Native American Law FAQs

No, a state generally does not hold authority over tribal nations within its borders. The principle of tribal sovereignty gives authority over relations with Native American tribes to the federal government. This power arises from the Commerce Clause of the Constitution and several Supreme Court cases. In recent generations, though, the federal government has allowed states to influence certain activities on reservations to a limited extent.

Tribal governments often are organized similarly to the federal and state governments, with legislative, executive, and judicial branches. Other tribes have created a government with just a single branch, involving a Tribal Council and a Tribal Chair. A tribe may establish their form of government through a document such as a constitution or articles of association. In other cases, the US Secretary of the Interior may approve less formal organizational documents.

Tribal governments create and enforce laws, and they provide public safety services, such as police departments and emergency responders. They regulate businesses on tribal lands, collect taxes, build infrastructure, and manage land use. They also hold jurisdiction over areas such as education and health care. More generally, a tribal government can decide who is a member of the tribe and exclude certain non-members from entering their lands.

Independent tribal courts hold civil jurisdiction over Native Americans and non-Native Americans who live on reservations or do business there. They also have criminal jurisdiction over alleged violations of tribal laws by tribal members who live on reservations or do business there. However, they do not have criminal jurisdiction over non-tribal members. Independent tribal courts also hold jurisdiction over matters related to divorce, family law, guardianships, and trusts.

Courts of Indian Offenses, known as CFR courts, perform a judicial function for tribes who do not have an independent justice system. CFR courts must adhere to tribal customs unless they conflict with a federal regulation that has not been superseded by tribal laws. These courts hold civil jurisdiction over matters arising on tribal lands in which tribal members are defendants, including matters that involve non-Native Americans. Civil jurisdiction also arises in a CFR court if the defendant consents. CFR courts hold criminal jurisdiction over misdemeanors involving Native Americans on tribal lands.

Native American tribes can negotiate mineral development agreements with companies extracting natural resources from their land. However, the Secretary of the Interior must review each agreement to consider whether it is in the best interests of the tribe. Tribal agreements for the development of energy resources on their land may not require approval from the Secretary of the Interior. Right-of-way agreements for pipelines on tribal land also may not require approval from the Secretary.

Yes, the freedom of religious belief, exercise, and expression provided by the First Amendment of the Constitution extends to Native American religions. The American Indian Religious Freedom Act ended prohibitions affecting spiritual ceremonies and belief systems among tribal members. Government agencies must not interfere with Native American religions and must allow tribal members to access and use their religious sites to the extent that this is consistent with the essential functions of the government agency. Federal agencies must not take actions that would harm Native American religious sites.

Types of cultural property covered by the Native American Graves Protection and Repatriation Act (NAGPRA) include human remains, funerary objects, sacred objects, and objects of cultural patrimony. Funerary objects are items that contained human remains or were placed with human remains for burial. Sacred objects are ceremonial items essential to the practice of Native American religions. Objects of cultural patrimony are items that are owned by a tribe as a whole and would have been inalienable when the tribe lost possession of them.

Many Native American tribes have a right to hunt and fish off their reservations through a treaty with the federal government that specifically provides for this right. Other tribes have hunting and fishing rights off their reservations if the federal government reduced or eliminated a reservation but did not terminate tribal hunting and fishing rights for the original area of the reservation. A state may regulate tribal hunting and fishing activities off reservations if it does not discriminate against tribes.

No, Native American gaming operations are generally not subject to state regulations. This is because regulations are usually civil rather than criminal, and activities on tribal lands may be subject only to criminal state laws. If a state allows a certain type of gaming in any form, it cannot regulate that type of gaming on tribal lands. However, if a state entirely prohibits a certain type of gaming, tribes cannot conduct that type of gaming on their lands.