Introduction to Tribal Concepts
One of the most significant issues for Indian tribes is the safeguarding of tribal sovereignty, or self-governing authority. Tribal sovereignty is recognized as being inherent, meaning that the traditional authority of tribal leaders to govern their people and lands existed long before their relationship with the U.S. government. Indian treaties were based on the sovereign power of Indian tribes to enter into agreements on a government-to-government basis with the United States. Because it is inherent, tribal sovereignty is something Indian tribes have retained, not something granted to them by the federal government. Tribal sovereignty was reaffirmed in the landmark cases of Cherokee Nation v. Georgia (1831) and Worchester v. Georgia (1832), wherein the Supreme Court, in opinions penned by Chief Justice John Marshall, held that tribes retained a nationhood status and inherent powers of self-governance. These cases formed a large part of the foundation of present-day Indian law.
Tribal sovereignty includes the inherent right of Indian tribes to exercise self-determination and self-governance. Recognition of these powers is reflected in Public Law 93-638, the Indian Self-Determination and Education Assistance Act of 1975, or (ISDEA). ISDEA encouraged "maximum Indian participation in the government and education of the Indian people." The Act established procedures by which tribes could assume the administration of their own social services, education, and other programs by contracts or grants from certain federal agencies. Subsequent amendments to the Act have encouraged self-governance, by which tribes have contracted to assume even greater control over the administration of programs serving their tribal members. ISDEA applies to a number of federal agencies and has codified a requirement for annual consultation with tribes in the development of the budget for the Indian Health Service and the Bureau of Indian Affairs. In addition to the ISDEA, tribes may administer federal programs under other statutes, e.g., the Clean Water Act.
Tribal sovereignty is the basis of a tribe's jurisdiction over people and activities on tribal lands. The complex topic of jurisdiction is discussed in the Federal Indian Law and Policy module.
Federal laws recognize that tribes may adopt whatever form of government best suits their own practical, cultural, or religious needs. For example:
- Most tribal governmental structures combine traditional features with Western forms.
- Leaders of traditional tribal governments are often chosen by clans, families, or religious laws, and are often chosen by consensus.
- Some tribal governments use an electoral process to choose officials.
- Some tribal governments operate under written constitutions.
As part of the sovereign status of Indian tribes, their tribal governments generally have the authority to do the following:
- Define their tribal membership criteria.
- Enact civil, criminal, and regulatory legislation; provide specific areas of law enforcement, and establish a court system.
- Assert jurisdiction over their people and lands.
- Tax non-tribal members engaged in economic activity on tribal lands.
These rights are in effect unless waived by a tribe, or modified by a treaty or a federal statute.