Constitutional and Legal Status of Native Americans

Introduction

The Native American government is complicated and multi-component because of the unclear definition of their status. Given the institutionalization of tax and financial preferences, they have advantages over state and municipal populations in certain areas of life. Another aspect of their constitutional and legal status is a permanent state of total dependence on the federal authorities due to defective guarantees of autonomy in internal self-government.

This approach is a characteristic feature of state policy to retain total federal leverage over and control the Indians and their territories. The research question is what is the constitutional and legal status of Native Americans in the context of territorial autonomy? The constitutional status determines the nature of governance, and the formation of an answer to the research question is strategically essential. Therefore, the paper will examine the basics of Native American constitutional and legal status, describe the legal configuration of the governance regime, and analyze the institutional similarities and differences between reservations and autonomies.

Fundamentals of the Constitutional and Legal Status of Indian Reservations

The legal status of Native American reservations has remained uncertain for numerous years. An Indian is a person who is a member of an Indian tribe. However, a tribe must be recognized as such by the federal government (D’Souza, 2022). It must be subject to the authority of the Bureau of Indian Affairs of the U.S. Department of the Interior. A reservation, however, is that portion of the land surface of the United States designated for permanent occupancy by a tribe or tribes under an agreement with the United States (D’Souza, 2022). Concerning this territory, the federal government retains possession rights based on the tribe’s trust.

Indian communities and reservations differ from one another in many ways. However, relations with tribes are under the exclusive jurisdiction of the United States. Under Art. 1, Section 8 of the U.S. Constitution, Congress has the power to regulate commerce with foreign nations, between individual states, and with Indian tribes (U.S. Const. art. 1, § 8). It has been recognized that Indian tribes have state status and retain the inherent powers of self-government.

Tribes are separate political units, possessing sovereignty limited by treaty concessions and the historical integration process into the United States. However, Native American tribes are domestically dependent nations not automatically subject to state law. It should be noted that the facet of the sovereign nature of tribal authority is enshrined in their constitutions (D’Souza, 2022). Yet sovereignty and the sovereign powers of Indian communities are not seen as mutually contiguous categories in American legal thought.

The Configuration of the Regime of Self-Government of Indian Nations

Several vital points characterize the sovereign powers of communities. The sovereignty lost during integration into the United States has been replaced by sovereign powers granted to the communities by Congress. Thus, the sovereign rights that tribes now possess involve powers that derive from congressional decisions and are subject to the U.S. Constitution (Saunt, 2020). However, sovereign authority cannot be possessed without sovereignty because authority is an integral element of it.

With the elimination of the sovereignty of Indian communities, their current and prospective powers are nothing more than derivatives of the U.S. federal government’s decision. It means that tribes can exercise self-government provided that the jurisdiction of the federal center is not violated. These are instances where specific powers and subject matters are vested in the federal government through contracts concluded with the Indians (Saunt, 2020). With certain exceptions, the tribal legal regime of self-government is generally modeled on the American scheme of separation of powers.

Reservations and Territorial Autonomies: Institutional Similarities and Differences

It can be assumed that reservations of Indian communities are autonomous. Autonomies are territorial units within a federated state and possess administrative powers that other intrastate entities do not have. The asymmetrical structure of the state territorial structure is a necessary common feature of the institutionalization of autonomous entities (Lofthouse, 2019). However, it is more accessible to concretize the territorial entity as autonomous by revealing the qualitative properties of asymmetry through the prism of the institution of territorial autonomy.

With this approach, the presence of a different scope and content of competence of the U.S. states implies that they are autonomous concerning reservations. Meanwhile, it is hardly reasonable to reject their status as subjects of the federation. Only federal laws and laws established by the tribes themselves apply on reservations (Saunt, 2020). Indians living on reservations are not subject to state laws. Indians pay the same taxes as the rest of the United States, but the income derived from there (D’Souza, 2022). On this basis, it can be concluded that reservations have internal sovereignty and are autonomous entities and independently exercise power functions that serve the goals and objectives of their people.

It should be noted that in the institutional aspect, the states have a similar public law structure and competence. The differences are naturally manifested in the content of competence, conditioned by the peculiarities of the constitutional-legal statuses of these types of territories (D’Souza, 2022). Meanwhile, in a comparative consideration of reservations and states, in guaranteeing autonomy in the sphere of internal self-government, the status of reservations is vulnerable compared to the status of states. The U.S. Congress has broad powers, and U.S. obligations to Indians can be eliminated even without tribal consent.

Thus, in the general institutional aspect of local government, two basic concepts of institutionalizing local government have emerged: the home and the Dillon model. Home rule involves the possibility of a local government charter, which provides for independent powers and safeguards against intrusion into the jurisdiction of the states. The Dillon model provides that municipalities may operate strictly within the limits of state jurisdiction (D’Souza, 2022). At the same time, the particular national-ethnic identity, the institutionalization of judicial institutions, and the ability to exercise customary law regulation underscore the independent constitutional and legal status of Indian reservations.

Conclusion

Based on the material presented, reservations’ constitutional and legal status can be characterized from two perspectives. Given the institutionalization of preemption, tribes have advantages over the populations of U.S. states and municipalities. However, the second aspect of their constitutional and legal status is their dependence on the federal government. Such an approach is not an affirmation of trust in the tribes but a characteristic of state policy to retain total federal leverage over and control the Indians and their territories in their charge.

These factors characterize the limited resources of the tribes to independently configure their legal order, which, in turn, separates reservations from territorial autonomies. The sphere of states’ jurisdiction is delineated by the competence of Congress and the guarantees against arbitrary interference in the internal affairs of states. Indian reservations are a vivid illustration of the diversity of forms of domestic entities’ constitutional-legal status in the modern world. The Indian reservations thus shade the diversified and complex configuration of the political-territorial model of this state due to the synthetic unity of the applied concepts of federalism, municipal self-government, and territorial autonomy.

References

D’Souza, R. (2022). A radical turn in International Law and Development? Corporations, capitalist states and imperial governance. Canadian Journal of Development Studies, 43(1), 20-38. Web.

Lofthouse, J. K. (2019). Institutions and economic development on native American lands. The Independent Review, 24(2), 227-248.

Saunt, C. (2020). Unworthy republic: The dispossession of Native Americans and the road to Indian Territory. WW Norton & Company.

U.S. Const. amend. XVIII (repealed 1933).