tribal court

Tribal sovereignty in the United States is the concept of the inherent authority of indigenous tribes to govern themselves within the borders of the United States.

Originally, the U.S. federal government recognized American Indian tribes as independent nations, and came to policy agreements with them via treaties. As the U.S. accelerated its westward expansion, internal political pressure grew for " Indian removal", but the pace of treaty-making grew nevertheless. The Civil War forged the U.S. into a more centralized and nationalistic country, fueling a "full bore assault on tribal culture and institutions", and pressure for Native Americans to assimilate. In the Indian Appropriations Act of 1871, Congress prohibited any future treaties. This move was steadfastly opposed by Native Americans.

Currently, the U.S. recognizes tribal nations as "domestic dependent nations" and uses its own legal system to define the relationship between the federal, state, and tribal governments.

Native American sovereignty and the Constitution

The United States Constitution mentions Native American tribes three times:

* Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed." According to Story's ''Commentaries on the U.S. Constitution'', "There were Indians, also, in several, and probably in most, of the states at that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states."
* Article I, Section 8 of the Constitution states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes",American Indian Policy Center. 2005. St. Paul, MN. 4 October 2008 determining that Indian tribes were separate from the federal government, the states, and foreign nations; and
* The Fourteenth Amendment, Section 2 amends the apportionment of representatives in Article I, Section 2 above.

These constitutional provisions, and subsequent interpretations by the Supreme Court (see below), are today often summarized in three principles of U.S. Indian law:Conference of Western Attorneys General, American Indian Law Deskbook, University Press of Colorado, 2004
* Territorial sovereignty: Tribal authority on Indian land is organic and is not granted by the states in which Indian lands are located.
* Plenary power doctrine: Congress, and not the Executive Branch or Judicial Branch, has ultimate authority with regard to matters affecting the Indian tribes. Federal courts give greater deference to Congress on Indian matters than on other subjects.
* Trust relationship: The federal government has a "duty to protect" the tribes, implying (courts have found) the necessary legislative and executive authorities to effect that duty.

Early history

The Marshall Trilogy, 1823–1832

The Marshall Trilogy is a set of three Supreme Court decisions in the early nineteenth century affirming the legal and political standing of Indian nations.

* '' Johnson v. M'Intosh'' (1823), holding that private citizens could not purchase lands from Native Americans.
* ''Cherokee Nation v. Georgia'' (1831), holding the Cherokee nation dependent, with a relationship to the United States like that of a "ward to its guardian".
* '' Worcester v. Georgia'' (1832), which laid out the relationship between tribes and the state and federal governments, stating that the federal government was the sole authority to deal with Indian nations.

Indian Appropriations Act of 1871

Originally, the United States had recognized the Indian Tribes as independent nations, but after the Civil War, the U.S. suddenly changed its approach.

The Indian Appropriations Act of 1871 had two significant sections. First, the Act ended United States recognition of additional Native American tribes or independent nations, and prohibited additional treaties. Thus it required the federal government no longer interact with the various tribes through treaties, but rather through statutes:

The 1871 Act also made it a federal crime to commit murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny within any Territory of the United States.

Empowerment of tribal courts, 1883

On April 10, 1883, five years after establishing Indian police powers throughout the various reservations, the Indian Commissioner approved rules for a "court of Indian offenses". The court provided a venue for prosecuting criminal charges, but afforded no relief for tribes seeking to resolve civil matters. The new courts' rules specifically targeted tribal religious practices which it called "heathenish rites" and the commissioner urged courts to "destroy the tribal relations as fast as possible". Another five years later, Congress began providing funds to operate the Indian courts.

While U.S. courts clarified some of the rights and responsibilities of states and the federal government toward the Indian nations within the new nation's first century, it was almost another century before United States courts determined what powers remained vested in the tribal nations. In the interim, as a trustee charged with protecting their interests and property, the federal government was legally entrusted with ownership and administration of the assets, land, water, and treaty rights of the tribal nations.

