Native Peoples Law
Overview of Native Peoples Law
The legal practice area dealing with the sovereignty of Native American people is often called Native Peoples Law. Native American tribes have been considered sovereign nations since the 1830s, meaning they are self-governing. However, because U.S. law considers them "domestic and dependent," many efforts have been made to establish relationships between the U.S. and Native American tribes.
Official terms used for the indigenous people vary. In U.S. law, "Indians" is the term used, but "Native Americans" has become the preferred term. In the states of Hawaii and Alaska, the terms "Native Hawaiians" and "Alaska Natives" are used. When Native Americans of the same or similar heritage live in one territory under a single leadership, they may be referred to as a "band" or "tribe." But there is some controversy surrounding the term "tribe" as many Indians today prefer "people" or "nation."
Federal, State and International Law
The United States government and Native Americans made legal agreements largely through treaties from 1778 to 1871. From 1871 to the present, legal relations with Native American tribes have been laid out via executive agreements and orders or acts of Congress.
Within Native American sovereign nations themselves, there are also separate tribal laws. These may be based on a number of sources, including tribal constitutions and oral tradition. However, tribal law does not typically extend to people who are on Native American lands but are not themselves Native American.
The relationship between Native American tribes and the U.S. government is sovereign-to-sovereign. In other words, each is considered a separate government. In practice, this means that the Native American nations govern themselves. But they are also ultimately subject to federal authority.
Native American nations are, however, independent from states. As a result, tribes may enact laws that are stricter or more lenient than state laws. They are also permitted to deal with a state as another sovereign entity and states and tribes may even work together on some laws and regulations.
Federal Recognition of Tribes
A Native American group must be formally recognized by the U.S. government before it can begin treated as a sovereign nation. In all, 567 nations are recognized as either Native American or Alaskan Native.
In 1994, the Federally Recognized Indian Tribe List Act established three ways that a tribe could be recognized. Certain administrative procedures, a U.S. court or an act of Congress may all lead to a tribe's federal recognition. However, that recognition can also be terminated, and only an act of Congress can reinstate a terminated tribe.
In some cases, a state may recognize a tribe when the federal government does not. The factors involved in recognition may include the tribe's history, how much the Indian government controls people's lives and how much political control the tribe has in any given area.
Gaming and Casinos
Native American nations and state governments have frequently butted heads over gaming and casinos. States have argued that they had the power to regulate Native American gaming. Several lower courts ruled that this was not the case, but the Supreme Court resolved the issue in 1987. The High Court ruled that if a state permitted gaming, then Native American peoples could run their own gaming operations without being subjected to the state's regulations. The Indian Gaming Regulatory Act was thus enacted by Congress in 1988. The act also established the National Indian Gaming Commission, the federal agency that regulates Native American gaming.
The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.