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ADMINISTRATION & SOCIETY / November 2002Ortiz / TRIBAL GOVERNANCE AND PUBLIC ADMINISTRATION This article examines tribal governance and its relationship with the U.S. government through the lens of laws and treaties. There are more than 550 American Indian and Alaska Native tribes in the United States. Tribes are sovereigns having their own governance struc- tures, with rich cultures that are intertwined with the founding of our nation. This calls for a renewed awareness of tribes by the field of public administration, requiring careful consider- ation and respect of tribal cultural, historic, and social values, which are an integral part of tribal governance.

TRIBAL GOVERNANCE AND PUBLIC ADMINISTRATION

JAMES ORTIZ Virginia Polytechnic Institute and State University

AlthoughAmerican Indian andAlaska Native tribes make up approxi- mately 2.5 million inhabitants of the total population, they constitute a completely different level of governance within the United States (U.S. Bureau of the Census, 2001). Tribes possess inherent powers of self- governance that predate the founding of our nation and the Constitution (U.S. Department of the Interior, 1999). Although the Constitution pro- vides for a delineation of responsibilities between the federal and state governments, the more than 550American Indian andAlaska Native tribes have their own governance structures and are dealt with on a government- to-government relationship by the United States (Bureau of Indian Affairs, 2001). This article examines tribal governance and its relationship with the

U.S. government through the lens of laws and treaties. Furthermore, it calls for an awareness of a population that the majority of the field of pub- lic administration does not know—the more than 550 American Indian and Alaska Native tribes within the United States. As pointed out by Aufrecht (1999), “The public administration literature almost completely ignores the topic of Native American governance.” Furthermore, tribal

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ADMINISTRATION & SOCIETY, Vol. 34 No. 5, November 2002 459-481 DOI: 10.1177/009539902237271 © 2002 Sage Publications

cultures are guided by their values and beliefs, and it is important to exam- ine their governance structures along with the federal and state govern- ments (Poupart, Martinez, Red Horse, & Scharnberg, 2000).

TRIBES, THE CONSTITUTION, TREATIES, AND THE SUPREME COURT

The Constitution refers to Indians in two clauses. Article 1, section 9 (commerce clause) grants to Congress the sole authority to regulate com- merce “with Indian tribes.” According toMonette (1994), some have pro- posed this language to mean that tribes possess sovereignty more similar to that of theUnion than that of states. The reference to “Indians not taxed” in article 1, section 2 (apportionment clause) applied to the apportionment of state taxes and representation in the Union. Monette notes, however, that its significance to the sovereign status of tribes remains unclear. Tribes have always had formal government-to-government relation-

ships with a variety of European powers. The colonial powers, and later the federal government, recognized the sovereign status of tribes, and it developed into a unique political relationship with the United States. According to Deloria and Lytle (1984), tribes should be understood as “nations within the nation” of the United States, and sovereignty is the foundation upon which this relationship was built. Unlike all other politi- cal entities within the borders of theUnited States, tribes derive their pow- ers through their sovereign existence, past and present (Getches, Wilkinson, &Williams, 1998). The manner in which each tribe tradition- ally exercised these rights varied according to its distinct cultural practices and the needs imposed by its environment. The issue of tribal sovereignty is at the very heart of tribal existence.

Proponents of tribal sovereignty claim that tribes are stepchildren in the family of the government. They argue that tribes have many powers equal to the states but remain subordinate to the federal government, and that the government is the trustee of tribal lands but more often acts as the taker of tribal lands and therefore raises a potential conflict of interest. Conversely, those who are opposed to tribal sovereignty claim that tribes, as American citizens, are subject to the same laws as everyone else and should not have special status. Sovereignty, however, is a right of self-government that for the most

part has never been extinguished by tribes.

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TREATIES

A treaty is a contract between sovereign nations (Cohen, 1982). The European powers negotiated treaties with Indian nations and recognized them as sovereign nations. In these treaties, tribes never gave up their right to exist as sovereign nations and to exercise their own forms of gover- nance. When the United States was organized as a nation, government officials continued the practice of creating treaty agreements with Ameri- can Indian nations whenever land boundaries needed to be clarified or when the government wanted American Indian lands. Before the adoption of the Constitution in 1789, the United States and

several of the states concluded many such treaties. They sought to estab- lish peace and territorial boundaries and to regulate trade and the extradi- tion of criminals, among other subjects. For example, the 1778 Treaty with the Delaware Tribe, the first between the United States and an Indian tribe, pledged friendship and respect for the separate territory of the two nations (Kickingbird, Kickingbird, Skibine, & Chibitty, 1980). Also, the Northwest Ordinance of July 13, 1787 stated the following:

The utmost good faith shall always be observed toward the Indians; their lands and property shall never be taken from them without their consent; and in their property, rights, and liberty, they shall never be invaded or dis- turbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them. (Northwest Ordinance, 1937, p. 340)

The ordinance, in which lands east of the Mississippi became part of theNorthwest Territory,was one of the first legislative acts to affectAmer- ican Indians directly (Tyler, 1973). It recognized and undertook the pro- tection of the sovereignty of Indian nations in the Northwest Territory. From1789 until 1871 theU.S. governmentmade hundreds of treatieswith Indian nations across the continent. TheConstitution authorized the presi- dent, with the consent of two thirds of the Senate, to enter into a treaty on behalf of the United States and declared that treaties were “the supreme law of the land” (Kickingbird et al., 1980). George Washington, as a former military commander, was keenly

aware of themilitary power that the Indian tribes possessed at the time and the importance of establishing good relations between the tribes and the new republic. In Philadelphia on December 29, 1790, at the height of his presidency, George Washington addressed the chiefs of the Seneca Nation. The following excerpt is from that address:

