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JULY 1994

Article 1 - Self-Determination

Generally.  The basic principle of self-
determination is at the core of American political 
life, as the nation was born in a struggle against 
the colonial regime of the British during the 
eighteenth century.  The right to self-
determination, set forth in Article 1 of the 
Covenant, is reflected in Article IV, Section 4 of 
the U.S. Constitution, which obliges the federal 
government to guarantee to every state a "Republican 
Form of Government."  Implicitly, this article 
ensures that every state will be governed by 
popularly elected officials.  Similarly, Articles I 
and II of the Constitution, as amended by the 
Twelfth, Seventeenth, Twentieth, Twenty-second, and 
Twenty-third Amendments to the Constitution, and the 
second clause of the Fourteenth Amendment, describe 
in detail the manner by which the national 
government is to be elected.  The right to vote in 
federal, state, and local elections is also 
implicit, for it is the "essence of a democratic 
society."  Reynolds v. Sims, 377 U.S. 533, 555 
(1964).  The states are permitted to set the 
qualifications for voting, but the states are 
limited by the Fifteenth, Nineteenth, Twenty-fourth, 
and Twenty-sixth Amendments from restricting the 
franchise on the basis of race, color, previous 
condition of servitude, sex, failure to pay a poll 
tax, or for being under any age except 18 years.  
Hence, the people of the United States are free in 
law and in practice to determine their "political 
status" within the structure of the Constitution, 
and to change the Constitution itself through 
amendment.  There have been 27 such amendments since 
the founding of the Republic, beginning with the 
Bill of Rights (Amendments I-X) in 1791. 

The right to pursue economic and cultural 
development is not mentioned, in such terms, in the 
U.S. Constitution, yet it is among the most 
fundamental principles that define American society.  
The essential civil and political rights guaranteed 
by the Constitution and the Covenant, and a free 
market economy, provide the basis for free and 
liberal pursuit of economic or cultural development, 
with virtually no restraint save for those necessary 
to protect public safety and welfare.  

Property rights are specifically protected by the 
Fifth and Fourteenth Amendments, which guarantee 
that neither the states nor the federal government 
may deprive one of property without due process or 
take property for public use without fair 
compensation.  The Constitution does not, however, 
protect persons or corporations from reasonable 
economic regulation by both the states and the 
federal government.  Cultural life, on the other 
hand, is generally protected by the First Amendment 
guarantees of freedom of speech and association 
which are very broadly construed, as discussed below 
in connection with Articles 18, 19, 21 and 22.

I.   The Insular Areas 

The United States includes a number of Insular 
Areas, each of which is unique and constitutes an 
integral part of the U.S. political family.  Persons 
born in these areas are U.S. citizens (U.S. 
nationals in the case of American Samoa).  Local 
residents, including U.S. citizens born elsewhere 
who have moved to these areas, elect their own local 
governments and make and are ruled by their own 
local laws.  They are free to move to other parts of 
the United States and enjoy the protections for 
individual liberty that the Bill of Rights 
guarantees to all Americans.  Guam, the Virgin 
Islands, American Samoa and Puerto Rico each are 
represented in the U.S. House of Representatives by 
an elected delegate.  Other than the right to vote 
on the final passage of a bill or resolution, the 
delegate from each Insular Area enjoys the same 
privileges and exercises the same powers as a Member 
of Congress from one of the states.

The United States considers Guam, the U.S. Virgin 
Islands, and American Samoa as still "non-self-
governing" for purposes of Article 73 of the United 
Nations Charter.  Although these areas are in fact 
self-governing at the local level, as described 
below, they have not yet completed the process of 
achieving self-determination.  By contrast, the 
states of Alaska and Hawaii, as well as the 
Commonwealth of Puerto Rico, all of which used to be 
"non-self-governing" for purposes of Article 73, 
have completed acts of self-determination through 
which they have resolved the terms of their 
respective relationships with the rest of the United 
States.  Similarly, the Commonwealth of the Northern 
Mariana Islands, the Federated States of Micronesia 
and the Republic of the Marshall Islands, all of 
which were once part of the Trust Territory of the 
Pacific Islands, have completed the process of self-

The Commonwealth of Puerto Rico.  The largest and 
most populous of the U.S. Insular Areas, Puerto Rico 
was acquired by the United States in 1899 after the 
Spanish-American War.  Between 1900 and 1950, 
Congress provided for the governance of Puerto Rico 
through Organic Acts.  In 1950, Congress enacted  
legislation which authorized Puerto Rico to organize 
its own government and adopt a constitution.  Puerto 
Rico did so, and its constitution became effective 
on July 25, 1952, at which time Puerto Rico achieved 
the status of a Commonwealth of the United States.  
Since then, the question of Puerto Rico's 
relationship to the United States has continued to 
be a matter of public debate and discussion.  Most 
recently, the people of Puerto Rico expressed their 
views in a public referendum in November 1993; 
continuation of the current commonwealth arrangement 
received the greatest support, although nearly as 
many votes were cast in favor of statehood.  By 
contrast, a small minority of some 5 percent chose 

Guam.  Guam was acquired by the United States in 
1899 after the Spanish-American War and, with the 
exception of the period of occupation during World 
War II, was administered by the Navy until 1950.  In 
1950, Congress enacted the Guam Organic Act, 
providing for the civil government of Guam.  48 
U.S.C.    1421-1425.  It includes a Bill of Rights 
that parallels the guarantees of individual liberty 
in the Constitution and it grants U.S. citizenship 
to the people of Guam.  Since 1968, the executive 
branch of Guam's government, consisting of the 
Governor and the Lieutenant Governor, have been 
popularly elected.  Legislative authority is 
exercised by a unicameral legislature of twenty-one 
members elected every two years.  Judicial power is 
vested in local Guamanian courts and in the U.S. 
District Court for Guam. 

