Tribal sovereignty has been a point of contention for Native Americans since time immemorial. Essentially, tribal sovereignty is the right of Native Americans to handle their own affairs on tribal lands using tribal governments operating using their own court systems and laws. While this seems a fair and just notion, the legal realities are quite different.
The good news is that things are getting better. Reservation lands are now seen as sovereign entities and the majority of criminal, civil, and family law cases fall under the tribal jurisdiction of Native American court systems, allowing Indian reservations to manage a great deal of their own affairs. Not long ago, state governments were free to limit tribal sovereignty greatly with their ability to charge any Native American accused of a crime within the state court system.
This has now changed, thanks to the Supreme Court case of McGirt vs Oklahoma in 2020. This law established the precedent that only the federal government can intervene in legal Native affairs, and only in certain cases – which we will discuss in this article. This removes the ability of state governments to limit Native American tribal sovereignty.
If you are a Native American person and you have been accused of a crime or involved in a civil dispute between American Indians that occurred on tribal lands, you need a team of lawyers who have the knowledge, skills, and experience to navigate your situation. Tribal courts and laws are entirely separate systems, and regular legal counsel is insufficient in these situations.
Here at Palmer Law, we are highly experienced in dealing with legal issues across Oklahoma’s tribal courts. Lloyd Brent Palmer, our managing lawyer, is a member of the Chickasaw Nation. He is able to work in the courts of the Chickasaw, Muscogee (Creek) Nation, Seminole, Cherokee Nation, Citizen Potawatomi, Arapaho and Cheyenne tribal nations.
The Definition Of Tribal Sovereignty
Tribal sovereignty is the right of Native American tribes and Alaskan Native people to be able to govern their own internal affairs with the many of the same powers that are granted to federal and state governments.
However, there are some exceptions to this and things are not always clear cut. We will go into this in greater detail further down the page.
What Rights Are Covered Under The Idea Of Tribal Sovereignty
The notion of tribal sovereignty gives federally-recognized tribes the right to:
- Establish their own tribal form of government
- Determine membership requirements for their tribal communities
- Enact legislation of their own that determines the laws within their tribal land
- Establish law enforcement to enforce laws belonging to their own form of legal system
- Establish tribal court systems
How Do Tribal Nations Interact With The US Government?
The US constitution gives authority over tribal nations directly to the federal government. This means that state governments are unable to exercise authority over tribal sovereign nations.
The United States deals with the governmental status of tribal nations in exactly the same way as state governments. This means that it is not constitutional to deal with tribal nations as individuals, special interest groups, or any other type of non-governmental entity.
Historic Court Cases Dealing With Tribal Sovereignty
There are a number of landmark court cases that have defined the current state of sovereign powers of self-government for indigenous peoples in the United States.
- Johnson vs. McIntosh, 1823 – This case protected tribal land from being controlled by the grants of private entities. This was the first act that stated the federal government alone has the right to negotiate American Indian lands.
- Cherokee Nation vs. Georgia, 1831 – This case attempted to free Indian tribes from state jurisdiction. The decision placed Indian nations as domestic dependent nations in relation to the federal government.
- Worcester vs. Georgia, 1832 – This case, once again involving the Cherokee Nation, reached the conclusion that tribal nations do not lose their sovereign authority even though they are subject to the authority of the United States federal government. It clearly laid out that individual state laws do not apply on tribal land.
Congress-Enacted Acts Dealing With Native American Self-Government
Congress passed several laws over the years that impact the self-government ability of Native Americans on tribal land today.
- The Indian Civil Rights Act (ICRA), 1968 – Granted indigenous people many of the same rights enshrined in the United States Bill of Rights. However, there are subtle differences in how this works with self-governing Native American nations, which we will explain in detail in the next section.
- The Indian Child Welfare Act (ICWA) – Created procedures that must be followed by state courts and agencies in relation to some custody matters. This formed a dual jurisdiction between tribal governance and state governance, with much more power lying with tribal governments.
- The Indian Gaming Regulatory Act (IGRA), 1988 – Allowed the state the right to negotiate with tribal governments in relation to casino gambling in Indian country, in order jointly decide the legalities of games, limits, and other factors.
As you can see, Native American sovereignty is often a matter of compromise. The same is true of law enforcement for Native American nations, as you will see in the coming sections.
