THE OKLAHOMA BAR JOURNAL 24 | APRIL 2024 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. 2. To define the conditions of membership within the tribe ... 3. To regulate the domestic relations of its members ... 4. To prescribe rules of inheritance ... 5. To levy dues, fees, or taxes upon the members of the tribe and upon nonmembers residing or doing any business of any sort within the reservation ... 6. To remove or to exclude from the limits of the reservation nonmembers of the tribe ... and to prescribe appropriate rules and regulations governing such removal and exclusion, and governing the conditions under which nonmembers of the tribe may come upon tribal land or have dealings with tribal members ... 7. To regulate the use and disposition of all property within the jurisdiction of the tribe and to make public expenditures for the benefit of the tribe out of tribal funds ... 8. To administer justice with respect to all disputes and offenses of or among the members of the tribe ...8 The tribal practitioner must understand that the bedrock principles do not capture all the powers tribes have retained since time immemorial. The tribal practitioner should be developing legislation that systematically integrates both concepts of inherent authority by artfully drafting language that ties in the bedrock principles while not limiting an Indian tribe’s inherent authority derived from time immemorial. Constitutional authority. When determining what constitutional authority an Indian tribe has, the tribal practitioner must look at the Constitution of the United States (the Constitution) and the Indian tribe’s constitution. This section will discuss a brief history of the Constitution, treaties and tribal constitutions, as well as the power granted to Indian tribes and the limitations upon said powers that are produced in the two constitutions. This section will also discuss how these constitutions collectively and separately affect tribal code drafting. The Constitution is considered the supreme law of the land and defines the relationship between the people and the government, the government and Indian nations and the rights of citizens. The Constitution only mentions Indians three times.9 The first reference is to Congress’ ability to regulate commerce with Indian tribes.10 The last two references discuss the exclusion of “Indians not taxed” from the counts of apportioning direct taxes and representatives to Congress among the states.11 It is also important to note that the Constitution fails to adequately protect the collective and individual rights of Indians by not addressing the traditional, cultural and spiritual practices of Indians and their tribal nations. Additionally, the Constitution gives the president “[the] power, by and with the advice and consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.”12 The treaties signed between Indian tribes and the federal government are considered binding agreements between nations and, like the Constitution, are considered the supreme law of the land.13 Treaties “were signed across significantly different periods of history with incredibly divergent views of what Indigenous nations were.”14 As a result, the treaties executed were often times just as much determinantal as they were beneficial. The Indian Reorganization Act (IRA) and the Oklahoma Indian Welfare Act (OIWA) enabled Oklahoma Indian tribes to rebuild their governments by “incentiviz[ing] tribes to adopt U.S.-style governments and constitutions.”15 “Tribes felt pressured to accept the IRA [and the OIWA] just as they had felt pressured to accept previous government policies.”16 The templates prepared in accordance with the IRA and OIWA contained boilerplate language that “showed little sensitivity to the diversity of Native life and attempted to impose a one-size-fits-all solution to Indian problems.”17 As a result, many Indian tribes have constitutions that simply mirror the Western legal system and, in turn, do not protect their rights to govern in accordance with their traditional, cultural and spiritual values. Additionally, these boilerplate tribal constitutions may subject Indian tribes to other sources of authority that may be detrimental, such as state constitutions. Developing an understanding of the history of the Constitution, treaties and IRA tribal constitutions is critical to drafting tribal codes. By examining the Constitution, treaties and IRA tribal constitutions, the tribal practitioner is clearly defining the structure that gives the legislation life. Examining these sources prevents the tribal practitioner from drafting legislation that creates a detrimental conflict between federal and tribal governments.
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