Source: ‘Indian 101 Guide’, National Congress of American Indians.

How many Indian tribes are there?
There are more than 562 federally recognized Indian tribes, bands, nations, pueblos, communities and Native villages in the United States. Approximately 229 of these are located in Alaska; the rest are located in 33 other states. Tribes are ethnically, culturally and linguistically diverse.

How many members of federally recognized tribes are there?
According to the 2000 U.S. Census, approximately 2.5 million Americans self-identify as American Indian or Alaska Native alone. Significantly, the number of American Indians and Alaska Natives in combination with another race—for example, American Indian and African American—jumps to 4.1 million.

What is federal recognition?
Federal recognition of an Indian tribe means acknowledgement by the United States of the political status of a tribe as a government. Members of a federally recognized tribe are eligible for a number of special federal programs, including those offered for Indian people by the Indian Health Service. The process of attaining federal recognition is long, complex, and extremely stringent.

Why does the United States treat Indian tribal members differently from racial minority groups such as African Americans, Latinos, Asian Americans and others?
American Indians, Alaska Natives, and Native Hawaiians are members of the original indigenous tribes of the United States, which were considered sovereign nations from their first interaction with European settlers. Consequently, Indians have a political relationship, through their tribes, with the United States that does not derive from race or ethnicity. Tribal members are citizens of three sovereigns: their tribe, the state in which they reside, and the United States.

What are the requirements for tribal citizenship?
Like any government, tribal governments determine their own criteria for citizenship. Usually there is some blood quantum requirement, such as 1/4, or a requirement of lineal descendancy from a tribal citizen. Individual tribes can answer specific questions. Some federal agencies also have criteria for determining eligibility for programs and services. About 2.5 million Native people in the United States are enrolled citizens of federally recognized tribes.

How does the Constitution address Indian tribes—what is the “Indian Commerce Clause” and what is the role of the Congress in Indian affairs?
Article I, section 8, clause 3 of the Constitution says: “The Congress shall have Power To…regulate Commerce…with the Indian Tribes.” This clause is the basis for congressional authority to pass laws dealing with tribes and their relationship with the federal government. Both the Senate and the House of Representatives have generally established specific committees to handle Indian legislation. In the Senate, the Committee on Indian Affairs handles most legislation relating to American Indian tribes (the Committee on Energy retains jurisdiction over most issues affecting Alaska Native lands); in the House, the House Committee on Resources is responsible for Indian legislation.

What is the trust responsibility?
The federal trust responsibility derives from the fiduciary relationship between the United States and Indian tribes, which has been likened in court cases to the relationship between a trustee and a beneficiary. Since the United States holds the vast majority of Indian lands, money, and resources in “trust” status, it is required to manage those lands and resources in a manner most beneficial to the tribes and individual Indian people.

What is the government-to-government relationship?
The government-to-government relationship between Indian tribal governments and the United States government has existed since the formation of the United States and has been reaffirmed by every President since Richard Nixon. The United States government and all of the executive agencies historically dealt and continue to deal with Indian tribes not as special interest groups or individuals, but as they treat the states: as governments.

What is tribal sovereignty?
Prior to the arrival of Europeans, Indian tribes could raise armies and provide currency for commerce. Those powers and others are no longer enjoyed by tribes. However, all other powers, except those expressly taken away by the Congress, are retained by Tribes. Congress may also expressly reaffirm inherent powers of tribe and has done so in recognizing certain powers of tribes in environmental statutes. This means that tribes can regulate tribal land, taxes, zoning, resources, and the conduct of tribal members. Certain powers, including the tribes’ jurisdiction over non-members, have been blurred by recent federal case law, making lines of jurisdictional authority confusing in many areas.

What is tribal immunity?
Like the federal government and the states, tribes enjoy sovereign immunity from suits by citizens and other tribal, state and local governments. Sovereign immunity enables governments to carry out their duties on a day-to-day basis as governments without fear of being brought to court for their governmental decisions and are facing potential bankruptcy of critical publicly held assets. Although sovereign immunity is especially important to tribes because of their limited revenue sources, it is a limited legal protection and is not a barrier to most meritorious cases. In addition, immunity may be waived by tribal governments.