The U.S. Virgin Islands.  The U.S. Virgin Islands 
were purchased from Denmark in 1916.  They are 
governed in accordance with an Organic Act that 
Congress enacted in 1936 and revised in 1954.  Both 
the Organic Act and the revised Organic Act included 
a Bill of Rights parallelling U.S. constitutional 
protections for individual rights.  The people of 
the Virgin Islands have been U.S. citizens since 
1927.  Since 1968, the Governor and the Lieutenant 
Governor have been popularly elected.  Legislative 
power is vested in a unicameral legislature composed 
of fifteen senators elected every two years.  
Judicial power is vested in a local court system and 
in the U.S. District Court for the Virgin Islands.

American Samoa.  The United States acquired American 
Samoa through Deeds of Cession executed by its 
Chiefs in 1900 and 1904 and ratified by Congress in 
1929.  Unlike the situation with Guam and the Virgin 
Islands, Congress has not enacted an Organic Act for 
American Samoa.  Instead, it provided for the 
delegation of executive authority to the Secretary 
of the Interior.  In 1967, the Secretary approved 
the constitution of American Samoa, which provides 
for the functioning of its local government.  A 
subsequent federal statute, 48 U.S.C.   1662a, 
prohibits any amendments or modification to the 
constitution without the consent of Congress.  The 
constitution of American Samoa includes a Bill of 
Rights that substantially parallels the Bill of 
Rights in the U.S. Constitution.  

Residents of American Samoa are U.S. nationals.  A 
"national of the United States" is (1) a citizen of 
the United States or (2) "a person, who though not a 
citizen of the United States, owes permanent 
allegiance to the United States."  Immigration and 
Naturalization Act,   101(a)(22), 8 U.S.C.   
1101(a)(22).  Only the inhabitants of American Samoa 
and Swains Island are noncitizen nationals.  A U.S. 
national is not an alien.  "The term 'alien' means 
any person not a citizen or national of the United 
States."  INA   101(a)(3), 8 U.S.C.   1101 (a)(3).  
A noncitizen national who becomes a resident of any 
state and is otherwise eligible may become a 
citizen.  INA   325, 8 U.S.C.   1436.

The Governor and Lieutenant Governor of American 
Samoa have been popularly elected since 1978.  
Legislative powers of the American Samoa are vested 
in a bicameral body known as the Fono.  The 
judiciary consists of a system of local courts and 
of the High Court of American Samoa.  The Chief 
Justice and Associate Justice of the High Court are 
appointed by the Secretary of the Interior.  There 
is no federal court with general jurisdiction over 
American Samoa.  American Samoa has tended to oppose 
the establishment of a federal court due to concern 
that it could have a negative impact on certain 
aspects of traditional Samoan culture, known as Fa'a 
Samoa, such as communal land ownership patterns.

The Commonwealth of the Northern Mariana Islands.  
At one time a component of the Trust Territory of 
the Pacific Islands, the Commonwealth of the 
Northern Mariana Islands (CNMI) elected to become 
part of the United States political family through a 
Covenant enacted in 1976.  In accordance with the 
Covenant, the CNMI adopted a constitution which 
became effective in 1978.  The Covenant and the 
constitution incorporate the protections of the U.S. 
Bill of Rights and guarantee U.S. citizenship for 
residents of the CNMI.

Under its constitution, the CNMI is governed by a 
popularly elected Governor, Lieutenant Governor, and 
bicameral legislature.  Judicial power is vested in 
the CNMI's local court system and in the U.S. 
District Court for the Northern Mariana Islands.  
The CNMI is represented in Washington, D.C. by a 
popularly elected Resident Representative to the 
United States.  The Resident Representative serves a 
four-year term but is not a member of Congress.

The Trust Territory of the Pacific Islands.  In 
1947, following World War II, the United States 
entered into a Trusteeship Agreement with the United 
Nations Security Council under which the United 
States was designated trustee of more than 2,100 
islands in the Western Pacific formerly subject to 
the Japanese mandate.  Over time, the Trust 
Territory of the Pacific Islands (TTPI) was divided 
into four geographically distinct areas:  the 
Northern Mariana Islands, the Marshall Islands, the 
Federated States of Micronesia, and Palau.

As discussed above, the Northern Mariana Islands 
chose in 1976 to become a Commonwealth of the United 
States.  The Marshall Islands and the Federated 
States of Micronesia each chose to become 
independent, sovereign nations in a relationship of 
Free Association with the United States.  In 
December 1990, they became member states of the 
United Nations.  Thus, the sole remaining entity of 
the Trust Territory is the Republic of Palau.  

Palau is still subject to the United Nations 
Trusteeship Agreement, and accordingly, it continues 
to be governed under the authority of the Secretary 
of the Interior of the United States.  Under the 
Constitution of Palau and pursuant to the 
Secretary's Order No. 3142 of October 15, 1990, the 
Secretary has delegated executive, legislative, and 
judicial authority to the local government of Palau.

The United States recognized the constitution and 
government of Palau in 1980.  The government 
consists of a popularly elected President and Vice 
President, a bicameral legislature known as the OEK, 
and a local judicial system.  A body known as the 
Council of Chiefs advises the President on matters 
concerning traditional law and custom.  Palau is 
composed of 16 states, each of which has its own 
local government and constitution.

In 1986, the Government of Palau and the Government 
of the United States signed a Compact of Free 
Association, which was enacted into law by the U.S. 
Congress in the same year.  The Compact was ratified 
by the people of Palua in a plebiscite in November 
1993, which should soon lead to the termination of 
the Trusteeship and independence for Palau.

