What federal law grants Native American tribes special considerations?
Native American tribes are given different rights and jurisdictions
based on a patchwork of laws and court decisions, some of them dating
back to the early 1800s. The most important is probably the Indian
Restoration Act of 1934. This law imposed tribal councils on the tribes
that could make legal decisions on their behalf, and was passed roughly
50 years after the U.S government ordered all Native Americans onto
reservations.
In 1946, the Indian Claims Commission Act was passed – this
law was intended to eliminate all non-reservation land owned by Native
Americans by offering compensation for it. In case anyone thinks that
unfair treatment of Native Americans stopped in the Old West, consider
this: the U.S. government holds land and money in trust for Native
American tribes. If any tribes rejected the compensation offered for
their land in 1946, the government could accept the compensation on
their behalf and place it into the trust. It was impossible for the
tribes to keep their land.
Are Native American tribes considered foreign nations under U.S. law?
At times when it has been convenient or advantageous for the U.S.
government to do so, Native American tribes have been considered sovereign
foreign nations by courts. However, this is not typical. In everyday
practice, a Native American tribe is more like a 51st state. The tribe
has some sovereign powers, like the ability to elect their own leadership,
make local laws and maintain jurisdiction over things that happen on
their land. They also have sovereign immunity from most lawsuits. However,
they can’t declare war or make treaties with other nations.
In what ways are tribes immune from lawsuits?
Sovereign immunity shields tribes from suits
for monetary damages and declaratory or injunctive relief. Individual
members of the tribe can be sued if they are negligent and are acting
beyond the scope of their authority. What this essentially means is,
if you slip and fall and injure yourself at a Native American casino,
you probably can’t sue the tribe. Tribe members are immune to
subpoenas, and tribes are even immune to lawsuits for breach of contract.
If you enter into a business deal with a tribe, it is important to
consider this – the tribe can include a waiver of that immunity
as part of the contract. Without the waiver, you would have little
recourse if the tribal business violated the contract. In addition,
tribes are not subject to anti-discrimination laws or worker protection
laws such as OSHA. This is a grey area, however – some U.S. circuit
courts have decided that OSHA does apply to Native American
businesses.
Does sovereignty mean anything goes on a reservation?
No. U.S. courts have basically said that Native tribes are sovereign
because the U.S. government allows them to be sovereign. In the last
20 years or so, we have seen that the public is generally willing to
accept things like tax-free cigarettes or casino gambling when such
operations are owned by Native Americans. If a tribe passed a law that,
for example, allowed them to open a brothel, there would likely be
a public outcry, and the government would try to put a stop to it.
They could make the case that the tribe had gone beyond the bounds
of their sovereignty by putting the public good at risk.
How do Native American courts operate?
In many respects, a tribal court can seem very similar to a U.S. court.
However, there are some important differences. In many tribal courts,
unwritten codes of conduct and traditions are important, and breaches
of these codes can have an impact on a case. While case law established
by U.S. courts is often relied upon and respected by tribal courts,
they don’t have to follow legal precedent. There is no formal
record-keeping of tribal court cases, so there isn’t a formal
body of tribal case law to rely on for guidance. Jurisdiction is one
of the more complicated issues. Most states will abide by court orders
issued by tribal judges, and tribal courts receive comity from federal
courts – that means that in a case where both the federal court
and the tribal court have jurisdiction, the federal court will allow
the case to be tried in the tribal court.
What is the Bureau of Indian Affairs?
The BIA is an agency within the U.S. Department of the Interior
that was created to administer the land and money that is held in trust
by the U.S government for Native Americans. Oddly enough, you won’t
find any information on the BIA website. A lawsuit that claimed the
Bureau’s website was insecure forced it to shut down until the
site’s security measures met the court’s standards. It’s
been four years now and the site is still down.
The sovereignty granted to Native American tribes has been
both a blessing and a curse, but as they expand their economic influence,
it will become more important for non-natives to understand the differences.
