Tribal sovereignty (United States)

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Map of the United States, reservations in white
Indian tribes have operated casinos on their territories since 1979. These form an important source of income for the reserves and create jobs. Here: Avi Resort and Casino in Nevada
The Mohegan Sun of the Mohegan tribe. The American Indian tribes operate 400 Indian casinos nationwide, primarily on the west coast and in the border states with Canada.
Example: The Treaty of Fort Laramie in 1851 contracted the Sioux Territory. But the contracts were not kept. Large areas were lost to the Sioux through ordinances and laws after 1876.
Effects of the Dawes Act. Large areas of the Rosebud Indian Reservation in South Dakota were lost. Originally the reservation comprised 5 counties. After the allotment, 4 counties were lost.
Henry L. Dawes Actually, Dawes wanted to help the Indians with his bill to become full citizens of the USA. Due to the law named after him, the tribes lost a large part of their tribal areas.
Managing the Standing Rock Reservation in Fort Yates (2014)
Tribal flags in Eagle Butte Cheyenne River Reservation
Studio of KTNN Radio in Window Rock, Navajo Reservation, Arizona. Many tribes operate their own radio stations
Many reserves have their own police units. Here is a Navajo Nation Police patrol car from Arizona

Under Tribal sovereignty refers to the United States of America the right of indigenous people to manage themselves and to govern. The United States government recognizes the Indian tribes as nations and uses the terms souvereign nations or domestic dependent nations . Many tribes have had self-government rights since the 1930s and have their own police units and courts in their Indian reservations . Usually, reservations are legally not subject to the states on which they are physically located. You can make your own laws that violate state laws. This is especially true when it comes to gambling. Many reservations operate casinos on their territories or buy land in metropolitan areas that they claim to be their territory. Such areas are legally called off-reservation trust land . Tribal sovereignty has in the past been the subject of many lawsuits in US federal courts , where sometimes contradicting judgments have been made. The relationship between the federal government , state governments , counties , parishes, the Bureau of Indian Affairs , the tribes, and the reservations is considered to be complex and confused. An important issue is the jurisdiction of tribal courts over non-tribal members, e.g. B. by whites who live in reserves or own land in reserves, or do business with reserve governments. The United States of America recognizes 562 tribes as federally recognized tribes . There are also tribes that are not recognized by the federal government, but by individual states.

Constitutional foundations

In the Constitution of the United States , the relationship between the indigenous people and the federal government is not entirely clear. The constitution only contains references. Thus, Paragraph 1, Section 2 contains the note that Indians are exempt from taxes. Indians were not considered citizens of the United States at the time and therefore had no taxes to pay and therefore could not vote. You have not been defined as a resident of any state. Paragraph 1 Section 8, the so-called Commerce Clause, regulates the federal authority over trade. Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes . The Congress (the United States) has to regulate the power to trade with foreign countries, among the states and with the Indian tribes. From this sentence it follows that Indian tribes are not a foreign country, but also do not belong to any federal state. That is why the term domestic dependent nations has established itself . A further note arises from the 14th Amendment to the Constitution 'Representatives shall be apportioned among the several States according to their respective numbers counting the whole number of persons in each State, excluding Indians not taxed.' Indians who are not taxed are not included in the number of representatives of a state. From these statements it follows that Indian tribes have not been defined as citizens of a state in which they live. Because the relationship between the federal government, Congress, and the Indian tribes was not precisely defined in the constitution, it led to a large number of trials before the United States Supreme Court.

Bureau of Indian Affairs

Since the United States Constitution does not precisely define the relationship between the Confederation and the Indian tribes, treaties and laws were necessary. The laws were based on the Commerce Clause. Basically it can be said that the Congress and not the President was responsible for relations with the Indian tribes. The Bureau of Indian Affairs (BIA) was created for this task . Institutions dealing with relations with the indigenous people had existed since 1775 when the Second Continental Congress commissioned Benjamin Franklin and Patrick Henry to conduct negotiations with the indigenous people. The Bureau was subordinated to the War Ministry. In 1849 the BIA was added to the newly created Ministry of the Interior . This also changed the tasks of the BIA. Indians have been resettled in reservations since the 1830s, and so the supply of food to the reservations fell to the office, as the supply was often part of the contracts with the tribes and the reservations often consisted of poorly productive soils - many reservation residents were starving. Officially, the lands do not belong to the Indian tribes, but to the federal government. Several courts decided this. The Indian tribes mostly only have one right of use to their land. In these cases, the areas are administered in trust by the BIA. This ensures that the BIA has great influence over the tribal governments.