II.  Native Americans

Introduction.  The United States is home to a wide 
variety of indigenous people or groups who, despite 
their ethnic, cultural and linguistic diversity, are 
generally referred to as Native Americans.  Many are 
organized as tribes, some of which have obtained 
official recognition by the federal government while 
others have not.  For purposes of this report, the 
term also includes special status groups such as 
Alaska Natives and native Hawaiians.  The term  
Alaska Natives" includes Inuits (sometimes referred 
to as Eskimos), Indians, and Aleuts.  Native 
Hawaiians are not a federally recognized Indian 
tribe or group.  The lifestyles of Native Americans 
vary widely, from those in which traditional culture 
is still largely practiced (over 100,000 Native 
Americans still speak their native languages) to 
those who have been largely or completely 
assimilated into urban modernity.

In the 1990 census, 1.9 million individuals, or less 
than one percent of the population, identified 
themselves as Native Americans.  The largest tribes 
or ethnic groups among these self-identified Native 
Americans were the Cherokee, Navajo, native 
Hawaiians, Chippewa and Sioux.  The states with the 
largest Native American populations include 
Oklahoma, California, Arizona, Hawaii and New 
Mexico.  The highest proportion of Native Americans 
to the rest of the population occurs in Alaska (15.6 
percent).  Approximately half of the total Native 
American population lives on or near a reservation.  
The largest land-holding tribes are the Navajo 
(whose land is located in Arizona, New Mexico and 
Utah and covers an area larger than nine of the 50 
states), Tohono O'odham, Pine Ridge, Cheyenne River, 
and San Carlos.  In total, Native American tribes 
and individuals own between 50 and 60 million acres 
of land.  In addition, Alaskan natives own another 
44 million acres of land as a result of the Alaska 
Native Claims Settlement Act.

Of all Native American tribes, 542 are federally 
recognized, including 223 Alaska villages and 
regional tribes.  The term "tribe" here refers to 
the political and institutional mechanisms of tribal 
authorities which exercise jurisdiction over 
reservation or other tribal lands.  The members of a 
tribe, as individuals, are U.S. citizens with the 
same rights as other U.S. citizens and may live 
where they choose.  Within the area of tribal 
jurisdiction, however, the tribe itself generally is 
the governing authority and not a state or other 
local government.  Tribes enjoy considerable 
autonomy even with respect to the federal 
government.  Federally recognized tribes are 
eligible to participate in specified programs funded 
and administered by the Bureau of Indian Affairs 
(BIA) in the Department of the Interior.  Since 
1978, 150 groups have notified the BIA of the 
intention to seek federal recognition.  As of mid-
1994, 73 groups had submitted letters of intent to 
petition; 26 petitions were incomplete; 9 petitions 
were under active consideration; 5 were ready for 
active consideration; 7 required legislation; and 30 
had been resolved (9 acknowledged as tribes; 13 
denied; 5 legislatively determined; and 3 otherwise 

The Alaska Native Claims Settlement Act identified 
44 million Alaskan acres as Native controlled and 
owned, and extinguished Natives' claims to most of 
the rest of Alaska.  Native Hawaiians have sought 
ownership and control over land and acknowledgement 
of Native American status for some time but without 

Under U.S. law, Native American tribes are distinct, 
independent political communities, which retain all 
aspects of their sovereignty not withdrawn by treaty 
or statute or by implication as a result of their 
status.  See United States v. Wheeler, 435 U.S. 313 
(1978); Washington v. Confederated Tribes of the 
Colville Indian Reservation, 447 U.S. 134 (1980).  
Perhaps the most fundamental principle of the law 
governing the relationship between the United States 
and Native American tribes is the principle that the 
powers vested in Native American tribes are inherent 
powers of a limited sovereignty which has never been 
extinguished.  They are not, in general, delegated 
powers granted by acts of Congress.  

Although Native American tribes are currently 
accorded a substantial measure of autonomy and self-
governance, there are still many areas of difficulty 
and controversy in their relationships with federal 
and state governments.  Despite some improvements, 
Native Americans are far more likely to live in 
poverty and suffer high rates of disease, suicide 
and homicide than the majority of U.S. citizens.  
According to the 1990 census, 31 percent of Native 
Americans lived below the poverty level.  In 1991 
the unemployment rate for Native Americans was 45 
percent.  Native Americans experience 
disproportionately high rates of mortality from 
tuberculosis, alcoholism, accidents, diabetes, 
homicide, suicide, pneumonia and influenza.

Historical Background.  Some scholars have estimated 
the Native American population of the United States 
to have been as high as 10 million persons at the 
time of initial European contact.  The basis of 
indigenous social and political organization was 
tribal.  Tribes ranged from small semi-nomadic bands 
to large,  highly organized, and sophisticated 
communities.  Tribes were self-governing entities 
with clearly understood socio-political rankings or 
hierarchies.   They had systems of social and 
political control to perform or regulate subsistence 
and economic activity (including trading with other 
tribes), distribute wealth, recognize land 
boundaries, conduct war and regulate domestic and 
other aspects of intragroup relations.  

The organizers of government of the United States 
recognized the self- governance of Indian groups.  
The Constitution vests in the federal government the 
exclusive authority to regulate commerce with Native 
American tribes.  Art. 1,   8, cl. 3.  The First 
Congress acted promptly to exercise this authority, 
enacting the Indian Trade and Intercourse Act of 
1790, 1 Stat. 137.  Further, President Washington 
and the First Congress reached agreement that the 
treaty- making power of the federal government 
extended to treaties with Native American tribes, 
establishing the precedent that Native American 
treaties -- like those with foreign nations -- 
needed Senate approval before they could take 

As the largely European immigrant population of the 
United States increased and moved westward, there 
was increasing tension and violence between settlers 
and Native Americans.  Opting to resolve the 
situation by accommodating the settlers, the federal 
government between 1815 and 1845 sought to remove 
eastern tribes from their tribal homelands.  
However, with the continued westward push of 
immigrant settlement, further removal became 
impossible.  In the 1850 s, the federal government 
adopted a new policy of assignment of tribes to 
permanent reservations.  Reservations were intended 
to be for the exclusive use of Native Americans, 
providing a fixed and permanent home under the 
superintendence of a tribal agent.  Comm r of Indian 
Affairs Annual Rept., S. Exec. Doc. No. 1, 33d 
Cong., 2d Sess. 225 (1854).  Confinement to 
reservations was often strenuously opposed by 
tribes, leading to a series of military conflicts 
that extended through the 1870 s.  

