Tribal Sovereignty? It Doesn't Exist

   
What is Tribal Sovereignty | Attributes of Sovereignty | Tribal Land Base | Tribal Economies | Tribal Self-Government | Power to Govern Membership and Members | Power to Govern Geographic Territory | Power to Exclude Competing Sovereigns | Tribal Cultural Vitality | The State-Tribal Relationship | The Federal-Tribal Relationship | The Executive Branch | The Legislative Branch | The Judicial Branch | Department of Energy-Tribal Relationship | Appendix A | Appendix B

That George W. Bush cannot define tribal sovereignty does not surprise me. In the first place, “sovereignty” is a four-syllable word and he can barely speak in complete, grammatically correct sentences. By the same token, all the journalists who laughed at his inability to explain what tribal sovereignty means would be hardpressed themselves to give a cogent and accurate reply.

Put yourself to the test and print what you think tribal sovereignty is, as a recent lettert writer requested. The difficulty lies in the fact that tribal sovereignty is just a term that the government likes to pull out of a hat, like a rabbit, whenever it wants to evade the issue of equal rights of Native Americans. It does not exist in legal reality.

The U.S. trust policy makes each tribe a “ward of the state.” All so-called “Indian land” is, in reality federal land that Congress has designated to be used as “reserves” for Native Americans. Congress, through its plenary powers, can terminate a tribe and extinguish Indian land title at any time, in any manner, without the tribe's consent.

Does that sound sovereign to you?

It gets worse. The U.S. trust policy for Native Americans requires all tribes to obtain the approval of the secretary of the Interior for their choice of attorney. So, if a tribe wants to sue the federal government, it has to get the OK from Uncle Sam on who will represent them. Attorney General Richard Blumenthal can explain how this works.

In 1991, the Connecticut General Assembly voted to approve $30,000 for the Connecticut Indian Affairs Council, but when CIAC Chairwoman Paulette Crone requested the release of those funds so they could hire an attorney, the attorney general refused to release the funds, citing Connecticut's trust agreement. There are numerous examples where a tribe was denied the right to legal counsel of it choice.

Does that sound sovereign to you?

A tribe also must obtain the approval of the secretary of the Interior for every business proposal it wants to enter. The U.S. has often expanded its trust responsibility to approve of the tribe's choice of legal counsel and simply appointed an attorney to a tribe, whether or not one is wanted.

Usually these are former U.S. attorneys who proceed to accept settlements against a tribe's wishes, or who simultaneously represent the tribe and an American company with whom they are doing business. One example was the 1950s appointment of attorney John C. Boyden, to the Hopi Tribe, to represent them in a lease with Peabody Coal, for whom he also served as legal counsel. The tribe got 25 cents a ton for coal that was sold for $75 a ton.

When Peabody Coal wanted to expand its coal mining, Sen. John McCain, R-Ariz., member of the Senate Select Committee on Indian Affairs, did his campaign contributor, Peabody Coal, a favor and introduced legislation in 1974 calling for the forcible removal of 10,000 Navajo and Hopi with a completion date of July 6, 1986.

It gets worse. One would think if a tribe enjoyed ‘ “sovereignty” it could decide on the tribal children's education. Wrong. By the authority of the U.S. Trust Policy, Indian children since the early 1900s were forcibly removed from their homes and transported long distances to BIA schools where they were forbidden to speak their own language on pain of torture.

By forcibly, I mean the U.S. Cavalry riding out to an Indian village, shooting dogs so families could not be warned and breaking the shins of children attempting to run away. Parents who refused to give their children up voluntarilly were sent to Alcatraz for 10 years.

Would you call that sovereign?

And then there's the issue of the military draft and so on, but you get the picture.

You could ask our two senators and our congressmen to help you define tribal sovereignty, but I would wager that their comprehension is as dismally unenlightened as that of George W. Bush. It could be amusing, though.

Kathleen Grasso Andersen divides her time between a home in New London and California. She assisted the Hopi Tribe in its formal complaint to the United Nations that U.S. trust policy was a legal form of discrimination against Native Americans.