contracts

Until 1871, treaties between the United States Congress and the Indian tribes served as the legal basis. The contracts were negotiated by Indian agents of the Bureau of Indian Affairs , signed and had to be ratified by Congress. In these, the Indian tribes ceded areas to the federal government against payment of funds and against receipt of goods and services. Mostly they reserved a smaller part of the affected area, most of the Indian reservations were established before 1871. The federal government had no competence to confiscate land because it was recognized that it belonged to the Indians. Some reserves were established through land swaps. The area ceded by the tribes was released for white settlement. The Indian Appropriations Act of 1871 changed this situation dramatically. Congress forbade the BIA to enter into contracts with the Indian tribes. Instead of bilateral treaties between Congress and Indian tribes, the legal conditions were established by laws and ordinances of Congress and the President. But even today treaties play an important role in the politics of Indian reservations and tribal sovereignty

Examples:

Laws and guidelines

After contracts between the federal government and Indian tribes could no longer be concluded in 1871, the situation had to be regulated by law. The laws and regulations often contradicted the contractual provisions. Nevertheless, it can be said that the laws regarded the Indian tribes as souvereign nations and that they were not part of a federal state. The policy towards the tribes changed over the years.

  • Indian Appropriations Act of 1871, that law ended the policy of treaties. Indian tribes and their chiefs were no longer recognized as equal contractual partners. That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty . Previously concluded contracts remain valid. Provided, further, that nothing contained in shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe. Indian tribes continue to be seen as souvereign nations with which one just no longer concludes contracts.
  • Empowerment of tribal courts of 1883. After the Indian Commissioner , head of the BIA, had approved tribal police units a few years earlier, he approved the creation of tribal courts with this decree. This decree resulted in a large number of judicial proceedings before the Supreme Court over the jurisdiction of these courts.
  • Major Crimes Act 1885 gives federal courts the right to rule on criminal proceedings even when only tribal members were involved in a crime and the crime took place on tribal territory.
  • Dawes Act also General Allotment Act of 1887. With this law, the areas of the reservations were to be divided up, ie common property of the tribes to be converted into individual land of the tribal members. In principle, the reservations should be canceled or at least reduced. The reserveland was dividedinto 160 acres and given to each head of the Indian family for their sole use. All unmarried reservation residents over 18 years of age and minor orphans received 80 acres, children under 18 received 40 acres and wives received nothing. The plots, which were often unprofitable, only became the property of the Indians after 25 years. The US government acted as trustee. Many indigenous peoples knew no private property and often sold their land to white settlers or speculators out of ignorance or economic hardship. The non-divided areas and the parcels that went to the state after the death of the owners were sold to white buyers at bargain prices.
  • Indian Citizenship Act of 1924 granted Indians full citizenship of the United States .
  • Indian Reorganization Act of 1934. This law heralded an about-face in Indian policy. The aim of the Dawes Act was to displace the Indian culture of communal ownership of land and land and to make Indians full citizens with individual rights and property of the United States, the Indian Reorganization Act partially withdrew this policy. It was recognized that the General Allotment Act had only led to poverty and depression, not to its integration into the Anglo-American way of life. The law brought extensive changes for the Indian tribes. Basically, the sovereignty of the tribes was secured. They could set up tribal governments and regain better control over their reservations. In addition, the parceling of the reserves was stopped. With government funding, the Indian tribes repurchased 12,800 km² (approximately 3.1 million acres ) of 90 million acres (364,000 km²) that had been lost to the Dawes Act. Economic enterprises such as cattle breeding or the production of handicrafts in the reserves were promoted.
  • Public Law 280 of 1953 allows states to take over police and legal duties from the federal government.
  • Indian Civil Rights Act of 1968 restricts tribal courts' jurisdiction in criminal trials.
  • Indian Self Determination Act 1975 Increased responsibility for reservation governments. Tasks that were previously taken over by the BIA were handed over to them.
  • American Indian Religious Freedom Act 1978 Participation in administration and access to Indian holy places.

