Sovereignty is the power, authority, and right of a people to govern themselves. There are three kinds of sovereign governments in the United States: the federal government, state governments, and tribal governments. The United States federal government gets its sovereign powers, and limits to it, from the United States Constitution. States have sovereign powers that are not reserved to the federal government through the U.S. Constitution, and are described in state constitutions. A most basic principle of federal Indian law is that federally recognized tribes have sovereign powers that are ‘inherent,’ meaning that tribes were self-governing nations long before Europeans arrived on this continent. Tribes retain those powers of self-government except as limited by being within the boundary of the United States and as expressly limited by Congress. Tribes have been described as ‘domestic dependant nations’ and Congress has plenary power over their sovereignty. Congress can limit tribal powers, enhance them, or even terminate tribal status. The powers and jurisdiction of a tribe describe the extent and limit of tribal sovereignty.
All tribes have certain fundamental sovereign powers, which include the power to form tribal governments in the manner in which they choose, to determine who the tribal members are, to regulate their own internal governmental affairs, and the power of sovereign immunity, the power not be sued unless the tribal government consents to being sued. All ÓÐÁϺÐ×ÓÊÓƵ tribes have these sovereign powers. Most ÓÐÁϺÐ×ÓÊÓƵ tribes have constitutions which describe their governments and delegate tribal powers to the tribal councils to exercise.
Jurisdiction is the authority and responsibility to make and enforce laws, and lies at the heart of tribal sovereignty. Tribes exercise their powers and jurisdiction by enacting tribal laws and enforcing those laws in tribal courts. Making laws to protect the tribe and tribal members, and enforcing those laws in tribal courts is fundamental to the existence and future of the tribes. The amount of jurisdiction tribes have varies greatly throughout the country depending on a wide variety of factors. Some of those factors include whether or not there is specific treaty language regarding jurisdiction for a tribe, whether or not the tribe is located on a reservation, what congressional statues are in effect, and what kind of court decisions are in place.
The passage of ANCSA left questions about the status of tribes in ÓÐÁϺÐ×ÓÊÓƵ and the extent of jurisdiction they have. ÓÐÁϺÐ×ÓÊÓƵ tribes proceeded to assert their existence and jurisdiction by various governmental activities, including hearing a wide variety of cases in their tribal courts. As they did so, the State of ÓÐÁϺÐ×ÓÊÓƵ challenged the existence of tribes and the activity of the tribal courts. The tribes also challenged the State to accept their assertions and court decisions. These challenges were made through both State and federal courts, and the court decisions help to outline the extent of tribal jurisdiction in ÓÐÁϺÐ×ÓÊÓƵ. There are still many of issues surrounding ÓÐÁϺÐ×ÓÊÓƵ tribal jurisdiction that are unclear, but there are a few generalizations that we can conclude at this time:
- Over 230 tribes in ÓÐÁϺÐ×ÓÊÓƵ do exist, and therefore have some level of jurisdiction based on their status as tribes
- ÓÐÁϺÐ×ÓÊÓƵ tribes have clear jurisdiction to determine their own membership, determine their own form of government and justice system, and over their own internal affairs.
- There is currently little ‘Indian country’ in ÓÐÁϺÐ×ÓÊÓƵ, the territorial jurisdiction needed to tax people and entities that do not want to be taxed, to set seasons and bag limits for fish and game, and other activities requiring territorial jurisdiction to enforce.
- Tribal jurisdiction in ÓÐÁϺÐ×ÓÊÓƵ tends to be ‘member based’ rather than based on a territory such as a reservation. In other words, tribal courts can hear cases involving tribal members even if they do not have ‘Indian country.’
- Public Law 280 did not terminate any tribal powers or jurisdiction.
- Tribal jurisdiction in ÓÐÁϺÐ×ÓÊÓƵ tends to be concurrent with the State of ÓÐÁϺÐ×ÓÊÓƵ. In other words, both the State and the tribes share jurisdiction, and which ever court hears a case first assumes jurisdiction over the case.
- ÓÐÁϺÐ×ÓÊÓƵ tribes generally have concurrent jurisdiction over domestic relations involving tribal members including adoptions, child protection, domestic violence, marriages, divorces, and probate.
- Many ÓÐÁϺÐ×ÓÊÓƵ tribal courts handle juvenile offenses and are hearing minor criminal offenses.
This list of cases generally outlines conclusions from major court decisions specific to tribal jurisdiction in ÓÐÁϺÐ×ÓÊÓƵ:
1986, 1987, and 1992: Native Village of Nenana v. Dept. of Health and Human Services,
In re K.E., In re F.P., In re W.M.
(ÓÐÁϺÐ×ÓÊÓƵ Court System) In these cases involving ÓÐÁϺÐ×ÓÊÓƵ Native children the State Court
held that even though there basically were no tribes in ÓÐÁϺÐ×ÓÊÓƵ outside of Metlakatla
and perhaps a few others, if there were tribes, Public Law 280 terminated any tribal
jurisdiction tribes may have had. (Over ruled and/or modified by later decisions).
1988: Native Village of Stevens v. ÓÐÁϺÐ×ÓÊÓƵ Management and Planning
(ÓÐÁϺÐ×ÓÊÓƵ Supreme Court): Tribes in ÓÐÁϺÐ×ÓÊÓƵ generally do not exist; therefore Stevens
Village does not have sovereign immunity. (Over ruled or modified by later decisions).