Top of Page


Originally found at http://www.theday.com/eng/web/news/re.aspx?re=9c5b1e97-02f9-4c4c-bc08-3a6b903df209


What Is Tribal Sovereignty

Introduction

This paper is intended to provide a context for the word "sovereignty"
and a basis for understanding Indian tribal sovereignty. Set out below
is a definition of sovereignty, followed by a discussion of inherent
tribal powers, a presentation of the relationship of sovereign tribes
with the states and the three branches of the federal government, and,
finally, a discussion of the Department of Energy's treatment of tribes
as sovereign nations.

Black's Law Dictionary defines "sovereignty" as:

The supreme, absolute, and uncontrollable power by which any independent
state is governed; supreme political authority; the supreme will;
paramount control of the constitution and frame of government and its
administration; the self-sufficient source of political power, from
which all specific political powers are derived; the international
independence of a state, combined with the right and power of regulating
its internal affairs without foreign dictation; also a political
society, or state, which is sovereign and independent.

Likewise, "sovereignty" is defined by the English language dictionary as
the "supreme and independent power or authority in government as
possessed or claimed by a state or community." In the ideal sense,
sovereignty means the absolute power of a people to govern themselves,
free from interference by other sovereign nations. A sovereign nation is
a distinct political entity that has power over a specific geographical
area. As a practical matter, however, no nation in the world today is
completely independent. Our industrial world of mass communication,
soaring population and global transportation makes isolation of
sovereign nations virtually impossible. Economic and political factors
also encourage and necessitate governmental interdependency.

At the time of European contact, more than 5 million Indians were living
in the area that now makes up the United States. More than 600
independent tribes, bands and groups had thriving social, political and
cultural institutions. Although tribes shared certain cultural
characteristics and attitudes toward life, each tribe was distinct from
the others. Each tribe or Indian nation exercised the inherent powers of
a sovereign nation. The nations recognized the sovereignty of one
another by forming compacts, treaties and military alliances. The
existence of tribal sovereignty remains today.

Tribes do not derive any of their inherent powers from the United
States, and their sovereignty does not depend upon any United States
constitutional provision. Rather, tribal sovereignty is the supreme
inherent power of an Indian people- it predates the United States'
birth. For purposes of the U.S. legal system and relations between the
United States and tribes, a large body of "Indian law" has evolved since
the Europeans arrived on the continent. In the early 1800s, in a trilogy
of foundation Indian law cases, Chief Justice John Marshall established
that Indian tribes possess powers of inherent sovereignty that arise
from tribes' status as independent nations before and at the time of
European arrival. Felix Cohen, in his treatise on Indian law, wrote:

Perhaps the most basic principles of all Indian law, supported by a host
of decisions hereinafter analyzed, is the principle that those powers
which are lawfully vested in an Indian tribe are not, in general,
delegated powers granted by express acts of Congress, but rather are
inherent powers of a limited sovereignty which has never been
extinguished. Each Indian tribe begins its relationship with the federal
government as a sovereign power, recognized as such in treaty and
legislation.

Top of Page


Attributes of Sovereignty

Indian tribes are independent sovereigns, as distinguished from
voluntary associations, states or trust territories. Today, fully
functioning Indian nations are sovereignties composed of at least four
distinct, yet interwoven attributes: a secure land base, a functioning
economy, self-government and cultural vitality. The tribes' continued
existence and autonomy depends upon maintaining all four attributes of
sovereignty.

Tribal Land Base

A tribal land base is crucial to a tribe's sovereignty. The role or
meaning of the land is very different to native nations than it is to
dominant society. To understand tribal sovereignty and its practical
implications, one must understand the significance of the tribal land
base. It is also extremely important to understand these concepts when
addressing actions taken by the federal government or individuals that
adversely affect tribal land and its natural resources. The tribal
territory forms the geographical limits of the tribe's jurisdiction,
supports a resident population, is the basis of the tribal economy, and
provides an irreplaceable forum for religious practices and cultural
traditions that are often based upon the sacredness of the land.

Although the sizes and ownership patterns of reservations vary greatly,
fundamental priorities are implicit in maintaining native separatism
through Indian land tenure. Maintaining a homeland in which both present
and future generations of a tribe may live--intergenerational
habitation--is a dominant feature of tribal integrity. Tribal existence
also is often intensely dependent on land; many tribes still rely on the
natural resources found on the land for their very survival. Lastly,
tribal lands essentially are irreplaceable- sacred land cannot be
readily exchanged.

