Post by blackcrowheart on Oct 3, 2005 12:10:31 GMT -5
WHAT IS TRIBAL SOVEREIGNTY
www.ncsl.org/programs/esnr/tribsove.htm
Introduction
This paper is intended to provide a context for the word "sovereignty"
and a basis for understanding Indian tribal sovereignty. Set out below
is a definition of sovereignty, followed by a discussion of inherent
tribal powers, a presentation of the relationship of sovereign tribes
with the states and the three branches of the federal government, and,
finally, a discussion of the Department of Energy's treatment of tribes
as sovereign nations.
Black's Law Dictionary defines "sovereignty" as:
The supreme, absolute, and uncontrollable power by which any independent
state is governed; supreme political authority; the supreme will;
paramount control of the constitution and frame of government and its
administration; the self-sufficient source of political power, from
which all specific political powers are derived; the international
independence of a state, combined with the right and power of regulating
its internal affairs without foreign dictation; also a political
society, or state, which is sovereign and independent.
Likewise, "sovereignty" is defined by the English language dictionary as
the "supreme and independent power or authority in government as
possessed or claimed by a state or community." In the ideal sense,
sovereignty means the absolute power of a people to govern themselves,
free from interference by other sovereign nations. A sovereign nation is
a distinct political entity that has power over a specific geographical
area. As a practical matter, however, no nation in the world today is
completely independent. Our industrial world of mass communication,
soaring population and global transportation makes isolation of
sovereign nations virtually impossible. Economic and political factors
also encourage and necessitate governmental interdependency.
At the time of European contact, more than 5 million Indians were living
in the area that now makes up the United States. More than 600
independent tribes, bands and groups had thriving social, political and
cultural institutions. Although tribes shared certain cultural
characteristics and attitudes toward life, each tribe was distinct from
the others. Each tribe or Indian nation exercised the inherent powers of
a sovereign nation. The nations recognized the sovereignty of one
another by forming compacts, treaties and military alliances. The
existence of tribal sovereignty remains today.
Tribes do not derive any of their inherent powers from the United
States, and their sovereignty does not depend upon any United States
constitutional provision. Rather, tribal sovereignty is the supreme
inherent power of an Indian people- it predates the United States'
birth. For purposes of the U.S. legal system and relations between the
United States and tribes, a large body of "Indian law" has evolved since
the Europeans arrived on the continent. In the early 1800s, in a trilogy
of foundation Indian law cases, Chief Justice John Marshall established
that Indian tribes possess powers of inherent sovereignty that arise
from tribes' status as independent nations before and at the time of
European arrival. Felix Cohen, in his treatise on Indian law, wrote:
Perhaps the most basic principles of all Indian law, supported by a host
of decisions hereinafter analyzed, 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 are
inherent powers of a limited sovereignty which has never been
extinguished. Each Indian tribe begins its relationship with the federal
government as a sovereign power, recognized as such in treaty and
legislation.
Attributes of Sovereignty
Indian tribes are independent sovereigns, as distinguished from
voluntary associations, states or trust territories. Today, fully
functioning Indian nations are sovereignties composed of at least four
distinct, yet interwoven attributes: a secure land base, a functioning
economy, self-government and cultural vitality. The tribes' continued
existence and autonomy depends upon maintaining all four attributes of
sovereignty.
Tribal Land Base
A tribal land base is crucial to a tribe's sovereignty. The role or
meaning of the land is very different to native nations than it is to
dominant society. To understand tribal sovereignty and its practical
implications, one must understand the significance of the tribal land
base. It is also extremely important to understand these concepts when
addressing actions taken by the federal government or individuals that
adversely affect tribal land and its natural resources. The tribal
territory forms the geographical limits of the tribe's jurisdiction,
supports a resident population, is the basis of the tribal economy, and
provides an irreplaceable forum for religious practices and cultural
traditions that are often based upon the sacredness of the land.
