Sunday, December 2, 2007

The Legal Status of Native American Tribes: An Example for Other Indigenous Peoples

The question of sovereign immunity is centered upon how to define and how to implement tribal sovereignty vis-à-vis federal and state sovereignties. Are Native American tribes, as sovereign governments, immune to certain kinds of legal prosecution? Often this issue arises in the struggle over Native American tribal sovereign immunity such as tribal-state relations and the status of non-natives who reside or do business on reservations. However, what if the Native American tribe is not federally recognized? Historically, Native American tribes have been granted federal recognition through treaties, by the Congress, or through administrative decisions within the executive branch. In 1978, the Bureau of Indian Affairs established a regulatory process for recognizing tribes. The current process for federal recognition, found in 25 C.F.R. 83, is a rigorous process requiring the petitioning tribe to satisfy seven mandatory criteria, including historical and continuous American Indian identity in a distinct community. Each of the criteria demands exceptional anthropological, historical, and genealogical research and presentation of evidence. The vast majority of petitioners do not meet these strict standards, and far more petitions have been denied than accepted. In fact, only about 8 percent of the total number of federally recognized tribes have been individually recognized since 1960. Thus, if a Native American tribe is not federally recognized, it is not entitled to certain privileges, such as sovereign immunity.

Sovereign immunity in terms of Native Americans means that a citizen cannot sue the Native American government, unless Congress specifies otherwise or the Native American government specifically waives its immunity. State and local governments also possess sovereign immunity. Federally recognized Native American tribal governments as inherent sovereigns possess sovereign immunity as well. Non-federally recognized Native American tribal governments do not possess sovereign immunity.

The sovereign immunity of federally recognized Native American tribes has been challenged in both legal and political arenas. Beyond the federal termination policy of the 1940s and 1950s, one of the most recent affronts on Native American tribal sovereignty came in 1998 when Senator Gordon introduced the “American Indian Equal Justice Act” (S. 1691), which argued tribal sovereign immunity was inappropriate for five reasons: torts, contracts, taxation, environmental law, and alleged civil rights violations. Another reason for the introduction of this bill was that non-Native Americans complained that they have no legal recourse in civil disputes with Native American tribes. The bill did not successfully pass.

The recognition of Native American sovereign immunity dates back to the treaty period of the 1800s, and it has been upheld in several court cases. In Turner v. United States and Creek Nation of Indians, 248 U.S. 354, 357-358 (1919), the Court noted that “the Creek Nation [whose political structure had been terminated by Congress in 1906] was recognized by the United States as a distinct political community, with which it made treaties and which within its own territory administered its internal affairs. Like other governments, municipal as well as state, the Creek Nation was free from liability for injuries to persons or property…. Such liability is frequently imposed by statute upon cities and counties… but neither Congress nor the Creek nation had dealt with the subject by any legislation prior to 1908.”

In 1991 Chief Justice William Rehnquist and Associate Justice John Paul Stevens ruled Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 that Native American tribes were domestic-dependent nations “which exercise inherent sovereign authority over their members and territories. Suits against Indian tribes are thus barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation” (509).

Native American tribes are sovereign nations that retain many of their pre-colonial rights. Sovereign immunity is one of those rights. Because of this right, Native Americans are forced to be given a voice on an equal level as other government entities, and they are also free from prosecution by individuals. In terms of other indigenous peoples around the world, this is perhaps one example that can be taken from the U.S./Native American case book and applied to other indigenous peoples. That is, other countries need to also grant their indigenous peoples sovereign status as Native American tribes have.

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