The attachment that native people have to their homelands--the
foundation of sovereignty--was described by Justice Black:

It may be hard for us to understand why these Indians cling so
tenaciously to their lands and traditional tribal way of life. The
record does not leave the impression that the lands of their reservation
are the most fertile, the landscape the most beautiful or their homes
the most splendid specimens of architecture. But this land is their
home--their ancestral home. There, they, their children, and their
forebears were born. They, too, have their memories and their loves.
Some things are worth more than money and the costs of a new enterprise.

Top of Page


Tribal Economies

Although some Indians resist assimilation into the economy of the
dominant society, others believe that inclusion of tribes into the
dominant economy allows tribes to thrive as sovereign nations. Tribes
have developed several methods of promoting economic viability.
Tribes--as sovereign governments--have the power to tax. Taxes can be a
significant source of income. Some tribes lease Indian lands and operate
tribal enterprises relating to a variety of purposes. Natural resources
are developed, leased and managed on the reservation; and tribes also
engage in other industrial and service activities. Each tribe must
determine what economy-producing activities are appropriate without a
sacrifice of other values essential to sovereignty, which in many cases,
already have been sacrificed.

Tribal Self-Government

The existence of tribal governments predates the formation of state and
federal governments. Since tribal status does not depend upon the
federal constitution, tribal governments are not bound by constitutional
provisions. Thus, each tribe has the sole right to regulate its own
internal affairs.

One of the most basic powers of a sovereign people is the power to
select their form of government. Determining the form of government
means the right to define the powers and duties of governmental
officers, the right to determine whether acts done in the name of the
government are authoritative, and the right to define the manner in
which governmental officers are selected and removed.

The type of government and how it functions does not affect a nation's
sovereignty. Throughout the world, democracies, monarchies, theocracies
and dictatorships exercise sovereign powers. Each of the approximately
550 Indian tribes in the United States has a unique form of government.
Tribes have chosen to develop their form of self-government in
accordance with their political and cultural history. While many tribes
have chosen to adopt a governmental model similar to that of the United
States, others, such as the Six Nations Confederacy and the Pueblos of
New Mexico, have chosen to retain their traditional forms of government.


Responsibilities of sovereign governments are three-fold. Tribal
governments must (1) have the ability to govern its members as well as
membership, (2) have control over a distinct geographical territory, and
(3) be able to exercise exclusions of competing sovereigns within tribal
territory.

Top of Page

Power to Govern Membership and Members

The tribal right of self-governance includes the power to determine
membership. Tribes may establish standards for membership by custom,
historical practice, written law or agreements between Indian nations.
Tribal governments also establish procedures for abandonment of
membership, adoption of non-Indians and adoption from other tribes.

As sovereign governments, Indian nations generally have the power to
maintain law and order by (1) enacting laws governing the conduct of
people, both Indian and non-Indians within reservation boundaries; (2)
establishing enforcement bodies such as tribal police forces and courts
to administer justice; (3) excluding non-tribal members from the
reservation; and (4) regulating activities on the reservation such as
hunting, fishing and gathering, as well as domestic relations of its
members, property use, environmental affairs, and commerce and trade
within the reservation. Tribes also may have the power to tax activities
and commerce on the reservation.

Most tribes in the United States choose to exercise these powers.
Importantly, these rights and powers of Indian tribes are retained
unless they have been given up by a tribe pursuant to an agreement,
treaty or tribal constitutional provision, or limited by a congressional
act. Before Europeans came to this continent, a tribe's inherent
authority to exercise jurisdiction throughout its land was complete.
Today, however, tribal authority over non-Indians within the reservation
is subject to limitations.