''United States v. Kagama'' (1886)

The 1871 Act was affirmed in 1886 by the U.S. Supreme Court, in '' United States v. Kagama'', which affirmed that the Congress has plenary power over all Native American tribes within its borders by rationalization that "The power of the general government over these remnants of a race once powerful ... is necessary to their protection as well as to the safety of those among whom they dwell". The Supreme Court affirmed that the U.S. Government "has the right and authority, instead of controlling them by treaties, to govern them by acts of Congress, they being within the geographical limit of the United States. ... The Indians owe no allegiance to a State within which their reservation may be established, and the State gives them no protection."

The General Allotment Act (Dawes Act), 1887

Passed by Congress in 1887, the "Dawes Act" was named for Senator Henry L. Dawes of Massachusetts, Chairman of the Senate's Indian Affairs Committee. It came as another crucial step in attacking the tribal aspect of the Indians of the time. In essence, the act broke up the land of most all tribes into modest parcels to be distributed to Indian families, and those remaining were auctioned off to white purchasers. Indians who accepted the farmland and became "civilized" were made American citizens. But the Act itself proved disastrous for Indians, as much tribal land was lost and cultural traditions destroyed. Whites benefited the most; for example, when the government made of Indian lands available in Oklahoma, 50,000 white settlers poured in almost instantly to claim it all (in a period of one day, April 22, 1889).

Evolution of relationships: The evolution of the relationship between tribal governments and federal governments has been glued together through partnerships and agreements. Also running into problems of course such as finances which also led to not being able to have a stable social and political structure at the helm of these tribes or states.

Twentieth-century developments

Revenue and Indian Citizenship acts, 1924

The Revenue Act of 1924 (), also known as the Mellon tax bill after U.S. Secretary of the Treasury Andrew Mellon, cut federal tax rates and established the U.S. Board of Tax Appeals, which was later renamed the United States Tax Court in 1942. The Revenue Act was applicable to incomes for 1924. The bottom rate, on income under $4,000, fell from 1.5% to 1.125% (both rates are after reduction by the "earned income credit"). A parallel act, the Indian Citizenship Act of 1924 (), granted all non-citizen resident Indians citizenship. Thus the Revenue Act declared that there were no longer any "Indians, not taxed" to be not counted for purposes of United States congressional apportionment. President Calvin Coolidge signed the bill into law.

Indian Reorganization Act, 1934

In 1934 the '' Indian Reorganization Act'', codified as Title 25, Section 476 of the U.S. Code, allowed Indian nations to select from a catalogue of constitutional documents that enumerated powers for tribes and for tribal councils. Though the Act did not specifically recognize the Courts of Indian Offenses, 1934 is widely considered to be the year when tribal authority, rather than United States authority, gave the tribal courts legitimacy.

Public Law 280, 1953

In 1953, Congress enacted Public Law 280, which gave some states extensive jurisdiction over the criminal and civil controversies involving Indians on Indian lands. Many, especially Indians, continue to believe the law unfair because it imposed a system of laws on the tribal nations without their approval.

In 1965 the United States Court of Appeals for the Ninth Circuit concluded that no law had ever extended provisions of the U.S. Constitution, including the right of habeas corpus, to tribal members brought before tribal courts. Still, the court concluded, "it is pure fiction to say that the Indian courts functioning in the Fort Belknap Indian community are not in part, at least, arms of the federal government. Originally they were created by federal executive and imposed upon the Indian community, and to this day the federal government still maintains a partial control over them." In the end however, the Ninth Circuit limited its decision to the particular reservation in question and stated, "it does not follow from our decision that the tribal court must comply with every constitutional restriction that is applicable to federal or state courts."

While many modern courts in Indian nations today have established full faith and credit with state courts, the nations still have no direct access to U.S. courts. When an Indian nation files suit against a state in U.S. court, they do so with the approval of the Bureau of Indian Affairs. In the modern legal era, the courts and Congress have, however, further refined the often competing jurisdictions of tribal nations, states and the United States in regard to Indian law.

