Tribal Government Amendments to the Homeland Security Act and Indian Tribal Sovereignty

Tribal Government Amendments to the Homeland Security Act and Indian Tribal Sovereignty

Order Code RS21533
Updated July 13, 2005
CRS Report for Congress
Received through the CRS Web
Tribal Government Amendments to the
Homeland Security Act and Indian Tribal
Sovereignty
M. Maureen Murphy
Legislative Attorney
American Law Division
Summary
S. 477, the Tribal Government Amendments to the Homeland Security Act of 2002,
has been introduced to “ensure that ... the Department of Homeland Security consults
with Indian tribal governments ... and ... [that] Indian tribal governments participate
fully in the protection of the homeland of the United States.” An earlier version of this
legislation, S. 578, in the 108th Congress raised concern in some quarters that it would
overturn Nevada v. Hicks, 533 U.S. 353 (2001), or otherwise expand Indian tribal
sovereignty. S. 477 differs from the earlier version both by including authority for direct
funding, rather than indirect funding through individual states, of Indian tribal homeland
security projects, and by eliminating the provisions in the earlier bill that appeared to
endorse a view of tribal criminal and civil jurisdiction inconsistent with Supreme Court
rulings on the subject of tribal jurisdiction. The operative provisions of the legislation
remove tribal governments from the definition of “local governments,” and distinguish
them from both state governments and local governments. The legislation also appears
to contain no direct statement specifically granting or delegating a particular law
enforcement authority to tribes or overruling any named Supreme Court case. Related
legislation includes § 131 of S. 536 and S. 1374 which contain provisions authorizing
a border preparedness pilot program on Indian land. This report will be updated as
legislative events warrant.
Background. In introducing S. 477, The Tribal Government Amendments to the
Homeland Security Act of 2002, on March 1, 200,. Senator Dorgan noted that although
they are not subdivisions of states, tribal governments are included in the Homeland
Security Act (HSA) definition of “local government,” and, thus, derive their funding for
responding to threats of terrorism through state programs. He stated that S. 477 is
designed to correct this situation: “to treat Indian tribes as the separate political entities
that they are, consistent with the Federal policy of tribal self-governance and self-
determination” and to “explicitly vest the Secretary of the Department of Homeland
Security with the discretionary authority to provide direct funding to Indian tribal
governments,” rather than indirect funding, through the individual states. 151 Cong. Rec.
S1868-1869. An earlier bill, S. 578 of the 108th Congress, with a similar purpose raised
Congressional Research Service ˜ The Library of Congress

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concerns that it would overturn Nevada v. Hicks, 533 U.S. 353 (2001), or otherwise
expand Indian tribal sovereignty.
Tribal Governmental Sovereignty and Inherent Jurisdictional Authority.
Early decisions of the Supreme Court gave rise to an understanding that Indian tribes
were both sovereign nations and dependent wards of the United States, their trustee. A
series of cases in the Supreme Court during Chief Justice John Marshall's era, solidified
the status of Indian tribes under the federal Constitution. The federal Constitution confers
on Congress the "Power...to regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes"1 and on the President and the Senate, the power
to make treaties, including treaties with the Indian tribes.2 In Cherokee Nation v.
Georgia,3 the Marshall Court ruled that the Cherokee Indian Nation was not a foreign
state and referred to Indian tribes as "domestic dependent nations,"4 entitled to the land
that they occupied until the national government, which held title against their will,
sought possession. He declared that in their relationship to the national government,
tribes were in a "state of pupilage" resembling "a ward to his guardian."5 The following
year, in Worcester v. Georgia,6 the Court ruled that state laws could not be applied to
activity in Indian country where federal law, by virtue of the Supremacy Clause, ruled;
federal power was paramount and plenary in Indian country. From these cases are derived
certain principles that have guided court decisions in the field of federal Indian law:
(1) by virtue of aboriginal political and territorial status, Indian Tribes possessed
certain incidents of preexisting sovereignty; (2) such sovereignty was subject to
diminution or elimination by the United States but not by the individual states; and (3)
the tribes' limited inherent sovereignty and their corresponding dependency on the
United States for protection imposed on the latter a trust responsibility.7
From the earliest days of the nation, federal power has been interpreted broadly and
used to enact statutes to regulate trade and commerce, define and punish crimes, prohibit
liquor traffic, and dispose of Indian lands and property.8 The Supreme Court has upheld
this broad exercise of power in Indian affairs and referred to it as "plenary,"9 and has only
recently recognized constitutional limits on it, when it acknowledged that the Fifth
Amendment, for example, places limits on that power.10
1 U.S. Constitution, Art. I, sec. 8, cl. 3.6
2 U.S. Constitution, Art. II, sec. 2, cl. 2.
3 30 U.S. (5 Pet.) 1 (1831).
4 30 U.S. (5 Pet.), at 17.
5 30 U.S. (5 Pet.) at 17.
6 31 U.S. (6 Pet.) 515 (1832).
7 Conference of Western Attorneys General, American Indian Law Deskbook 3-4 (1998).
(Footnotes omitted.)
8 See Felix S. Cohen's Handbook of Federal Indian Law 212 (1982 ed.).
9 Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73, 83-84 (1977).
10 In United States v. Sioux Nation of Indians, 448 U.S. 371 (1980), the Court ruled that even
(continued...)

