Understanding Tribal Government and Indian Law

1. Part 3: Selecting the ColorsHistorical, Legal and Political Perspectives

2. To be an Indian, you must have a tribe

3. Diverse People, Cultures, Languages, Lifestyles, and Locations

4. Ethnological Concept of Tribe Shared language and culture

5. Federal Recognition • 567 federally-recognized tribes • Criteria: • Existence pre-date European discovery • Has continued to remain separate and distinct • Process: • Act of Congress (treaties prior to 1871) • Petition Bureau of Indian Affairs (BIA) • Annually published in the Federal Register

6. Tribal Government • Like state or county governments • Provides services • Has sources of revenue • Passes laws and enforces them • Tribal jurisdictional area: “Indian Country” • State laws do not apply • Tribal sovereignty

7. Tribes are unlike other local governmentsin the U.S. • Tribes define their membership: enrollment • Some tribes have traditional forms of government • No separation of powers • No separation of “church” and state

8. Basic Tenants of Indian Law • Tribal sovereignty • Federal trust responsibility • Government-to-government relationship

9. Tribal Sovereignty • Tribes are governments that have authority with regard to their members • Tribes existed prior to the U.S. and made treaties with colonial powers, states, and the U.S. • Nations within a nation

10. Federal Trust Responsibility • U.S. Constitution • Article I, Section 8, “Indian commerce clause” authorizes Congress to regulate commerce with “foreign Nations, and among the several States, and with Indian tribes” • Article II, Section 2, grants the federal government the exclusive authority to make treaties • Trust responsibility is like being a guardian, looking out for the best interest of tribes

11. Government-to-Government Relationship • Tribes are treated as governments by the federal government. • Protocols • Tribal consultation

12. Federal Indian Policy Shifts 1700’s - 1800’s: Westward Expansion and Indian removal • Indian Removal Act of 1830 • Treaty making (ends 1871) • Indian wars

13. Federal Indian Policy Shifts continued… 1880-1930’s: Assimilation and Allotment • General Allotment Act of 1887 (Dawes Act) • Boarding Schools • Re-naming

14. 1790 Forced Inland 1890 Vanquished 1830 Indian Country 1492 Arrival of Columbus 1860 Immigration Stampede 2090 Indian Country? = Reservation Lands Map of Thanks to RUSSELL PUBLICATIONS INDIAN COUNTRY

16. More Policy Shifts • 1930’s: Reorganization • 1950’s: Termination and Relocation • 1970’s: Self-determination • 1980’s: Self-governance

17. Recent Trends in Indian policy • Negotiated rule-making (1994) • 1994 Clinton Presidential Memorandum directs every federal agency to operate in a government-to-government relationship with tribes • 1998 and 2000 executive orders on tribal consultation • More agencies contracting and compacting

18. Bureau of Indian Affairs • Agency in the Department of the Interior • Secretary of Interior has authority to make decisions about tribes including land status • Land into trust -- increases size of reservations • Tribes want the Census Bureau to consult BIA maps regarding tribal boundaries

19. Key Points • Indians are the only group of people mentioned in the Constitution • Indians have a political relationship with the federal government that distinguishes from other ethnic groups • Have jurisdiction with regard to their people and their land

20. Key Points continued… • Treaties are legal agreements between sovereign nations not diminished by time • Tribes define their membership and there is no separation of “church” and state