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I, the President of the United States, by my own mouth, and by a written Speech signed with my own hand and sealed with the Seal of the United States, Speak to the Seneca Nation, and desire their attention, and that they would keep this Speech in remembrance of the friendship with the United States. . . . The general Government only has the power, to treat with the Indian Nations, and any treaty formed and held without its authority will not be binding. Here then is the security of your lands. . . . The general Gov- ernment will never consent to your being defrauded. But it will protect you in all your just rights. (Rhodehamel, 1997, p. 772)

PresidentWashington’s address confirmed the commitment and serious- ness of the United States in dealing with Indian nations on a government- to-government basis. In effect, President Washington committed the gov- ernment long ago to protecting Indian nations in terms of the sovereignty of their lands. Some treaties promised the Indians specific goods or services, such as

medical care or food and clothing, and almost every treaty assured the Indians that they could live on their reservation permanently and would not be forced to move. However, tribal individuals and leaders who pur- portedly represented their tribe at treaty conferences usually ceded large portions of their ancestral lands in return for services and a certain portion of these lands being set aside for the exclusive use of tribal members and descendants (Rhodehamel, 1997). Rarely did the U.S. government return Indian homelands to their original inhabitants. As discussed later in this article, under parts of the Alaska Claims Settlement Act some lands were returned. Between 1778 and 1871 the United States ratified approximately 379

treatieswith Indian tribes (Deloria&Demaillie, 1999). Although the trea- ties clearly recognized tribal authority, they served as the instruments by which tribes ceded portions of their lands and other rights to the United States. The eminent legal scholar Felix Cohen noted that

The legal force of Indian treaties did not ensure their actual enforcement. Some important treaties were negotiated but never ratified by the Senate, or ratified only after a long delay. Treaties were sometimes consummated by methods amounting to bribery, or signed by representatives of only a small part of the signatory tribes. The federal government failed to fulfill the terms of many treaties and was sometimes unable or unwilling to prevent states, or White people, from violating treaty rights of Indians. (Cohen, 1982, p. 63)

The constitution recognizes treaties as laws and on the same level as acts of congress, which means that they preempt state law. However,

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treatiesmay be abrogated by an act of congress. treaties with tribes aswell as international treaties stand on thsame footing as federal statutes, and they can be repealed ormodified by later federal statutes (Cohen, 1982). The treaty system skewed the disparity of power between Indian tribes

and the United States according to Jones (1982). Instead of expressing mutual compromise and accommodation, it represented the domination of the tribes by the United States in which the tribes had little to say about their own destiny. Deloria and Lytle (1984) noted that the acquisition of land, although not usually a stated government objective, was never far from theminds of themembers ofCongress and of government officials in the late 18th and 19th centuries. Furthermore, they argued that in terms of treaty making, the federal government is constitutionally prohibited from entering into treaty relationshipswith any entity other than fully sovereign national governments. It follows, then, that each treaty entered into by the United States with a tribe served the purpose of conveying formal federal recognition of that tribe as a nation. This relationship is described as con- stituting “the nations within” the United States according to Deloria and Lytle (1984). Tribes continued to negotiate treaties with Great Britain between 1777 and 1798, 15 treaties with Spain between 1784 and 1819, and 24 treaties with Mexico between 1821 and 1850 (Deloria & Demaillie, 1999). Although few treaties were negotiated between the outbreak of the

Civil War and the end of 1871, in 1871 a rider on an appropriations bill ended treaty making with Indian tribes.

No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty; but no obligations of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871, shall be hereby invalidated or impaired. (16 Stat. 566)

The effect of the provisionwas to replace treaties with agreements that the executive branch negotiated and both houses of Congress enacted into law (Pevar, 1992).

U.S. SUPREME COURT CASES AND THE PLENARY POWER OF CONGRESS

As the population of the colonies increased so did the desire for more land for settlement. The legal status of the tribes as sovereign nations, however, began to be challenged by non-Indians. Initially, land purchases

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and agreements were made between the colonies and the tribes through the use of treaties. Many of the treaties with tribes, however, served to limit the sovereignty, rights, and independence of the respective tribes. The SupremeCourt attempted to resolve the issue of tribal sovereignty.

Unfortunately, the Court did not resolve the issue of tribal sovereignty in the Marshall trilogy of cases but made it more confusing. These cases offered three competing perspectives on tribal sovereignty, and subse- quent policies pick and choose from these cases regarding the policy maker’s prevalent view of Indian sovereignty. Three SupremeCourt cases, which have come to be known as theMar-

shall trilogy, named after Chief Justice JohnMarshall, form the bedrock of federal Indian law. In the first case, Johnson v.McIntosh (1823), the Court ruled that tribes could not convey land to private parties without the con- sent of the federal government. The Court based its opinion on the United States’ adoption of the “doctrine of discovery,” which held that a title to Indian lands vested in the European power that claimed them. “The abso- lute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring” (Johnson v. McIntosh, 1823). TheCourt noted that after conquest and the establishment of theUnited

