POWERS OF TRIBAL SELF-GOVERNMENT

Indian tribes are recognized in federal law as distinct political communities, with basic domestic and municipal functions. This includes the power to adopt and operate under a form of government of the tribe's choosing, to define conditions of tribal membership, to regulate domestic relations of members, to prescribe rules of inheritance, to levy taxes, to regulate property within the jurisdiction of the tribe, to control the conduct of members by tribal legislation, to administer justice and provide for the punishment of offenses committed on the reservation. (18)

Although Indian tribes began their relationship with the federal government as sovereign governments recognized as such by treaties and in legislation, the powers of tribal sovereignty have been limited from to time by the federal government. It should be noted, however, that the powers which tribes currently exercise are not delegated powers granted by Congress but rather, are:

"(I)nherent powers of a limited dependent sovereignty which had not been extinguished by federal action. What is not expressly limited often remains within the domain of tribal sovereignty, simply because state jurisdiction is federally excluded and governmental authority must be found somewhere. That is a principal to be applied generally in order that there shall be no general failure of governmental control."(19)

The powers of self-government are normally exercised pursuant to tribal constitutions and law and order codes. Normally, these powers include the right of a tribe to define the authority and the duties of its officials, the manner of their appointment or election, the manner of their removal, and the rules they are to observe. (20) This right, as with the exercise of all functions of tribal sovereignty, is subject to Congressional change. For example, federal law has removed from some tribes the power to choose their own officials, and has placed the power of appointment in the president and the secretary of Interior. (21)

Indian tribes, having the power to make laws and regulations essential to the administration of justice and the protection of persons and property, also have the power to maintain law enforcement departments and courts to enforce them. (22) Some smaller tribes have no courts at all or maintain very traditional customary courts, which lack formal structure. Larger tribes, such as the Navajo, maintain quite advanced law and order systems with well-equipped police departments, modern tribal codes and a hierarchy of trial and appellate courts overseen by a tribal supreme court.

Generally, the jurisdiction of Indian courts is exclusive as to matters involving tribal affairs, (23) civil suits brought by Indians or non-Indians against tribal members arising out of matters occurring on the reservation, (24) and the prosecution of violations of the tribal criminal code. (25) Tribal jurisdiction operates to the exclusion of federal and state authority. Federal courts are without jurisdiction over matters involving violations of tribal ordinances, (26) as are State courts. (27) With regard to cases within their jurisdiction, tribal courts are courts of last resort. Their decisions are appealable to neither state nor federal courts.

Several important limitations have been placed by Congress on tribal jurisdiction. Under the 1968 Indian Civil Rights Act, (28) tribes may not exercise jurisdiction over criminal offenses punishable by more than a $500 fine or six months in jail. Federal courts have jurisdiction to try and punish certain major offenses such as murder, manslaughter, rape, etc., pursuant to the Major Crimes Act. (29) In certain instances, Congress has provided that the criminal laws and/or civil laws of a state shall extend to Indian reservations located in the state. (30) States, which have assumed responsibility for the administration of justice on Indian land, are commonly referred to as "Public Law 280 States."

NOTES:
18) Federal Indian Law, supra, p. 395.
19) Federal Indian Law, supra, p. 396.
20) Ibid, at 403. 21) See Act of June 7, 1897, 30 stat. 62, 84.
22) See Colliflower v. Garland, 342 F. 2d 369 (1965).
23) Little v. Nakai, 344 F. 2d 486, cert. den. 382 U.S. 986 (1965).
24) Williams v. Lee, 358 U.S. 217 (1958).
25) Colliflower v. Garland, supra.
26) Native American Church v. Navajo Tribal Council, 272 F. 2d 131 (1959).
27) 41 Am. Jur. 2d, 66, p. 869.
28) 25 U.S.C. 1301, et. seq.
29) 18 U.S.C. 1153.
30) 28 U.S.C. 1360.

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