The Idaho Science & Technology Policy Fellowship program hosted a session on Tribal Sovereignty, Governance, and Law on Sept. 27, 2024. The event provided an informational overview of the legal, cultural, and governance structures that define tribal nations within the United States.
Jordan Gross, a faculty member at the University of Idaho College of Law specializing in criminal Law and procedure, criminal justice in Indian Country, comparative criminal law, and professional ethics, highlighted both historical and contemporary legal frameworks that impact tribal nations.
One of the central themes discussed was the federal government’s evolving legal relationship with tribes. While the U.S. Constitution recognizes the sovereignty of Native nations, both federal oversight and state interference often restrict tribal sovereignty, leading to a complex and sometimes contradictory legal framework. Building on work including Stephen Pevar’s The Rights of Indians and Tribes (Oxford University Press, 2024), Gross unpacked these challenges, highlighting how tribes continue to navigate a legal system that can simultaneously recognize their inherent sovereignty and limit it through legislative acts like the Major Crimes Act of 1885, one of the key legal frameworks limiting tribal autonomy in legal matters.
Another significant topic discussed during the webinar was the complex history of treaties between Native American tribes and the U.S.government. Nearly 400 treaties were signed between tribes and the US until Congress passed a law in 1871 (25 U.S.C. 71), which prohibited the federal government from entering into additional treaties with Native tribes. This law, however, did not invalidate existing treaties, affirming that "no obligation of any treaty... shall be hereby invalidated or impaired." Despite this, the U.S. Supreme Court ruling in Lone Wolf v. Hitchcock (1903) determined that Congress could abrogate, or break, treaties with tribes through federal law. Over the years, Congress has utilized this power, abrogating many treaties in the process.
The conversation also touched on how tribal constitutions, many of which were adopted under the Indian Reorganization Act of 1934, reflect varying levels of federal influence. Some tribes have constitutions that mirror Western governance structures, while others have resisted adopting such frameworks, asserting their governance systems. This diversity underscores the complexity of tribal sovereignty and governance across different Native nations. The webinar highlighted how these issues are not only legal but deeply tied to cultural autonomy and self-determination.
In a short Q&A discussion following the webinar, participants explored how the governance of gaming on tribal lands has further infringed over time. While Native nations traditionally maintained control over gambling within their territories, the Indian Gaming Regulatory Act of 1988 introduced federal oversight of tribal gaming operations. Many tribes viewed this as an encroachment on their sovereignty, as it required them to negotiate compacts with states for certain gaming activities like casinos and slot machines. These intersecting jurisdictions—federal, state, and tribal—have created ongoing tensions, particularly regarding the federal government's authority to determine tribal status and recognition.
Key Resources:
Professor Maggie Blackhawk, Federal Indian Law as Paradigm Within Public Law, 132:7 Harvard Law Review (2019)
Professor Stephen L. Pevar, The Rights of Indians and Tribes, Oxford University Press (2024)
Sonya Rosario (director), Idaho’s Forgotten War (2009) [YouTube]