States the rights of the tribes to complete sovereigntywas diminished, and that the power of tribes to dispose of their land to anyone except theUnited States was denied. In the second case, Cherokee Nation v. Georgia (1831), the Court held

that the Cherokee people had shown that they were indeed sovereign by virtue of their self-government and treaty relationship with the United States, but that theCherokeeNationwas not foreign because it waswholly within the United States. The Court characterized tribes as “domestic dependent nations,” which is considered the basis of the trust relationship between the federal government and the tribes. In the third case, the Supreme Court ruled in Worcester v. Georgia

(1832) that the relationship between the United States and the Cherokee Nation resembled that of a “guardian to a ward” and precluded relations with other colonial powers but did not divest the tribe of its sovereignty. Therefore, tribes would remain distinct political communities with lim- ited sovereignty. Collectively, these three Supreme Court cases held that tribes possess

limited sovereignty; this limited tribal sovereignty is subject to the United States but not to the individual states; and that the limited tribal

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sovereignty imposes a trust responsibility upon the United States (Cohen, 1982). In sum, tribes lost the ability to transfer their lands or enter into treaties with any entity except the United States. Tribes were otherwise unchanged, distinct political entities that could continue to rule their own territories within the United States. However, the Court was not the final arbiter of Indian policy. Congress, the executive branch, and the courts have alternated over time in terms of their prominence in Indian affairs. Congress began to solidify its “plenary power” (p. 344) over Indian nations in 1886 via court cases and federal statutes (Cohen, 1982). Yet the executive branch took precedence during this time by negotiating execu- tive agreements with tribes.

TRIBES AS SOVEREIGNS

To the extent that tribes are discussed in the Constitution, they are rec- ognized as having a status outside of its parameters (Wilkins, 1997). Again, they are outside of American federalism. The constitutional refer- ences fit with the fact that tribes did not take part in the federation of pow- ers at that time. Therefore, the relationship between the tribes and the United States is a relationship between sovereigns. In a constitutional sense, however, tribes are strange sovereigns.

Unlike foreign countries, tribes are subject to the ultimate sovereignty of the United States, and their members are United States citizens. Yet tribes are “domestic dependent nations” and not states of the Union, and absent Congressional action tribes retain their inherent right of self-government; no statemay impose its laws on their territories. Therefore, state law could not interfere with relations established between the federal government and tribes (Pevar, 1992). The courts have described the status of the Indian nations at various

times as “dependent nations” (seeCherokee Nation v. Georgia, 1831; Iron Crow et al. v. Oglala Sioux Tribe, 1956), “quasi-sovereign nations” (see Morton v. Mancari, 1974), having “residual sovereignty” (see Long v. Quinalt, 1975), and having “semi-sovereign existence” (see Quechan Tribe of Indians v. Rowe et al., 1976). The descriptions take for granted that tribes exist outside of American federalism and that they were never brought into the political sovereign structure of the United States by the Constitution. Furthermore, this implies that there is a separation among sovereigns, that is, between governments, which are further defined by

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executive orders, court rulings, and legislation. They cannot, however, deal as totally independent nations. For example, they cannot enter into a treaty with a foreign country, such as Germany. The legal relationship of sovereignty, however, may not fit neatly into

the way tribes view the concept. Deloria (1996) expressed this line of rea- soning as follows:

Sovereignty is not a traditional Indian concept—it comes from the feudal system of medieval Europe where power flowed up pyramid-style. His- torically, the political structure of Indian tribes has not been like a pyramid with most of the power concentrated in the hands of a few. Rather tribes have been organized in clusters of families and clans or related families. When a group became too large, it split apart forming separate bands. (p. 1)

The courts have reasoned that tribes by their very existence derive their authority to govern from their own sovereignty (Cohen, 1982). This stems from the original acknowledgement of the legitimacy of tribal govern- ment outside of the United States (Wilkins, 1998). One of the most important concepts affecting tribal sovereignty is the

plenary power of Congress in Indian affairs. Thiswas argued in the case of Lone Wolf v. Hitchcock (1903). This case involved a treaty between the federal government and the Kiowa and Comanche tribes. The Supreme Court held that Congress itself had the power to abrogate a treaty. The Court noted that the “plenary authority over the tribal relations of the Indi- ans has been exercised byCongress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government.” According to Pommersheim (1995), congressional power in the area of

Indian affairs is unique in two aspects: (a) Congressional power is without limitation, and (b) its power in Indian affairs is beyond judicial review. Pommersheim noted that these powers are contrary to those of a constitu- tional republic grounded in specified and limited powers. He argued that this unchecked exercise of congressional authority opened the way for further abrogation of treaties and termination of federal-tribal relation- ships in some cases. Furthermore, he noted that the plenary doctrine is extra-constitutional, with limited accountability, and affects federal-tribal and state-tribal relations. Wilkins (1997) argued that plenary power has several different mean-

ings depending upon its application. It may mean exclusive legislative power on Indian-related legislation. Plenary power may also mean con- gressional power under the commerce clause to preempt state law. Such

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was the case in requiringWestern states to have in their organic acts prior to being admitted into the Union a state constitutional disclaimer stating that they would not tax Indian lands or property without tribal and federal consent and without first amending the state constitution. Plenary power may mean absolute or unlimited power when it is not

limited regarding congressional objectives and unlimited power regarding congressional objectives. The problem, according to Wilkins, is that in Indian law and policy all three definitionsmay apply at once, such aswhen Congress exercises its prerogative as the exclusive voice of the federal government in dealingwith tribes and/orwhen it acts to preempt state intru- sion into Indian country. Of historical note is that that the term “Indian country”was used as early as the 18th century for the then-prevailing view that a separate territory would be set aside for Indians (Getches et al., 1998). However, “Indian country” is a legal term as well and is defined in 18 U.S. Code section 1151 as follows.