[Native Village of Stevens v. ÓÐÁϺÐ×ÓÊÓƵ Management and Planning, 757 P.2d 32, ÓÐÁϺÐ×ÓÊÓƵ,
1988]
1989: Nome Eskimo Community Case
(ÓÐÁϺÐ×ÓÊÓƵ Supreme Court): Land cannot be taken away without tribal consent when a tribe
is organized under the Indian Reorganization Act. The Court did not specifically recognize
that Nome Eskimo Community was a tribe, but it did recognize the land protection language
in the federal Indian Reorganization Act under which Nome Eskimo Community was organized.
[In the Matter of 1981, 1982, 1984 and 1985 Delinquent Property Taxes Owed to the
City of Nome, ÓÐÁϺÐ×ÓÊÓƵ, 780 P.2d 363, ÓÐÁϺÐ×ÓÊÓƵ, 1989]
1991: Blatchford v. Native Village of Noatak and Circle Village
(U.S. Supreme Court): Noatak cannot sue the State of ÓÐÁϺÐ×ÓÊÓƵ for revenue sharing money.
However, the U.S. Supreme court did not review the decision by the lower court that
Noatak and Circle are tribes, one organized under the IRA, and one simply recognized
under ANCSA. Therefore the U.S. Supreme Court recognized that both were tribes. [Blatchford
v. Native Village of Noatak, 501 U.S. 775, 1991]
1994: Venetie and Fort Yukon Adoption Cases
(Federal Court): These cases followed a complex path through the court system and
eventually were joined together. Basically the federal court ruled that Venetie and
Fort Yukon were tribes and that their adoption orders should be given full faith and
credit. However, a question remained about whether or not they were tribes prior to
being included on the list of federally recognized tribes of 1993. [Native Village
of Venetie IRA Council, Native Village of Fort Yukon IRA Council v. ÓÐÁϺÐ×ÓÊÓƵ, No. F86-0075
CIV D. ÓÐÁϺÐ×ÓÊÓƵ Sept. 20, 1995]
1996: Tyonek v Puckett
(Federal Court) The case involved a question over the Tyonek tribe’s power to exclude
someone from the village. The court ruled that Tyonek did not have subject matter
jurisdiction over exclusion. However, the federal court ruled that Tyonek was a tribe,
and was a tribe prior to the 1993 list of federally recognized tribes. When Congress
recognizes a tribe, it recognizes that the tribe always existed.
1998: Venetie Tax Case
(U.S. Supreme Court) Lands that have gone through the ÓÐÁϺÐ×ÓÊÓƵ Native Claims Settlement
Act are not Indian country. Indian country is the territorial area over which a tribe
has jurisdiction, and this ruling removed any land that went through ANCSA from being
counted as Indian country. This decision significantly restricts the scope of trial
civil and criminal jurisdiction over territory. The status of ÓÐÁϺÐ×ÓÊÓƵ Native allotments
and restricted townsite lots was left an open question, and still may be Indian country.
[ÓÐÁϺÐ×ÓÊÓƵ v. Native Village of Venetie Tribal Government et. al., 522 U.S. 520 1998]
1999: John v. Baker
((ÓÐÁϺÐ×ÓÊÓƵ Supreme Court) Acknowledged tribes in ÓÐÁϺÐ×ÓÊÓƵ and that the State and tribes
have concurrent jurisdiction over matters involving the personal relations of tribal
members such as child custody even outside Indian country. This case confirmed tribal
membership as a significant basis for tribal jurisdiction. [John v. Baker 982, ÓÐÁϺÐ×ÓÊÓƵ
1999] 2001: C.R.H. (ÓÐÁϺÐ×ÓÊÓƵ Supreme Court) Jurisdiction over ICWA cases can be transferred
from ÓÐÁϺÐ×ÓÊÓƵ state court to tribal courts in certain circumstances. Public Law 280
does not terminate tribal jurisdiction. [In re C.R.H. 29 P.3d 849 ÓÐÁϺÐ×ÓÊÓƵ 2001]
2003: Perryville v. Tague
(ÓÐÁϺÐ×ÓÊÓƵ Court) ÓÐÁϺÐ×ÓÊÓƵ tribes have the right to banish a member from the village due
to violent behavior and have to have the ÓÐÁϺÐ×ÓÊÓƵ court system and troopers assist in
enforcing their orders. [Village of Perryville v. Tague, No. 3AN-00-12245 ÓÐÁϺÐ×ÓÊÓƵ Supr.
Ct. Nov. 19, 2003]
2009: Kaltag v Hogan
(Federal Court, Ninth Circuit, US Sup.Ct Cert Denied) ÓÐÁϺÐ×ÓÊÓƵ tribes have jurisdiction
(concurrent with the State) to initiate and hear child adoption cases. Tribal court
adoption orders are entitled to full faith and credit under the Indian Child Welfare
Act. When asked, the United States Supreme Court declined to hear the case. So, the
decision of the Ninth Circuit stood. [Kaltag Tribal Council v. Hogan, 344 9th Cir.
2009, cert. den. 2010]
2011 ÓÐÁϺÐ×ÓÊÓƵ v. Native Village of Tanana
(ÓÐÁϺÐ×ÓÊÓƵ Supreme Court Opinion No. sp-6542) The ÓÐÁϺÐ×ÓÊÓƵ Supreme Court ruled that ÓÐÁϺÐ×ÓÊÓƵ
tribes should be able to initiate child custody proceedings in their tribal courts
under the Indian Child Welfare Act through their inherent authority
2016 Akiachak v. Interior
((Federal Court, Ninth Circuit, US Sup.Ct Cert Denied) It is unlawful for the Department
of Interior to discriminate against ÓÐÁϺÐ×ÓÊÓƵ tribes and Interior must consider taking
ÓÐÁϺÐ×ÓÊÓƵ land into Trust for tribal governments.
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