In the 1978 case of '' Oliphant v. Suquamish Indian Tribe'', the Supreme Court, in a 6–2 opinion authored by Justice William Rehnquist, concluded that tribal courts do not have jurisdiction over non-Indians (the Chief Justice of the Supreme Court at that time, Warren Burger, and Justice Thurgood Marshall filed a dissenting opinion). But the case left unanswered some questions, including whether tribal courts could use criminal contempt powers against non-Indians to maintain decorum in the courtroom, or whether tribal courts could subpoena non-Indians.

A 1981 case, '' Montana v. United States'', clarified that tribal nations possess inherent power over their internal affairs, and civil authority over non-members on fee-simple lands within its reservation when their "conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe."

Other cases of those years precluded states from interfering with tribal nations' sovereignty. Tribal sovereignty is dependent on, and subordinate to, only the federal government, not states, under ''Washington v. Confederated Tribes of Colville Indian Reservation'' (1980). Tribes are sovereign over tribal members and tribal land, under ''United States v. Mazurie'' (1975).

In '' Duro v. Reina'', , the Supreme Court held that a tribal court does not have criminal jurisdiction over a non-member Indian, but that tribes "also possess their traditional and undisputed power to exclude persons who they deem to be undesirable from tribal lands. ... Tribal law enforcement authorities have the power if necessary, to eject them. Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain and transport him to the proper authorities." In response to this decision, Congress passed the Duro'' Fix', which recognizes the power of tribes to exercise criminal jurisdiction within their reservations over all Indians, including non-members. The ''Duro'' Fix was upheld by the Supreme Court in '' United States v. Lara'', .

''Iron Crow v. Oglala Sioux Tribe'' (1956)

In '' Iron Crow v. Oglala Sioux Tribe'', the United States Supreme Court concluded that two Oglala Sioux defendants convicted of adultery under tribal laws, and another challenging a tax from the tribe, were not exempted from the tribal justice system because they had been granted U.S. citizenship. It found that tribes "still possess their inherent sovereignty excepting only when it has been specifically taken from them by treaty or Congressional Act". This means American Indians do not have exactly the same rights of citizenship as other American citizens. The court cited case law from a pre-1924 case that said, "when Indians are prepared to exercise the privileges and bear the burdens of" '' sui iuris'', i.e. of one's own right and not under the power of someone else, "the tribal relation may be dissolved and the national guardianship brought to an end, but it rests with Congress to determine when and how this shall be done, and whether the emancipation shall be complete or only partial" (''U.S. v. Nice'', 1916). The court further determined, based on the earlier '' Lone Wolf v. Hitchcock'' case, that "It is thoroughly established that Congress has plenary authority over Indians." The court held that, "the granting of citizenship in itself did not destroy ... jurisdiction of the Indian tribal courts and ... there was no intention on the part of Congress to do so." The adultery conviction and the power of tribal courts were upheld.

Further, the court held that whilst no law had directly established tribal courts, federal funding "including pay and other expenses of judges of Indian courts" implied that they were legitimate courts.

Tribal governments today

Tribal courts

At the dawn of the 21st century, the powers of tribal courts across the United States varied, depending on whether the tribe was in a Public Law 280 (PL280) state (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin).

The U.S. Supreme Court ruled in the 1978 decision '' Oliphant v. Suquamish Indian Tribe'' that tribes have no jurisdiction over non-Indians. Tribal courts maintain much criminal jurisdiction over their members, and because of the ''Duro'' fix, also over non-member Indians regarding crime on tribal land. The Violence Against Women Reauthorization Act of 2013 expanded the criminal jurisdiction of tribes over non-Indian perpetrators of domestic violence that occur in Indian Country when the victim is Indian.

The 1968 Indian Civil Rights Act limited tribal punishment to one year in jail and a $5,000 fine, but this was expanded by the Tribal Law and Order Act of 2010.

In PL280 states, the state has been granted criminal and civil adjudicatory jurisdiction over activities in Indian country. In non-PL280 states, Indian-on-Indian crime in Indian country may be prosecuted in federal court if the crime is one of those listed in the Major Crimes Act

HOME


Content is Copyleft
Website design, code, and AI is Copyrighted (c) 2014-2017 by Stephen Payne


Consider donating to Wikimedia



As an Amazon Associate I earn from qualifying purchases