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The Supreme Court, in Montana v. United States, 450 U.S. 544 (1981), provided an
authoritative statement of tribal sovereignty. The Court drew a distinction between tribal
sovereign powers that have been retained and those that have been divested. Divestment
may occur either explicitly by federal statute or implicitly as inconsistent with a tribe's
status as subject to the sovereign authority of the United States. According to the Court,
authority over internal tribal affairs and relations among tribal members falls into the
category of powers that have been retained, while those directed outside the tribe are of
the type that may have been divested.11
Tribal sovereignty has been diminished by treaties, statutes, and by the existence of
the sovereignty of the United States. In the field of administration of justice, there has
been considerable dilution of tribal authority. Prior to the treaties, tribes could exert civil
and criminal jurisdiction to prescribe rules of conduct and maintain law and order. They
could define and punish malfeasance and crime within their territory, a power that
sometimes extended to non-members.12 Today, although tribes have no criminal law
jurisdiction over non-Indians, in accordance with the Supreme Court’s ruling in Oliphant
v. Suquamish Indian Tribe, 435 U.S. 191 (1978), they do retain criminal law power over
their members13 and exercise delegated power over non-member Indians under 1990
legislation, which has been upheld by the Supreme Court in United States v. Lara.14 This
criminal law power has been limited in at least three ways: (1) by federal statutes
extending federal criminal law jurisdiction over Indian country; (2) by the Indian Civil
Rights Act,15 limiting tribal power to impose sentences or fines; and (3) by delegation of
criminal law jurisdiction over Indians and reservations to states.
Much law enforcement authority over Indians on Indian reservations resides with the
federal government. Federal prosecutors prosecute crimes under the various federal
criminal statutes that apply only in "Indian country," broadly defined to include all land
within the exterior limits of an Indian reservation, all dependent Indian communities, and
10 (...continued)
though Congress could dispose of Indian property or change it from one form to another, when
it took land from a tribe for a public purpose, the Fifth Amendment required just compensation.
Courts having to determine if legislation providing special treatment to Indians is within
Congressional power look to whether the special treatment "can be tied rationally to the
fulfillment of Congress' unique obligation toward the Indians." Morton v. Mancari, 417 U.S.
535, 555 (1974). This case upheld statutes providing preferential treatment for Indians in hiring
for positions in the Bureau of Indian Affairs.
11 Montana v. United States, 450 U.S. 544, 565 (footnotes omitted).
12 The early treaties recognized the power of tribes to punish wnon-Indians within their territory.
See Treaty of July 2, 1791, with the Cherokee Nation, 7 Stat. 40 "If any citizen of the United
States, or other person not being an Indian, shall settle on any of the Cherokee lands, such person
shall forfeit the protection of the United States, and the Cherokees may punish him or not as they
please."
13 Ex Parte Crow Dog, 109 U.S. 556 (1883).
14 541 U.S. 193 (2004). See CRS Report RL32361, Tribal Sovereignty Over Nonmember
Indians: United States v. Billy Jo Lara, by Nathan Brooks.
15 25 U.S.C. § 1301, et. seq.