Indian country, as used in this chapter, means all land within the limits of any Indian reservation under the jurisdiction of the United States govern- ment, notwithstanding the issuance of any patent, and, including rights-of- way running through the reservation, (b) all dependent Indian communities within the borders of theUnited Stateswhetherwithin the original or subse- quently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

TwoSupremeCourt decisions in 1991 affected the sovereign immunity of both tribes and states. In Blatchford v. Native Village of Noatak (1991), the Court decided that states are immune from liability to tribes for mone- tary damages. In Oklahoma Tax Commission v. Citizen Band of Potawatomi Indian Tribe of Oklahoma (1991), the Court decided that tribes are immune from liability to states for monetary damages. In both Potawatomi and Noatak the Court applied federalism logic and political principles to both the state and the tribes, ruling that their respective sover- eignties derived inherently from their own sources. Questions of power and sovereignty are the issues when tribes seek

help from the federal courts or try to resist federal decision making, such as federal environmental statutes and regulations. The issues raised usu- ally include executive and congressional authority, the implementation of the Supreme Court decisions by the executive and the allocation of power between states, tribes, and the federal government. In this sense, federal Indian policy is much more convoluted and complex. For example, in

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Great Northern Paper, Inc., et al. v. Penobscot Nation et al. (2001), the case focused onwhether theMaine FreedomofAccessAct, which is ordi- narily applicable to municipalities and other components of state govern- ment, applied to the Penobscot Nation and the Passamaquoddy Tribe. Great Northern Paper, along with other paper companies, owns and

operates pulp paper mills. These companies have federal and state licenses authorizing the discharge of treated wastewater downstream of the Passamaquoddy and Penobscot reservations. The tribes, however, requested through the U.S. Environmental Protection Agency that the State of Maine is not entitled to regulate the water resources within tribal territories, because the tribes should be treated as separate “states.” Attor- neys for the paper companies requested documents from the tribes relat- ing to these efforts to gain regulatory powers over the water resources within or adjacent to tribal borders. The tribes refused, and the paper com- panies filed a complaint under the Maine Freedom of Access Act to get access to these documents. The case then took on an interesting twist. TheMaine Supreme Judicial

Court held that under the Maine Indian Claims Settlement Act of 1980, Indian tribes located in Maine gained monetary trust monies and land assets in exchange for a shared model of authority between the individual tribes and the State ofMaine along a “municipal type”model. The state, in turn, gained closure on Indian land claims that threatened title to vast areas within Maine. The court held that because the tribes agreed to treatment asmunicipal-

ities for purposes of defining their relationship with the State of Maine, state laws that apply to municipalities also routinely applied to the tribes. So depending on the circumstances and activity engaged in by a tribe it might be recognized as a sovereign nation, a person or other entity, a busi- ness corporation, or a municipal government. The court noted that because tribes are distinct from municipalities, when they are engaged in internal tribal matters (e.g., tribal elections, tribal membership, etc.) state laws could not be imposed upon them. However, when tribes acted in their municipal capacity they are subject toMaine’s laws applicable to munici- pal governments. The court affirmed that the tribes turn over copies of documents exchanged with the state or federal government to the paper companies that relate to the tribes’efforts to obtain federal recognition as a “state” in water quality matters. The tribes then sued in the Federal District Court of Maine. However,

the district court dismissed the federal case for lack of jurisdiction, 116 F.

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Supp. 2d 201,205 (D. Me. 2000). The tribes appealed to the First Circuit Court of Appeals, which reviewed the case and affirmed the district court’s judgment (1st Cir., 254 F.3d 317). The tribes then filed a Petition for Cer- tiorari with the U.S. Supreme Court in November 2001. On February 19, 2002, the U.S. Supreme Court denied review and affirmed the federal dis- trict court’s judgment dismissing the case for lack of jurisdiction. Again, this illustrates the convoluted and complex nature of federal Indian policy.

TRIBAL GOVERNANCE

Although tribes enjoy the powers of sovereigns, their available resources differ from those of other sovereigns. In general, tribes do not have the fiscal resources or the revenue base that states and local govern- ments possess to support their activities. Consequently, tribes have been dependent on federal financing for their programs. Also, most tribes are small in population and the size of their government structure, compared to the rest of America, which has led to tribes finding innovative solutions for governing and for providing services that have been adapted to their needs and priorities. Therefore, not all sovereigns have the same power and available financial resources. There are, furthermore, varying arrangements of tribal governance among the many different tribes. Because tribal governance incorporates such issues as tribal culture, his- tory, social interactions, laws, jurisdiction, and sovereignty, it is critical to understand the very nature of tribes as a first step in understanding why Indian people wish to retain their ways of governance. Tribes and their lands are significant factors that affect the relation-

ships of today’s tribal peoples with other Americans and with the federal, state, and local governments. Federal recognition may be based on treaty, statute, executive or administrative order, or from a history of dealingwith the tribe as a political entity (Canby, 1998). Federal recognition of a tribe, which is administered by the Bureau of Indian Affairs under the U.S. Department of the Interior,may confer additional benefits to the tribe such as federally administered health care and educational programs. Tribal governments existed long before reservations came into being.

