Back to the May-Jun 2019 issue

Understanding Tribal Sovereign Rights

 

By Jacob Glass

Tribes and sovereign rights have been in the news a lot over the past few years. Whether it is regarding pipelines crossing American Indian land or tribal netting on area lakes, the sovereignty of American Indians and tribes continues to be challenged and sometimes forgotten about completely.

But tribal sovereignty is real, and cities need to be aware of it. If you have any tribes/reservations within your city limits, it’s important to understand that city ordinances do not apply to reservation lands. However, by being a good neighbor and keeping a dialogue open with the tribal government, your city can live in harmony with the tribe.

History of sovereignty

Tribal sovereign rights were established and are protected by treaties that were signed by the United States government between 1778 and 1871, as well as by executive orders and acts of Congress. Under the Supremacy Clause of the U.S. Constitution, treaties are the supreme law of the land.

By entering these treaties, American Indians agreed to cede millions of acres of their land to the United States in exchange for money and protection while simultaneously retaining hunting, gathering, and fishing rights.

Court decisions are mixed

The federal government characterizes these treaties as “Contracts Between Nations,” but court decisions are mixed on whether they are enforceable. For example, in 1999, the U.S. Supreme Court ruled that the Mille Lacs Band of Ojibwe “retain the hunting and fishing rights guaranteed to them under the 1837 Treaty.” (Learn more about this case from the Minnesota Legislature website at http://bit.ly/2WayKQP.)

This was a monumental case for Indian sovereign rights and will have lasting implications. However, a 2018 tribal netting case from Minnesota put limitations on these rights. In this 2018 case, a Minnesota district court judge convicted an American Indian for illegal netting on Gull Lake in Northern Minnesota.

The judge in this case ruled the individual in question did not have the right to net on Gull Lake as the individual’s tribe, the Fond du Lac Band of Ojibwe, was not a signatory to the 1855 treaty, which ceded the land in question and retained the hunting, gathering, and fishing rights. (Learn more about this case from a Minnesota Lawyer article at http://bit.ly/2TgyTQZ.)

The concept of state courts interpreting federal issues is not unique to Minnesota. This will continue to be problematic as inconsistent or contradictory case law can be the result, which ultimately leads to high litigation costs for states, tribes, and the country.

Federal and state authority

Under the U.S. Constitution, the relationship between federally recognized tribes and the federal government is one between sovereigns. What this means is that the United States deals with tribes on a government-to-government basis, just like the U.S. deals with Canada, Mexico, etc.

Because tribes are sovereign nations and the Constitution provides the legislative branch with plenary power over Indian affairs, state and local governments have no authority over tribal governments or tribal members on Indian land unless expressly authorized by Congress. One such authorization by Congress is Public Law 280, which grants specific states—including Minnesota—criminal and civil jurisdiction over Indians on reservation lands, with some exceptions. Essentially what Public Law 280 did was limit federal criminal jurisdiction and greatly expand state jurisdiction.

Local ordinances do not apply

Because Public Law 280 requires a state law to be of statewide application to apply on reservation land, no local ordinance would apply.

Additionally, federally recognized tribes possess both the right and the authority to regulate activities on their lands independent from state government control. They can enact and enforce stricter or more lenient laws and regulations than those of surrounding or neighboring states.

However, tribes frequently collaborate with state and local government through compacts or other agreements on matters of mutual concern such as environmental protection and law enforcement. For example, tribal police may assist county and federal law enforcement officers in apprehending a drug suspect on the reservation. Another example is a tribal lands training program that was jointly developed between the Minnesota Department of Transportation and the tribes. It teaches state employees, with the help of tribal members, the importance of respecting tribal sovereignty.

Ultimately, local government’s ability to regulate and/or work with American Indian tribes and tribal members is very complicated and limited. Therefore, cities need to consult with their city attorney when making decisions or dealing with issues that involve tribal members and land.

Jacob Glass is a research attorney with the League of Minnesota Cities. Contact: jglass@lmc.org or (651) 215-4176.