Although the sizes and ownership patterns of reservations vary greatly,
fundamental priorities are implicit in maintaining native separatism
through Indian land tenure. Maintaining a homeland in which both present
and future generations of a tribe may live--intergenerational
habitation--is a dominant feature of tribal integrity. Tribal existence
also is often intensely dependent on land; many tribes still rely on the
natural resources found on the land for their very survival. Lastly,
tribal lands essentially are irreplaceable- sacred land cannot be
readily exchanged.
The attachment that native people have to their homelands--the
foundation of sovereignty--was described by Justice Black:
It may be hard for us to understand why these Indians cling so
tenaciously to their lands and traditional tribal way of life. The
record does not leave the impression that the lands of their reservation
are the most fertile, the landscape the most beautiful or their homes
the most splendid specimens of architecture. But this land is their
home--their ancestral home. There, they, their children, and their
forebears were born. They, too, have their memories and their loves.
Some things are worth more than money and the costs of a new enterprise.
Tribal Economies
Although some Indians resist assimilation into the economy of the
dominant society, others believe that inclusion of tribes into the
dominant economy allows tribes to thrive as sovereign nations. Tribes
have developed several methods of promoting economic viability.
Tribes--as sovereign governments--have the power to tax. Taxes can be a
significant source of income. Some tribes lease Indian lands and operate
tribal enterprises relating to a variety of purposes. Natural resources
are developed, leased and managed on the reservation; and tribes also
engage in other industrial and service activities. Each tribe must
determine what economy-producing activities are appropriate without a
sacrifice of other values essential to sovereignty, which in many cases,
already have been sacrificed.
Tribal Self-Government
The existence of tribal governments predates the formation of state and
federal governments. Since tribal status does not depend upon the
federal constitution, tribal governments are not bound by constitutional
provisions. Thus, each tribe has the sole right to regulate its own
internal affairs.
One of the most basic powers of a sovereign people is the power to
select their form of government. Determining the form of government
means the right to define the powers and duties of governmental
officers, the right to determine whether acts done in the name of the
government are authoritative, and the right to define the manner in
which governmental officers are selected and removed.
The type of government and how it functions does not affect a nation's
sovereignty. Throughout the world, democracies, monarchies, theocracies
and dictatorships exercise sovereign powers. Each of the approximately
550 Indian tribes in the United States has a unique form of government.
Tribes have chosen to develop their form of self-government in
accordance with their political and cultural history. While many tribes
have chosen to adopt a governmental model similar to that of the United
States, others, such as the Six Nations Confederacy and the Pueblos of
New Mexico, have chosen to retain their traditional forms of government.
Responsibilities of sovereign governments are three-fold. Tribal
governments must (1) have the ability to govern its members as well as
membership, (2) have control over a distinct geographical territory, and
(3) be able to exercise exclusions of competing sovereigns within tribal
territory.
Power to Govern Membership and Members
The tribal right of self-governance includes the power to determine
membership. Tribes may establish standards for membership by custom,
historical practice, written law or agreements between Indian nations.
Tribal governments also establish procedures for abandonment of
membership, adoption of non-Indians and adoption from other tribes.
As sovereign governments, Indian nations generally have the power to
maintain law and order by (1) enacting laws governing the conduct of
people, both Indian and non-Indians within reservation boundaries; (2)
establishing enforcement bodies such as tribal police forces and courts
to administer justice; (3) excluding non-tribal members from the
reservation; and (4) regulating activities on the reservation such as
hunting, fishing and gathering, as well as domestic relations of its
members, property use, environmental affairs, and commerce and trade
within the reservation. Tribes also may have the power to tax activities
and commerce on the reservation.
Most tribes in the United States choose to exercise these powers.
Importantly, these rights and powers of Indian tribes are retained
unless they have been given up by a tribe pursuant to an agreement,
treaty or tribal constitutional provision, or limited by a congressional
act. Before Europeans came to this continent, a tribe's inherent
authority to exercise jurisdiction throughout its land was complete.
Today, however, tribal authority over non-Indians within the reservation
is subject to limitations.
An example of such limitation is the criminal jurisdiction of tribes.