Court decisions

  • Johnson v. M'Intosh 1823. United States Supreme Court ruling on the sale of Indian land to private individuals. The court found that only the federal government has the right to purchase the rights to use the lands from Indian tribes and tribal members. The Indians would not be the owners of the land, but only owners, or would have a right to use it, since the property was acquired by the US government.
  • Cherokee Nation v. Georgia With this lawsuit against the state of Georgia , the nation of Cherokee sought to prohibit the government of Georgia from interfering with the individual rights of the nation and interfering with the settlement area. The Supreme Court declined to consider the case because the Cherokee Nation, as a domestic dependent nation, had no right to sue Georgia.
  • Worcester v. Georgia 1832 The Supreme Court ruled that the federal government alone was responsible for regulating relations with the Cherokee.
  • United States v. Kagama 1886 The Supreme Court ruled that the Mayor Crime Act did not violate the United States Constitution.
  • Lone Wolf v. Hitchcock 1903 Supreme Court ruling that the unilateral termination of a contract by the US Congress was legal. This involved changing the Medicine Lodge contract .
  • United States v. Nice 1912 Special reservation laws and ordinances also apply to Indians who have acquired US citizenship. Background: In an amendment to the Dawes Act, the federal government banned the sale of alcohol to Indians in 1897. The question was: did this ban also apply to US citizens? The court decided that citizens also fall under this rule. The laws and regulations were created to protect all Indians.
  • Oliphant v. 1978 Suquamish Indian Tribe Tribal Courts do not have the power to initiate criminal proceedings against non-Indians, even if the offense took place on reservation territory and the accused is a resident of the reservation. A federal court would have jurisdiction. tribal sovereignty would apply to people, not territories.
  • United States v. Sioux Nation of Indians 1980 Supreme Court ruled that the federal government should pay compensation for land losses when contracts were grossly broken.
  • Duro v. Reina 1990 The Supreme Court ruled that a tribal court lacks the power to initiate criminal proceedings against an Indian who is not a tribal member.
  • Cobell v. Salazar 1996 lawsuit against mismanagement and corruption within the Bureau of Indian Affairs.
  • Nevada v. Hicks 2001 The Supreme Court ruled that a house search of an Indian reservation by Nevada authorities did not violate the United States Constitution.

Situation today

While it is believed in the United States that Indian tribes have the right to self-government, the constitution states that Indian tribes are not part of a state and that the federal government alone has the right to regulate Indian tribes. But the federal government intervened in many areas of the self-government of the Indians. The lands of the Indian tribes are still owned by the federal government, the tribes have only limited rights of use. In the past, the Bureau of Indian Affairs did not advocate the rights and self-determination of Indians. It remains to be seen whether the new President Donald Trump will keep his election promise to transfer lands owned by the BIA to the tribes.

Web pages

See also

Individual evidence

  1. ↑ Bureau of Indian Affairs FAQ Federal Indian reservations are generally exempt from state jurisdiction, including taxation, except when Congress specifically authorizes such jurisdiction.
  2. ↑ www.civilrights.org ( Memento of the original from March 26, 2017 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. There are currently 562 federally recognized tribes in the US Federal recognition establishes a government-to-government relationship between the federal government and the tribe. @1@ 2Template: Webachiv / IABot / www.civilrights.org
  3. ↑ Wikisource Article I of the Constitution
  4. ^ Wikisource additional article
  5. ^ In 1849, Congress transferred the BIA from the War Department to the newly created Department of the Interior. With this transfer came a change in policy and responsibilities. The removal of tribes to reservations had brought about disease and starvation, which forced the government to begin providing tribes with food and other supplies.
  6. ↑ treatiesmatter.org Treaties recognize Indian tribes as sovereign nations that exercise exclusive authority over all peoples and activities within their territories. They are as valid today as on the day they were signed and ratified.
  7. ↑ www.bia.gov A federal Indian reservation is an area of ​​land reserved for a tribe or tribes under treaty or other agreement with the United States, executive order, or federal statute or administrative action as permanent tribal homelands, and where the federal government holds title to the land in trust on behalf of the tribe.
  8. ↑ http://www.cherokee.org Treaty of Holston, 1791
  9. ↑ jrank.org Concerned by the increasing costs and difficulties of negotiating for more Native American land, Congress ordered the president to stop making Native American treaties in 1871.
  10. ↑ www.pottcountygop.com Supreme Court & Tribes
  11. ↑ www.tribal-institute.org Complete text
  12. ↑ supreme.justia.com The exclusive right of the British government to the lands occupied by the Indians has passed to that of the United States.
  13. ↑ caselaw.findlaw.com Full text
  14. ↑ supreme.justia.com Indian tribal courts do not have inherent criminal jurisdiction to try and to punish non-Indians, and hence may not assume such jurisdiction unless specifically authorized to do so by Congress. Pp. 435 U.S. 195-212.

literature

  • Walter Echo-Hawk: In the Courts of the Conquerer: The 10 Worst Indian Law Cases Ever Decided 2012.