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all Indian allotments.16 Certain statutes define specific crimes in Indian country, such as
gambling17 or introducing liquor into Indian country in violation of state or tribal law.18
Others assert federal criminal law jurisdiction broadly over offenses committed in "Indian
country"; exempt offenses committed by Indians against one another's property, offenses
committed by Indians already punished by their tribes, or offenses committed to tribal
jurisdiction by treaty; and, essentially reassert jurisdiction over a list of major crimes
when committed in Indian country by Indians against persons or property.19
Although Congress has not unequivocally transferred criminal law power over Indian
lands to the states,20 there are some specific statutes that delegate authority over individual
lands or tribes or states. There is also a statute that authorizes any state to assume
criminal law jurisdiction, provided tribes assent. Public Law 28021 authorizes any state
to assume any portion of jurisdiction over Indian offenses committed within Indian
country within the state provided tribal consent is obtained. As originally enacted, the
statute delegated criminal law jurisdiction to California, Minnesota (except for the Red
Lake Reservation), Nebraska, Oregon (except Warm Springs Reservation), and Wisconsin
(except Menominee Reservation) and offered other states the option of accepting
jurisdiction or any portion thereof. Subsequent amendments added Alaska as a mandatory
state, permitted retrocession of jurisdiction, and required tribal consent for assumption of
jurisdiction.
S. 477 and Indian Tribal Sovereignty. Generally, most of the provisions in the
bill do not effectuate substantive changes in the law because they merely add the word,
“tribal,” after “state” in the phrase “state and local governments” in contexts in which
HSA has already included tribal governments by incorporating them within the definition
of “local government.”22 The bill also renames HSA’s Office of State and Local
Government Coordination to “Office of State, Tribal, and Local Government
Coordination.” While these changes do not alter substantive law, they may have the effect
of increasing or centralizing the attention that HSA provides to tribal government
concerns. Similarly, there are other provisions that specifically mention the Indian Health
Service and define Indian colleges and universities. This seems to be aimed at focusing
16 18 U.S.C. § 1151.
17 See Felix S. Cohen's Handbook of Federal Indian Law 212 (1982 ed.).
18 18 U.S.C. §§ 1154, 1155, 1156, and 1162.
19 The General Crimes or Indian Country Crimes Act, 18 U.S.C. § 1152, makes federal criminal
law applicable in Indian country "[e]xcept as otherwise provided by law." It exempts from its
provisions "offenses committed by one Indian against the person or property of another Indian,"
and "any Indian committing any offense in Indian country who has been punished by the local
law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such
offenses is or may be secured to the Indian tribes respectively." The Major Crimes Act, 18
U.S.C. § 1153, asserts federal criminal law jurisdiction over Indians committing any crime in a
specified list of offenses against persons or property.
20 Under the act of July 2, 1948, ch. 809, 60 Stat. 1224, 25 U.S.C. § 232, jurisdiction is given
to New York State over offenses committed by or against Indians on Indian reservations within
the state, with the exception of treaty guaranteed hunting and fishing rights.
21 Act of August 15, 1953, ch. 505, 67 Stat. 588, 18 U.S.C. § 1162, 25 U.S. C. § 1321.
22 6 U.S.C. § 101(10).

