Tribal Sovereignty in The United States - Tribal Governments Today

Tribal Governments Today

At the dawn of the 21st Century, the powers of tribal courts across the United States varied, depending on whether the tribe was in a Public Law 280 state or not. Tribal courts maintain much criminal jurisdiction over their members, and because of the Duro Fix, over nonmember Indians regarding crime on tribal land. The Indian Civil Rights Act, however, limits tribal punishment to six months in jail and a $5,000 fine. Tribal Courts have no criminal jurisdiction over non-Indians. In PL280 states (Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin), the state has been granted criminal and civil adjudicatory jurisdiction over activities in Indian Country. In non-PL280 states, Indian on Indian crime in Indian Country may be prosecuted in Federal Court if the crime is one of those listed in the Major Crimes Act (18 USC §1153). Indian on non-Indian crime in Indian Country will be prosecuted in Federal Court, either from the MCA, or the Indian Country Crimes Act (§1152) (unless the Indian was punished by the tribe). Non-Indian on Indian crime in Indian Country will be prosecuted in Federal court using ICCA. Non-Indian on non-Indian crime in Indian Country will be prosecuted by the state.

While tribal nations do not enjoy direct access to U.S. courts to bring cases against states, as sovereigns they do enjoy immunity against many lawsuits, unless a plaintiff is granted a waiver by the tribe or by congressional abrogation. The sovereignty extends to tribal enterprises and tribal casinos or gaming commissions. The Indian Civil Rights Act does not allow actions against an Indian tribe in federal court for deprivation of substantive rights, except for habeas corpus proceedings.

Tribal and pueblo governments today launch far-reaching economic ventures, operate growing law enforcement agencies and adopt codes to govern conduct within their jurisdiction but the United States retains control over the scope of tribal law making. Laws adopted by Native American governments must also pass the Secretarial Review of the Department of Interior through the Bureau of Indian Affairs.