for the creation of tribal corporations to carry out development projects. Since that time, Congress has amended restrictive legislation to allow tribes more flexibility in developing their economies. The Indian Mineral Development Act of 1982, for example, allowed tribes for the first time to enter into joint venture and other types of agreements with outside mineral development partners. Because of their remote locations and various statutory limitations, including the restraint on land alienation, which precludes mortgaging, tribes have had to be creative in economic development planning. One natural avenue has been the sale of items subject to excess taxation by the states. These products (including cigarettes) are sold off reservation at inflated tax rates partly to discourage use. To the extent that tribes can sell them on reservation without these taxes, they can sell them at competitive prices and draw business to their remote locations. In a series of decisions, the Supreme Court has held that while tribes can sell tax-free to their members, they cannot sell tax-free to non-members. Difficulties in working out a mechanism to enforce the collection of taxes on non-members has led many states, such as Oklahoma, to compact with tribes terms for tax revenue collection and distribution that are intended ultimately to benefit both tribe and state.

One modem trend that has facilitated tribal economic development is the transfer of responsibility for the managing of federal programs for tribes from the federal government to the tribes themselves. The federal Self-Determination and Education Assistance Act of 1975 established a procedure for tribes to apply to the United States Department of the Interior to take over the running of existing BIA programs in Indian Country. Congress subsequently expanded this program to allow certain tribes (designated "Self Governance" tribes) to create their own programs using federal funds.

Tribal economic, political and cultural development has also been encouraged by federal Indian education legislation. The most important of these statutes, the Indian Education Act of 1972, established the Office of Indian Education and the National Advisory Council on Indian Education and made federal funds available for Native American educational initiatives at all grade levels.

A final, and increasingly important, tribal political initiative that has facilitated tribal economic development is the creation of tribal judicial systems. Tribal courts hear both civil and criminal cases and often provide non-Indians their first exposure to tribal political culture. Not all tribal courts are equally busy. Some states (the so-called "Public Law 280" states) assumed jurisdiction over criminal and civil causes arising in Indian Country during the 1960s, pursuant federal P.L. 280, and in these states on-reservation disputes are routinely litigated in state court. Other states, on the other hand, including Oklahoma, have made provision for tribal court decisions to be recognized in the state courts, thus making at least theoretically possible the full participation of tribal courts in the national justice system.

Suggestions for Further Reading



Canby, William C., Jr. American Indian Law in a Nutshell, 3d ed. St. Paul, Minnesota: West

Group, 1998.



Cohen, Felix S. Handbook of Federal Indian Law (1982 ed.) Charlottesville, Virginia: LEXIS

Law Publishing, 1982.



Getches, David H., Charles F. Wilkinson, Robert A. Williams, Jr. Cases and Materials on Federal Indian Law, 4th ed.

St. Paul, Minnesota: West Group, 1998.



Pevar, Stephen L. The Rights of Indians and Tribes: The Basic ACLU Guide to Indian Tribal Rights, 2d ed

Southern Illinois University Press, 1992. .

Pommersheim, Frank. Braid of Feathers: American Indian Law and Modern Tribal Life.

Berkeley, California: University of California Press, 1997.



Price, Monroe E., Robert N. Clinton and Nell. J. Newton. American Indian Law: Cases and

Materials, 4th ed. Charlottesville, Virginia: LEXIS Law Publishing, 2001.



Wilkinson, Charles F., American Indians, Time and the Law: Native Societies in a Modern

Constitutional Democracy. New Haven: Yale University Press, 1988.

