🏛️Native American Tribal Governments Unit 8 – Tribal-Federal Relations in Governance

Historical Context

• Native American tribes have a unique political and legal status in the United States, shaped by a complex history of treaties, court decisions, and legislation
• European colonization and westward expansion led to the displacement and forced relocation of many Native American tribes (Trail of Tears)
• The U.S. government entered into hundreds of treaties with Native American tribes, recognizing their sovereignty and establishing a government-to-government relationship
• The Indian Removal Act of 1830 authorized the President to negotiate with tribes for their removal from their ancestral lands to territories west of the Mississippi River
• The Dawes Act of 1887 aimed to assimilate Native Americans into mainstream American society by dividing tribal lands into individual allotments and granting U.S. citizenship to those who accepted allotments
• The Indian Reorganization Act of 1934 marked a shift in federal policy, promoting tribal self-government and ending the allotment of tribal lands
• The termination era (1940s-1960s) saw the U.S. government attempt to end its trust relationship with many tribes, leading to the loss of federal recognition and resources for affected tribes

Key Concepts and Definitions

• Tribal sovereignty refers to the inherent right of Native American tribes to govern themselves and manage their internal affairs
• Federal trust responsibility is the legal obligation of the U.S. government to protect tribal treaty rights, lands, assets, and resources
• Plenary power is the authority of Congress to legislate on matters affecting Native American tribes, derived from the Commerce Clause and the Treaty Clause of the U.S. Constitution
• Tribal jurisdiction is the authority of tribal governments to make and enforce laws within their territories
• Indian Country is a legal term that includes all land within the limits of any Indian reservation, all dependent Indian communities, and all Indian allotments
• Self-determination is the principle that Native American tribes have the right to determine their own political, economic, and cultural futures
• Government-to-government relationship acknowledges that Native American tribes are sovereign entities, distinct from state and local governments

Legal Framework

• The U.S. Constitution recognizes Native American tribes as distinct political entities (Commerce Clause, Treaty Clause)
• The Marshall Trilogy, a series of Supreme Court decisions in the early 1800s, established the legal framework for tribal sovereignty and the federal-tribal relationship
  • Johnson v. M'Intosh (1823) held that tribes have a right of occupancy on their lands but not the right to sell them without federal approval
  • Cherokee Nation v. Georgia (1831) defined tribes as "domestic dependent nations" under the protection of the U.S. government
  • Worcester v. Georgia (1832) affirmed tribal sovereignty and held that state laws do not apply within tribal lands
• The Indian Civil Rights Act of 1968 extended many of the protections of the Bill of Rights to tribal members in their dealings with tribal governments
• The Indian Self-Determination and Education Assistance Act of 1975 allowed tribes to assume control over programs and services previously administered by the federal government
• The Indian Gaming Regulatory Act of 1988 established a regulatory framework for gaming on tribal lands, balancing tribal sovereignty with state and federal interests

Tribal Sovereignty

• Tribal sovereignty is the inherent right of Native American tribes to govern themselves and manage their internal affairs
• Tribes have the authority to establish their own form of government, create laws, and enforce those laws within their territories
• Tribal sovereignty is not granted by the U.S. government but is inherent and pre-dates the formation of the United States
• Tribes have the power to determine tribal membership, regulate domestic relations, and administer justice
• Tribal sovereignty is not absolute and can be limited by treaties, acts of Congress, or the federal trust responsibility
• The extent of tribal jurisdiction over non-members within tribal lands has been a subject of ongoing legal debate and court decisions (Montana v. United States, 1981)
• Tribes have sovereign immunity, which protects them from lawsuits unless Congress has expressly waived that immunity or the tribe has consented to be sued

Federal Trust Responsibility

• The federal trust responsibility is the legal obligation of the U.S. government to protect tribal treaty rights, lands, assets, and resources
• This responsibility arises from the unique relationship between the federal government and Native American tribes, as established by treaties, court decisions, and legislation
• The trust responsibility requires the federal government to act in the best interests of tribes and their members
• Federal agencies, such as the Bureau of Indian Affairs and the Indian Health Service, are charged with carrying out the trust responsibility
• The trust responsibility includes the management of tribal trust lands, natural resources, and financial assets held in trust by the U.S. government
• The federal government has a duty to consult with tribes on actions that may affect their rights, resources, or welfare
• Tribes can enforce the trust responsibility through legal action, such as filing claims against the federal government for breach of trust

Intergovernmental Agreements

• Intergovernmental agreements are formal agreements between tribal governments and federal, state, or local governments
• These agreements can cover a wide range of issues, such as law enforcement, environmental protection, and the delivery of social services
• Intergovernmental agreements allow tribes and other governments to coordinate efforts, share resources, and address common challenges
• The Indian Self-Determination and Education Assistance Act of 1975 allows tribes to enter into self-governance compacts with the federal government, giving them greater control over federal programs and services
• Tribal-state gaming compacts, authorized by the Indian Gaming Regulatory Act, govern the operation of gaming facilities on tribal lands and the sharing of gaming revenues between tribes and states
• Intergovernmental agreements can help to build positive relationships between tribes and other governments and promote effective governance

Contemporary Challenges

• Many Native American tribes continue to face significant economic, social, and health disparities compared to the general U.S. population
• Tribal communities often struggle with high rates of poverty, unemployment, and lack of access to quality education and healthcare
• The complex jurisdictional framework on tribal lands can create challenges for law enforcement and the administration of justice (Oliphant v. Suquamish Indian Tribe, 1978)
• Tribes are working to protect their natural resources and cultural heritage in the face of development pressures and environmental threats (Dakota Access Pipeline)
• The ongoing impact of historical trauma, including the legacy of boarding schools and forced assimilation policies, continues to affect tribal communities
• Tribes are seeking to assert their water rights and ensure access to clean water for their communities (Winters v. United States, 1908)
• The COVID-19 pandemic has had a disproportionate impact on Native American communities, highlighting the need for improved public health infrastructure and resources

Future Outlook

• Native American tribes are increasingly asserting their sovereignty and self-determination in areas such as economic development, education, and healthcare
• Tribes are developing innovative solutions to address social and economic challenges, such as tribally-owned businesses and culturally-responsive education programs
• The United Nations Declaration on the Rights of Indigenous Peoples, adopted in 2007, provides a framework for advancing the rights of Native American tribes in the international arena
• There is growing recognition of the importance of traditional ecological knowledge in addressing environmental challenges and promoting sustainable resource management
• Tribes are working to revitalize their languages and cultural traditions, recognizing the critical role they play in community well-being and identity
• Efforts are underway to strengthen the government-to-government relationship between tribes and the federal government, including regular tribal consultations and the appointment of Native Americans to key government positions
• The future of tribal-federal relations will depend on the continued recognition of tribal sovereignty, the fulfillment of the federal trust responsibility, and the development of effective partnerships between tribes and other governments