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These basic provisions have been changed or clarified by various federal laws over the history of the United States. Regulate historically meant facilitate , rather than control or direct in the more modern sense. Therefore, the Congress of these United States was to be the facilitator of commerce between the states and the tribes. These Constitutional provisions, and subsequent interpretations by the Supreme Court see below , are today often summarized in three principles of U. Indian law: [7] [8] [9]. 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.

The Indian Appropriations Act of 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:. 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: Provided, further, that nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.

Native Law and Legal Strategy - Native Peoples, Native Politics -- Radcliffe Institute

The 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. 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 The Indians owe no allegiance to a State within which their reservation may be established, and the State gives them no protection. On April 10, , 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. 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.

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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.

Evolution of relationships: The evolution of the relationship between tribal governments and federal governments has been glued together through partnerships and agreements.

Obscuring boundaries

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. The bill was named after U. Secretary of the Treasury Andrew Mellon. The Revenue Act was applicable to incomes for President Calvin Coolidge signed the bill into law. 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.

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 case that said, "when Indians are prepared to exercise the privileges and bear the burdens of" sui iuris , i. Nice , The court further determined, based on the earlier Lone Wolf v.

Tribal sovereign immunity: An obstacle for non-Indians doing business in Indian Country?

Hitchcock case, that "It is thoroughly established that Congress has plenary authority over Indians. 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. Iron Crow v. Oglala Sioux Tribe , F. 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, is widely considered to be the year when tribal authority, rather than United States authority, gave the tribal courts legitimacy.

In , Congress enacted Public Law , 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. 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. 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. When an Indian nation files suit against a state in U.

In the modern legal era, 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 case of Oliphant v. 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 case, Montana v. United States , clarified that tribal nations possess inherent power over their internal affairs, and civil authority over non-members within tribal lands to the extent necessary to protect health, welfare, economic interests or political integrity of the tribal nation.

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 Tribes are sovereign over tribal members and tribal land, under United States v. Mazurie In Duro v. Reina , U. 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.

Lara , U. 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 state Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin or not. Tribal courts maintain much criminal jurisdiction over their members, and because of the Duro Fix, over non-member Indians regarding crime on tribal land. In PL states, the state has been granted criminal and civil adjudicatory jurisdiction over activities in Indian Country. Non-Indian on non-Indian crime in Indian Country will be prosecuted by the state.

While tribal nations do not enjoy direct access to U. Tribal and pueblo governments today launch far-reaching economic ventures, operate growing law enforcement agencies and adopt codes to govern conduct within their jurisdiction but the United States retains control over the scope of tribal law making.

When the United States government formed, it replaced the British government as the other sovereignty coexisting in America with the Native Americans. Article I, section 2, clause 3 and the fourteenth amendment section 2 address the handling of "Indians not taxed" in the apportionment of the seats of the House of Representatives according to population and in so doing suggest that Indians need not be taxed.

In Striking Shift, Tribes Are Winning Supreme Court Support for Their Rights

In Article I section 8, clause 3, Congress is empowered to "regulate commerce with foreign nations…states…and with the Indian tribes. In the s, Native American self-determination replaced Indian termination policy as the official United States policy towards Native Americans. It has been argued that American Indian matters should be handled through the United States Secretary of State , the official responsible for foreign policy.

The idea that tribes have an inherent right to govern themselves is at the foundation of their constitutional status — the power is not delegated by congressional acts.

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Congress can, however, limit tribal sovereignty. Unless a treaty or federal statute removes a power, however, the tribe is assumed to possess it. Tribal jurisdiction over persons and things within tribal borders are often at issue.

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While tribal criminal jurisdiction over Native Americans is reasonably well settled, tribes are still striving to achieve criminal jurisdiction over non-Native persons who commit crimes in Indian Country. This is largely due to the Supreme Court's ruling in in Oliphant v.

Suquamish Indian Tribe that tribes lack the inherent authority to arrest, try and convict non-Natives who commit crimes on their lands see below for additional discussion on this point. As a result of a pair of treaties, two tribal nations the Cherokee and Choctaw each have the right to send non-voting members to the United States House of Representatives similar to a non-state US territory or the federal district , however neither tribe has ever exercised their right to do so since they were given the power in the s.

Another dispute over American Indian government is its sovereignty versus that of the states. The federal U.