Indian reservations were established within the last 150 years and are called reservations because in treaty negotiations with the United States, tribal leaders reserved for their tribes and their tribes’descendants certain homelands and certain rights in exchange for other lands and activities.

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Today, reservations range in size from the 15-million-acre Navajo Indian reservation in Arizona to the 1.32-acre Likely Rancheria of the Pit River Tribe in California (Tiller, 1997). Tribal governments exist off reservations as well as on reservations. In

fact, there are some 34 federally recognized Indian governments in Oklahoma, but considerably fewer reservations (Tiller, 1997). Some tribes, such as the Shoshone and the Arapaho inWyoming, share a reservation but have separate tribal governments. Some tribes, such as theNavajoNation, span multiple states (Arizona, Colorado, New Mexico, and Utah). Also, some reservations, such as the St. Regis Mohawk Tribe, span St. Law- rence and Franklin counties in New York State and the provinces of Que- bec andOntario inCanada.Approximately half of the nation’s Indian peo- ple reside on or near reservations (U.S.Department of the Interior, 1999). Tribes may choose whatever forms of government that best suit their

practical and cultural needs (O’Brien, 1989). For example, tribes do not have to adopt governments patterned after the United States, including such elements as separation of powers. Because the Constitution does not limit tribes, they do not have to separate their government from their reli- gion. After Congress passed the Indian Reorganization Act (IRA) of 1934, most tribes did, however, adopt constitutions developed by the Bureau of IndianAffairs. Some tribes, such as the Seneca inNewYork and Muskogee (Creek) andChoctaw inOklahoma, have adopted constitutions that describe their traditional form of government (O’Brien, 1989). How- ever, the constitutions of some tribes remain unwritten, such as the Santo Domingo Pueblo in New Mexico (Tiller, 1997). Many tribal governments have blended traditional and nontraditional

elements into their governments. For example, Article 1 of the Constitu- tion of the Cherokee Nation of Oklahoma states the following:

The Cherokee Nation is an inseparable part of the Federal Union. The Con- stitution of the United States is the Supreme law of the land; therefore, the Cherokee Nation shall never enact any law that is in conflict with any Fed- eral law. (Cherokee Nation of Oklahoma, 1976)

Tribal governments may appoint traditional elders to the tribal council for life or provide that secular decision making be approved by the reli- gious leadership (O’Brien, 1989). Although many tribal courts have bor- rowed heavily from the federal court system and have developed rules of procedure and evidence, tribal courts often rely on tribal tradition and fre- quently look for traditional or informal methods of dispute resolution.

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Tribes can enact legislation and adopt civil and criminal laws. This authority includes but is not limited to determination of domestic rights and relations, regulation of commercial and business relations, power to raise revenues for the operation of the government, establishment of rules of inheritance, land use regulation, and power to administer justice through law enforcement and judicial systems (Cohen, 1982, p. 332). Tribal governments also possess another aspect of sovereignty: immunity from lawsuit. No party except the United States may sue a tribe without a waiver of immunity from the tribe itself or from Congress (Mazurek, Smith, & Wrend, 1998). Tribes have the power to determine tribal membership. Rights such as

voting, holding office, receiving tribal resources (e.g., grazing and resi- dence privileges on tribal lands) and participation in per capita payments usually depend on tribal membership (Getches et al., 1998). The Indian Civil Rights Act of 1968 imposes restrictions similar to those contained in theBill of Rights on tribal governments in dealingswith tribal citizens and others who come under lawful tribal jurisdiction (Getches et al., 1998).

TRIBAL JURISDICTION AND PUBLIC LAW 83-280

There are constant struggles among the various units of governance within the United States to determine which have jurisdiction to hear a case or regulate a particular area. Although the most familiar occur between the federal government and state governments, the most compli- cated may be those that involve tribes, because they usually involve the powers of both the federal government and state governments. Federal Indian law divides legal jurisdiction more strongly between civil and criminal halves than in other fields, because of the different ways that they have developed (Cohen, 1982). In 1953 Congress enacted Public Law 83-280 (PL 280), delegating

limited jurisdiction over Indian country to several states. In PL 280, Con- gress extended state criminal jurisdiction to Indian country and repealed federal criminal laws relevant to Indian country in selected states (Canby, 1998). PL 280 divides the states into so-called mandatory and optional states. The six mandatory states (Alaska, California, Minnesota, Nebraska, Oregon, andWisconsin) received full jurisdiction delegated by PL 280. The optional states, which included Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota, Utah, and Washington, assumed all or partial jurisdiction (Canby, 1998).

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PL 280 did not repeal tribal criminal jurisdiction, but the criminal laws of affected tribes could not conflictwith state law (Cohen, 1982).Also, the Supreme Court clarified the distinctions between civil and criminal laws and established that civil and regulatory state laws were not applicable in affected tribes; however, criminal state laws were applicable. For exam- ple, PL 280 would not extend state laws regulating pollution discharges into Indian country but would extend state laws prohibiting murder. In addition, PL 280 exempted certain actions from civil and criminal state jurisdiction. States could not alienate, tax, or encumber any assets held in trust by the United States for the benefit of tribes or individual Indians (Cohen, 1982). States could not regulate any assets that conflict with a treaty, statute, or agreement that prevented states from regulating tribal hunting and fishing rights confirmed by treaty or statute (Cohen, 1982).