By 1880, there were serious doubts about the 
reservation policy.  Economically and socially, most 
reservations were not successful.   There was 
widespread destitution in tribal country and 
significant corruption in the administration of the 
federal Native American service.  Political 
reformers came to favor allotment of land to 
individual Indians as a response to these problems 
and as the vehicle to assimilate Indians into 
mainstream society.  Economic interests in the 
western states supported allotment because it 
promised to open additional land to settlement.

In 1887, the General Allotment Act authorized the 
Secretary of the Interior to allot tracts of 
reservation land to individual Native Americans  -- 
80 acres (approximately 32.3 hectares) to an 
individual and 160 acres (64.7 hectares) to a 
family.  The allotted land was to be held in trust 
by the United States for a period of 25 years; 
thereafter a fee patent was to be issued.  
Consistent with the philosophy underlying the 
allotment policy, legislative and administrative 
policies accompanying allotment strongly discouraged 
tribal self-government and traditional cultural and 
religious practices.  

The General Allotment Act and subsequent allotment 
legislation resulted in a significant diminution of 
Native American land holdings.   Of 40 million acres 
allotted to individuals, some 27 million acres were 
lost by sale or foreclosure between 1887 and 1934.  
An additional 60 million acres were sold to non-
Native American homesteaders or corporations as 
"surplus" or were ceded outright.  In total, Native 
American land holdings declined from 138 million 
acres in 1887 to 48 million acres in 1934.  

In 1934, the policies of assimilation and allotment 
were rejected with the enactment by Congress of the 
Indian Reorganization Act (IRA).  See 25 U.S.C.    
461-479.  The overriding purpose of the Act was to 
establish "machinery whereby Indian tribes would be 
able to assume greater self-government, both 
politically and economically."  Morton v. Mancari, 
417 U.S. 535, 542 (1974).  The IRA took a community-
based approach to preservation of a tribal land base 
and reorganization of tribal governments.  The Act 
stopped allotment and contained provisions to 
stabilize tribal land holdings and for the 
acquisition in trust of additional trust lands for 
Native American reservations.  It provided that 
tribes could organize for their common welfare, 
adopt constitutions and bylaws, and form tribal 
corporations, with the power to own, hold, manage, 
and operate property and businesses.

However, in the late 1940 s, federal policy shifted 
again, with congressional and executive reports 
proposing renewed policies of assimilation.  In 
1953, House Concurrent Resolution 108 declared as 
congressional policy the termination of federal 
control and supervision over Native American tribes 
and the freeing of tribes and their members "from 
all disabilities and limitations specially 
applicable to Indians."  The Indian Reorganization 
Act was not repealed, but individual acts were 
passed to implement the new policy for individual 
tribes or groups of tribes.  Specific arrangements 
varied from tribe to tribe, but these acts typically 
required tribal approval before the sale or 
encumbrance of tribal land.  For most purposes, the 
federal trust relationship was ended for terminated 
tribes, and tribes and their individual members were 
made subject to state jurisdiction.  Eligibility for 
special federal services for tribes and tribal 
members was ended.

The impact of termination on these tribes was 
devastating.  Tribes often went from prosperity to 
poverty.  Many terminated tribes saw their land 
sold.  The termination act stripped tribes of their 
exemption from taxation, and tribal leaders were 
forced to begin to sell ancestral tribal land to pay 
the taxes.  By the 1960 s, many tribes faced the 
loss of their land, tribal identity, and culture.

By 1970, however, national policy had shifted once 
again, this time toward a goal of tribal self-
determination.  The new policy was first articulated 
in a 1970 message to Congress by President Nixon.  
The message called for rejection of the extremes of 
both termination and excessive tribal dependence on 
the federal government.  The message said that the  
time has come to break decisively with the past and 
to create the conditions for a new era in which the 
Indian future is determined by Indian acts and 
Indian decisions  and proposed a new policy of self-
determination "to strengthen the Indian s sense of 
autonomy without threatening his sense of 
community."  H.Doc. 91-363, 91st Cong., 2d Sess. 1-3 
(1970).  This new policy found expression in the 
Indian Self-Determination Act, discussed below.

Current Policy.  Current policy continues and builds 
upon this policy of tribal "self-determination" as 
expressed by President Clinton on April 29, 1994, in 
a meeting with tribal leaders.  The President signed 
two memoranda: one instructing all government 
agencies to cooperate wherever possible in meeting 
the need for eagle feathers in the traditional 
practices of Native Americans, and the other 
directing federal agencies to ensure that they 
interact with tribes on a government-to-government 

In terms of legal status, Native American tribes are 
recognized as "unique aggregations possessing 
attributes of sovereignty over both their members 
and their territory."  United States v. Mazurie, 419 
U.S. 544, 557 (1974).  "The sovereignty that Indian 
tribes retain is of a unique and limited character. 
. . . In sum, Indian tribes still possess those 
aspects of sovereignty not withdrawn by treaty or 
statute, or by implication as a necessary result of 
their dependent status (i.e., by virtue of their 
being within and part of the United States)."  
United States v. Wheeler, 435 U.S. 313, 323 (1977).

