Native American tribes are the original sovereign peoples of the lands that now comprise the United States, with histories, governments, and cultures that predate the founding of the nation by thousands of years. Long before European colonization, hundreds of distinct tribal nations exercised independent political authority over their territories. Although the United States entered hundreds of treaties recognizing tribes as distinct political entities, federal Indian policy evolved over time through periods of treaty-making, forced removal, allotment, assimilation, termination, and, since the 1970s, tribal self-determination. The legal relationship between tribes and the federal government is grounded in the U.S. Constitution, as well as treaties, federal statutes, and Supreme Court precedent. Today, federally recognized tribes retain inherent powers of self-government except where limited by Congress, and the federal government owes tribes a trust responsibility arising from treaties, statutes, and longstanding federal law. The United States Department of the Interior, acting primarily through the Bureau of Indian Affairs, administers much of this trust relationship by overseeing tribal governance, law enforcement, natural resource management, economic development, education, and the management of tribal trust lands and assets.

TRIBAL CONSTITUTIONS AND GOVERNMENT

In 1934, Congress passed the Indian Reorganization Act, which provided that any tribe “shall have the right to organize for its common welfare” through the adoption of a constitution and by-laws.¹ Elections are conducted by the Secretary of the Interior, and the constitution or amendment is not effective until approved by the Secretary.² The Department of the Interior drafted a model constitution that was the basis for many of the original tribal constitutions that were ratified in the period following the passage of the Indian Reorganization Act. Although many tribes with written constitutions have similar governmental characteristics, such as tribal councils and tribal courts, not all tribes have written constitutions. Some tribes rejected application of the Indian Reorganization Act and operate under other governmental models; for instance, the Pueblo Nation operates entirely under customary law.³

Most tribes have a tribal council that acts as a legislature for the tribe, with council members generally being elected by the tribe. Under the original model constitutions, council legislation is reviewed by the Secretary of the Interior before it takes effect. Many tribes have removed that requirement through constitutional amendment and now have more autonomy. The legislation of the tribal council is often called the tribal code. The tribal chairman presides over the council and can act as the tribe’s executive. The authority of a particular chairman will depend on the particular tribe and their code and customs.

Tribal courts rule on cases brought under the laws of the tribal code. The structure of tribal court systems varies from tribe to tribe, with some tribes having appellate courts in addition to trial courts. Judges can be popularly elected, but many are also appointed by the tribal council. Some tribal courts rule with written opinions. Depending on the tribe, customary law or other methods of traditional Native American dispute resolution may be appropriate within the regular tribal court; some tribes will have established separate courts for alternative dispute resolution.⁴

TRIBAL SOVEREIGNTY

Native American tribes possess a unique form of inherent sovereignty,⁵ meaning they retain the authority to govern themselves as distinct political communities unless that authority has been limited by Congress. This sovereignty predates the formation of the United States and is recognized in a variety of legal sources, including Article I of the Constitution. The Supreme Court has recognized that tribes retain their inherent powers of self-government except where those powers have been withdrawn by treaty or Congress.⁶ Federally recognized tribes therefore possess the authority to establish their own governments, enact and enforce laws, regulate their territories, operate courts, and manage their internal affairs, including matters involving tribal membership, domestic relations, and economic development.⁷ However, tribal sovereignty is not absolute; tribes are “domestic dependent nations” that maintain a government-to-government relationship with the United States;⁸ the federal government possesses exclusive authority over relations with Indian tribes; states generally lack jurisdiction within tribal territory;⁹ and Congress possesses broad authority over Indian affairs.¹⁰ Consequently, states generally lack jurisdiction over tribal lands and tribal members unless Congress has expressly authorized such authority.¹¹

PUBLIC LAW 280

The statute¹² transferred federal criminal jurisdiction and granted certain states jurisdiction over specified civil causes of action arising in Indian country. With exception to particular reservations, Congress made California, Nebraska, Oregon, Wisconsin, and later Alaska¹³ mandatory Public Law 280 states while authorizing other states to assume jurisdiction voluntarily under prescribed procedures. Importantly, Public Law 280 did not diminish tribes’ inherent sovereignty or confer upon states general civil regulatory authority over tribal governments, tribal members, or Indian trust lands. Rather, the Supreme Court has consistently held that the statute grants states adjudicatory jurisdiction over specified civil causes of action and criminal jurisdiction in Indian country but not broad authority to regulate tribal affairs.¹⁴ Consistent with this principle, tribal governments retain their inherent powers of self-government except where expressly limited by Congress.¹⁵ Public Law 280 has nevertheless significantly affected law enforcement and civil adjudication in Indian country by replacing exclusive federal jurisdiction in many circumstances with state jurisdiction while preserving tribal authority, thereby creating complex questions of concurrent and overlapping jurisdiction among tribal, state, and federal governments.¹⁶

GAMING

Native American tribal gaming developed as an exercise of inherent tribal sovereignty and as a means of promoting economic self-sufficiency in response to the limited economic opportunities historically available on many reservations. Beginning in the 1970s and 1980s, several tribes established bingo halls and other gaming operations, asserting their sovereign authority to regulate gaming on Indian lands; this authority was affirmed by the Supreme Court.¹⁷ Congress then enacted the Indian Gaming Regulatory Act (IGRA),¹⁸ which established a comprehensive federal framework governing Indian gaming. IGRA recognizes that “Indian tribes have the exclusive right to regulate gaming activity on Indian lands” when such gaming is not prohibited by federal law and is conducted in a state that does not prohibit the activity as a matter of criminal law and public policy,¹⁹ while declaring that the purposes of the Act are to promote tribal economic development, tribal self-sufficiency, and strong tribal governments.²⁰ The Act further established three classes of gaming²¹ and created the National Indian Gaming Commission to oversee aspects of tribal gaming.²²