CRIMINAL LAW JURISDICTION

Criminal jurisdiction in Indian country is both ambiguous and com- plex. Its governing principles are contained in hundreds of statutes and court decisions that have been issued randomly during the past 200 years. Pevar (1992) summarized criminal jurisdiction in Indian country as fol- lows: (a) Congress has the ultimate authority to decide which government can exercise criminal jurisdiction in Indian country, and (b) unless Con- gress has decided otherwise, a tribe can prosecute tribal members but not nonmembers, and a state has no criminal jurisdiction over tribal members in Indian country (p. 129-130).

CIVIL LAW JURISDICTION

Tribes have the inherent right to regulate civil jurisdiction on their lands. InWashington v. Confederated Tribes of the Colville Indian Reser- vation (1980), the Supreme Court decided that Indian tribes could exer- cise “a broad range of civil jurisdiction over the activities of non-Indians on Indian reservation lands in which the tribes have a significant interest.” Also, in IowaMutual InsuranceCo. v. LaPlante (1987), theCourt decided that “tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty.” Virtually every activity by a non-Indian on the reservation that involves

Indians or Indian property is subject to the tribe’s civil jurisdiction. In short, with regard to the reservation activities of non-Indians, civil juris-

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diction lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute.

THE SPECIAL STATUS OF CERTAIN TRIBES

Certain tribes occupy a special status under federal Indian law. These groups include Alaska Natives, the Pueblo of New Mexico, Oklahoma Indians, and NewYork Indians, as well as tribes that are not federally rec- ognized (Pevar, 1992). Special status involves unique historical issues concerning tribal land and resource policy making. For purposes of brev- ity, only the special status of Alaska Natives will be discussed in this article. The native inhabitants of Alaska have a unique relationship with the

United States.WhenAlaska was purchased fromRussia in 1897 its native population was scattered in hundreds of villages located principally along the southern and far northwestern coasts (Getches et al., 1998). Hunting and fishing were the main sources of livelihood. Until recently Congress dealt with the Alaska Natives in the same manner as other Indian groups. No treaties were ever signed between the United States and any of the native groups, and there was no conflict on native lands being ceded. The Citizenship Act of 1924, which extended U.S. citizenship to all Indians born in theUnited States, included theAleuts, Eskimos, and the Indians of the Alaska Territory (Cohen, 1982). The IRA of 1934 included Alaska Natives among its beneficiaries, and

more than 170 Indian nations organized under this act (Cohen, 1982). Other federal Indian laws and programs have been interpreted to apply to the native peoples of Alaska in terms of recognition of the United States having a trust responsibility with them, entitling them to all the benefits of this relationship. Land title in Alaska, however, is under mixed ownership. The federal

government, the state government, Alaska Natives, nonnative cities and towns, and individuals claim ownership to lands—and in some cases, to the same lands (Tiller, 1997). In 1971 Congress passed a comprehensive law regarding the land rights of Alaska’s native inhabitants. Congress agreed to compensate the Alaska Natives for taking their land and also agreed to give them ownership rights to certain parcels of land. This law, the Alaska Native Claims Settlement Act (ANSCA), changed the nature of the government’s relationship with the Alaska Natives (U.S. Depart- ment of the Interior, 1999). However, the provisions of ANSCA did not

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affect theMetlakatla Indian Reservation onAnnette Island that was estab- lished in 1891 by Congress in the then Alaska Territory. It is the only fed- erally recognized Indian reservation in Alaska today (Tiller, 1997). The ANSCA gave Alaska Natives $962.5 million in compensation for

extinguishing all of their aboriginal land claims and ownership rights to 40 million acres of land (Getches et al., 1998). Of the 40 million acres, the surface estate of 22 million acres was divided among the 200 native vil- lages according to their population, with each village selecting the land it wanted to live on. The remaining 18 million acres and the subsurface estate of the entire 40 million acres were conveyed to 12 native regional corporations. The 22 million acres patented to the villages are dually owned (Getches et al., 1998). The villages own the surface lands, whereas the regional native corporation owns the subsurface lands. Each Alaska Native is enrolled in a region, and each region and each village are orga- nized and incorporated under Alaska state law. Under ANSCA, Alaska Natives were permitted to enroll and were

issued 100 shares of stock in one of 13 regional corporations and in one of more than 200 village corporations, according to their place of origin. ANSCA required each regional corporation to use its land and resources for the profit of the shareholders. It prohibited shareholders from selling their shares until 1991. Thereafter, these shares could be sold to any per- son, including a nonnative. Lands owned by the native corporations were to be exempt from state and local taxation during the period 1971-1991 (Getches et al., 1998). However, in 1988 Congress amended ANSCA and extended the restrictions on sales of stock and on state taxation indefi- nitely. Congress also permitted each corporation to issue and sell new stock to nonnatives and rejected the natives’ request to allow these corpo- rations to transfer their land to tribal governments in order to give the lands further protection. In addition to the governing bodies of the village corporations, the vil-

lages typically have traditional village councils (led by a chief or presi- dent) or a council organized under the IRA (Tiller, 1997). Both types of bodies function as official representatives of the village to the outside world and to the Bureau of IndianAffairs. Tomakematters still more con- fusing, many villages are simultaneously cities incorporated under the State ofAlaska,with a city council and amayor, city school system, utility boards, and so on. One point, however, must be clarified. Although ANSCA applied principally to aboriginal land claims, ANSCA did not diminish the rights of Alaska Natives to participate in federal Indian

