Today in the United States there are three distinct sovereign entities: the federal government, state governments and Indian tribes. The legal intersection and relationship among these three entities is federal Indian law, which is not the same as Tribal law.
Each of these three entities has their own judicial system, and while the relationship between tribes and government is an important one, tribal law focuses on these judicial systems and governing of tribes over their people and their territory.
Tribes have always been sovereign, even during colonial times. Originally the relationship between the tribes and the colonists was established through treaties. Tribes often ceded most of their land for reservation and protection. Three major court cases in the 1820’s and 1830’s, under the lead of Supreme Court Justice John Marshall, authorized the sovereignty of the tribes: Johnson v. M’Intosh (1823), Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832), together, “established federal primacy in Indian affairs, excluded state law from Indian country, and recognized tribal governance authority.”¹
However, starting in the late 19th century the federal government’s attitude towards tribes pendulated between assimilation and autonomy. Much of the early 19th century was plagued by the forced migration of tribes from southeast United States to what is now the central and western parts of the United States.
In 1887 the government began selling large chunks of tribal land in an effort to assimilate. Much of that land was returned to tribes in 1934 when policy shifted back towards autonomy. The Indian Reorganization Act of 1934 also helped the tribes create and register their own constitutions with the government. However, the attitude began to shift back towards assimilation in the 1950’s when several tribes were dissolved.
By the 1960’s the attitude had once again shifted back to autonomy. The decision in Williams v. Lee (1959) reaffirmed tribal sovereignty and other principles contributing to greater tribal jurisdiction and thus autonomy. Since then the federal government has been more favorable to tribes, but a variety of issues including criminal jurisdiction over non-Indians, access to natural resources and property rights are still at the forefront of tribal law.
As of November 2018 there were 573 federally recognized tribes in the United States.² Each is recognized as a sovereign government with the ability to create and enforce laws within their jurisdiction.
Generally, the organization of such entities either resembles Western governments or resorts to a structure emphasizing tribal values. In fact, nearly 60% of these tribes have some sort of constitution, with special attention to separation of power.³
There are opposing views on the power of tribal law: pro-assimilation vs. pro-autonomy. The pro-assimilation side advocates for more state jurisdiction over tribes while pro-autonomy calls for stronger tribal legal systems. As a result, the current condition of tribal law is a mix of strong tribal justice systems and intensifying state jurisdiction.⁴ The exact combination of such jurisdiction varies between states and tribes.
Tribal jurisdiction over non-Indians is also restricted, but the United States Supreme Court recognizes three exceptions:⁵
- Tribes have jurisdiction over people or entities that enter into consensual relationships with the tribe or tribal corporate entities. Contracts and leases are two such relationships.
- Any non-Indian who enters tribal territory and threatens the tribes politics, economy, health or welfare falls under tribal jurisdiction.
- Under the Violence Against Women Reauthorization Act of 2013, non-Indians who commit domestic or dating violence against Indian partners fall under tribal jurisdiction
Tribal law, however, is not easily accessible, as many tribes do not publicize their constitutions or other forms of legal precedent. They cite concerns over safety, the sacred nature of their laws, and internal affairs.⁶ Privacy and traditional behavior are often cited as well. This contributes to the unique nature that is tribal law.
Richard James Grellner, attorney at law and owner of RJG Law, PLLC, specializes in tribal law in Oklahoma. RJG Law specializes in intra-tribal relationships as well as those existing between tribes and the federal government, state governments, and non-Indian corporations.
Property rights and business contracts are popular areas of dispute, but our Oklahoma tribal law firm has worked with several tribes including the Otoe-Missouria, Apache Tribe of Oklahoma, Comanche Nation, Eastern Shawnee Tribe and more on a wide variety of legal concerns.
Interested in learning more about how Richard Grellner and the team at RJG Law can help you?
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- Fletcher, Matthew L.M., “A Short History of Indian Law in the Supreme Court,” American Bar Association, September 26, 2018.
- “Federal and State Recognized Tribes,” National Conference of State Legislatures, November 2018.
- Shucha, Bonnie J., “Engaging the Third Sovereign: The Nature, Reach, and Sources of Tribal Law,” May 19, 2015, Wisconsin Lawyer, 47: 47-48
- Katherine J. Florey, Choosing Tribal Law, 55 Am. U.L. Rev. 1638 (2006).
- Ibid., 2, 49.
- Ibid., 2, 49.