APRIL 2024 | 25 THE OKLAHOMA BAR JOURNAL 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. Congressional authority. Tribes are subject to the plenary power of Congress. Plenary power means that Congress can limit, modify or eliminate any powers that tribes possess.18 For the purposes of this article, an example of congressional authority limiting a tribe’s inherent authority is the environmental laws passed by Congress. It is the intent of Congress and the U.S. Environmental Protection Agency (EPA) that all state, local and tribal governments participate in managing human health and environmental risks.19 However, there are many restraints within environmental laws that tribes must be aware of. For example, Congress has specifically included the notorious “treatment as a state” (TAS) language in certain statutes.20 TAS language authorizes the EPA “to treat eligible federally recognized Indian tribes in a similar manner as a state for implementing and managing certain environmental programs.”21 Other statutory provisions state that tribes shall be given “substantially” the same treatment as a state.22 “The EPA has interpreted this to allow tribes to enter into cooperative agreements and receive financial assistance.”23 Some statutory provisions are silent on the role of tribes.24 The EPA has interpreted this silence to authorize tribal participation.25 Due to the absence and/or lack of clear federal legislation, states and Indian tribes have competed for control. It is important that the tribal practitioner understands that an effective piece of tribal legislation accounts for the limitations imposed by Congress and the competing interests of the state. Judicial authority. Two important bodies of judicial law that define the status of Indians and Indian tribes within our federal system are the laws surrounding a tribe’s criminal and civil authority. The criminal string of cases states that federal and tribal governments have the authority to prosecute violent crimes by or against Native Americans that happen on tribal lands,26 and tribal governments have the authority to prosecute all other nonmajor crimes or crimes not falling under the Assimilative Crimes Act.27 The criminal string of cases also makes clear that the state has the authority to prosecute crimes by non-Indians against non-Indians.28 An anomaly in the string of criminal cases is the Supreme Court’s most recent ruling in Castro-Huerta, which held that “state governments have the authority to prosecute certain cases on tribal lands.”29 When drafting criminal legislation, the tribal practitioner prioritizes the need to embody in their written laws the appropriate criminal sanctions to assure the tribe’s members are protected from the many dangers they face in contemporary tribal life.30 The tribal practitioner must also take into consideration that while the federal government has jurisdiction to enforce federal and sometimes state laws, a tribe may not assume that “the existence of law always means that those laws will be enforced by the federal government.”31 With respect to civil authority, the Montana string of cases generally captures the limitations on a tribe’s ability to regulate members and nonmembers. A tribe can exercise regulatory and adjudicatory jurisdiction over members.32 A tribe must meet one of two exceptions to exercise regulatory and adjudicatory jurisdiction over nonmembers, at least where the activities at issue occur on nonmember-owned fee land.33 The two exceptions are: 1) A tribe may regulate when nonmembers enter consensual relationships with the tribe or its members through contracts, commercial dealings, leases or other arrangements, and 2) the nonmember’s conduct “threatens or has some direct effect on the tribe’s well-being, including the political integrity, the economic security, or the health or welfare of the tribe.”34 When drafting civil legislation, a tribal practitioner should understand that there is limited case law surrounding the Two important bodies of judicial law that define the status of Indians and Indian tribes within our federal system are the laws surrounding a tribe’s criminal and civil authority.
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