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Tribal Governments

American Indian tribes are sometimes described as “nations within a nation.”  In fact, some tribes call themselves “nations” or “people” instead of “tribes.”  Although the tribes are located within the United States, the United States Constitution considers them as separate governments.  The term “tribal government” is defined as any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601 et seq.) which is recognized as eligible for the special programs and services provided by the United States to Indians because of their special status as Indians[1]. The tribes have their own laws and governments.  Native Americans have significant rights of self governments under the U.S Constitution, which has its root from their own sovereignty.  In this regard, tribal governments have the power to tax, to pass their own laws and to have their own courts.  Generally, states do not interfere with tribal governments.  Congress, however, has the power to pass laws that govern Indian tribes and their members.  Congress tries to make laws that help American Indians, while respecting each tribe’s authority to pass its own laws and govern itself.  Many American Indian tribes have adopted constitutions similar to the U.S. Constitution. As a result, many tribes have branches of government similar to those in U.S state and federal governments. This allows for the separation of powers. Such tribes have:

  • An elected Governor, Chief, Chair, or President who holds the executive power in the tribe. For example, the President of the Navajo Nation.
  • A Tribal Council, which holds the legislative power.  For example, the White Earth Chippewa Tribal Council. The council passes laws that are collected in Tribal Codes.
  • A tribal court system handles disputes between tribal members, as well as some disputes between members of the tribe and non-members. For example, the Cherokee court system.

Some Tribal Constitutions, however, do not create separate branches of government. Some are governed by only a Tribal Council led by a Tribal Chair.

The following two examples explain the difference:

Example 1: Section 1 of the Constitution of the Yavapai-Apache Nation establishes three Branches of Government: the Legislature, the Judiciary and the Executive Department.  No person or group of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any of the powers properly belonging to either of the others.   

Example 2: Section 1 of the Constitution of the White Mountain Apache Tribe establishes a Governing Body. The governing body of the White Mountain Apache Tribe shall be known as the White Mountain Apache Tribal Council and shall consist of a Chairman, Vice Chairman and nine members to be chosen by popular votes.

Tribal governments are excluded from complying with much federal legislation, including the Americans with Disabilities Act (“ADA”).  Generally, most tribes are sovereign nations with legal authority and responsibility for their people and lands.  The relationship of various tribal governments to the government of the United States can be most simply understood as one based on negotiated treaties.  Indian law has always been interconnected with federal Indian policy.  Tribal governments are given special privileges and powers because they enjoy full jurisdictional powers within their territories. The independence of the tribes is subject to exceptionally great powers of Congress to regulate and modify the status of the tribes.  The power to deal with and regulate the tribes is wholly federal, whereas the states are completely excluded in dealing with tribes unless Congress delegates power to them.  The Federal Government has the responsibility for the protection of the tribes and their properties, including protection from encroachments by the states and their citizens.  In simpler words, under current federal law, for the ADA to apply to tribal lands, either a separate negotiation must be conducted with each of the approximately 560 tribes currently recognized by the Federal government or the tribes must initiate the process for themselves.

Furthermore, sovereign immunity from suit is an inherent right of all governments, including the federal, state and tribal governments.  The purpose served by this policy is to provide special protection against loss of assets held in common for many people, now and in the future, for the performance of vital government functions.  Many tribes have voluntarily provided for limited waivers of their immunity[2] and have insurance to cover their potential liability, like the federal and state governments.  This is a growing trend evidenced by an increasing number of claims handled by tribal courts.

Tribes and tribal officials are also subject to suit under various exceptions to tribal sovereign immunity recognized by the courts.  For example, courts have applied the Ex Parte Young doctrine to tribal officials.  This doctrine works as an exception to the general rule of sovereign immunity when an official acts outside of the government’s authority. Tribal sovereign immunity has also been limited by various courts where allegations of personal restraint and deprivation of personal rights were raised[3].  Additionally, pursuant to federal law, Indian tribes, contractors and employees are deemed to be agents of the federal government for the purposes of the FTCA (Federal Tort Claims Act) when a tribal government program operates with federal dollars.  Tribal governments agree to include limited immunity in contracts, including bonding and insurance requirements while dealing in commercial contexts.  Negotiation of these limited waivers is a widely-practiced prerequisite to contracting with tribal governments.

[1] 2 USCS § 658

[2] See, Weeks Constr., Inc. v. Oglala Sioux Hous. Auth., 797 F.2d 668, 671 (8th Cir. 1986) (stating that tribal ordinance bars use of sovereign immunity); Merrion v. Jicarilla Apache Tribe, 617 F.2d 537 (10th Cir. 1980) (finding express waiver of immunity in severance tax ordinance).

[3] Dry Creek Lodge v. Arapahoe and Shoshone Tribes, 515 F.2d 926 (10th Cir. 1975).

Inside Tribal Governments