CHAPTER 2 ORGANIZATION AND STRUCTURE OF TRIBAL GOVERNMENTS

• Jurisdiction: United States

Mineral Development On Indian Lands
(Feb 1989)
CHAPTER 2
ORGANIZATION AND STRUCTURE OF TRIBAL GOVERNMENTS






Donald R. Wharton
Native American Rights Fund
Boulder, Colorado

I. INTRODUCTION

There seems to be an unnecessary aura of mysticism around doing business with Indian tribes and individuals. Mineral development on Indian lands is in most respects like doing business anywhere else. The obvious exception, of course, is the necessary involvement of the federal government. All the same, one of the key ingredients to successful business dealings in any setting is getting to know the people and institutions on the other side of the table. As between industry and Indian individuals and tribes this process has, however, suffered from some historically encouraged inhibitions.

In the early days of development and until relatively recently industry representatives have dealt almost exclusively with the agencies of the federal government. It is only in the last fifteen to twenty years that tribal governments have begun to emerge as the dominant force in framing agreements for the development of natural resources within their respective domains. It has been, therefore, only in recent years that many industry representatives have begun to deal directly with tribal representatives as the principal negotiators of resource agreements.

The tribes most likely to be in this arena are frequently both the owners of the mineral resources within their reservations and the regulators of mineral development. As proprietors they seek to derive the greatest possible value from resource development and its related activities. As governments they must address the larger array of concerns that present themselves as both positive and negative impacts. These impacts require management that seeks to both optimize opportunities and minimize degradation. In this respect tribes are acting in much the same manner as other sovereigns seeking to balance mineral develop benefits against its burdens.

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While the situation of playing the sovereign as well as the owner distinguishes tribal negotiations from those with private resource owners, it is not significantly different from that which characterizes negotiations with state or federal resource managers. To the extent that differences do exist I would suggest that they do not exceed the differences found among other sovereign resource owners. The beginning point, however, is to understand some of the historical underpinnings of tribal governmental structure.

II. TRIBAL GOVERNMENTAL STRUCTURE

The form of tribal governmental organization prior to European contact was greatly varied, ranging from the highly structured and sophisticated organization of the League of the Iroquois at one end, to the loose association of families or clans like the Navajo at the other. A common attribute, however, of all Indian government was consensus decision making on major issues.¹

As tribal governing systems have evolved over the years, they have adopted many of the attributes of the dominant culture. These attributes were largely in response to the need to deal with federal agencies or private industry. This has required modifications in form form the more consensus related decision model to the more corporate or representative decision making models. There is, nonetheless, a strong tradition of the consensus decision making among the tribes even where the systems have been modified to accommodate corporate models.

Tribes continue to exercise their original sovereignty under traditional and modified structures reflected in both constitutional and non-constitutional formats. In addition, most tribes accepted the application of the Indian Reorganization Act (IRA) of 1934 while others voted to reject it. There is therefore a rich mix of formats within the range of tribal governments.

A. Inherent Sovereignty

There is no longer any serious question concerning the sovereign status of Indian tribes. What little dispute is left largely concerns the nature of the powers which can be exercised, within what boundaries and over whom. But these

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questions tend to focus on peripheral concerns and do not touch on the core issue of sovereignty itself.²

Since the earliest days of the Nation, the United States Supreme Court has recognized that Indian tribes are "'distinct, independent political communities' qualified to exercise powers of self-government, not by virtue of any delegation of powers, but rather by reason of their original tribal sovereignty."³ Judicial decisions on the nature of tribal powers have adhered to three fundamental principles:

(1) An Indian tribe possesses, in the first instance, all of the powers of any sovereign state. (2) Conquest renders the tribe subject to the legislative power of the United States and, in substance, terminates the external powers of sovereignty of the tribe, e.g., its powers to enter into treaties with foreign nations, but does not by itself affect the internal sovereignty of the tribe, i.e., its powers of local self-government. (3) These powers are subject to qualification by treaties and by express legislation of Congress, but, save as thus expressly qualified, full powers of internal sovereignty are vested in the Indian tribes and in their duly constituted organs of government.

