
Contents
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A. The Source and Limits of Tribal Power A. The Source and Limits of Tribal Power
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What is the source of tribal power? What is the source of tribal power?
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What are the limits of tribal power? What are the limits of tribal power?
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Are tribal powers limited by the U.S. Constitution? Are tribal powers limited by the U.S. Constitution?
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B. The Scope of Tribal Powers B. The Scope of Tribal Powers
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1. The Right to Form a Government 1. The Right to Form a Government
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Does an Indian tribe have the right to form a government? Does an Indian tribe have the right to form a government?
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What types of governments do Indian tribes have? What types of governments do Indian tribes have?
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Are tribal elections subject to federal review? Are tribal elections subject to federal review?
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What types of court systems do tribes have? What types of court systems do tribes have?
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Must a tribe have an appellate court? Must a tribe have an appellate court?
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2. The Right to Determine Tribal Membership 2. The Right to Determine Tribal Membership
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Does a tribe have the right to determine who qualifies for membership in the tribe? Does a tribe have the right to determine who qualifies for membership in the tribe?
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What are the qualifications for tribal membership? What are the qualifications for tribal membership?
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May persons denied membership into, or disenrolled from, an Indian tribe challenge the tribe’s decision in court? May persons denied membership into, or disenrolled from, an Indian tribe challenge the tribe’s decision in court?
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May a person become a member of two Indian tribes? May a person become a member of two Indian tribes?
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3. The Right to Regulate Tribal Land 3. The Right to Regulate Tribal Land
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Does an Indian tribe have the right to regulate activities occurring on tribal land? Does an Indian tribe have the right to regulate activities occurring on tribal land?
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In what ways has Congress restricted the right of tribes to regulate activities occurring on tribal land? In what ways has Congress restricted the right of tribes to regulate activities occurring on tribal land?
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What kinds of property can tribes own? What kinds of property can tribes own?
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How have Indian tribes obtained their interests in land? How have Indian tribes obtained their interests in land?
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What are the advantages and disadvantages of having tribal land in trust status? What are the advantages and disadvantages of having tribal land in trust status?
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If a tribe sells or leases tribal land in violation of federal restrictions, is the transfer valid? If a tribe sells or leases tribal land in violation of federal restrictions, is the transfer valid?
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What is communal property? What is communal property?
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4. The Right to Exercise Criminal Jurisdiction 4. The Right to Exercise Criminal Jurisdiction
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Does an Indian tribe have the right to exercise criminal jurisdiction over tribal members? Does an Indian tribe have the right to exercise criminal jurisdiction over tribal members?
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Does a tribe have the right to exercise criminal jurisdiction over non-Indians? Does a tribe have the right to exercise criminal jurisdiction over non-Indians?
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Does a tribe have the right to criminally prosecute nonmember Indians? Does a tribe have the right to criminally prosecute nonmember Indians?
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What restrictions has Congress placed on tribal law enforcement? What restrictions has Congress placed on tribal law enforcement?
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5. The Right to Exercise Civil Jurisdiction 5. The Right to Exercise Civil Jurisdiction
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Do Indian tribes have the right to exercise civil jurisdiction over their members on the reservation? Do Indian tribes have the right to exercise civil jurisdiction over their members on the reservation?
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Do Indian tribes have the right to exercise civil jurisdiction over non-Indians on reservation land? Do Indian tribes have the right to exercise civil jurisdiction over non-Indians on reservation land?
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6. The Right to Regulate Domestic Relations 6. The Right to Regulate Domestic Relations
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Does a tribe have the right to regulate the domestic relations of its members? Does a tribe have the right to regulate the domestic relations of its members?
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If Indians are married off the reservation under state law, can they be divorced in a tribal court? If Indians are married off the reservation under state law, can they be divorced in a tribal court?
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7. The Right to Engage in and Regulate Commerce and Trade 7. The Right to Engage in and Regulate Commerce and Trade
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Do Indian tribes have the right to engage in commerce and trade? Do Indian tribes have the right to engage in commerce and trade?
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Do Indian tribes have the right to regulate the commerce and trade that non-Indians conduct on the reservation? Do Indian tribes have the right to regulate the commerce and trade that non-Indians conduct on the reservation?
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What has Congress done to help tribes with economic development? What has Congress done to help tribes with economic development?
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8. Other Rights of Indian Tribes 8. Other Rights of Indian Tribes
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Notes Notes
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Cite
Abstract
Indian tribes are sovereign nations exercising sovereign powers. In 2021, the U.S. Supreme Court, quoting one of its earlier decisions, confirmed that “Indian tribes [are] distinct, independent political communities exercising sovereign authority.” This chapter discusses the inherent powers that tribes have, including their right to form a government, to determine who qualifies for membership, to regulate activities occurring on tribal land, to regulate dangerous activities within the reservation, and to exercise criminal jurisdiction. Also discussed are the limitations that Congress has imposed on the exercise of tribal powers and whether Congress actually has a valid legal basis to impose those limitations.
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