What is meant by self-determination and self-governance?
Self-determination is a policy of the federal government developed by President Nixon in consultation with Indian tribal leaders. The policy is codified in federal law, including the Indian Self-Determination and Education Assistance Act, which was signed by President Ford in 1975. This Act promotes the contracting by Indian tribes of federal programs enacted for the benefit of Indian people. As a result, for the past 20 years, tribes have been contracting to operate programs at the tribal level. Tribal self-governance is a new federal policy still in its early stages. It allows tribes to enter into one agreement with the Department of the Interior to manage and redesign all programs, rather than to enter into separate contracts for each program. Self-governance has been very effective in allowing tribes to effectively manage federal resources.

What is meant by the terms “trust lands,” “reservations,” and “Indian Country”?
“Trust lands” and “reservations” are complex terms under federal law that basically define what is and what is not “Indian Country.” Indian Country itself is that area over which the federal government and tribes exercise primary jurisdiction. Land within an existing Indian reservation constitutes the majority of Indian Country. Reservations are defined geographic areas with established boundaries recognized by the United States. Some reservations are made up wholly of trust lands (lands held in trust by the United States for the benefit of a tribe or an individual Indian); other reservations include trust lands as well as fee lands owned by tribes, individual Indians, and non-Indians. After ceding vast tracts of land to the United States in the 1700’s and 1800’s, the tribes were promised in treaties that the “reserved” lands were theirs forever. But the U.S. subsequently broke these treaties and decimated tribes’ land bases. The General Allotment Act of 1887, also known as the Dawes Act, forced the conversion of communally held tribal lands into small parcels for individual ownership. More than 90 million acres—nearly two-thirds of reservation land—were taken from tribes and given to settlers, most often without compensation to the tribes, frequently leaving tribes with non-arable land that would not sustain the growth of their populations.

How do Indian tribes organize their governments?
Tribes have the inherent power to govern all matters involving their members and a range of matters in Indian country. Tribes form their governments either by election of members to a governing council as provided in each tribe’s constitution or, in some cases, by elders choosing the tribe’s leaders in a traditional process. Each tribe generally has one elected chairperson, president, chief or governor who is the recognized leader of the tribe and who has authority to act as such when dealing with the federal government. Many tribes have organized their governments under the auspices of the Indian Reorganization Act of 1934 and their constitutions and amendments are approved by the Secretary of the Interior.

Do states have jurisdiction over Indian country or Indian people?
States do not have any civil or criminal jurisdiction over Indian country except that which the Congress may delegate or the federal courts determine exists. In the 1950’s, Congress enacted several statutes giving states criminal jurisdiction over offenses committed within Indian country. However the statute did not grant jurisdiction to states over the tribes themselves or over their lands. Some of the states have returned jurisdiction to the federal government. For more than a quarter century, until passage of the Indian Gaming Regulatory Act (IGRA) in 1988, no other statutes gave states any authority in Indian Country. The federal government has jurisdiction over most major crimes committed in Indian Country. Tribes prosecute all criminal misdemeanors committed by Indians on Indian lands that carry sentences of up to one year in jail. Tribal courts also have jurisdiction over most civil matters that arise within Indian Country.

Do tribal governments pay federal taxes?
Like state governments, tribal governments are considered sovereign governments and are not subject to taxation by the federal government. This is a long-standing federal policy with Constitutional support that prevents interference with the ability to raise revenue for government functions. Like state and local governments, tribal governments use their revenues to provide essential services for their citizens. Unlike state governments, tribal governments are generally not in a position to levy property or income taxes because of the unique nature of land tenure in Indian Country, fragile economies, and jurisdictional restraints. Income from tribal businesses is the only non-federal revenue source for most tribes.

Do tribal governments pay state taxes?
States cannot directly tax a tribal government. The Supreme Court has held that state governments can collect excise taxes on sales to non-members that occur on tribal lands, so long as the incidence of the tax does not fall directly on the tribal government. States and tribes have developed a variety of methods for collecting these taxes where the states choose to do so, including intergovernmental agreements or pre-taxing at the wholesale level.