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programs. Alaska Natives are entitled to receive the same services avail- able to tribes elsewhere in the United States. In 1980Congress passed theAlaskaNational Interest LandsConserva-

tion Act (ANILCA) that gave the native population priority rights in hunt- ing and fishing for subsistence needs over all other uses of natural resources (Mazurek et al., 1998). ANILCAalso prohibits federal agencies from allowing anyone to use public lands inAlaska if such usewould have a harmful effect on Alaska Native subsistence rights. The unique legal structure of Alaska Native organizations has raised

questions about whether they enjoy all of the governmental prerogatives of tribes in the lower 48 states. Questions about their relationship to the federal government and the degree of sovereignty for purposes of self- government, sovereign immunity, and governmental control over their lands have been raised. On these questions, the federal courts and the Supreme Court of Alaska have frequently reached different conclusions. The State of Alaska has strongly opposed native governments and has attempted on numerous occasions to haveCongress erode their powers. In general, the state has taken the position that Alaska Native villages lack the powers of self-government enjoyed by tribes. Although Alaska Natives may obtain government services, in 1998 the Supreme Court ruled in State of Alaska v. Native Village of Venetie, 118 S. Ct. 948 (1998), that Alaska Natives could not govern ANSCA corporately held land as Indian country.

MODERN TRIBAL GOVERNMENTS

Most traditional tribal governments had ceased by the early part of the century (Debo, 1972). The passage of the Wheeler-Howard Act, also called the IRA, of 1934 attempted to restore such traditional governments and to restore a systemof communal land tenure and tribal autonomy.As a result, about half of all federally recognized tribes have organized govern- ments patterned after the IRA. A typical government has a governing board, often called the tribal council. Some tribal governments do not pro- vide for the separation of powers, and the same governing board may per- form the executive, legislative, and judicial functions. Tribal governance structures are greatly influenced by their communi-

ties. For example, subsistence communities tend to elect a more traditional governance structure, whereas nontraditional communities tend to have more modern governance structures. All voters elect council members at

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large or by district. The chairperson and other officers who form the exec- utive committee are members of the council, elected either by the people or by the council from among its membership. The judicial function may be performed either by the council itself or by tribal members appointed by the council. In some cases, tribal members may elect judges, allowing for a greater separation of powers. The following descriptions illustrate someof thevarious types ofmodern tribal governments in existence today. The Beaver Kwit’chin Village Corporation, located near Fairbanks,

Alaska, is unincorporated under Alaska law. A traditional council, headed by a first chief, governs the community. They do not have a constitution modeled after the provisions of the IRA. The Tatitlek Aleut Village Cor- poration, located 30 miles east of Valdez, Alaska, in Prince William Sound, is an unincorporated village under Alaska law. However, it has an IRA village council, headed by a president. The Gila River Indian com- munity located in Sacaton, Arizona, is organized under an IRA constitu- tion. A governor, lieutenant governor, and 17 council members govern the community. Terms of office are 3 years, and there are seven community districts (O’Brien, 1989; Tiller, 1997). The HoopaValley Tribe, located in Homboldt, California, is organized

under a non-IRA constitution. An eight-member elected tribal council with members representing each of its seven districts governs the tribe. A chairperson is elected from within the tribal council and serves a 2-year term (Tiller, 1997). As previously stated, the St. Regis Mohawk community straddles the

the United States–Canada border, spanning portions of two New York State counties and two Canadian provinces. Tribal councils exist for both theU.S. andCanadian portions of the tribe. TheU.S. council ismade up of three chiefs, three subchiefs, and a tribal clerk. Each serves a 3-year term. TheCanadian council consists of a chief and 11 councilors (Tiller, 1997). The Meherrin Indian Tribe is a nonfederally recognized but state-

recognized tribe located in Hertford County, North Carolina. The tribe was incorporated by the state as a nonprofit corporation in 1977. Its char- terwith the state ofNorthCarolina established the positions of chief, tribal chairman, secretary, treasurer, and six tribal members (Tiller, 1997).

THE FEDERAL TRUST RELATIONSHIP

Tribal governance is predominantly based on notions of prior sover- eignty and the federal trust relationship. Pommersheim (1995) noted that the federal “trust relationship [is one] inwhich the federal government has a unique fiduciary and managerial responsibility to Indian land and

476 ADMINISTRATION & SOCIETY / November 2002

natural resources as well as ongoing responsibilities to provide health, education, and social services” (p. 41-42). The federal trust relationship also comprises the 379 treaties ratified by Congress as well as executive agreements, direct consultation with Congress on Indian affairs, federal statutory obligations, and court decisions (Corntassel & Witmer, 2000).