Generally, tribes have the inherent right to exercise civil jurisdiction
within the geographical area they control. This civil jurisdiction
includes the right to govern non-Indians within the bounds of the
reservation, although states also have limited civil jurisdiction within
Indian country. Criminal jurisdiction on a reservation, however, is a
complex issue. Indian law scholar Stephen Pevar has identified four
principles governing criminal jurisdiction in Indian country:
1.Tribes have the inherent right to exercise criminal jurisdiction over
tribal members. 2.Congress may limit or abolish tribal criminal
jurisdiction. 3.Tribes lack criminal jurisdiction over non-Indians
unless Congress has expressly "given" tribes that power. 4.A state does
not have jurisdiction over crimes committed by tribal members on the
reservation unless Congress has expressly granted states that power.
Congress has granted several states criminal jurisdiction over
reservations in Public Law 280. Any state jurisdiction over activities
on the reservation creates confusion on the part of the regulated
community, jurisdictional disputes between the regulators and often
fuels difficult relations between states and tribes.
Power to Govern Geographical Territory
Tribal governance also has a territorial component. As discussed above,
the land base and natural resources of Indian tribes continue to be
important to the preservation of Indian sovereignty. The land base
provides a place of habitation for present and future generations of a
tribe, marks the jurisdiction within which a tribal government operates,
supplies the reservation economy, and provides a sacred place for
time-honored traditions that are crucial to the survival of tribal
culture. Thus, a distinct tribal territory within which a tribe may
govern remains essential to fulfilling the promise of native
separatism--a concept promoted by the federal government in reserving
Indian lands.
Power to Exclude Competing Sovereigns
The third component of tribal self-governance is the exclusion of
competing governments, within the territory of a reservation. This
exclusion generally applies to states but may also include the power to
exclude the federal government from certain matters. Generally, tribal
authority operates to curtail the reach of state law within the borders
of Indian country. In earlier case law, this bar against state
jurisdiction was held to be absolute. This absolute exclusion has been
substantially eroded by federal legislation such as that which addresses
criminal jurisdiction, discussed above.
Tribal Cultural Vitality
Most Indian society, regardless of specific tribal membership, follows a
holistic approach to life. That is, facets of life that generally are
compartmentalized in dominant society--government, economics,
religion--are interconnected in the Indian way of life. This approach
guides the tribal government, economy and dependent relationship on the
land. Many "rights" that American Indians seek to maintain, such as
religious practices, are activities and beliefs that simply are a part
of daily life.
A loss of culture is often the primary indication of the erosion of a
nation's sovereignty. When a society becomes assimilated into another,
such as historically occurred with Native American nations, defining
cultural characteristics are lost. Language, customs, religion, dress
and beliefs are cultural attributes that are crucial to the survival of
any society or sovereign nation. American Indians maintain, therefore,
that cultural vitality is essential to the sovereignty of Indian
nations.
The State-Tribal Relationship in General
Although the inherent sovereign powers of Indian tribes predate the U.S.
Constitution, state powers are derived from it. The federal government
also derives powers from the Constitution, thus creating "federal
preemption" of state powers. Specifically, the U.S. Constitution gives
Congress exclusive authority over Indian affairs. A state, therefore,
does not have authority over Indian affairs and generally may not apply
its law within a reservation unless authorized to do so by Congress.
As a practical matter, however, the question of state jurisdiction on
reservations has not been so straightforward. The interplay of state
powers over tribal territory within a state's boundaries, questions of
federal preemption, and inherent tribal sovereignty has resulted in a
history of ongoing jurisdictional disputes between tribes and states.
Tribal members are citizens of the United States, as well as of the
state in which they reside. This "triple citizenship" creates an
ambiguous matrix of regulatory and other jurisdictional requirements for
Indians on and off their reservations. Jurisdiction of non-Indian
activities on Indian lands also is often unclear.
Numerous congressional authorizations have allowed state control on
reservations. Furthermore, many state laws are not obviously preempted
by federal law, and the applicability to Indian activities has not been
clarified through litigation. These state laws are applied against
Native Americans, if only by default alone.