An example of such limitation is the criminal jurisdiction of tribes.
Generally, tribes have the inherent right to exercise civil jurisdiction
within the geographical area they control. This civil jurisdiction
includes the right to govern non-Indians within the bounds of the
reservation, although states also have limited civil jurisdiction within
Indian country. Criminal jurisdiction on a reservation, however, is a
complex issue. Indian law scholar Stephen Pevar has identified four
principles governing criminal jurisdiction in Indian country:

1.Tribes have the inherent right to exercise criminal jurisdiction over
tribal members. 2.Congress may limit or abolish tribal criminal
jurisdiction. 3.Tribes lack criminal jurisdiction over non-Indians
unless Congress has expressly "given" tribes that power. 4.A state does
not have jurisdiction over crimes committed by tribal members on the
reservation unless Congress has expressly granted states that power.

Congress has granted several states criminal jurisdiction over
reservations in Public Law 280. Any state jurisdiction over activities
on the reservation creates confusion on the part of the regulated
community, jurisdictional disputes between the regulators and often
fuels difficult relations between states and tribes.

Top of Page

Power to Govern Geographical Territory

Tribal governance also has a territorial component. As discussed above,
the land base and natural resources of Indian tribes continue to be
important to the preservation of Indian sovereignty. The land base
provides a place of habitation for present and future generations of a
tribe, marks the jurisdiction within which a tribal government operates,
supplies the reservation economy, and provides a sacred place for
time-honored traditions that are crucial to the survival of tribal
culture. Thus, a distinct tribal territory within which a tribe may
govern remains essential to fulfilling the promise of native
separatism--a concept promoted by the federal government in reserving
Indian lands.

Power to Exclude Competing Sovereigns

The third component of tribal self-governance is the exclusion of
competing governments, within the territory of a reservation. This
exclusion generally applies to states but may also include the power to
exclude the federal government from certain matters. Generally, tribal
authority operates to curtail the reach of state law within the borders
of Indian country. In earlier case law, this bar against state
jurisdiction was held to be absolute. This absolute exclusion has been
substantially eroded by federal legislation such as that which addresses
criminal jurisdiction, discussed above.

Tribal Cultural Vitality

Most Indian society, regardless of specific tribal membership, follows a
holistic approach to life. That is, facets of life that generally are
compartmentalized in dominant society--government, economics,
religion--are interconnected in the Indian way of life. This approach
guides the tribal government, economy and dependent relationship on the
land. Many "rights" that American Indians seek to maintain, such as
religious practices, are activities and beliefs that simply are a part
of daily life.

A loss of culture is often the primary indication of the erosion of a
nation's sovereignty. When a society becomes assimilated into another,
such as historically occurred with Native American nations, defining
cultural characteristics are lost. Language, customs, religion, dress
and beliefs are cultural attributes that are crucial to the survival of
any society or sovereign nation. American Indians maintain, therefore,
that cultural vitality is essential to the sovereignty of Indian
nations.

Top of Page


The State-Tribal Relationship in General

Although the inherent sovereign powers of Indian tribes predate the U.S.
Constitution, state powers are derived from it. The federal government
also derives powers from the Constitution, thus creating "federal
preemption" of state powers. Specifically, the U.S. Constitution gives
Congress exclusive authority over Indian affairs. A state, therefore,
does not have authority over Indian affairs and generally may not apply
its law within a reservation unless authorized to do so by Congress.

As a practical matter, however, the question of state jurisdiction on
reservations has not been so straightforward. The interplay of state
powers over tribal territory within a state's boundaries, questions of
federal preemption, and inherent tribal sovereignty has resulted in a
history of ongoing jurisdictional disputes between tribes and states.
Tribal members are citizens of the United States, as well as of the
state in which they reside. This "triple citizenship" creates an
ambiguous matrix of regulatory and other jurisdictional requirements for
Indians on and off their reservations. Jurisdiction of non-Indian
activities on Indian lands also is often unclear.

Numerous congressional authorizations have allowed state control on
reservations. Furthermore, many state laws are not obviously preempted
by federal law, and the applicability to Indian activities has not been
clarified through litigation. These state laws are applied against
Native Americans, if only by default alone.

The history of state/tribal relationships has not been smooth. It has
become increasingly apparent, however, that states and tribes often have
mutual, if not identical, interests. States and tribes have many
opportunities to cooperatively address issues and develop acceptable
solutions, while maintaining respective autonomy.