CONCLUSIONS AND IMPLICATIONS FOR PUBLIC ADMINISTRATION

Tribes have inherent sovereignty through the nation-to-nation relation- ship with the U.S. government as established by treaties and the trust rela- tionship (Wilkins, 1998). Furthermore, tribes exercise a number of powers that only sovereigns may exercise, such as adopting their own form of government, determining tribal membership, taxing its members, and administering justice. Although sources of tribal power are based on the federally recognized

trust doctrine, issues of sovereignty are often complex because there are competing versions among tribes and the federal and state govern- ments on exactly what sovereignty means. For example, sovereignty to non-Indians is usually equated with the state’s autonomous authority and the individual’s ownership of property. On the other hand, from a tribal perspective, sovereigntymeans the right and responsibility of itsmembers to participate in decisions affecting the tribal community. Tribes have great concerns that decision-making power is shifting from

the federal government to the states; that would mean that states would have more control over federal dollars and more say in how and where those dollars should be spent at the expense of tribes. States often resent the fact that because of inherent tribal sovereignty, tribes within their bor- ders have jurisdictional oversight regarding issues of taxation, hunting and fishing rights, some forms of criminal activity, and economic develop- ment. Therefore, issues of tribal sovereignty domatter andmust be under- stood, because theyweigh heavily in all intergovernmental relationships. Many times, however, there is no bright line to distinguish clearly

where sovereignty begins and ends. A great challenge lies in determining how governmental structure and program policy initiatives involve the nation’s federal systemwith regard to tribal governance. For example, the boundaries of tribal and nontribal land are becoming less clear—as dem- onstrated by off-reservation operations by tribes—and are a concern to both tribes and governments (local, state, and federal).

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This unique relationship requires dealing with tribes on an administra- tive and policy level that must encompass the past, present, and future. It requires careful consideration of cultural, historic, and socioeconomic aspects of Indian tribes, which are often intertwined. Tribal sovereignty denotes the possession of certain rights, including the right to structure government as desired, to define membership, to make and enforce its own laws, and to regulate resources and property. Unlike states, tribes derive their powers through their sovereign exis-

tence. Tribes were never brought into the political sovereign structure of the United States by the Constitution. Therefore, a unique arrangement between the United States and tribes exists. Tribes exist outside of Ameri- can federalism, and they exist as sovereigns within this nation. Although they cannot deal as totally independent nations, they are distinct, preexist- ing sovereigns in their own right. This implies that there is a separation between sovereigns, that is, between governments, which is further defined by executive orders, court rulings, and legislation. Although the Constitution provides for a delineation of responsibilities between the federal and state governments, the status of tribes today remains one of a government-to-government relationship with the United States. As preexisting sovereigns tribes are unique, but they are also part of our

American polity as citizens of both individual states and theUnited States. The various forms of American federalism have been amply described by the field as one of progression from dual federalism tomarble-cake feder- alism to new federalism, and so on. The field’s treatment of federalism when it comes to tribes, however, has been largely ignored. Therefore, tribes must be understood by the field in the context of their unique place in American society. At times, questions of jurisdiction are unclear and therefore, policy implementation for the field depends on knowing more about tribes. Both intraagency and interagency relationships have a direct bearing

on how the trust responsibilities to American Indians and Alaska Natives are administered and managed. These agencies must learn about issues and the diversity of tribes and be open to the possibility ofworking in a dif- ferent cultural environment if they want to build partnerships with tribal governments. This is critical for the implementation of public policy, because history bears witness that earlier government policy toward tribes was often wrong. One successful enterprise aimed toward this effort concerns the Inter-

governmental Affairs Department of the Confederated Tribes of Grand

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Ronde, located in Oregon. This department has promoted positive inter- governmental relationships with federal, state, and local governments by pursuing a five-pronged strategy of communication, education, coopera- tion, contributions, and presence. The tribe has raised public awareness, built coalitions, and engaged in innovative partnerships with the Oregon Department of Environmental Quality and the U.S. Forest Service on wetlands and fish populations, which are important to the tribe as natural and cultural resources (Confederated Tribes of Grande Ronde, 2001). As noted earlier, the public administration literature has for the most

part ignored Native Americans. Unfortunately, the loss we inflict upon ourselves by failing to reach out to the tribal world so different from our own is amissed opportunity. In the Federalist Number 10, JamesMadison spoke about these things in terms of diversity: The greater the number of religious and political sects comprehended by the constitutional reality, the stronger the body politic (Hamilton, Madison, & Jay, 1961). Tribal ways are fundamentally different—different, not less devel-

oped. They have different languages, a different spirituality, different aes- thetics, and different ways of living on and with the land. To acknowledge and to accept these differenceswould expand the horizons of us all. That is why it is important for the field to learn more about tribes, as sovereigns, who occupy a unique place with their own governance structures along with the federal and state governments. The United States is based, in part, upon a constitutional system that

allows the broadest scope for cultural, ethnic, traditional, and religious diversity. Our nation has been enhanced immeasurably by its openness and ability to accommodate different cultures. This openness has allowed each group to make its own contribution to our national life. Furthermore, in terms of tribal governance Masten (2001) noted that

The status of IndianNations as a formof government is at the heart of nearly every issue that touches Indian country. It is only when the general public andCongress understand that an Indian tribe functions as a government and provides basic governmental services, that the principles of tribal gover- nance will be recognized and protected. (p. 2)

Tribes, as sovereigns, have rich cultures that are intertwined with the founding of our nation, and they have enriched us as a whole. Finally, the field of public administration needs to be made aware of the unique rela- tionship and importance of tribal governance.

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James Ortiz received his Ph.D. in public administration from Virginia Polytechnic Institute and State University. His research interests include environmental policy, federalism, public value, and tribal governance. His recent work has appeared in The Electronic Green Journal, The Public Manager, Administrative Theory & Praxis, and Public Administration Times.

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