Do Indian people pay taxes?
Individual American Indians and Alaska Natives and their businesses pay federal income taxes just like every other American. The one exception is when an Indian person receives income directly from a treaty or trust resource such as fish or timber: that income is not federally taxed. States also cannot tax tribal members who live and derive their income on tribal land—just as one state would not seek to impose taxes on an individual who works in another state.

What is dual taxation?
Taxation is an integral source of funding for all levels of government, including tribal governments. As sovereign governments, tribes can, and sometimes do, tax revenues generated within reservation boundaries. Some states seem to view transactions on tribal land as “lost revenue” and use their ability to tax reservation revenues in certain circumstances to impose state taxation on sales to non-Indians in reservation communities. This results in dual taxation, which cripples the already limited economic development options available to tribes by forcing tribes to choose between reducing tribal tax revenues or discouraging economic growth by double-taxing businesses. This ultimately constitutes a choice between providing basic social services to their members—made possible by taxes—and encouraging economic development to help relieve high unemployment and poverty rates.

How many Indian tribes operate gaming facilities?
Just over 200 of the approximately 562 federally recognized tribes in the United States operate a governmental gaming facility. Large-scale gaming sponsored by tribal governments started in the early 1980’s at the same time that state lotteries began to proliferate.

Are all Indian tribes getting rich from casinos?
Only about a dozen of the 200 tribes involved in gaming have had enormous success, generating the kind of wealth that can transform a tribe’s economy. In these communities, casinos have provided thousands of jobs for Indians and non-Indians, and paid millions of dollars in payroll taxes and other direct benefits to state and local governments. The majority of Indian gaming facilities are small ventures—typically bingo games—and even these provide moderate increases in job availability and economic activity in communities where few other options exist.

How is Indian gaming regulated?
Tribal gaming is the most regulated gaming in the nation. Although it is regulated primarily by Indian nations themselves, both the states and the federal government also exercise control over Indian gaming. The Supreme Court has ruled that tribes may not engage in gaming activities criminally prohibited by the state. However, if state law civilly regulates a form of gambling, then tribes within the state may engage in that gaming free of state control. At the federal level, the National Indian Gaming Commission, established by the Indian Gaming Regulatory Act (IGRA), regulates Indian gaming. In keeping with Supreme Court rulings, IGRA generally allows tribes to use Class II games such as bingo, so long as they are not criminally prohibited by the state. However, for Class III casino-style gaming, the tribes must first negotiate compacts with states concerning regulation and games to be played.

How do Indian Nations use the revenues from Indian gaming?
Like state and local governments, the revenues accruing to tribal governments from any source are used as a tax base to fund essential services, such as education, law enforcement, tribal courts, economic development, and infrastructure improvement. In fact, Indian tribes are required by IGRA to use their gaming revenues for such purposes. Much like the revenues from state lotteries, tribal governments also use gaming revenues to fund social service programs, scholarships, health care clinics, new roads, new sewer and water systems, adequate housing, and chemical dependency treatment programs, among others. Tribal government-sponsored gaming enterprises are comparable to state lotteries in nature; these ventures are operated by a governmental entity to raise revenue for essential government functions.

What is the economic condition of Indian Nations?
The need for sustained economic growth is critically acute in most Indian communities across the country. Indian reservations have a 31 percent poverty rate the highest poverty rate in America. Indian unemployment is approximately 46 percent. Indian health, education and income statistics are the lowest among all racial groups nationwide. Tribes are striving to achieve economic stability and self-sufficiency and using the growing tools of self-governance.

Does the federal government provide all the necessary funding for Indian tribes?
Like a state government, a tribal government receives some federal funding for the programs it operates. The federal government has an obligation to tribal governments based on numerous treaties and on the overall trust responsibility. Despite these obligations, federal funding is not enough to fulfill the services and infrastructure of many tribal governments on Indian reservations. Increased funding for Indian reservations would help ensure that basic needs are met and help build the foundation for a stronger economic base in Indian Country.