The Federal - Tribal Relationship in General

The three branches of the federal government have formally acknowledged
tribal sovereignty during two centuries of treaties, executive actions,
legislation and judicial opinions. As a practical matter, however, the
United States has been inconsistent in its recognition of tribal
sovereignty, combining the concepts of international law, unfounded
contentions that Indian affairs fall- under domestic laws of the United
States and the changing social, political and morals of policymakers.

The United States, since its birth, has had a variety of fundamental
policies, or "eras," of Indian policy. Several periods of tribal
"status," as defined and practiced by the dominant society, are as
follows:

?? - 1787 Tribal Independence: The geographic area that is now known as
the United States was inhabited by independent, self-contained Indian
tribes. 1787 - 1828 Trade and Intercourse Acts: In addition to the
federal/tribal treaties that were signed starting in this period, the
federal goal was apparently to permeate the area of Indian affairs with
federal law. 1828 - 1887 Relocation of Indians: The Indian Removal Act
of 1830 forced eastern tribes to move west of the Mississippi; and the
gold rush in the 1840s displaced Indians in the west and forced them to
accept life on reservations often defined by the federal government.
Many Indians at this time became increasingly dependent upon the federal
government. 1887 - 1934 Allotment and Assimilation: With the passage of
the General Allotment Act of 1887, the federal government sought to
abolish tribes and assimilate Indians into the dominant society. The
government established a variety of programs to accomplish this,
including the break up of communally-held tribal lands and the allotment
of parcels to individual tribal members in the hope that they would
become farmers. 1934 - 1953 Indian Reorganization: In a reversal from
the previous era, the Indian Reorganization Act of 1934 prohibited
further allotment of tribal lands to individual Indians, and sought to
restore and increase tribal land holdings. The federal government at
this time attempted to help tribes become independent. 1953 - 1968
Termination: Congress abandoned reorganization goals and terminated many
federal benefits and support services for tribal members. 1968 -
Present Tribal Self-Determination: Then-President Johnson denounced the
termination policy and declared that tribal autonomy would once again be
promoted.

In addition to the current era of Indian policy, the methods used by
each branch of the federal government--the president and his executive
office, the Congress, and the federal courts--to address tribal issues
define the overall relationship that tribes have with the federal
government.

Top of Page

The Executive Branch

For more than 200 years, U.S. presidents and executive agencies have
assumed primary responsibility for establishing relationships between
the federal government and Indian tribes, and for ensuring the
implementation of congressional legislation related to Indian affairs.
Historically, this assumption of responsibility was a result of the
nature of tribes as independent sovereigns. At the time of the
Revolutionary War, the native tribes established relations with the
United States on a government-to-government level through the execution
of treaties. Since the United States Constitution bestows treaty-making
power upon the president, the executive branch historically dominated
Indian affairs. The president's treaty-making power was terminated by
the legislature in 1871, but presidents have since used executive orders
liberally to establish Indian policy.

Today, the executive branch maintains an active role in Indian affairs,
through the immense administrative system that has evolved during this
century. The president's modern role includes three distinct components.
First, a figurehead perception, derived from the historic position of
the president in Indian affairs still exists. Presidential statements
establish the tone for national Indian policy. Former President Richard
M. Nixon, for example, is credited with reversing the decades of
assimilationist and domineering federal policy toward tribes by
announcing a new era of "self-determination" in which tribes would be
treated and supported in their efforts to gain tribal self-sufficiency.
Each succeeding administration has embraced this Indian policy,
including President Bill Clinton, who reaffirmed it on April 29, 1994,
when he issued his directive on dealing with Indian tribes.

President Clinton's 1994 directive sets the tone for his
administration's approach to Indian affairs. The directive calls upon
all federal agencies to assess the effect of their programs on tribes,
and to remove procedural impediments to working with tribes on matters
that affect tribal rights. Although the directive does much to restore
respect and understanding for the sovereignty of tribes, it falls
notably short of establishing any specific policy regarding the
fulfillment of the government's trust obligation toward tribes. Despite
this shortcoming, many agencies currently are seeking to define their
trust responsibility to tribes. Some agencies have issued policy
directives to deal with Indian issues in their programs. These policies
vary in their content and actual implementation.

