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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 United States has recognized the
sovereign status of Indian tribes as "domestic dependent
nations." Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17
(1831). Our Constitution recognizes Indian sovereignty by
classing Indian treaties among the "supreme Law of the land," and
establishes Indian affairs as a unique area of federal concern.
In early Indian treaties, the United States pledged to "protect"
Indian tribes, thereby establishing one of the bases for the
federal trust responsibility in our government-to-government
relations with Indian tribes. These principles continue to guide
our national policy towards Indian tribes.
A. THE EXECUTIVE MEMORANDUM ON GOVERNMENT-TO-GOVERNMENT
RELATIONS BETWEEN THE UNITED STATES AND INDIAN TRIBES
On April 29, 1994, at a historic meeting with the heads of
tribal governments, President Clinton reaffirmed the United
States' "unique legal relationship with Native American tribal
governments" and issued a directive to all executive departments
and agencies of the Federal Government that:
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 United States, and further recognizes that the United States
has the authority to restore federal recognition of Indian
sovereignty in order to strengthen tribal self-governance.
The Department shall be guided by principles of respect for
Indian tribes and their sovereign authority and the United
States' trust responsibility in the many ways in which the
Department takes action on matters affecting Indian tribes. For
example, the Department reviews proposed legislation, administers
funds that are available to tribes to build their capacity to
address crime and crime-related problems in Indian country, and
in conjunction with the Bureau of Indian Affairs and tribal
police, provides essential law enforcement in Indian country.
The Department represents the United States, in coordination with
other federal agencies, in litigation brought for the benefit of
Indian tribes and individuals, as well as in litigation by Indian
tribes or individuals against the United States or its agencies.
In litigation as in other matters, the Department may take
actions and positions affecting Indian tribes with which one or
more tribes may disagree. In all situations, the Department will
carry out its responsibilities consistent with the law and this
policy statement.
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 United States and Indian tribes.
In a broad sense, the trust responsibility relates to the United
States' unique legal and political relationship with Indian
tribes. Congress, with plenary power over Indian affairs, plays
a primary role in defining the trust responsibility, and Congress
recently declared that the trust responsibility "includes the
protection of the sovereignty of each tribal government." 25
U.S.C. . 3601.
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
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