Overview of Native Peoples Law

Legal disputes involving Native American tribes demand more than a passing knowledge of federal law. They require an understanding of tribal sovereignty, the federal trust responsibility, and the unique government-to-government relationship that exists between tribal nations and the United States.

Rooted in centuries of treaties and federal statutes, Native Peoples law recognizes the inherent authority of tribes to govern themselves through the doctrine of tribal sovereignty. Determining whether federal, state, or tribal jurisdiction applies often depends on the parties involved, the nature of the dispute, and historical agreements. For legal help, consult with an experienced Native Peoples law attorney.

What Is Native Peoples Law?

Native Peoples law governs the relationship among federally recognized tribes, the U.S. government, and states. It covers tribal sovereignty, jurisdictional issues, treaty enforcement, and tribal rights, as distinct from each tribe’s internal law.

Tribes are considered “domestic dependent nations” that possess inherent sovereignty and limited self-governance under U.S. constitutional law. While tribes govern themselves internally, federal statutes, treaties, and U.S. Supreme Court decisions restrain states and enforce non-Indian encroachment.

Native Peoples law applies to relationships among tribal, federal, and state governments, treaty interpretation, and recognized rights under federal authority. Tribal law refers to laws enacted and enforced by individual American Indian tribes within their own sovereign jurisdiction, such as criminal, civil, or governance codes, which operate separately from federal law.

Under the U.S. Department of the Interior, the Bureau of Indian Affairs (BIA) is tasked with implementing the federal trust responsibility and maintaining the government-to-government relationship with tribes.

The BIA’s mission includes promoting tribal self-governance, administering trust lands and natural resources, supporting tribal infrastructure and economic development, and assisting tribal justice systems. The BIA also oversees programs under federal laws such as the Indian Self‑Determination Act and IRA, facilitating tribal administration of health, education, housing, and resource management plans.

The Principle of Tribal Sovereignty

Tribes are recognized as having inherent sovereignty. This means they retain their original self-governing authority that predates the formation of the United States.

Federal American Indian law recognizes tribes as being distinct political communities. As sovereign governments, they have the right to retain authority over their internal affairs. Tribal governments have authority over laws governing membership, courts, and civil codes.

Sovereignty extends to:

• Governance
• Education
• Cultural preservation
• Economic development

The government-to-government relationship requires the tribal and the federal government to work together. The federal trust responsibility imposes legal obligations to protect tribal lands, resources, and treaty rights. Violations can lead to court claims.

Tribal consent and consultation are legally required for federal decisions affecting tribal lands, resources, or governance under policies like the Tribal Consultation Rule. However, sovereignty is not limitless. Tribes remain subject to U.S. federal law. State jurisdiction generally does not extend into Indian reservations unless authorized by Congress.

Certain activities, such as treaty enforcement, criminal prosecution of major crimes involving tribal members, and nationwide commerce, fall exclusively under federal jurisdiction.

Jurisdiction: Who Has Legal Authority in Indian Country?

Indian Country is a legal term in Federal Indian Law that refers to reservations, dependent Indian communities, allotments, and trust lands. Land held in trust by the U.S. for tribes or individuals, and lands owned by tribes but subject to restrictions, are included.

The jurisdiction for a legal issue can vary for criminal, civil, and regulatory matters. The mix depends on whether the perpetrator or victim is a tribal member or non-member and the location within Indian Country. There can be overlaps in the law when there are concurrent jurisdictions or gaps in enforcement.

Criminal Law

The Major Crimes Act grants federal courts jurisdiction over major crimes committed by or against Indians in Indian Country. Examples of major crimes include murder, rape, and kidnapping.

Tribal courts handle lesser offenses committed by tribal members on tribal land. Under Public Law 280, some states have jurisdiction over criminal and civil matters in Indian Country.

Civil Law

Tribal courts adjudicate civil disputes involving tribal members within Indian Country. Tribes may exercise jurisdiction only in limited circumstances when non-members are involved. Federal courts see civil claims under federal statutes.

Understanding Treaties and Tribal Rights

From 1778 until 1871, the United States entered hundreds of federally ratified treaties with Indian tribes, establishing formal agreements regarding land cessions, boundaries, and tribal rights. These treaties create historical obligations that are integral to tribal sovereignty and U.S. Indian law.

Under the Supremacy Clause of the U.S. Constitution, treaties signed with tribes have the same legal status as federal statutes and override conflicting state law. Many treaties expressly preserve or reserve specific rights for tribes, including hunting and fishing, water, and land use access.

The United States holds a legally enforceable fiduciary duty under the trust responsibility to protect tribal land, resources, and treaty rights. Courts have held the federal government liable for damages when trust duties are breached. The U.S. Department of the Interior has formally reaffirmed trust responsibility and principles guiding agency compliance with treaty and fiduciary obligations.

Protecting Tribal Lands and Natural Resources

The Bureau of Indian Affairs (BIA) manages the trust responsibility, administering and protecting trust and restricted lands, facilitating resource leases, and supervising fee-to-trust acquisitions. BIA programs support:

• Tribal infrastructure
• Natural resource projects
• Water and power
• Indian energy initiatives

All land acquisitions into trust status require BIA review and tribal resolutions or applications.

Trust Lands vs. Fee Lands

There are two types of lands that native peoples can have protected:

• Trust lands. Held in a trust by the federal government for the benefit of a tribe or individual tribe member. The land’s title is held by the U.S. and management is overseen by the BIA.
• Fee lands. Held by individuals or tribes, these lands are subject to state taxation and regulation. Some lands are restricted — tribal members own them but cannot be sold or encumbered without BIA approval. Trust lands are exempt from state property taxes, and their use supports tribal authority and economic development. Fee lands can be used as collateral and taxed by states.