The second aspect of the president's role has to do with his duties as
"trustee" of Indian lands and resources. Almost all Indian land is held
in trust by the United States, with the beneficiary interest residing in
the tribe or individual Indian allottee. The trust title gives a land
management role to the executive branch. The primary agency that is
responsible for implementing laws relating to Indians and their lands is
the Bureau of Indian Affairs (BIA), located within the Department of
Interior. Many laws, for example, have provided for substantial BIA
involvement in nearly all phases of timber, mineral, agricultural and
range resource development on Indian lands. In this era of tribal
self-determination, however, the president's role in managing tribal
resources and lands is slowly shrinking as more tribes gain control over
their own resources.

A third aspect of the executive branch role in Indian affairs involves
the administration of executive agency programs of general applicability
that affect native existence. For example, federal programs carried out
under general public land laws or environmental laws affect tribal lands
and resources. A host of activities such as timber, mining, oil and gas
production, hazardous waste disposal, and defense and energy operations
can affect the culture, economy and environment of host or nearby
reservations. The federal agencies themselves, such as the Department of
Energy, have or should have established relationships with the affected
Indian tribes to promote collaboration among all parties affected by
these actions.

Top of Page

The Legislative Branch

Congress has played a major role in the relationship between Indian
nations and the federal government. Indian tribes have been the subject
of more federal legislation than any other single group in the United
States. Some federal statutes represent good faith efforts by Congress
to deal honorably with Indians. Some federal laws, however, are
considered to be thinly disguised measures designed to appropriate
Indian lands and destroy tribal governments. Many acts have effectively
limited- directly or indirectly- the power of Indian tribes to exercise
their sovereign rights.

According to United States Supreme Court decisions, three provisions of
the United States Constitution- the Treaty Clause, the Indian Commerce
Clause and the Supremacy Clause--are the basis of Congress' power to
legislate Indian affairs. In the early years of the United States,
Congress relied on these provisions to justify treaty making, to
regulate trade with Indian tribes, and to maintain peace and protect
Indians and settlers. Later, Congress used the provisions to support
federal legislation that interfered with the internal affairs of tribes.
Tribal sovereign powers, therefore, have been subject to limitation by
treaties and by express congressional legislation.

Many tribes have challenged the right of Congress to intrude into tribal
governmental affairs, but the federal courts have upheld the right on
the basis of one of three rationales: (1) the political question
doctrine; (2) the guardian-ward relationship; or (3) the plenary power
of Congress. Political questions are those decided by the legislative or
executive branches of government rather than by the courts. Indian
issues are arguably political questions and therefore subject to
congressional action. The guardian-ward- or trust- relationship between
the federal government and the tribes is established in many federal
acts and treaties. The courts have interpreted this relationship as
imposing a duty on the United States to protect Indian tribes in certain
respects, as well as to regulate Indians "for their own protection."

Lastly, early court decisions held that Congress had plenary--full or
complete--power over Indian affairs. The U.S. Supreme Court, however,
has rejected the claim that congressional power in Indian affairs is
absolute and not reviewable. To the contrary, the Court has expressly
held that the exercise of federal power in Indian affairs is subject to
review under the Due Process and Just Compensation clauses of the
Constitution. To be valid, the congressional enactment also must be
rationally related to the trust responsibility. There remains, however,
a prevailing perception of absolute and plenary congressional power over
Indian affairs, both inside and outside of Congress.

The Judicial Branch

An immense body of Indian law has developed through the litigation of
particular disputes. Although the federal courts have interpreted both
Congress and the executive branch to have broad latitude in their powers
to deal with Indian tribes, they also have recognized the inherent
sovereignty of tribes and, therefore, the limitations on congressional
power. The main principle that has emerged from such cases is that
Indian tribes may exercise all their inherent powers unless Congress has
restricted the use of those powers.

The courts also have developed rules or canons for interpreting Indian
treaties and federal Indian laws. The courts have held, for instance,
that if ambiguities exist in treaty language, the treaties must be
resolved in favor of the Indians. Second, Indian treaties must be
interpreted as the Indians themselves would have understood them.
Finally, Indian treaties must be liberally construed in favor of the
Indians. This is certainly not an exclusive list of the judicial
precedents affecting Indians. Despite the volume of opinions, the
federal courts have interpreted Indian sovereignty more consistently
than either Congress or the executive branch.