Does the federal government pay all expenses—health care, housing and college tuition—for individual Indians?
In general, no. The federal government provides basic health care for all Indian people through the Indian Health Service. Unfortunately, these health programs have been inadequately funded for many decades, and Indian people have the worst health status of any group in the country. The Department of Housing and Urban Services provides some housing on Indian reservations, but Indians have the highest rate of homelessness and overcrowding. The federal government provides some educational assistance to tribal colleges, but higher education generally is not provided and remains beyond the reach of most Indian people.

Do all tribal members receive free money from the federal government?
Tribal members do not receive free money from the federal government. Some tribal members receive distributions of money that derives from land claims settlements or income generated from the sale, development, and/or use of trust lands. Per capita distributions from tribal enterprise represent the tribe’s decision to redistribute tribal wealth (ordinary generated from a tribal business) with individual payments to every tribal member. However, tribes sometimes redistribute tribal income to the community through services available to all, as opposed to making individual disbursements.

Does the federal government pay for Indian education?
There are approximately 600,000 American Indian and Alaska Native students attending K-12 programs the United States. 450,000 of these attend public schools while 50,000 attend BIA funded schools. Funding for Indian education schools is the sole responsibility of the federal government while both state and federal resources provide public education funding. Local Education Agencies (LEAs) and their surrounding communities also have the ability to pass bond initiatives in order to build or repair local school buildings. Tribal and BIA schools, on the other hand, must rely on the federal government to ensure their academic and construction needs are being met. The extent to which the federal government has assumed this responsibility can be exemplified in the backlog of construction and repair/renovations needs now exceeding $800 million. Annual appropriations for Indian schools historically target less than ten percent of the total need requirement.

Does the federal government pay for law enforcement?
The federal government maintains most public safety and criminal justice systems in Indian Country. However, as with most Indian programs, federal funding law enforcement is insufficient. The level of law enforcement services that many Americans take for granted rarely exists on or near Indian lands. There are only 2,380 BIA and tribal uniformed officers available to serve an estimated 1.4 million Indians covering over 56 million acres of tribal lands in the lower 48 states. On tribal lands, 1.3 officers must serve every 1,000 citizens, compared to 2.9 officers per 1,000 citizens in non-Indian communities under 10,000. A total of at least 4,290 sworn officers are needed in Indian Country to provide a minimum level of coverage enjoyed by most of America.

What laws serve to protect tribal cultures?
The preservation and protection of tribal history, language, culture, and traditions is a major issue of concern throughout Indian Country. Tribal cultures and traditions provide the foundation and the roots upon which Indian communities will grow in the 21st Century. A number of laws protect native cultures and attempt to correct some of the damages from the past. These include the American Indian Religious Freedom Act, the Native American Graves Protection and Repatriation Act (NAGPRA), the 1992 Tribal Amendments to the National Historic Preservation Act (NHPA), the Native American Languages Act (NALA), as well as Executive Order #13007 on Native American Sacred Sites, and Executive Order #13175 on Consultation and Coordination with Tribal Governments.

What are sacred sites and why do tribes want to protect them?
Sacred sites are those that are integral to the practices of Indian religions, the well being of tribal cultures, and the health of the earth. Examples include sacred mountains, rivers, springs, rocks, petroglyphs, pictographs, burial sites, and ceremonial sites. Since the coming of the Europeans to what is now America, these sites have been subject to intrusion and vandalism by non-Indians. Tribal leaders are pushing for the implementation of existing laws and for the enactment of more stringent legislation.

BIBLIOGRAPHY

  • Canby, William C., American Indian Law in A Nutshell, 1998
  • Case, David S., Alaska Natives And American Laws, 1984.
  • Cohen, Felix S. Handbook of Federal Indian Law with Reference Tables and Index, 1988.
  • Cornell, Stephen and Kalt, Joseph P., What Can Tribes Do? Strategies and Institutions in American Indian Economic Development, 1995.
  • Deloria, Vine Jr., American Indian Policy in the 20th Century, 1985.
  • National Conference of State Legislatures, States and Tribes, Building New Traditions, 1995.
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