DEPARTMENT OF JUSTICE POLICY ON
INDIAN SOVEREIGNTY AND GOVERNMENT-TO-GOVERNMENT
RELATIONS WITH INDIAN TRIBES
PURPOSE: To reaffirm the Department's recognition of the sovereign status of
federally recognized Indian tribes as domestic dependent nations and to
reaffirm adherence to the principles of government-to-government relations; to
inform Department personnel, other federal agencies, federally recognized
Indian tribes, and the public of the Department's working relationships with
federally recognized Indian tribes; and to guide the Department in its work in
the field of Indian affairs.
I. INTRODUCTION
From
its earliest days, the
A. THE
EXECUTIVE MEMORANDUM ON GOVERNMENT-TO-GOVERNMENT RELATIONS BETWEEN THE UNITED
STATES AND INDIAN TRIBES
On
As executive departments and
agencies undertake activities affecting Native American tribal rights or trust
resources, such activities should be implemented in a knowledgeable, sensitive
manner respectful of tribal sovereignty.
President Clinton's directive
requires that in all activities relating to or affecting the government or
treaty rights of Indian tribes, the executive branch shall:
1) operate within a
government-to-government relationship with federally recognized Indian tribes;
2) consult, to the greatest extent practicable and permitted by
law, with Indian tribal governments before taking actions that affect federally
recognized Indian tribes;
3) assess the impact of agency activities on tribal trust
resources and assure that tribal interests are considered before the activities
are undertaken;
4) remove procedural impediments to working directly with
tribal governments on activities that affect trust property or governmental
rights of the tribes; and
5) work cooperatively with other agencies to accomplish these
goals established by the President.
The Department of Justice is
reviewing programs and procedures to ensure that we adhere to principles of
respect for Indian tribal governments and honor our Nation's trust
responsibility to Indian tribes. Within the Department, the Office of Tribal
Justice has been formed to coordinate policy towards Indian tribes both within
the Department and with other agencies of the Federal Government, and to assist
Indian tribes as domestic dependent nations within the federal system.
B.
FEDERAL INDIAN SELF-DETERMINATION POLICY
President
Clinton's executive memorandum builds on the firmly established federal policy
of self-determination for Indian tribes. Working together with Congress,
previous Presidents affirmed the fundamental policy of federal respect for
tribal self-government. President Johnson recognized "the right of the first
Americans . . . to freedom of choice and self-determination." President
Nixon strongly encouraged "self-determination" among the Indian
people. President Reagan pledged "to pursue the policy of
self-government" for Indian tribes and reaffirmed "the government-to-government
basis" for dealing with Indian tribes. President Bush recognized that the
Federal Government's "efforts to increase tribal self-governance have
brought a renewed sense of pride and empowerment to this country's native
peoples."
II. PRINCIPLES OF INDIAN SOVEREIGNTY AND THE TRUST
RESPONSIBILITY
Though
generalizations are difficult, a few basic principles provide important
guidance in the field of Indian affairs: 1) the Constitution vests Congress
with plenary power over Indian affairs; 2) Indian tribes retain important
sovereign powers over "their members and their territory," subject to
the plenary power of Congress; and 3) the United States has a trust
responsibility to Indian tribes, which guides and limits the Federal Government
in dealings with Indian tribes. Thus, federal and tribal law
generally have primacy over Indian affairs in Indian country, except
where Congress has provided otherwise.
III. DEPARTMENT OF JUSTICE RECOGNITION OF INDIAN SOVEREIGNTY
AND THE FEDERAL TRUST RESPONSIBILITY
The
Department resolves that the following principles will guide its interactions
with the Indian tribes.
A. THE
SOVEREIGNTY OF INDIAN TRIBES
The
Department recognizes that Indian tribes as domestic dependent nations retain
sovereign powers, except as divested by the
The Department shall be guided
by principles of respect for Indian tribes and their sovereign authority and
the
B.
GOVERNMENT-TO-GOVERNMENT RELATIONSHIPS WITH INDIAN TRIBES
In
accord with the status of Indian tribes as domestic dependent nations, the
Department is committed to operating on the basis of government-to-government
relations with Indian tribes.
Consistent with federal law and
other Departmental duties, the Department will consult with tribal leaders in
its decisions that relate to or affect the sovereignty, rights, resources or
lands of Indian tribes. Each component will conduct such consultation in light
of its mission. In addition, the Department has initiated national and regional
listening conferences and has created the Office of Tribal Justice to improve
communications with Indian tribes. In the Offices of the United States
Attorneys with substantial areas of Indian country within their purview, the
Department encourages designation of Assistant U.S. Attorneys to serve as
tribal liaisons.