The history of state/tribal relationships has not been smooth. It has
become increasingly apparent, however, that states and tribes often have
mutual, if not identical, interests. States and tribes have many
opportunities to cooperatively address issues and develop acceptable
solutions, while maintaining respective autonomy.
www.ncsl.org/programs/esnr/tribsove.htm
Introduction
This paper is intended to provide a context for the word "sovereignty"
and a basis for understanding Indian tribal sovereignty. Set out below
is a definition of sovereignty, followed by a discussion of inherent
tribal powers, a presentation of the relationship of sovereign tribes
with the states and the three branches of the federal government, and,
finally, a discussion of the Department of Energy's treatment of tribes
as sovereign nations.
Black's Law Dictionary defines "sovereignty" as:
The supreme, absolute, and uncontrollable power by which any independent
state is governed; supreme political authority; the supreme will;
paramount control of the constitution and frame of government and its
administration; the self-sufficient source of political power, from
which all specific political powers are derived; the international
independence of a state, combined with the right and power of regulating
its internal affairs without foreign dictation; also a political
society, or state, which is sovereign and independent.
Likewise, "sovereignty" is defined by the English language dictionary as
the "supreme and independent power or authority in government as
possessed or claimed by a state or community." In the ideal sense,
sovereignty means the absolute power of a people to govern themselves,
free from interference by other sovereign nations. A sovereign nation is
a distinct political entity that has power over a specific geographical
area. As a practical matter, however, no nation in the world today is
completely independent. Our industrial world of mass communication,
soaring population and global transportation makes isolation of
sovereign nations virtually impossible. Economic and political factors
also encourage and necessitate governmental interdependency.
At the time of European contact, more than 5 million Indians were living
in the area that now makes up the United States. More than 600
independent tribes, bands and groups had thriving social, political and
cultural institutions. Although tribes shared certain cultural
characteristics and attitudes toward life, each tribe was distinct from
the others. Each tribe or Indian nation exercised the inherent powers of
a sovereign nation. The nations recognized the sovereignty of one
another by forming compacts, treaties and military alliances. The
existence of tribal sovereignty remains today.
Tribes do not derive any of their inherent powers from the United
States, and their sovereignty does not depend upon any United States
constitutional provision. Rather, tribal sovereignty is the supreme
inherent power of an Indian people- it predates the United States'
birth. For purposes of the U.S. legal system and relations between the
United States and tribes, a large body of "Indian law" has evolved since
the Europeans arrived on the continent. In the early 1800s, in a trilogy
of foundation Indian law cases, Chief Justice John Marshall established
that Indian tribes possess powers of inherent sovereignty that arise
from tribes' status as independent nations before and at the time of
European arrival. Felix Cohen, in his treatise on Indian law, wrote:
Perhaps the most basic principles of all Indian law, supported by a host
of decisions hereinafter analyzed, 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 are
inherent powers of a limited sovereignty which has never been
extinguished. Each Indian tribe begins its relationship with the federal
government as a sovereign power, recognized as such in treaty and
legislation.
Attributes of Sovereignty
Indian tribes are independent sovereigns, as distinguished from
voluntary associations, states or trust territories. Today, fully
functioning Indian nations are sovereignties composed of at least four
distinct, yet interwoven attributes: a secure land base, a functioning
economy, self-government and cultural vitality. The tribes' continued
existence and autonomy depends upon maintaining all four attributes of
sovereignty.
Tribal Land Base
A tribal land base is crucial to a tribe's sovereignty. The role or
meaning of the land is very different to native nations than it is to
dominant society. To understand tribal sovereignty and its practical
implications, one must understand the significance of the tribal land
base. It is also extremely important to understand these concepts when
addressing actions taken by the federal government or individuals that
adversely affect tribal land and its natural resources. The tribal
territory forms the geographical limits of the tribe's jurisdiction,
supports a resident population, is the basis of the tribal economy, and
provides an irreplaceable forum for religious practices and cultural
traditions that are often based upon the sacredness of the land.
Although the sizes and ownership patterns of reservations vary greatly,
fundamental priorities are implicit in maintaining native separatism
through Indian land tenure. Maintaining a homeland in which both present
and future generations of a tribe may live--intergenerational
habitation--is a dominant feature of tribal integrity. Tribal existence
also is often intensely dependent on land; many tribes still rely on the
natural resources found on the land for their very survival. Lastly,
tribal lands essentially are irreplaceable- sacred land cannot be
readily exchanged.