In recent decisions, the U.S. Supreme Court has 
recognized the inherent right of tribes to tax non-
Native Americans doing business within their 
territories, Merrion v. Jicarilla Apache Tribe, 455 
U.S. 130 (1982), and the immunity of Native 
Americans and their property from state taxation, 
McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 
(1973), and Bryan v. Itasca County, 426 U.S. 373 
(1976).  The Supreme Court has also upheld the right 
of tribal courts to make the initial determinations 
as to the scope of their own jurisdiction.  National 
Farmers Union Insurance Companies v. Crow Tribe of 
Indians, 471 U.S. 845 (1985).

The Supreme Court has recognized that, as a general 
rule, states lack authority to exercise their civil, 
regulatory laws on Native American territory.  
California v. Cabazon Band of Mission Indians, 480 
U.S. 202 (1987).  A tribe's authority to regulate 
land use within the boundaries of its territories 
has been found to vary depending on the character of 
the territory.  Brendale v. Confederated Tribes and 
Bands of the Yakima Indian Nation, 492 U.S. 408 
(1989); South Dakota v. Bourland, 113 S.Ct. 2309 
(1993).  As a guiding principle for these decisions, 
the Supreme Court has stated that the "exercise of 
tribal power beyond what is necessary to protect 
tribal self-government or to control internal 
relations is inconsistent with the dependent status 
of the tribes, and so cannot survive without express 
congressional delegation."  Montana v. United 
States, 450 U.S. 544, 564 (1981).

The Supreme Court has held that tribal courts are 
the proper forum for the adjudication of civil 
disputes involving Native Americans and non-Native 
Americans arising on a reservation.  Fisher v. 
District Court, 424 U.S. 382 (1976).  "Tribal 
authority over the activities of non-Indians on 
reservation lands is an important part of tribal 
sovereignty,  and, as a result, "[c]ivil 
jurisdiction over such activities presumptively lies 
in the tribal courts, unless affirmatively limited 
by a specific treaty provision or federal statute."  
Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 18 

In the area of criminal jurisdiction, Congress 
during the 1950's gave several of the states 
authority to exercise concurrent jurisdiction on 
Indian reservations.  18 U.S.C.   1162; 28 U.S.C.   
1360.  In 1968 Congress limited the tribal exercise 
of criminal jurisdiction to misdemeanors.  25 U.S.C. 
  1302(7).  The Supreme Court subsequently concluded 
that tribes do not have criminal jurisdiction over 
non-Indians. Oliphant v. Suquamish Indian Tribe, 435 
U.S. 191 (1978).  It also concluded that tribes do 
not have criminal jurisdiction over nonmember 
Indians.  Duro v. Reina, 495 U.S. 676 (1990).  In 
1990, however, Congress effectively reversed the 
Duro decision, recognizing the unique nature of the 
Indian communities.  See Act of November 5, 1990, 
104 Stat. 1893; Act of October 9, 1991, 105 Stat 
616; Act of October 28, 1991, 105 Stat. 646.

Indian Self-Determination Act.  In the 1970 message 
on Indian policy mentioned above, then-President 
Nixon called for legislation to allow tribes to take 
over control and operation of federally-funded and -
administered Indian programs from the Department of 
the Interior and what is now the Department of 
Health and Human Services.  In 1975, Congress 
enacted the Indian Self-Determination and Education 
Assistance Act (ISDEA), 25 U.S.C.    450, et seq.  
The Act declares it to be the policy of the United 
States to assure  maximum Indian participation in 
the direction of educational as well as other 
federal services to Indian communities so as to 
render such services more responsive to the needs 
and desires of those communities."  25 U.S.C.   

The ISDA directs the Secretaries of the Interior and 
Health and Human Services to enter into contracts or 
grants with Indian tribes and organizations to plan, 
conduct, or administer programs that the Secretaries 
are authorized to administer for the benefit of 
Indians.  Contracts designated as mature contracts 
may be for an indefinite term, and reporting 
requirements are minimal.  The Act specifically 
provides that it neither affects the sovereign 
immunity of Indian tribes nor requires the 
termination of any existing trust responsibility of 
the United States with respect to Indian people.   
In 1991, the Bureau of Indian Affairs within the 
Department of the Interior (BIA) distributed 
$481,228,608 to 414 Indian tribal contractors under 
the provisions of the ISDA.

Self-Governance Demonstration Project.  In 1988 
amendments to the ISDA, Congress established a Self-
Governance Research and Demonstration Project 
involving 20 Indian tribes.  Title III, Pub. L. No. 
100-472, 102 Stat. 2296 (1988).  The purpose of the 
Self-Governance Project is to allow tribes greater 
flexibility in administering their own programs and 
services with minimal federal governmental 
involvement.  The participant tribes sign a self-
governance compact with the government and are 
allowed to redesign BIA programs and redistribute 
funding according to tribal priorities.  The tribes 
in the demonstration program operate BIA programs 
with only limited requirements to adhere to federal 
regulations and record-keeping requirements.  In 
December 1991, Congress increased to 30 the number 
of tribes eligible to participate in the Self-
Governance Project and extended the demonstration 
period from 1993 to 1996.  Pub. L. No. 102-184, 105 
Stat. 1278 (1991).  Congress is currently 
considering legislation to make the project 

Recognition of Tribes.  After the abandonment of the 
termination policy in the 1960's and 1970's, the 
federal relationship with many of the "terminated" 
tribes was restored, beginning with the Menominee 
Tribe in 1973.  Menominee Restoration Act, 25 U.S.C. 
  903-903f.  During the same period, there was a 
growing awareness of, and interest among, other 
groups of Indian descendants not formally recognized 
as tribes by the federal government in asserting 
their tribal status, tribal treaty rights, or tribal 
land claims.  Many groups of these Indian 
descendants sought recognition from the federal 

In 1978, the Department of the Interior established 
a program within the Bureau of Indian Affairs to 
standardize the recognition process and provide 
substantive criteria for determining whether a group 
of Indian descendants existed as an Indian tribe.  
Previously, such determinations had been made on an 
ad hoc basis.  The program included an effort to 
identify all groups interested in petitioning to 
establish their tribal status.  The effort 
ultimately identified 150 groups of Indian 
descendants with an interest in establishing tribal 

The acknowledgement process requires documentation 
of specific criteria including that the group has 
been viewed as Indian since historical times, lives 
in community, and exercises political authority over 
its members.   Thus far, the status of 30 groups has 
been resolved either by the Department of the 
Interior or through special legislation.  

