The federal government does not recognize all American Indian tribes. In fact, “... the federal government officially recognizes less than three hundred of the more than four hundred tribes that claim to exist” (Pevar, 1992, p.14). This lack of recognition can result from (1) the failure of the federal government to have, at some point, created a reservation for the tribe; (2) the loss of tribal identity or a unifying tribal leadership; or (3) federal termination of tribal status (Pevar, 1992). Currently, only 28 of the 36 tribes in Washington State are federally recognized.56 Federal recognition is significant because only federally recognized tribes are eligible for most federal-Indian programs (Pevar, 1992; Utter, 1993). Furthermore, only federally recognized tribes maintain governments that exist beyond state jurisdiction (Pevar, 1992; Utter, 1993).
State Jurisdiction Over “Indian Country”
The term Indian country denotes (1) all land within the boundaries of a federal Indian reservation, (2) all land outside of reservation boundaries that is owned by American Indians and held in trust or restricted status by the federal government, and (3) all other lands set aside for the residence of tribal-based American Indians under federal protection (known as dependent Indian communities) (Pevar, 1992; Utter, 1993; 18 U.S.C. Sec. 1151). In general, states do not have any jurisdiction over Indian country unless Congress has granted such jurisdiction (Pevar, 1992). However, the Court has declared that states can nonetheless assert jurisdiction if such an assertion (1) does not violate federal law, (2) does not interfere with overriding federal or tribal interests, and (3) does not interfere with tribal self-government (unless the state interest in doing so is very compelling) (Pevar, 1992; State of Washington, 1977; Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463).
In accordance with this judicial declaration, although tribes have civil jurisdiction within Indian country over both American Indians and virtually every non-Indian activity that involves American Indians or American Indian property, the Court has granted states some civil jurisdiction over certain activities involving non-Indians within Indian country (Cadwalader and Deloria, 1984; Pevar, 1992; State of Washington, 1977; Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463). For example,
... the Court has permitted states to require Indian merchants to collect a state sales tax from their non-Indian customers.… The state can also require Indian merchants to keep records of their sales to non-Indians for state taxation purposes. Likewise, a non-Indian who wishes to sell liquor on the reservation can be required to obtain both a tribal and a state liquor license, and any personal property a non-Indian owns on the reservation can be taxed by the state as well as the tribe. (Pevar, 1992, p.160)
In regard to state criminal jurisdiction in Indian country, the Court has only allowed this to include crimes committed by non-Indians against other non-Indians (Pevar, 1992).
Congress has, however, expanded the jurisdiction of a number of states. This expansion has mainly occurred through Public Law 83-280 (P.L. 280), which mandated that six particular states assume, with limited exceptions, complete criminal jurisdiction and some civil jurisdiction over the American Indian reservations within their boundaries. P.L. 280 gave other states the option of doing so as well.
Washington accepted this option, receiving full jurisdiction over all fee patent land within Indian country, as well as limited jurisdiction over all American Indian land held in trust by the federal government (fee patent land is land held with full rights of ownership by an individual, as opposed to trust land, in which ownership is retained by the federal government).57,58 Washington’s jurisdiction over trust land is limited to compulsory school attendance, public assistance, domestic relations, mental illness, juvenile delinquency, adoptions, dependent children, and the operation of motor vehicles on public roads (Pevar, 1992; State of Washington, 1991; Swinomish, 1991). However, this state jurisdiction is not exclusive, but concurrent with tribal jurisdiction; furthermore, in regard to civil issues, Washington State’s jurisdiction has only been expanded to the degree that its courts are now permitted to resolve private disputes brought to it by American Indians who reside in Indian country (Pevar, 1992; State of Washington, 1977; Wilkinson, 1987).
Tribes as Entities Outside of the Federal
Many people still question the federal government’s right to assert jurisdiction over American Indian tribes (Deloria, 1969; Deloria, 1974; Josephy, 1971; Minugh, et al., 1989; Pevar, 1992; Prucha, 1984; Ryser, 1992). It is argued that tribes were sovereign nations long before the United States was and that there is no language within most federal-Indian treaties that would suggest that tribes renounced their sovereignty through them. As was addressed above, the United States acknowledged this fact until expansionist interests began to dictate otherwise. It is argued therefore that American Indian tribes exist outside of the U.S. federal system and that the federal government’s control over American Indian communities
... is quite simply illegal under international law... [F]ederal “Indian law” is not and was never so much a matter of law as it is and was always an exercise in rationalizing the extension and maintenance of U.S. colonial domination over every indigenous nation it encountered. (Minugh, et al., 1989, p.53)
Until recent decades, the federal governmental policy toward American Indians has primarily been meant to displace American Indians from their lands, assimilate them into mainstream society, or both. Such policies have seriously impoverished American Indian communities and disrupted their traditional ways of life. However, since the 1960s, federal-Indian policy has increasingly supported tribal self-government and the strengthening of tribal communities.
The United States’ historical desire to displace American Indian tribes from their lands has also resulted in federal courts effectively undermining the sovereignty of tribes while providing them with a unique legal status within the U.S. federal governmental system. The unique legal status that tribes hold is that of domestic dependent nations, toward which the federal government has special responsibilities and over which it has plenary power. Many American Indians argue, however, that tribes never relinquished their sovereignty to the United States and that such an assertion of U.S. jurisdiction over them is a form of colonial tyranny.
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