TBL CHP 4

A. Organization of the Tribes; Tribal Constitutions

At first contact with Europeans, tribes had a variety of traditional forms of government.
As tribes were pushed westward, their traditional systems came under pressure, were disrupted, and the complete social fabric of tribal societies began to come apart.
Federal administration gradually replaced traditional forms of governing and internal dispute resolution.
Pueblos were one of the few tribes to escape this process; they still maintain most of their customs and traditions, socially and governmental, to this day.
Sometimes, the federal government organized and/or recognized tribes in terms of making it more convenient for administration rather than recognizing the integrity and variation of the actual tribal groups. No deference was given to how tribes functioned internally or interacted with each other inter-tribally.
Sometimes the federal government would select a “chief” whose job was to sign treaties, done without regard to the existing operation of the tribal group as to decision-making processes and leadership structures.
Sometimes separate tribal groups were joined together on reservations or formed for recognition purposes with no regard to any prior inter-tribal relationships (or hostilities) that existed between those groups.
IRA Constitutions – cookie cutter constitutions; again, with a formula that helped to standardize the government structure of the tribe, thereby making it easier for the US to oversee.
IRA Constitutions – had provisions for all amendments to be approved by the Secretary of Interior. This helped the US keep tribes under control.
Trend to eliminate Secretarial approval from those Constitutions, but ironically, even that required Secretarial approval.
B. The Tribal Council - most tribes have a version of a legislative body, although titles may vary (Council, Legislature, Clan leaders, Business Committee, etc.).
a. Most have terms of service, may be elected by district, clan or at large; has general governmental powers over internal affairs of the tribe.
b. Their actions are subject to review by the SOI. Substantial limitation on power.
c. Policy of SOI is to approve nearly every resolution, but they still have the power to veto.
C. The Tribal Chairman – most tribes have one person serving in the executive role, although titles may vary (President, Chief, Governor, Chairman). May be elected by citizens or by the council, varies by tribe.
a. Generally, the leader or spokesperson for the tribe.
b. A Chairman may also preside over the tribal council or business committee.
c. Varies tribe to tribe.
D. Tribal Courts – have a long history pre-dating the IRA.
a. CFR Courts - There were Courts of Indian Offenses as far back as the $1880s$ established by the SOI. Their authority came from Title $25 ext{ CFR}$ (Code of Federal Regulations).
b. Tribal Court - usually a trial court is present; many tribes have a Supreme Court to hear appeals.
c. Federal Appeals from tribal court – The only way to appeal from tribal court to a federal court is on a Habeas Corpus petition (where someone is in jail and disputes the legitimacy of their detention); however, they must exhaust tribal process before appealing to the federal court.
E. The Tribal Attorney – while not a formal part of the governmental structure, tribal attorneys are highly influential in tribal affairs and dealings with outside parties.
a. Legislative Counsel – advises the legislative branch.
b. General Counsel – may advise the Chief Executive or departments under the executive branch.
c. Attorney General – may both advise and provide law enforcement functions.
F. Tribal Corporations (a.k.a. Section 17 Corps)
a. Tribes that incorporated under the IRA did so using charters that were standardized by the US.
b. Designed to permit tribes to engage in economic activity as a corporation.
c. Perpetual membership corporations including all tribal members.
d. Any pledging of tribal income or leases were subject to SOI approval.
e. Corporations can “sue or be sued” – which also may create conflict of interest within the SOI/DOJ.
f. Some arguments that the “sue and be sued” provision may waive sovereign immunity of the tribe (to be discussed in a later chapter).
G. Tribes Not Organized Under the Indian Reorganization Act
a. The IRA provided that tribes could vote not to be governed by it and several tribes rejected the Act, specifically noting Navajos and Pueblos.
b. Navajo has no written constitution but operates under a detailed tribal code with a highly developed court system and with a large elected council; communities are organized into voting districts (or chapters), and there is a chairman (President) similar in function to IRA-era leaders.

- c. Pueblos operate under an entirely unwritten customary law with traditional leaders and a government structure completely different from the IRA constructs.

B. The Tribal Council

The Tribal Council represents the legislative branch across tribes; major points to remember:
a. Titles vary (Council, Legislature, Clan leaders, Business Committee, etc.) but roles are functionally similar.
b. Terms of service, district/clan/all-tribal elections; general governmental powers over internal affairs.
c. Actions are subject to review by the Secretary of the Interior (SOI) with substantial limitations on power.