Indian Natural Resources.  Indian tribes retain 
considerable control over natural resources and 
wealth, with some added protection by the federal 
government through the establishment of a trust.  
The federal trust responsibility to the Indian 
tribes has its roots in the assertion by the federal 
government that it has the power to control the sale 
of Indian land to non-Indians.  The policy was first 
asserted by Great Britain in the Royal Proclamation 
of 1763, which stated that only the Crown could take 
lands from the Indians.  The policy continued after 
independence in the Indian Trade and Intercourse 
Act, passed by the first Congress in 1790 and is now 
codified in 25 U.S.C.   177.  The courts have held 
that along with the power to control the disposition 
of the land comes the responsibility to manage the 
land for the benefit of the Indian owners and with 
the same care and skill that a person of ordinary 
prudence would exercise in dealing with his or her 
own property.  United States v. Mason, 412 U.S. 391, 
398 (1973).

The United States also has a more general trust 
relationship with the Indian people, United States 
v. Mitchell, 463 U.S. 206, 225 (1983) (Mitchell II), 
and that relationship creates an overriding duty to 
deal fairly with all Indians.  Morton v. Ruiz, 415 
U.S. 199, 236 (1974).  The trust obligation is a 
strict fiduciary standard that applies to all 
departments of the government that deal with 
Indians, not just the departments specifically 
charged with responsibility for Indian affairs.  If 
Indians believe the government is not acting in 
accordance with its trust responsibilities, they may 
seek injunctive relief from the courts to compel the 
government to perform its duties or, if damage has 
already occurred, they may obtain damages through a 
breach of trust action.  Mitchell II, 463 U.S. at 

Land.  According to a 1990 Bureau of Indian Affairs 
report, tribes and individual Native Americans own 
between 50 and 60 million acres of trust or 
restricted land.  This represents 2.34 percent of 
the total land base in the United States.  Federal 
law specifically prohibits the alienation of tribal 
trust lands absent the consent of the federal 
government.  25 U.S.C.   177.  It is the intent of 
the statutory restraint on alienation of Native 
American lands to insulate such lands from the full 
impact of market forces, preserving the land base 
for the furtherance of Native American values.  
Inherent in this federal policy is the view that 
preservation of a substantial land base is essential 
to the existence of tribal society and culture. 

Prior to the 1930's, federal policies had the effect 
of diminishing the Native American land base.  As 
indicated above, between 1887 and 1934 Native 
American land holdings declined from 138 million 
acres to 48 million acres.  However, the 1934 Indian 
Reorganization Act contained provisions to stabilize 
the Indian land base.  More recently, the Congress 
enacted the Indian Land Consolidation Act of 1983 to 
assist tribes in addressing the allotment policy.  
25 U.S.C.    2201-11.  The Act authorizes tribes to 
establish land consolidation areas where tribes are 
assisted in acquiring and exchanging land in order 
to consolidate their holdings.  The Act also 
provided that especially small fractionated 
interests in allotted land owned by individuals do 
not pass to the owners' heirs, but return to the 
tribe upon the death of those individuals.  This 
latter provision of the Act was found to violate the 
constitutional rights of Native American landowners 
in Hodel v. Irving, 481 U.S. 704 (1987).  The Act 
has been amended to address this decision, but 
constitutional challenges to the amended Act are 
currently pending in the courts.

Enforcement of Land Rights Against Third Parties.  
Federal law has attempted to protect tribal 
possessory rights against intrusion by third parties 
by restraining and punishing various types of 
trespass. Ordinary trespass remedies are available 
to Native American tribes to prevent trespasses upon 
their land and to recover damages for injuries 
arising out of such trespasses.  Accordingly, 
actions may be maintained for ejectment, for 
injunctions against intrusions and to recover 
damages for trespass on, or injury to, tribal lands.  
See Oneida County v. Oneida Indian Nation, 470 U.S. 
226 (1985).

Possessory suits or damage actions involving tribal 
possessory rights may be commenced either by the 
tribe itself or by the federal government acting on 
behalf of the tribe.  Basically these claims allege 
that (i) the affected tribe has a superior property 
interest in the subject land (i.e., aboriginal or 
recognized title), (ii) the Nonintercourse Act 
provides that no transfer of tribal lands is valid 
unless approved by the federal government, (iii) 
subsequent to the Act certain tribal lands were 
conveyed to third parties without specific 
governmental approval, (iv) these conveyances are in 
violation of the Act and thus, invalid, and (v) the 
affected tribe is now entitled, despite the passage 
of time, to return of the land and/or to damages for 
trespasses committed by those who wrongfully 
occupied the land. Oneida County, supra.

In instances where the federal government has been 
requested but has been unwilling to take action on 
behalf of the tribe, the courts have been willing to 
order the commencement of a possessory action on the 
theory that the federal trusteeship over Native 
American lands created by the statutory restraints 
on alienation imposes an affirmative obligation to 
protect Indian possessory rights. In tribal 
possessory actions commenced directly by the tribe, 
the tribe may assert any and all positions, claims, 
and defenses that would have been available had the 
suit been commenced by the federal government.  
Joint Tribal Council of the Passamaquoddy Tribe v. 
Morton,  528 F.2d 370 (1st Cir. 1975).

