A Brief Introduction to Tribal Sovereignty
This blog is part one of a two-part series highlighting burial and cultural property law templates drafted to support Tribal Nations’ protection of their heritage on their lands. This first blog focuses on Tribal sovereignty, self-determination, and self-governance as general legal concepts here in the United States. If you’d like to read about burial and cultural property preservation laws and Tribes, click here.
Have you ever heard of the terms “Tribal sovereignty,” “self-determination,” or “self-governance” when it comes to discussing Native American affairs in the United States and weren’t quite sure what they meant? Do you want to learn what these terms mean and how these concepts connect to the relationship between Tribes and the United States Federal government? Let’s dive in!
Sovereignty is a word we hear when we discuss a nation’s ability to govern itself. Its synonyms include dominion, power, and jurisdiction. I personally like to think of it as the agency of a nation to do what it needs to do to govern itself. For example, if the elected officials of Canada want to pass a law about wearing hats on Tuesdays, those elected officials follow the protocol laid out by the Canadian government to get a law on the books about wearing hats on Tuesdays. If the United States or other nations want to interfere with them passing that law (everyone knows wearing hats on Wednesday is really the fashion), they don’t have the legal power to obligate a sovereign nation as Canada to do so.
Federally recognized Tribes have this same ability here in the United States. For the sake of this blog post, everything described here refers to federally recognized Tribes. State recognized Tribes and non-federally unrecognized Tribes have a wholly different relationship to the United States. I recommend doing some research to see if your state has any state recognized Tribes.
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Non-federally recognized Tribes? You can learn more about the process of federal recognition here. |
Federally recognized Tribes pass their own laws and have their own governments to manage their land bases and members. This is what “Tribal sovereignty” means at its core. Tribes get to dictate how to govern themselves.
Treaties and Federal Trust Responsibility
When Tribes and the United States interact, it is a Nation-to-Nation relationship. Most treaties between the United States and Tribal Nations granted land to the United States and, in exchange, the United States would uphold the right for the Tribal Nation to govern itself and often other rights such as access to hunting, fishing, and other necessary practices for sustenance and survival outside of the reservation boundaries. Many treaties specify a particular allotment of provisions the United States would be obligated to supply to a Tribal Nation each year in order for the treaty to continue to be upheld and allow the United States to continue to hold that land. Without treaties, the United States would not have any land to call its own. If you’d like to learn more about treaties, I recommend checking out this video: NPR | Why Treaties Matter video, Nov. 2017.
Native American Tribes were sovereign nations before the formation of the United States as a government. In the same way that nations sign treaties to dictate trade, borders, and terms of relations between two countries, the United States signed treaties with Tribal Nations. These treaties were essential for the recognition of the United States by other nations, particularly in Europe, as its own sovereign nation newly separate from England. Signing treaties with Native American nations legitimized the United States as a new nation in the eyes of the Western world post-Revolutionary war.
But if they are their own Nations, where does the Bureau of Indian Affairs (BIA) come into play? Why does it exist? To quote the National Congress of American Indian’s Tribal Nations & the United States:
Treaties established the principles of the federal ‘trust responsibility,’ to protect both tribal lands and tribal self-government, and to provide for federal assistance to ensure the success of tribal communities. Page 18
While the BIA first existed within the War Department (which explains a lot of the anxiety and hesitations many Tribal Nations have with working with the BIA even today), the BIA now exists within the Department of the Interior and serves to ensure the United States fulfills its federal trust responsibilities to the Native Nations to which it owes its existence.
The threat to Tribal Nations’ sovereignty to manage their lands and their rights guaranteed to them by treaties still looms large. Federal law is still the law of the land on reservation land. Legal actions from Tribes on non-Tribal members during the course of a felony are often required to have Federal law enforcement—rather than Tribal law enforcement—take charge. Access to hunting and fishing outside of reservation boundaries also serves as an area of frequent violation and threat to treaty rights.
By recognizing that Native American Tribes are their own Nations within the United States and have a complicated legal relationship with the United States, the terms “self-determination” and ‘self-governance” become a little easier for the everyday person to grasp. When a Tribe passes a law and enforces it through their own means, that is a form of “self-governance” and “self-determination.” In the past several decades, we have been seeing more and more movements from Federal Agencies that actively reaffirm Tribes’ right to govern themselves as well as give them the resources needed to do so in the name of trust responsibility and upholding treaties.
Burial and Cultural Property Preservation Laws
Here at SaveHistory.org, we pride ourselves in doing our best to respect Tribes’ wishes when we do our work in detecting, responding, restoring, and preventing archaeological resource crime. If an archaeological resource crime happens on Tribal land and we are asked to assist, we check with the Tribe to confirm if our typical process for responding to this crime is one that works for them, or if we need to make some adjustments.
We do our work with the Bureau of Indian Affairs in service of the Archaeological Resource Protection Act (ARPA), but other federal laws you may have heard of also often interact or intersect with ARPA. Those include the Native American Graves Protection and Repatriation Act (NAGPRA) and the National Historic Preservation Act (NHPA). States often have their own laws regarding archaeological resources. For example, New Mexico’s Cultural Properties Act states:
- A person who knowingly excavates, injures, or destroys cultural property located on New Mexico state land with-out a permit is guilty of criminal damage to property (§ 18-6-9).
- A person who knowingly appropriates cultural property located on New Mexico state land without a permit, or who receives, traffics in, or sells cultural property appropriated from state land without a permit, is guilty of larceny (§ 18-6-9.1).
- Disturbance to any human burial in the state of New Mexico is prohibited. The discovery of an unmarked human burial requires that disturbing activities cease and local law enforcement are notified (§ 18-6-11.2).
- Regulations extend to any person who solicits, employs, or counsels another person to commit the above acts.
Many States have laws such as this on the books. What about Tribal Nations? Some Tribes have their own laws on the books about archaeological resource crimes—and good ones—but many do not. We here at SaveHistory.org asked our trusty retired Assistant Attorney of the United States (AUSA) Randy Ream to put together some templates of Tribal Cultural Property laws that Tribes can consider passing a version for their own Tribal lands. These templates are designed to be just that—templates. Whether a Tribe wants to look at these options and completely redraft it so it makes sense for their nation is their right to self-governance and self-determination.
Considering Tribes are frequently under-resourced, under-funded, and over-stretched, although archaeological resource crime on their lands is often seen as a crisis, it often may be lower ranked in priority compared to other health and human crises happening on Tribal lands. By putting these Tribal Cultural Property law templates together and making them available for Tribal members and Tribal Historic Preservation Office staff to review and advocate for in their own Tribal Councils, we hope to give some power back to Tribes to determine the best ways to manage their own heritage despite the many uphill battles there are in this fight against archaeological resource crime.
Now that you understand Tribal sovereignty, self-governance, and self-determination, are you ready to apply to law school? We could certainly use more folks who are interested in Federal Indian law! Click here to continue to the second part of these blog posts to learn more about these Tribal Cultural Property Law templates.
Are you interested in advocating for your own Tribal Nation to pass these kinds of statutes to protect sacred sites and burials? Reach out to us at [email protected].
By Anastasia Walhovd
| Want to learn more? Check out these resources. |
| NPR | Why Treaties Matter video, Nov. 2017 | |
| National Congress of American Indians | |
| Tribal Consultation Policy Hub | |