Top of Page


Department of Energy-Tribal Relationship

In 1991, the Department of Energy (DOE) issued an American Indian policy
for the purpose of formalizing government-to-government relationships
between the DOE and the tribes. The establishment and maintenance of
such relationships are necessary to ensure that tribal rights and
concerns are considered before any DOE action is undertaken. The first
point in the policy states that the department shall "[r]ecognize and
commit to a government-to-government relationship with American Indian
Tribal governments." The third point further requires the department to
"[c]onsult with Tribal governments to assure that Tribal rights and
concerns are considered prior to DOE taking actions, making decisions,
or implementing programs that may affect Tribes."

Recognition of and commitment to a government-to-government relationship
is realized as a practical matter through shared decision-making
responsibility. Similarly, tribal sovereignty includes the inherent
authority of tribes to deal with environmental issues that affect
reservations. In the context of tribal rights and concerns regarding the
cleanup of nuclear weapons facilities, this means that tribes are,
effectively, partners with other governments in making any decisions
that affect reservation property, off-reservation rights, or other
tribal values. This partnership goes beyond the right of comment and
consultation--it compels inclusion of the tribes as sovereign
governments in making decisions that affect tribal sovereignty.

An understanding of tribal sovereignty and the importance of
government-to-government relationship is crucial to an effective
partnership between the tribes and the Department of Energy. We
recommend that DOE commit to maintaining communicative relationships
with all affected Indian tribes for these purposes.

Appendix A
U.S. Department of Energy American Indian Policy (Reprinted with DOE
explanations added)

Purpose

This policy outlines the principles to be followed by the Department of
Energy (DOE) in its interactions with federally-recognized American
Indian tribes. It is based on federal policy, treaties, federal law and
the DOE's responsibilities as a federal agency to ensure that tribal
rights and interests are identified and considered in pertinent
decision-making. The policy provides general guidance to DOE personnel
for management actions affecting American Indians and emphasizes
implementation of such activities in a knowledgeable and sensitive
manner. This policy does not affect DOE interactions with
state-recognized tribes with respect to matters provided for by statute
or regulation.

Background

American Indian tribal governments have a special and unique legal and
political relationship with the government of the United States, defined
by history, treaties, statutes, court decisions, and the U.S.
Constitution. The United States has entered into more than 600 treaties
and agreements with American Indian tribes. These treaties and
agreements create a variety of legal responsibilities by the United
States toward American Indian tribes and provide the basis for a
government-to-government relationship. Other responsibilities toward
American Indians are created by Congress through statutory enactments.
Although the Department of Interior, through the Bureau of Indian
Affairs, has the principal responsibility for upholding obligations of
the federal government to American Indians, this responsibility extends
to all federal agencies.

Top of Page

Policy

1. The Department recognizes and commits to a government-to-government
relationship with American Indian tribal governments.

DOE recognizes tribal governments as sovereign entities with, in most
cases, primary responsibility for Indian country. In keeping with the
principle of American Indian self-government, the Department will view
tribal governments as the appropriate non-federal parties for making
decisions affecting Indian country, its energy resources and
environments, and the health and welfare of its populace. The Department
will recognize the right of each tribe to set its own priorities and
goals in developing and managing its energy resources. The Department
recognizes that some tribes have treaty-protected interests in resources
outside reservation boundaries.

2. DOE recognizes that a trust relationship derives from the historical
relationship between the federal government and American Indian tribes
as expressed in certain treaties and federal Indian law.

In keeping with the trust relationship, the DOE will consult with tribal
governments regarding the impact of DOE activities on the energy,
environmental and natural resources of American Indian tribes when
carrying out its responsibilities.

3. The Department will consult with tribal governments to assure that
tribal rights and concerns are considered prior to DOE taking actions,
making decisions or implementing programs that may affect tribes.

The DOE will take a proactive approach to solicit input from tribal
governments on departmental policies and issues. The Department will
encourage tribal governments and their members to participate fully in
the national and regional dialogues concerning departmental programs and
issues.

4. Consistent with federal cultural resource laws and the American
Indian Religious Freedom Act (P.L. 95-341), each field office or DOE
installation with areas of cultural or religious concern to American
Indians will consult with them about the potential impacts of proposed
DOE actions on those resources and will avoid unnecessary interference
with traditional religious practices.