Indian Land Rights Against the United States.  The 
great bulk of aboriginal Native American land in 
what is now the United States passed out of 
indigenous ownership before 1890 by cession pursuant 
to treaty or taking by the federal government.  The 
right of Native Americans to obtain compensation for 
or recovery of this land differs from their rights 
against third parties.

Aboriginal Indian interest in land derives from the 
fact that the various tribes occupied and exercised 
sovereignty over lands at the time of occupation by 
white people.  This interest does not depend upon 
formal recognition of the aboriginal title, and 
gives the tribes the right to occupy and possess the 
land.  Aboriginal title gives a tribe the right to 
possess land as against third parties until and 
unless Congress specifically extinguishes the right.  

Congress may recognize or extinguish aboriginal 
rights.  Once aboriginal rights are recognized by 
Congress, then the tribe has title that cannot be 
extinguished without a clear and specific action by 
Congress in a treaty, statute or executive order, 
and compensation for the extinguishment of the 
right.  Oneida Indian Nation v. County of Oneida, 
414 U.S. 661 (1974);  United States ex rel. Hualapai 
Indians v. Santa Fe Pacific Railroad, 314 U.S. 339 
(1941).  However, by law, Congress is not obligated 
to pay compensation to the tribes when it 
extinguishes aboriginal Indian rights that have not 
been recognized by Congress.  See Johnson v. 
M'Intosh, 21 U.S. (8 Wheat.) 543 (1823).  

Despite this legal doctrine, compensation has in 
fact been paid by the United States for many Indian 
land cessions at the time they were made, although 
the compensation often has been less than adequate.  
In this century, additional provision has been made 
for cases in which no or inadequate compensation was 
paid.  In the first half of the 20th Century, 
special jurisdictional statutes gave some tribes the 
right to sue in the Court of Claims for compensation 
for land taking.  In 1946, Congress adopted the 
Indian Claims Commission Act, 25 U.S.C.    70, et 
seq., which provided for a quasi-judicial body, the 
Indian Claims Commission (ICC), to open up 
unresolved Indian claims against the United States, 
a large portion of which involved claims for taken 
lands.  The Act authorized claims  arising from the 
taking by the United States, whether as a result of 
a Treaty of cession or otherwise, of lands owned or 
occupied by the claimant without the payment for 
such lands of compensation agreed to by the 
claimant,  as well as claims  not recognized by any 
existing rule of law or equity  based on general 
principles of fair and honorable dealings.  25 
U.S.C.   70a.

The ICC provided a forum for suits against the 
United States Government that would otherwise have 
been barred by time and sovereign immunity, and in 
some respects provided Indians with special benefits 
that would not ordinarily have been available under 
regular court rules and procedures.  Recovery of 
compensation did not depend on proof of recognized 
title; compensation was available even if a tribe s 
property interest was aboriginal only. Further, 
compensation was available if a tribe s interest in 
land was found to have been taken for less than 
adequate compensation.  However, the wording of the 
Act and its legislative history made clear that only 
financial compensation was contemplated by Congress; 
the ICC had no authority to restore land rights that 
had been extinguished.  Osage Nation v. United 
States, 1 Indian Claims Commission 54 (1948), 
reversed on other grounds, 119 Ct.Cl. 592, cert. 
denied, 342 U.S. 896 (1951).

Water.  Generally, Indian water rights are based on 
the federal or Indian reserved rights legal doctrine 
first enunciated by the U.S. Supreme Court in 
Winters v. United States, 207 U.S. 564 (1908).  
Winters held that the establishment of an Indian 
reservation includes an implicit reservation of 
water necessary to provide a permanent home for 
Indians.  The holding followed the recognized rule 
that treaties are not grants of rights to Indians, 
but grants of rights from them and a reservation of 
those rights not granted.  United States v. Winans, 
198 U.S. 371, 381 (1905).  In Winters, the Supreme 
Court recognized that in establishing reservations, 
not only did the United States reserve water for 
Indians, but the Indians themselves also reserved 
their aboriginal right to "command of the lands and 
water."  207 U.S. at 576.        Indian reserved 
water rights differ from water rights held by non-
Indians under state law in a number of key respects.  
For example, Indian water rights are not based on 
the amount of water a tribe has historically put to 
use or "appropriated."  Rather, the quantity of 
water that a tribe is entitled to is an amount 
sufficient to carry out the purpose of making the 
reservation a permanent home base for Indian people.  
Included within this measure is water for domestic, 
commercial, industrial, recreational, hunting and 
fishing, and agricultural purposes.  The water right 
is broad enough "to satisfy the future as well as 
the present needs of the Indian[s]."  Arizona v. 
California, 373 U.S. 546, 600 (1963).  Another 
unique aspect of an Indian reserved water right is 
that it is not forfeited through nonuse, so that a 
tribe's water rights are protected from usurpation 
by its non-Indian neighbors during those periods of 
time when the tribe is unable, because of economic 
or other constraints, to use its water.

Hunting and Fishing Rights.  Through international 
treaties and domestic legislation, Congress and the 
executive branch have sought to ensure conservation 
of wildlife yet recognize the essential rights of 
Indians to hunt and fish to maintain their culture.  
In the contiguous 48 states where Indian tribes had 
reserved hunting and fishing rights in treaties, 
litigation in federal court provided the primary 
means of protecting Indian hunting and fishing 
rights.  In the early 1970's, the United States 
initiated litigation against the states of 
Washington, Oregon, and Michigan to define and 
protect from state regulation the treaty fishing 
rights of many tribes.  The cases have recognized 
legitimate conservation needs but, at the same time, 
by protecting the tribes' right to regulate the 
fishery free of state controls, the litigation has 
done a great deal to preserve and enhance 
fundamental tribal rights.