This is why it is incredibly important to secure legal counsel from a lawyer who knows how to deal with tribal governments and is familiar with the limits of federal courts and their laws.
The Key Differences Between The American Civil Rights Bill And Indian Civil Rights Bill
As we mentioned in the previous section, federal law deals with civil rights within Indian tribes in a slightly different way to how the United States Constitution applies to the rest of American citizens. This is an attempt to protect the sovereign authority of various tribes while still protecting the basic rights of individual people.
Indian civil rights include:
- Freedom of religion
- Freedom of speech
- Freedom from searches or seizures with unreasonable motivation
- Freedom from multiple prosecutions for the same crime
- Protection against self-testifying during a criminal proceeding
- Protection against private property being reappropriated without just compensation
- The right to a speedy public trial with full knowledge of charges, the power to subpoena and confront witnesses, assisted by a lawyer
- Freedom from excessive levels of bail or legal fines, as well as cruel and unusual punishments
- Equal protection under the law
- Freedom from having property or liberty deprived when the correct legal process is not followed
- The right to a jury by a trial of a minimum of six people when an offense is possibly punishable with jail time
The main differences in the way this federal law is different for Native American tribes than for regular civil rights are:
- Tribal governments do not have to follow the rules surrounding the separation of religion and state.
- Native American tribes are not obliged to supply a lawyer if the defendant cannot afford one. However, they cannot deny a paid-for lawyer.
- Defendants in a tribal court hearing do not have the same right to a jury trial.
Tribal Jurisdiction Defined
Tribal jurisdiction is the power that Indian tribes have to exercise their inherent authority over members of their tribal citizenship, in both criminal and civil matters.
A tribe’s ability to exercise its authority is usually confined to members of their tribe and to events that take place on tribal lands. However, there are some exceptions to this, which will be explored in the following sections.
What Counts As Indian Country?
The legal definition of Indian country has been hotly contested over the years. Federal law defines it as:
- Land demarcated as an Native American reservation, including rights-of-way that run through it
- Native American dependent communities, both on original and acquired territories
- Native American allotments, as long as they have not had their titles revoked. This also includes any rights-of-way running through them
In the case of McGirt 2020, the supreme court affirmed that the Muscogee (Creek) Nation was within the territorial jurisdiction that allowed their tribal court to have legal power, due to the land having not been disestablished by law. This has allowed other Oklahoman tribes to have the sovereignty of their tribal courts reestablished.
Tribal Sovereignty Over Criminal Matters
As we have mentioned, the supreme court ruled that supreme court state laws do not apply to Indian affairs that occur on tribal land. However, some acts of crime still fall under federal jurisdiction and can go to federal court.
These crimes are those laid out in the Major Crimes Act, which includes:
- Manslaughter and murder
- Sexual assault or rape
- Assault with a dangerous weapon or murderous intent
- Larceny and burglary
- Felonious child neglect
- Assaulting minors
- Organized crime
- Financial crimes committed against the government
These crimes can be punished by the courts of each form of government concurrently, both tribal and federal. This can lead to even longer sentences than a non-Native American would receive.
If you have been accused of one of these crimes, ensure you hire a lawyer with the correct level of experience, as the consequences for a guilty conviction could be extremely severe.
Tribal Sovereignty Over Civil Matters
Most civil matters can be handled by the tribal court system, as long as they relate to individuals from the tribe and the events took place on tribal land.
Civil matters able to be handled by tribes includes:
- Child custody, guardianship, and child support cases dealing with Native children
- Domestic violence cases
- Divorce settlements
- Personal injury claims
- Disputes over land
However, divorce or child custody cases involving one Native person and one non-Native person may need to be settled by a combination of the tribal court and the state court.
Hire A Lawyer With Tribal Law Experience
If you are a Native person involved in a civil or criminal case, it is important to hire a lawyer with the kind of experience and knowledge to represent you. Tribal laws pertaining to Native American affairs vary between tribes and operate differently from state and federal laws.
Our firm has a wealth of experience handling these types of cases. Our head lawyer, Lloyd Brent Palmer, is a Chickasaw Nation member with experience in the courts of the Chickasaw, Muscogee (Creek) Nation, Seminole, Cherokee Nation, Citizen Potawatomi, Arapaho and Cheyenne nations.