DOE will comply with all cultural resource legislation and implementing
regulations in the management and operation of its programs and
facilities. Consultation with appropriate American Indian tribal
governments is part of the compliance process involving federal cultural
resource laws and the American Indian Religious Freedom Act.
Consultation may include, but is not limited to (1) the exchange of
information concerning the location and management of cultural
resources, (2) repatriation or other disposition of objects and human
remains, (3) access to sacred areas and traditional resources located on
DOE lands in accordance with safety, health and national security
considerations, and (4) assessment of potential community impacts.

5. The Department will identify and seek to remove impediments to
working directly and effectively with tribal governments on DOE
programs.

DOE recognizes that there may be regulatory, statutory and/or procedural
impediments which limit or restrict our ability to work effectively and
consistently with tribes. In keeping with this policy, we will seek to
remove any such impediments. Additionally, we will, to the maximum
extent permitted by law, apply existing statutory, regulatory and
procedural requirements in a manner that furthers the goals of this
policy.

6. The Department will work with other federal and state agencies that
have related responsibilities to clarify the roles, responsibilities and
relationships of our respective organizations as they relate to tribal
matters.

DOE will seek and promote cooperation with other agencies that have
related responsibilities. In many areas of concern to DOE, cooperation
and mutual consideration among neighboring governments (federal, state,
tribal and local) is essential. Accordingly, DOE will encourage early
communication and cooperation among all governmental parties. This
recognizes that the principle of comity among equals and neighbors often
serves the best interests of all parties.

7. The Department will incorporate this policy into its ongoing and
long-term planning and management processes.

It is key to this effort to ensure that the principles of this policy
are effectively institutionalized by incorporating them into the
Department's ongoing and long-term planning and management processes.
Department managers will include specific programmatic actions in
Departmental program planning and activities.

Top of Page

Appendix B
Definitions

American Indian/Native American: Whether a person is considered an
"Indian" for purposes of relating to the federal government depends upon
what context or under what law the person is being considered by the
government. Generally, determining whether a person is an Indian for
legal purposes will depend on (1) the degree of Indian blood, and (2)
tribal or governmental recognition as an Indian. The ethnological
(racial) definition of an Indian is a person with at least 50 percent
Indian blood. Some people that fit in neither category still may
consider themselves an American Indian.

Indian Country: Federal statute defines Indian country as, except as
otherwise provided, (a) all land within the limits of any Indian
reservation under the jurisdiction of the United States government,
notwithstanding the issuance of any patent, and including rights-of-way
running through the reservation; (b) all dependent Indian communities
within the borders of the United States whether within the original or
subsequently acquired territory thereof, and whether within or without
the limits of a state; and (c) all Indian allotments, the Indian titles
to which have not been extinguished, including rights-of-way running
through the same (18 U.S.C. section 1151). In other words, Indian
country is all the land under the supervision of the United States
government that has been set aside for the use of Indians--reservations,
Indian trust land and dependent Indian communities.

Indian Tribe/Nation: The federal government has "recognized" less than
300 of the more than 400 tribes that claim to exist. Federal recognition
generally means that Congress or the president has created a reservation
for the tribe, and the United States has some continuing political
relationship with the tribe. Federal courts have held, however, that
federal recognition is not dispositive as to whether a tribe exists, and
have adopted various definitions dependent both upon internal aspects of
the group in question, and upon relationships and perceptions of the
group in the dominant society. The ethnological definition of a tribe is
simply a group of Indians that share a common heritage and speak a
distinct language.

Indian Reservation: Land that has been set aside by the federal
government--usually through a treaty, presidential order, or act of
Congress--for the use, possession, and benefit of an Indian tribe.


Originally found at http://www.ncsl.org/programs/esnr/tribsove.htm.


Reprinted under the Fair Use doctrine of international copyright law.
posted without profit or payment for non-profit research, educational, and archival purposes only

 

 

the wolf is my messenger


For access to other pages at this site, please use the dropdown menu below.

 

"We will be known by the tracks
we leave behind."
Dakota Proverb

created 2 october 2004, by louve14