Political and Legal Challenges: Tribal Sovereignty vs. State and Federal Jurisdiction

The United States currently has 574 federally recognized culturally, ethnically, and linguistically diverse Native Indian Tribes. The jurisdictional framework between the US government and Indian Tribes has been complex historically.

Thus, the federal government is responsible for supporting the tribal communities by passing various statutes and treaties. These legal rules provided inherent sovereign rights and powers to Native American communities.

Let’s explore the Native Indian laws, acts, and statutes passed to resolve the challenges faced by the tribal communities throughout the US.

What Does Domestic Dependent Nations Mean?

Although Native Indian tribes have inherent sovereignty, federal law defines them as "domestic dependent nations."

They are "domestic" as they are within the boundaries of the US. Since tribal communities are under the federal government's power, they are considered "dependent." Besides, "nations" indicates the native tribe's sovereign powers over their property, activities, and citizens.

That said, Native Indian tribes exist as self-governing, extra-constitutional entities yet also fall under federal law.

What is Native Indian Tribal Sovereignty?

Tribal sovereignty status allows the Native Indians to govern their community, control their economy, and preserve their culture.

As sovereign entities, tribes have the right to form their government and laws. They can also regulate property, collect taxes, and have their own courts and police force.

Criminal Jurisdiction in Indian Country

In the past half-century, the federal government made various amendments to pass statutes of criminal jurisdiction in Indian reservations.

The Congress, the US court, and Native communities strived for enactments for Tribal sovereignty. It boosted the power of the Native Tribal governments to safeguard public safety within Indian reservations.

Criminal jurisdiction in Indian premises depends on various variables. These include the type of crime committed, the land ownership status of the crime scene, the membership status of the Native Indian victim, and the Tribal affiliation of the criminal defendant.

After assessing these variables, the authorities decide who will exercise criminal jurisdiction, i.e., the federal, state, Tribal government, or a combination of these entities.

For instance, the Savanna Act 2019 eliminated law enforcement investigations and data reporting gaps. Due to this enactment, Tribal and federal agencies can take better action to handle the cases of missing and murdered Indigenous people.

Further, the recent Violence Against Women Act (VAWA) 2022 incorporated additional categories of criminal conduct that allowed Native Tribes to prosecute non-Indians for additional crimes committed in Indian reservation lands. It includes violence against Native women, child violence, and assaults against tribal justice personnel.

The VAWA legislation also created an Alaska pilot program. It permits Special Tribal Criminal Jurisdiction within Alaska Native villages to exercise criminal jurisdiction over non-Indian offenders for covered crimes.

However, the domestic dependent nations neither have criminal jurisdiction over non-Natives nor can they detain the offenders as per the US Supreme Court decision in 1978. In general, Native Indian communities are sovereign within their territory but lack control over non-Indian members.

If non-Natives affect the safety, welfare, and health of the community and its members, the Native American Tribes may regulate the offenders through civil actions.

Rights of Indigenous Communities

Throughout history, the Native American communities fought to gain tribal sovereignty, jurisdiction, and other rights.

To date, there have been numerous federal Indian laws, treaties, regulations, and court decisions between the US government and tribes. Here are some prominent enactments that have been game-changers for the upliftment of Indian Nations.

Right to Vote

For years, Native communities couldn't participate in voting mechanisms and strategies like US citizens. However, the Arizona Supreme Court repealed a provision in 1948 that restricted Native Americans from voting. Soon, other US states also allowed tribes to vote in elections.

Fast forward to this day, indigenous community members have the same right to vote as all other American citizens. As Native Indians are now voters, this change also gave them a voice in state affairs. Apart from state and local elections, they also vote in tribal elections.

Further, Indian nations' voter eligibility criteria are similar to the sovereign rights of local, state, and federal governments. This means every tribal community decides and sets eligibility protocols for tribal elections.

Indian Gaming Regulatory Act of 1988

In 1987, the Supreme Court determined that states can't regulate Native Indian gaming enterprises. After a series of hearings, the US Congress also passed the Indian Gaming Regulatory Act of 1988.

Under the IGRA act, Native tribes can run and regulate casinos on Indian reservation lands. Moreover, the tribal casino operators don't have to comply with state taxation laws. Instead, they share a portion of casino gaming revenue based on the Tribal-state compact.

The tribes expanded their services by adding slot machines and video poker in their facilities. Today, the Native Indians even own luxury casino resorts and clubs that attract gambling enthusiasts from all over the world.

Further, Indian tribes in some US states also run casino and sports betting sites on reservation lands or elsewhere. Following the suit, many other Native Indian tribes aim to gain the right to operate online casinos within their state jurisdiction.

For instance, the Eastern Band of Cherokee Indians in North Carolina collaborated with Caesars to offer online sports wagering within the reservation land. On the other hand, Oregon-based tribes offer Class II and Class III games in brick-and-mortar casinos, but online gambling Oregon is still not on the cards. With sports betting legalization, Oregon's Native Tribes would love to expand their revenue through online channels.

Indian casinos not only made Native tribes self-sufficient but also have been a significant source of economic development for the entire state.

According to the National Indian Gaming Commission report, tribal-owned casinos generated around $39 billion in 2021. The revenue from casino gaming activities helped the tribal communities bolster the resources needed for infrastructure, jobs, and social services. This growth also expanded the tourism market for US states with Indian casinos.

It's fair to say tribal casino venues have a significant role in the country's economic development.

Indian Child Welfare Act

In 1978, federal law passed the Indian Child Welfare Act (ICWA) to protect the children of Native Tribes from unwarranted removal and out-of-home placement. The act ensures only extended family, community members, or members of another Native American tribe can adopt the child.

The aim is to preserve and nurture the child's cultural bonds. With this legislation, Native Indians got a firm hold in their child custody proceedings.

Bottom Line

Native Indian tribes and the US states have always been in a complicated relationship. Some state laws and Tribal ordinances add to the complexity. However, the ongoing struggle for the Indian nationals in the American landscape is far less than their initial sufferings.

In the past few years, the government has advocated for the social, cultural, and economic development of Native Indian tribes. Indigenous communities will probably thrive hugely with more tribal-specific reforms respecting their unique history and language.

(Devdiscourse's journalists were not involved in the production of this article. The facts and opinions appearing in the article do not reflect the views of Devdiscourse and Devdiscourse does not claim any responsibility for the same.)