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Department of Health, Education, and Welfare attention, with respect to HSA efforts, on
Indian health and education needs and resources within the context of HSA preparedness
programs and research. At least one of the provisions of the bill would permit
enforcement of tribal law within the context of federal laws.23 Two provisions permit
federal agents serving warrants authorized by the Foreign Intelligence Surveillance Court
to consult with tribal as well as other law enforcement officials.24
Omission of Earlier Bill’s Provisions Criticized for Expanding Tribal
Sovereignty. Two provisions that were included in S. 578 of the 108th Congress that
were criticized25 as expanding tribal sovereignty are not included in S. 477. The first is
a provision of section 10(b) of the earlier legislation that would include tribal law under
a choice of law provision relating to federal causes of action for claims arising out of acts
of terrorism when certain technologies have been deployed defensively giving rise to
claims against the seller under section 863(a)(1) of the Homeland Security Act of 2002.
That section appears to require application of tribal law to the “area under the jurisdiction
of an Indian tribe,” despite a variety of court decisions suggesting that the rules for
application of tribal law are more complex than mere geography. One of these decisions
is Nevada v. Hicks, 533 U.S. 353 (2001). In that case the Court ruled that a tribe’s
jurisdiction did not extend to a state law enforcement official executing a state search
warrant on tribal land.
The second is section 13 of the earlier bill, “Congressional Affirmation and
Declaration of Tribal Government Authorities.” It makes a broad statement of tribal
“inherent sovereign authority,” qualified by the phrase “[f]or the purpose of the act.” So
broad is the statement that it would confer on tribes the authority exercised by the United
States in “Indian country” under 18 U.S.C. § 1151. Without the qualifying prepositional
phrase limiting the statement to “the purpose of the act,” this section would appear to
confer, reinstate, or delegate to tribes authority over nonmembers and non-Indian fee land
that the courts have found to have been divested.26 On the other hand, because that
qualifying phase appears, the courts might have found the section to be limited because
the only provision in the bill that appears to enhance tribal jurisdiction is that which
related to choice of law in tort actions arising in connection with technology employed
in defense against terrorist acts. The introductory statements, moreover, are
distinguishable on the issue of jurisdiction, an aspect of tribal sovereignty. When Senator
Inouye introduced S. 578, he stated that the bill would make it “clear that for purposes
of homeland security, the United States recognizes the inherent authority of tribal
governments to exercise jurisdiction [con]currently with the Federal government to assure
23 S. 477, § 12(a)(2), amending the Cyber Security Enhancement Act of 2002.
24 S. 477, § 12(f).
25 See Testimony of Thomas B. Heffelfinger, U. S. Attorney, State of Minnesota, on Behalf fo
the Department of Justice, criticizing section 13 of S. 578. “Tribal Government Amendments to
the Homeland Security Act of 2002,” Hearings Before the Committee on Indian Affairs, United
States Senate,” 108th Cong., 2d Sess. 22, 23-25(2004).
26 See, e.g., Montana v. United States, 450 U.S. 544 (1981) (civil regulatory jurisdiction);
Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (tribes have been divested of inherent
criminal jurisdiction over non-members); Duro v. Reina,495 U.S. 676 (1990) (tribes have been
divested of inherent criminal jurisdiction over non-member Indians).

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that applicable criminal, civil and regulatory laws are enforced on tribal lands.” 149
Cong. Rec. S3392 (daily ed. March 7, 2003).27 In introducing S. 477, Senator Dorgan
spoke in terms of tribal governments as serving “as the primary instruments of law
enforcement and emergency response for more than fifty million acres of land that
comprise Indian country,” and of the bill, as treating “Indian tribes as the separate political
entities that they are, consistent with the Federal policy of tribal self-government and self-
determination.” 151 Cong. Rec. S1868.
Funding. Under current law, HSA funding for tribal governments is indirect; it is
transmitted through the individual states. S. 578 of the 108th Congress did not address
that issue. S. 477 does. It authorizes, but does not mandate, the Secretary of Homeland
Security to provide any funds available under the HSA directly to federally recognized
Indian tribes.
Related Legislation: Border Preparedness Pilot Project. S. 536 and S.
1374 contain provisions authorizing a border preparedness pilot program on Indian lands
and authorizing appropriations of $3.5 million annually for fiscal years 2006 through
2008. Section 131 of S. 536 would require the Homeland Security Department to
establish a pilot program to include at least six tribal governments with land near the
Mexican or Canadian border. The purposes of these pilot projects would include
facilitating response to threats to border security, enhancing tribal authority as first
responder to illegal immigrant border crossings, and providing assistance to tribes with
respect to surveillance technologies, communication systems, and personnel training.
Under this bill, funding would be subject to the provisions of the Indian Self-
Determination and Educational Assistance Act (ISDEAA), 25 U.S.C. § 450 et seq. S.
1374, introduced on July 12, by Senator McCain, provides similar authority for a border
preparedness pilot program on Indian lands without the nexus to ISDEAA. In addition
S. 1374 would authorize the pilot program to provide technical assistance to tribes to plan
and implement strategies to detect and prevent “any illegal entry by a person into the land
of the tribes ... and ... the transportation of any illegal substance within or near the
boundaries of the land of the tribes.”
27 This statement appears to be referring to the fact that while states have limited criminal law
jurisdiction over Indians in Indian country, tribes and the federal government share jurisdiction
over Indian offenses. Within Indian country, federal and tribal courts have concurrent
jurisdiction over: (1) certain crimes committed by an Indian against an Indian; (2) certain crimes
committed by an Indian against a non-Indian; and (3) victimless crimes committed by an Indian.
Conference of Western Attorneys General, American Indian Law Deskbook 99 (1998).