- d. The SOI policy is to approve nearly every resolution, but the Council still retains veto power in many cases.

C. The Tribal Chairman

a. An executive leader (titles vary: President, Chief, Governor, Chairman).
b. May be elected by citizens or by the tribal council; the method varies by tribe.
c. Generally acts as the leader or spokesperson for the tribe and may preside over the tribal council or a business committee.

- d. The role and powers of the Chairman vary from tribe to tribe.

D. Tribal Courts

a. They have a long pre-IRA history; the modern structure often includes a trial court and sometimes a Supreme Court for appeals.
b. CFR Courts – Courts of Indian Offenses existed as far back as the $1880s$ ; authority derived from Title $25\ CFR$ (Code of Federal Regulations).
c. Tribal Court structure typically includes a trial court; some tribes have an appellate court (or Supreme Court).

- d. Federal appeals from a tribal court to a federal court occur only via a Habeas Corpus petition; the petitioner must exhaust tribal court processes first.

E. The Tribal Attorney

a. Not a formal part of the governmental structure, but highly influential in tribal affairs and dealings with outsiders.
b. Roles include:
- Legislative Counsel – advises the legislative branch.
- General Counsel – advises the Chief Executive or departmental entities under the executive.

- - Attorney General – provides legal advice and may perform or oversee law enforcement functions.

F. Tribal Corporations (a.k.a. Section 17 Corps)

a. Tribes that incorporated under the Indian Reorganization Act used charters standardized by the U.S.
b. These corporations were designed to permit tribes to engage in economic activity in a corporate form.
c. Perpetual membership corporations include all tribal members as part of the corporate entity.
d. Any pledging of tribal income or leases required SOI approval.
e. Corporations have the ability to sue or be sued, which can create potential conflicts of interest within the SOI/DOJ.

- f. Some arguments hold that the "sue and be sued" provision may constitute a waiver of tribal sovereign immunity; this is a topic addressed in later chapters.

G. Tribes Not Organized Under the Indian Reorganization Act

a. The IRA allowed tribes to vote not to be governed by the Act; Navajo and Pueblo tribes rejected the Act.
b. Navajo Nation: does not have a written constitution; operates under a detailed tribal code with a highly developed court system; large elected council; communities organized into voting districts (chapters); a chairman (President) similar in function to IRA-era leadership.

- c. Pueblos: operate under unwritten customary law with traditional leaders and a government structure that is completely different from the IRA constructs.

Notes and connections:
- The chapter emphasizes sovereignty, federal oversight, and the varied paths tribes have taken toward governance, reflecting the federal policy evolution from paternalistic supervision to recognition of tribal self-government.
- The use of cookie-cutter IRA constitutions illustrates a tension between standardization for federal oversight and the preservation of unique tribal political systems.
- The role of the SOI in approving resolutions and amendments highlights the continuing federal influence on tribal governance.
- The existence of different governance models (IRA-based, Navajo, Pueblo) demonstrates that tribes retain autonomy and adapt governance to their own cultural and social structures.
- The legal framework discussed (CFR Courts, Habeas Corpus, Section 17 Corps) has practical implications for tribal sovereignty, economic development, and intergovernmental relations.

- - Ethical and practical implications include questions about self-determination, the potential for coercive oversight, and how external frameworks align or conflict with tribal cultural norms and governance traditions.

Key terms to remember:
- SOI: Secretary of the Interior
- IRA: Indian Reorganization Act
- CFR Courts: Courts of Indian Offenses; authority under Title $25\ CFR$
- Habeas Corpus: $ext{Habeas Corpus}$ petition as the route to federal review from tribal detention
- Section 17 Corps: $Section\ 17\ Corps$ (tribal economic corporations)

- - Title 25 CFR: the regulatory foundation for CFR Courts and related authority

Connections to broader themes:
- Tribal sovereignty vs. federal oversight
- Variation in governance reflecting cultural diversity and historical experiences
- Economic development through tribal corporations and the associated legal implications

- - The evolution of Indian policy from assimilation and control toward recognition of tribal self-government

(End of Chapter 4 study notes)