The attachment that native people have to their homelands--the
foundation of sovereignty--was described by Justice Black:
It may be hard for us to understand why these Indians cling so
tenaciously to their lands and traditional tribal way of life. The
record does not leave the impression that the lands of their reservation
are the most fertile, the landscape the most beautiful or their homes
the most splendid specimens of architecture. But this land is their
home--their ancestral home. There, they, their children, and their
forebears were born. They, too, have their memories and their loves.
Some things are worth more than money and the costs of a new enterprise.
Tribal Economies
Although some Indians resist assimilation into the economy of the
dominant society, others believe that inclusion of tribes into the
dominant economy allows tribes to thrive as sovereign nations. Tribes
have developed several methods of promoting economic viability.
Tribes--as sovereign governments--have the power to tax. Taxes can be a
significant source of income. Some tribes lease Indian lands and operate
tribal enterprises relating to a variety of purposes. Natural resources
are developed, leased and managed on the reservation; and tribes also
engage in other industrial and service activities. Each tribe must
determine what economy-producing activities are appropriate without a
sacrifice of other values essential to sovereignty, which in many cases,
already have been sacrificed.
Tribal Self-Government
The existence of tribal governments predates the formation of state and
federal governments. Since tribal status does not depend upon the
federal constitution, tribal governments are not bound by constitutional
provisions. Thus, each tribe has the sole right to regulate its own
internal affairs.
One of the most basic powers of a sovereign people is the power to
select their form of government. Determining the form of government
means the right to define the powers and duties of governmental
officers, the right to determine whether acts done in the name of the
government are authoritative, and the right to define the manner in
which governmental officers are selected and removed.
The type of government and how it functions does not affect a nation's
sovereignty. Throughout the world, democracies, monarchies, theocracies
and dictatorships exercise sovereign powers. Each of the approximately
550 Indian tribes in the United States has a unique form of government.
Tribes have chosen to develop their form of self-government in
accordance with their political and cultural history. While many tribes
have chosen to adopt a governmental model similar to that of the United
States, others, such as the Six Nations Confederacy and the Pueblos of
New Mexico, have chosen to retain their traditional forms of government.
Responsibilities of sovereign governments are three-fold. Tribal
governments must (1) have the ability to govern its members as well as
membership, (2) have control over a distinct geographical territory, and
(3) be able to exercise exclusions of competing sovereigns within tribal
territory.
Power to Govern Membership and Members
The tribal right of self-governance includes the power to determine
membership. Tribes may establish standards for membership by custom,
historical practice, written law or agreements between Indian nations.
Tribal governments also establish procedures for abandonment of
membership, adoption of non-Indians and adoption from other tribes.
As sovereign governments, Indian nations generally have the power to
maintain law and order by (1) enacting laws governing the conduct of
people, both Indian and non-Indians within reservation boundaries; (2)
establishing enforcement bodies such as tribal police forces and courts
to administer justice; (3) excluding non-tribal members from the
reservation; and (4) regulating activities on the reservation such as
hunting, fishing and gathering, as well as domestic relations of its
members, property use, environmental affairs, and commerce and trade
within the reservation. Tribes also may have the power to tax activities
and commerce on the reservation.
Most tribes in the United States choose to exercise these powers.
Importantly, these rights and powers of Indian tribes are retained
unless they have been given up by a tribe pursuant to an agreement,
treaty or tribal constitutional provision, or limited by a congressional
act. Before Europeans came to this continent, a tribe's inherent
authority to exercise jurisdiction throughout its land was complete.
Today, however, tribal authority over non-Indians within the reservation
is subject to limitations.
An example of such limitation is the criminal jurisdiction of tribes.