In order to fulfill its
mission, the Department of Justice endeavors to forge strong partnerships
between the Indian tribal governments and the Department. These partnerships
will enable the Department to better serve the needs of Indian tribes, Indian
people, and the public at large.
C.
SELF-DETERMINATION AND SELF-GOVERNANCE
The
Department is committed to strengthening and assisting Indian tribal
governments in their development and to promoting Indian self-governance.
Consistent with federal law and Departmental responsibilities, the Department
will consult with tribal governments concerning law enforcement priorities in
Indian country, support duly recognized tribal governments, defend the lawful
exercise of tribal governmental powers in coordination with the Department of
the Interior and other federal agencies, investigate government corruption when
necessary, and support and assist Indian tribes in the development of their law
enforcement systems, tribal courts, and traditional justice systems.
D. TRUST
RESPONSIBILITY
The
Department acknowledges the federal trust responsibility arising from Indian
treaties, statutes, executive orders, and the historical relations between the
The term "trust
responsibility" is also used in a narrower sense to define the precise
legal duties of the United States in managing property and resources of Indian
tribes and, at times, of individual Indians.
The trust responsibility, in
both senses, will guide the Department in litigation, enforcement, policymaking
and proposals for legislation affecting Indian country, when appropriate to the
circumstances. As used in its narrower sense, the federal trust responsibility
may be justiciable in some circumstances, while in
its broader sense the definition and implementation of the trust responsibility
is committed to Congress and the Executive Branch.
E.
PROTECTION OF CIVIL RIGHTS
Federal
law prohibits discrimination based on race or national origin by the federal,
state and local governments, or individuals against American Indians in such
areas as voting, education, housing, credit, public accommodations and
facilities, employment, and in certain federally funded programs and
facilities. Various federal criminal civil rights statutes also preserve
personal liberties and safety. The existence of the federal trust
responsibility towards Indian tribes does not diminish the obligation of state
and local governments to respect the civil rights of Indian people.
Through the Indian Civil Rights
Act, Congress selectively has derived essential civil rights protections from
the Bill of Rights and applied them to Indian tribes. 25 U.S.C. . 1301. The Indian Civil Rights Act is to be interpreted
with respect for Indian sovereignty. The primary responsibility for enforcement
of the Act is invested in the tribal courts and other tribal fora. In the criminal law context, federal courts have
authority to decide habeas corpus petitions after tribal remedies are
exhausted.
The Department of Justice is
fully committed to safeguarding the constitutional and statutory rights of
American Indians, as well as all other Americans.
F.
PROTECTION OF TRIBAL RELIGION AND CULTURE
The
mandate to protect religious liberty is deeply rooted in this Nation's
constitutional heritage. The Department seeks to ensure that American Indians
are protected in the observance of their faiths. Decisions regarding the
activities of the Department that have the potential to substantially interfere
with the exercise of Indian religions will be guided by the First Amendment of
the United States Constitution, as well as by statutes which protect the
exercise of religion such as the Religious Freedom Restoration Act, the
American Indian Religious Freedom Act, the Native American Graves Protection
and Repatriation Act, and the National Historic Preservation Act.
The Department also recognizes
the significant federal interest in aiding tribes in the preservation of their
tribal customs and traditions. In performing its duties in Indian country, the
Department will respect and seek to preserve tribal cultures.
IV. DIRECTIVE TO ALL COMPONENTS OF THE DEPARTMENT OF JUSTICE
The
principles set out here must be interpreted by each component of the Department
of Justice in light of its respective mission. Therefore, each component head
shall make all reasonable efforts to ensure that the component's activities are
consistent with the above sovereignty and trust principles. The component heads
shall circulate this policy to all attorneys in the Department to inform them
of their responsibilities. Where the activities and internal procedures of the
components can be reformed to ensure greater consistency with this Policy, the
component head shall undertake to do so. If tensions arise between these
principles and other principles which guide the component in carrying out its
mission, components will develop, as necessary, a mechanism for resolving such
tensions to ensure that tribal interests are given due consideration. Finally,
component heads will appoint a contact person to work with the Office of Tribal
Justice in addressing Indian issues within the component.
V. DISCLAIMER
This
policy is intended only to improve the internal management of the Department
and is not intended to create any right enforceable in any cause of action by
any party against the United States, its agencies, officers, or any person.
__________________________ Date:_____________________
Attorney General
http://www.usdoj.gov/otj/sovtrb.htm