Government-to-Government Consultation for Actions Affecting Tribal Lands

Federal agencies must engage in government-to-government tribal consultation under NEPA and the National Historic Preservation Act (NHPA) when proposed actions affect tribal lands or resources, including off-reservation ancestral areas.

Federal permitting, environmental review, or infrastructure decisions affecting tribal land or resources require tribal input and often consultations coordinated by BIA or Interior agencies.

Water rights adjudications and settlement agreements uphold treaty and reservation-based water use rights. Under Winters v. United States, tribes reserve not only land but also the right to sufficient water to fulfill the reservation’s purpose.

The Native American Graves Protection and Repatriation Act mandates the return of human remains, funerary objects, and sacred or cultural patrimony items to tribes or descendants upon request from federally funded institutions or agencies.

Consultation protocols require tribal consent for intentional excavation on tribal lands and notification to respective tribes for discoveries on federal or tribal land. Agencies must inventory culturally affiliated items, notify tribes, and follow repatriation procedures. Criminal penalties apply for trafficking prohibited items.

Key Federal Laws Affecting Native Peoples

Several key laws provide the majority of protections and rights:

• Indian Civil Rights Act of 1968 (ICRA). Acknowledged tribal sovereignty and extended fundamental rights included in the U.S. Bill of Rights.
• Indian Reorganization Act of 1934 (Wheeler‑Howard Act). Ended allotment policies, restored tribal land ownership, and authorized tribes to enact constitutions and self-governance structures under federal recognition. It laid the groundwork for modern tribal self-determination and influenced later legislation like the Indian Self‑Determination and Education Assistance Act.
• Indian Gaming Regulatory Act (IGRA). Provides the statutory foundation for tribal gaming operations. It declares that tribes have the exclusive right to regulate gaming on Indian lands unless expressly prohibited under federal or state public policy, promoting economic development and tribal sovereignty.
• American Indian Religious Freedom Act (AIRFA). Established a federal policy to protect Native American religious rights, including the use of sacred places, ceremonial rites, and sacred objects. The act laid the foundation for later decisions affirming tribal religious protections and shaped agency policy toward respectful consultation and accommodation.
• Tribal Law and Order Act. Expanded tribal sentencing authority and established protocols for tribal-state-federal collaboration in criminal justice. It increased U.S. Department of Justice (DOJ) accountability, mandated standardized data collection, and promoted intergovernmental communication and training to combat crime in Indian Country.
• Violence Against Women Act (VAWA) 2013. Restored limited “special tribal criminal jurisdiction” (STCJ) over non-Indian perpetrators of domestic and dating violence in Indian Country. VAWA 2022 expanded jurisdiction to additional crimes (e.g., assault of tribal justice personnel, child violence, stalking, sex trafficking) and extended eligibility to Alaska native tribes and those in Maine via pilot inclusion programs.

The Indian Child Welfare Act (ICWA)

Enacted in 1978, the Indian Child Welfare Act (ICWA) was enacted in response to the shocking numbers of Indian children being removed from homes and placed in non-Indian foster or adoptive settings. The purpose was to promote stability and security of Indian tribes and families by establishing minimum federal standards for the removal and placement of Native children.

The ICWA prioritizes preserving Native children’s connections to tribal communities. It mandates the placement preference sequence:

1. Extended family members
2. Other members of the child’s tribe
3. Other Indian families

Tribes, parents, or custodians have a right to intervene in custody proceedings, including for termination of parental rights, regardless of the proceeding stage. State courts must provide notice to the tribe and allow participation even if placement is not contested.

Tribes may request transfer of jurisdiction absent “good cause.” State agencies must collaborate with tribes in case planning, providing cultural and resource support under active efforts and advance notice obligations.

Before a child is removed, the state must provide proof that is beyond a reasonable doubt in cases where the parental rights are terminated. Evidence of active efforts being made to avoid removal must also be presented.

Finally, the state must provide documentation that the tribe was provided notice and given an opportunity to intervene. An exception to this is emergency removals. These are only permitted as a temporary solution, and the move must be resolved quickly.

How a Native Peoples Law Attorney Can Help

Tribal communities can benefit from working with an attorney when navigating complex jurisdictional questions. An experienced lawyer can interpret the law and how federal, state, and tribal jurisdictions integrate with each other. This is essential when determining what law governs a legal matter. An attorney will advise individuals, tribes, or businesses on procedural and strategic implications.

If the tribe is involved in a legal issue, the lawyer can represent tribes in treaty rights litigation. Lawyers practicing Native American law regularly handle land disputes, leasing agreements, BIA mismanagement, and trust claims. They are also helpful when advocating for the protection of natural resources, sacred sites, or treaty rights, including through federal court actions or intergovernmental agreements.

There are organizations that can assist tribes, such as the Native American Rights Fund (NARF). This non-profit organization focuses on helping tribes navigate Native American law. Its team of attorneys helps tribes preserve tribal existence, protect tribal natural resources, promote native American human rights, hold governments accountable, and develop Indian law.

One of the most valuable resources provided by NARF is the National Indian Law Library (NILL). This valuable resource helps tribes advocate for their rights by providing research guides, case law, and other legal resources.

Find Legal Help

Given the legal complexity and high stakes involved, having a knowledgeable legal advocate can make all the difference in asserting tribal rights or navigating cross-jurisdictional legal systems.

Search the Super Lawyers directory to connect with an attorney skilled in Native Peoples law.