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Tribal Sovereignty Background Information
In 1975 the Indian Self-Determination and Education Assistance Act was passed, marking the culmination of 15 years of policy changes. Related to Indian activism, the Civil Rights Movement and community development aspects of social programs of the 1960s, the Act recognized the need of Native Americans for self-determination. It marked the U.S. government's turn away from the policy of termination; the U.S. government encouraged Native Americans' efforts at self government and determining their futures.
There are 562 federally recognized tribal governments in the United States. These tribes possess the right to form their own government, to enforce laws (both civil and criminal), to tax, to establish requirements for membership, to license and regulate activities, to zone and to exclude persons from tribal territories. Limitations on tribal powers of self-government include the same limitations applicable to states; for example, neither tribes nor states have the power to make war, engage in foreign relations, or coin money (this includes paper currency).
Many Native Americans and advocates of Native American rights point out that the U.S. Federal government's claim to recognize the "sovereignty" of Native American peoples falls short, given that the U.S. still wishes to govern Native American peoples and treat them as subject to U.S. law. True respect for Native American sovereignty, according to such advocates, would require the United States federal government to deal with Native American peoples in the same manner as any other sovereign nation, handling matters related to relations with Native Americans through the Secretary of State, rather than the Bureau of Indian Affairs. The Bureau of Indian Affairs reports on its website that its "responsibility is the administration and management of 55,700,000 acres (225,000 km2) of land held in trust by the United States for American Indians, Indian tribes, and Alaska Natives." Many Native Americans and advocates of Native American rights believe that it is condescending for such lands to be considered "held in trust" and regulated in any fashion by a foreign power, whether the U.S. Federal Government, Canada, or any other non-Native American authority.
American Indian Tribal Sovereignty
Many of us have not had an opportunity to learn the facts about the unique relationship between the United States and the American Indian tribes. Sovereignty is the foundation upon which this relationship is built. The purpose of this document is to provide the reader with a basic understanding about the soverign status of American Indian tribes.
What is Sovereignty?
Sovereignty is an internationally recognized concept. A basic tenet of sovereignty is the power of a people to govern themselves.
American Indian tribal powers originate with the history of tribes managing their own affairs. Case law has established that tribes reserve the rights they had never given away.1
American Indian Tribes Possess a "Nation-within-a-Nation" Status
Treaties formalize a nation-to-nation relationship between the federal government and the tribes.
In treaties, Indians relinquished certain rights in exchange for promises from the federal government. Trust responsibility is the government's obligation to honor the trust inherent to these promises and to represent the best interests of the tribes and their members.
The U.S. Constitution
The U.S. Constitution recognizes Indian tribes as distinct governments. It authorizes Congress to regulate commerce with "foreign nations, among the several state, and with the Indian tribes."2
Some Modifications in the Nation-to-Nation Relationship
In 1953, congress modified the federal-tribal relationship in five states through the passage of Public Law 280. More recently, the relationship was modified by the Indian Child Welfare Act and the Indian Gaming Regulatory Act.
Public Law 2806 (1953)
Provides for five states, including Minnesota (with the exception of the Red Lake reservation), to assume general criminal and some civil jurisdiction over Indian reservations within the state. Tribes retain limited criminal and general civil jurisdiction, but because of a lack of resources have generally not fully assumed these responsibilities.
Indian Child Welfare Act10 (1978)
Establishes procedures state agencies and courts must follow in handling Indian child custody matters. Creates dual jurisdiction between states and tribes that defers heavily to tribal governments.
Indian Gaming Regulatory Act11 (1988)
Should a tribe decide to engage in casino gaming, this act requires the state to negotiate in good faith with the tribe to form a compact setting forth games, limits and other terms.
Tribal Sovereignty as a Paradox
While the U.S. government recognizes American Indian Tribes as sovereign nations, the U.S. congress is recognized by the courts as having the right to limit the sovereign powers of tribes. However, Congress must do so in definite terms and not by implication.
What Does This Mean?
Tribes remain sovereign nations and possess self-government.
Tribes have a nation-to-nation relationship with the U.S. federal government.
Only Congress has plenary (overriding) power over Indian affairs.
State governance is generally not permitted within reservations.