Tribal Governments

Tribal nations governed themselves long before the United States existed, and the Constitution recognizes them alongside foreign nations and the states in the Commerce Clause. In Cherokee Nation v. Georgia in 1831, Chief Justice John Marshall described tribes as domestic dependent nations, and in Worcester v. Georgia in 1832 he held that state laws had no force within Cherokee territory. The federal government now recognizes 574 tribes, about half of them in Alaska, which hold inherent sovereignty except where limited by treaty or by Congress.

Tribal governments take many forms. Many adopted constitutions under the Indian Reorganization Act of 1934, with elected councils and chairs, while others follow traditional structures, such as governance by clan leaders or religious authorities. Tribes make civil and criminal laws, run courts and police, levy taxes, determine their own membership, regulate land use and natural resources, and provide services including health care, schools, and housing, often under self-determination contracts with federal agencies authorized in 1975. Gaming under the Indian Gaming Regulatory Act of 1988 has become a major revenue source for many tribes.

Tribal sovereignty is shaped by Supreme Court decisions and federal law. In McGirt v. Oklahoma in 2020 the Court held that much of eastern Oklahoma remains reservation land for purposes of federal criminal law, but in Oklahoma v. Castro-Huerta in 2022 it held that states may prosecute non-Indians for crimes against Indians in Indian country. In Haaland v. Brackeen in 2023 it upheld the Indian Child Welfare Act. Tribes generally cannot prosecute non-Indians, except for certain domestic violence and related crimes under the Violence Against Women Act reauthorizations of 2013 and 2022. Debates continue over jurisdiction, federal funding, and recognition.