Home / Resources / Tribal Jurisdiction

Tribal Jurisdiction

Implementation of Self-governance

 

“We have repeatedly recognized the Federal Government’s longstanding policy of encouraging tribal self-government. This policy reflects the fact that Indian tribes retain ‘attributes of sovereignty over both their members and their territory,’ to the extent that sovereignty has not been withdrawn by federal statute or treaty.”

“Congress has … acted consistently upon the assumption that the States have no power to regulate the affairs of Indians on a reservation …absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.”

“Congressional findings:

 - Congress, through statutes, treaties, and the exercise of administrative authorities, has recognized the self-determination, self-reliance, and inherent sovereignty of Indian tribes.

- Indian tribes possess the inherent authority to establish their own form of government, including tribal justice systems.

- Tribal justice systems are an essential part of tribal governments and serve as important forums for ensuring public health and safety and the political integrity of tribal governments.”

Sovereignty equals self-government. Self-government equals having authority over one’s jurisdictional area. “[J]urisdiction is an integral” part of sovereignty which involves “the power to make and enforce rules, resolve disputes and conflict … and maintain a stable and safe environment.” [3]

Sometimes it may even appear like a game of tug-of-war between tribal, federal and state governments. Certainly, tensions will exist where conflicting interests also exist. This difference in views and priorities will always cause varying degrees of “abrasion” [4] between governments. This is inevitable and should not be seen as unusual because “precisely the same sort of conflicts often exist between non-Indian local communities with differing priorities.” [5]

“Our relations with Indian tribes have ‘always been … anomalous … and of a complex character’ … ‘we have also recognized that the tribes remain quasi-sovereign nations which, by governmental structure, culture, and source of sovereignty are in many ways foreign to the constitutional institutions of the Federal and State Governments.’”

A tribal government, often having a very different set of priorities than state and local governments, will operate on a different timetable and in accordance with the will of their constituents. When different governments necessarily interact with each other, there will not always be exactly the same interests or concerns. These differences can be compounded when cultural and philosophical diversity is added to the mix. Historical relationships can also dictate the political interaction one government may have with another. Many policies and practices of federal and state governments, through the years, have had a significant impact on tribal governments. This historical relationship Indian tribes have experienced with federal and state governments, have left tribal governments with the need to remain vigilant in protecting their sovereignty, along with their traditional cultures and values.

Something to recognize, specifically in PL 280 areas, is the toll PL 280 took on a tribe’s ability to build up their criminal justice system. A government’s criminal justice system (i.e. the three elements: law enforcement, courts and corrections) is very costly, yet crucial for the effective operation of that government. PL 280 did not directly take monies away from the tribes affected by its enactment, however, decisions were made at the federal level to stop funding of criminal justice systems of tribes within PL 280 areas. Federal authorities reasoned that tribal criminal justice needs could be met entirely through the state systems.

This reasoning disregarded the fact that a tribe retains concurrent jurisdiction over their people and territories. It also gave little regard for the impact this would have on the state system which received no funding for added services it would need to provide. Either way, it hurt tribal communities because they were denied funding for building up their much needed criminal justice system, and state-level services were often lacking due to the financial strain added services had on state budgets.

“Congress, we are told, passed Pub.L. 280 not as a measure to benefit the States …”

Endnotes

[3] “In the context of a government’s sovereignty, jurisdiction is an integral, inherent aspect of authority, involving the power to make and enforce rules, resolve disputes and conflict within the community, and maintain a stable and safe environment through the application of criminal laws.” Jimenez, Vanessa J. and Song, Soo C., Concurrent Tribal and State Jurisdiction Under Public Law 280, American University Law Review (1998)

[5] Id.

 

Excerpts used by permission from: "Understanding Jurisdiction on Tribal Lands - A User-friendly PL 280 Resource Guide"