Generally, tribes have the inherent right to exercise civil jurisdiction
within the geographical area they control. This civil jurisdiction
includes the right to govern non-Indians within the bounds of the
reservation, although states also have limited civil jurisdiction within
Indian country. Criminal jurisdiction on a reservation, however, is a
complex issue. Indian law scholar Stephen Pevar has identified four
principles governing criminal jurisdiction in Indian country:
1.Tribes have the inherent right to exercise criminal jurisdiction over
tribal members. 2.Congress may limit or abolish tribal criminal
jurisdiction. 3.Tribes lack criminal jurisdiction over non-Indians
unless Congress has expressly "given" tribes that power. 4.A state does
not have jurisdiction over crimes committed by tribal members on the
reservation unless Congress has expressly granted states that power.
Congress has granted several states criminal jurisdiction over
reservations in Public Law 280. Any state jurisdiction over activities
on the reservation creates confusion on the part of the regulated
community, jurisdictional disputes between the regulators and often
fuels difficult relations between states and tribes.
Power to Govern Geographical Territory
Tribal governance also has a territorial component. As discussed above,
the land base and natural resources of Indian tribes continue to be
important to the preservation of Indian sovereignty. The land base
provides a place of habitation for present and future generations of a
tribe, marks the jurisdiction within which a tribal government operates,
supplies the reservation economy, and provides a sacred place for
time-honored traditions that are crucial to the survival of tribal
culture. Thus, a distinct tribal territory within which a tribe may
govern remains essential to fulfilling the promise of native
separatism--a concept promoted by the federal government in reserving
Indian lands.
Power to Exclude Competing Sovereigns
The third component of tribal self-governance is the exclusion of
competing governments, within the territory of a reservation. This
exclusion generally applies to states but may also include the power to
exclude the federal government from certain matters. Generally, tribal
authority operates to curtail the reach of state law within the borders
of Indian country. In earlier case law, this bar against state
jurisdiction was held to be absolute. This absolute exclusion has been
substantially eroded by federal legislation such as that which addresses
criminal jurisdiction, discussed above.
Tribal Cultural Vitality
Most Indian society, regardless of specific tribal membership, follows a
holistic approach to life. That is, facets of life that generally are
compartmentalized in dominant society--government, economics,
religion--are interconnected in the Indian way of life. This approach
guides the tribal government, economy and dependent relationship on the
land. Many "rights" that American Indians seek to maintain, such as
religious practices, are activities and beliefs that simply are a part
of daily life.
A loss of culture is often the primary indication of the erosion of a
nation's sovereignty. When a society becomes assimilated into another,
such as historically occurred with Native American nations, defining
cultural characteristics are lost. Language, customs, religion, dress
and beliefs are cultural attributes that are crucial to the survival of
any society or sovereign nation. American Indians maintain, therefore,
that cultural vitality is essential to the sovereignty of Indian
nations.
The State-Tribal Relationship in General
Although the inherent sovereign powers of Indian tribes predate the U.S.
Constitution, state powers are derived from it. The federal government
also derives powers from the Constitution, thus creating "federal
preemption" of state powers. Specifically, the U.S. Constitution gives
Congress exclusive authority over Indian affairs. A state, therefore,
does not have authority over Indian affairs and generally may not apply
its law within a reservation unless authorized to do so by Congress.
As a practical matter, however, the question of state jurisdiction on
reservations has not been so straightforward. The interplay of state
powers over tribal territory within a state's boundaries, questions of
federal preemption, and inherent tribal sovereignty has resulted in a
history of ongoing jurisdictional disputes between tribes and states.
Tribal members are citizens of the United States, as well as of the
state in which they reside. This "triple citizenship" creates an
ambiguous matrix of regulatory and other jurisdictional requirements for
Indians on and off their reservations. Jurisdiction of non-Indian
activities on Indian lands also is often unclear.
Numerous congressional authorizations have allowed state control on
reservations. Furthermore, many state laws are not obviously preempted
by federal law, and the applicability to Indian activities has not been
clarified through litigation. These state laws are applied against
Native Americans, if only by default alone.
The history of state/tribal relationships has not been smooth. It has
become increasingly apparent, however, that states and tribes often have
mutual, if not identical, interests. States and tribes have many
opportunities to cooperatively address issues and develop acceptable
solutions, while maintaining respective autonomy.