In addition to U.S. Government participation in 
hunting and fishing rights litigation on behalf of 
the tribes, the BIA has provided tribes with funding 
to support the tribes' own litigation and funding to 
develop their own fish and game management 
capabilities and resources.  Congress has enacted 
legislation to make the income derived from treaty 
fishing tax exempt thereby providing some measure of 
economic protection to preserve the cultural 
activity of treaty fishing.

In Alaska, although aboriginal hunting and fishing 
rights were extinguished, certain statutory 
provisions exempt Alaska Natives from many wildlife 
management statutes and mandate a subsistence 
priority for rural Alaskans.

Minerals.  Decisions of the U.S. Supreme Court in 
the 1930's established that the minerals in, on, or 
under Indian-owned land were constituent elements of 
the land and thus owned by the Indians who own the 
land.  United States v. Shoshone Tribe, 304 U.S. 
111, 116 (1938); British-American Oil Prod. Co. v. 
Board of Equalization, 299 U.S. 159, 164-65 (1936).  
Minerals currently being produced are primarily oil, 
gas, and coal.  Other minerals known to exist on 
Indian lands include shale, gilsonite, uranium, 
gypsum, helium, copper, iron, zinc, lead, phosphate, 
asbestos, and bentonite.  Mineral resources in, on, 
or under lands owned by any individual Indian or 
Alaska Native or any Indian tribe, the title to 
which is held in trust by the United States or 
subject to a restraint on alienation imposed by the 
United States, are subject to development and 
disposition under statutes and regulations of the 
United States.  These statutes and regulations 
provide that while the individual Indian or Indian 
tribe is the lessor, the Secretary of the Interior 
must approve the lease or other minerals agreement 
before it is effective.  Poafpybitty v. Skelly Oil 
Co., 390 U.S. 365, 372 (1968); Quantum Exploration, 
Inc. v. Clark, 780 F.2d 1457, 1459 (9th Cir. 1986).  
The regulations are detailed and cover items such as 
durational requirements, rental and royalty rates, 
acreage restrictions, environmental requirements, 
and operating requirements.   See 25 C.F.R. Part 211 
(Leasing of Tribal Lands for Mining); 25 C.F.R. Part 
212 (Leasing of Allotted Lands for Mining).  Under 
this comprehensive system of statutes and 
regulations applicable to Indian mineral resources, 
the United States has a fiduciary obligation toward 
Indians with respect to management of Indian mineral 
resources.  Pawnee v. United States, 830 F.2d 187, 
190 (Fed. Cir. 1987), cert. denied, 486 U.S. 1032 
(1987); Assiniboine and Sioux Tribes v. Board of Oil 
and Gas Conservation, 792 F.2d 782, 794 (9th Cir. 

Indian mineral resources can be developed under two 
different statutory schemes.  The first is a leasing 
system where the individual Indian or Indian tribe 
may lease its mineral resource to a developer.  25 
U.S.C.   396-396g.  The second statutory scheme was 
established in 1982 with the enactment of the Indian 
Mineral Development Act, codified at 25 U.S.C.    
2101-08.  The purpose of that Act was to allow 
Indian tribes to enter into various kinds of 
agreements for the development of their mineral 
resources.  Tribes wishing to have greater respon- 
sibility, oversight, and flexibility in the control 
and development of their own mineral resources can 
negotiate innovative, flexible business arrangements 
under the Act.  The tribes are not limited to the 
leases and the restrictions on leasing that are 
present under the 1938 leasing statute.

Under either statutory scheme, Indian lands are not 
treated as federal public lands for purposes of 
mineral regulation.  The principal goal of the 
Department of the Interior in Indian mineral 
resource management is not to further federal energy 
policies, but rather to assist Indian landowners in 
deriving maximum economic benefit from their 
resources consistent with sound conservation, 
environmental, and cultural practices.

Timber.  Indian tribes have full equitable ownership 
in timber located on tribal reservation lands.  
United States v. Algoma Lumber Co., 305 U.S. 415, 
420 (1939).  The question of tribal ownership of 
timber resources was unresolved until the 1938 
decision of the United States Supreme Court in 
United States v. Shoshone Tribe, 304 U.S. 111, 116 
(1938), which held that timber was a constituent 
element of the land and owned by the tribe unless 
the treaty with the tribe specified otherwise.

Individual Indians and Indian tribes generally may 
not sell the timber on their land without the 
approval of the Secretary of the Interior.  The U.S. 
Congress authorized the sale of standing timber in 
1910.  25 U.S.C.    406, 407.  Under these statutes, 
timber may be sold in accordance with regulations 
promulgated by the Secretary of the Interior found 
at 25 C.F.R. Part 163.  The regulations state that 
the objectives with respect to management of Indian 
forest lands are to preserve commercial forest lands 
in a perpetually productive state, develop a sales 
program supported by written tribal objectives and a 
long-range multiple use plan, develop resources for 
jobs and income, regulate water runoff and soil 
erosion, and preserve wildlife, recreational, 
cultural, aesthetic, and traditional values.  25 
C.F.R.   163.3.  In Mitchell v. United States, 463 
U.S. 206 (1983), these statutes and regulations were 
held to create a fiduciary relationship between the 
government and Indian timber owners.

In 1990, the U.S. Congress declared that the United 
States has a trust responsibility toward Indian 
forest lands when it passed the National Indian 
Forest Resources Management Act.  25 U.S.C.    3101-
20.  The act reaffirmed the existing Native American 
forest land management objectives and established 
some new program directions.  The purposes of the 
Act are to allow both the Department of the Interior 
and the Native Americans to participate in the 
management of Indian forest lands in a manner 
consistent with the Secretary's trust responsibility 
and with the objectives of the Indian owners; to 
provide educa- tional and training opportunities to 
increase the number of Indians working in forestry 
programs on Indian lands; and to authorize the 
necessary appropriations to carry out the 
protection, conservation, utilization, management, 
and enhancement of Indian forest lands objectives of 
the act.
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