Tribal sovereignty: A dynamic concept, upheld by the courts for generations

Tribal sovereignty has attained an almost sacred character for Indian Tribes in California, and it’s no wonder. It is the sovereign character of Indian communities, rooted in the fact that their presence pre-existed the United States by thousands of years, which sets tribes apart. It is what distinguishes tribal rights, which are political in nature, from civil rights of other ethnic minorities. Since the first contacts between California Indian tribes and European civilizations, recognition of tribal sovereignty has been essential to continued tribal survival.

Our Constitution recognized this unique sovereign status by excluding tribes from all state and local jurisdiction and required the United States to negotiate treaties with California Tribes. In these treaties tribes ceded large portions of tribal lands for certain considerations. When the Senate rejected the treaties at the urging of the new California delegation in 1850 because gold had been discovered on the lands that had been reserved for tribes, the continuing vitality of this doctrine forced the United States to recognize numerous California tribes in federal statutes and executive orders and to establish reservations over which tribes could exercise governmental jurisdiction over their land and people.

In a series of decisions dating back over 150 years, the Supreme Court has upheld the rights of tribes to exercise primary jurisdiction over their land and their people through their own laws, institutions and elected officials.

Sovereignty, however, has never been a fixed concept. National sovereignty and state sovereignty have evolved to respond to changing realities as nations have become more interdependent and activities on one sovereign’s territory impact the land and people of another’s. Similarly, in Indian country, where gaming has transformed tribal realities overnight, reservations that were once remote and few non-Indians visited, now collectively host upwards of a hundred-thousand non-Indians daily. Rapid development of reservation economies has resulted in off-reservation impacts on traffic, water, air, life-safety and the economies of neighboring cities and counties.

Under these circumstances, sovereignty can no longer mean exclusive jurisdiction and absolute immunity from the application of the laws of other governments. States, for example, are now subject to federal civil rights law and have limited their own sovereign immunity to permit lawsuits by citizens; and nation states are now subject to a range of international laws from prohibitions against war crimes to regulations governing tariffs and trade.

The time has come for California, its political subdivisions and its Indian tribes to recognize this new reality and work together towards a new paradigm of tribal sovereignty. Given the critical role that traditional notions of tribal sovereignty have played in the survival of California Indians, and the entrenched animosity of many local communities toward tribal rights, this is not an easy adjustment and changes in attitudes on all sides are lagging behind the fast-moving changes on the ground.

The direction, however, is unmistakable and gaining momentum. More and more tribes are using their sovereignty not as a shield to protect against intrusion, but to provide them standing to actively engage state and local governments as equals in negotiating binding agreements that reflect their common objectives on crucial issues like consistent land use policies and responsible environmental review processes. These solutions substitute shared jurisdiction for turf disputes.

The federal mandate, in 1988, requiring states and tribes to negotiate compacts governing the regulation and impact of Indian gaming was clearly the impetus for this movement, but it has rapidly expanded to include negotiation of inter-governmental agreements concerning fire, police, emergency services, zoning, licensing, fishing, taxation and other environmental and economic impacts. This trend will inevitably lead to the inclusion of tribes in governmental entities designed for this purpose, including Local Area Formation Committees, Two by Twos, Councils of Government and Joint Powers Authorities.

Like most fundamental changes, progress on this front is not linear. Some tribes still cling to traditional but now outmoded interpretations of sovereignty that have protected them for generations and refuse to compromise or recognize the legitimate concerns of their neighbors. Others have tried to extend their sovereignty to lands over which they have no historical connection for purely commercial reasons; and some counties still believe that tribal sovereignty is an anachronism that should be eliminated and seek to extend local jurisdiction to tribal lands. These strategies are doomed to failure.

Sovereignty should not be a barrier to cooperation between tribes and local governments. It is the key to structuring their relationship in a mutually respectful and historically accurate context. State and local officials who have taken this path have learned that once elected tribal leaders feel secure enough to trust the good faith of their counterparts, their diplomatic skills, creativity and wisdom reveal why so many California tribes have survived for so long and are now flourishing.