F. Cohen, Handbook of Federal Indian Law at 123 (1942 ed.). These original powers of self government were, moreover, neither derived from nor controlled by the United States Constitution.⁴

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The inherent sovereignty of tribes was originally described as exclusive within the boundaries of those lands reserved by the tribes for their use and occupancy.⁵ More recent judicial decisions have, however, departed from the concepts laid down by earlier courts and as articulated by Felix Cohen. They have determined that tribes no longer have the power to prosecute non-Indians for violations of tribal criminal codes, and have limited exercises of tribal civil jurisdiction over non-Indians on fee lands within tribal reservations to those situations where the non-Indian's conduct threatens the tribe's political or economic integrity, or its health and welfare.⁶ The sovereign powers of tribes continue to exist, therefore, except to the extent that they have been limited by judicial interpretation or abrogated by federal legislation.⁷

Nor has the relative exclusivity of tribal jurisdiction excluded the states from reaching within reservation boundaries, so long as the state's exercise of jurisdiction has not been preempted or does not constitute an infringement on tribal self-government.⁸ Early on the Courts decided that where whites commit crimes against whites within an Indian reservation in a manner that does not directly affect the tribe or its members, the state's jurisdiction will reach the perpetrator of the crime.⁹ The Courts have likewise allowed the imposition of some criminal laws as against Indian defendants where the federal

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government chooses to enforce some state laws through the Assimilative Crimes Act¹⁰ as incorporated through the General Crimes Act.¹¹ They have also required Indian smokeshop operators to collect a state tax imposed on non-Indian purchasers even where the transaction takes place on tribal trust lands.¹²

The "plenary authority" exercised by the Congress over Indian affairs is the most significant potential source of limits on tribal sovereignty. The exercise of this legislative power was thought for years to be virtually unreviewable.¹³ More recent authority has held the exercise of that power to be limited by both constitutional constraints against takings of property¹⁴ and by the federal government's trust responsibility to Indian tribes.¹⁵

One of the most significant legislative constraints on the exercise of tribal governmental powers is the Indian Civil Rights Act (ICRA).¹⁶ Because the courts had determined that the constitutional constraints imposed on federal and state governments did not apply to exercises of tribal powers, Congress adopted legislation imposing most of the same constraints on tribes.¹⁷ The ICRA did not, however, provide a federal forum to seek redress for any violations of the Act, except for habeas corpus.¹⁸

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In addition to using federal legislative powers to place constraints on tribal governmental powers, Congress has also provided particularized opportunities for the formation of Secretrially approved governmental formats.¹⁹

B. The Indian Reorganization Act of 1934 ²⁰

The Indian Reorganization Act was part of the New Deal legislation of the early Roosevelt Administration. Indian Commissioner John Collier sought to put an end to the disastrous allotment policy²¹ and to revitalize tribal governments by providing what appeared to be a modern look

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through the adoption of constitutional forms of government and organization as chartered business corporations.²²

The IRA provided no sovereign powers which did not already exist but it did provide certain rights to tribes vis-a-vis the Secretary. For example: tribal lands and interests in lands could no longer be alienated without the consent of the tribe involved; all allotment was stopped and any lands set aside for allotment and still available were returned to the tribe; and trust status and restrictions against alienation were extended.²³ Nonetheless, of the 258 tribes voting on the IRA in the two years following its enactment, only 181 voted to accept the Act while another 77 voted to reject it.²⁴ Those who took no action were automatically brought under its provisions.

While the thrust of the legislation was to provide "modern" governmental structures similar to existing state and federal models, the implementation fell significantly short of the goal. Most IRA governments have no separation of powers. They usually operate under a tribal council or business committee that serves as both the...