[Federal Register Volume 61, Number 112 (Monday, June 10, 1996)]
[Notices]
[Pages 29424-29426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14513]



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DEPARTMENT OF JUSTICE

Office of the Deputy Attorney General


Office of Tribal Justice; Policy on Indian Sovereignty

AGENCY: Office of Tribal Justice, Department of Justice.

ACTION: Notice.

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SUMMARY: This notice publishes the ``Department of Justice Policy on 
Indian Sovereignty and Government-to-Government Relations.'' The Polcy 
reaffirms both the Department's recognition of the sovereign status of 
federally recognized Indian tribes and the Department's adherence to 
government-to-government relations with federally recognized Indian 
tribes. The Policy also contains a directive to all components of the 
Department of Justice to inform attorneys of the responsibilities 
enumerated in the policy and to make all reasonable efforts to ensure 
that component activities conform to its terms. The Policy also directs 
Department of Justice component heads to appoint a contact person to 
work with the Office of Tribal Justice to address Indian issues within 
each component.

FOR FURTHER INFORMATION CONTACT:
Herbert A. Becker, Director, Office of Tribal Justice, Room 1509, Main 
Building, Department of Justice. Telephone: (202) 514-8812. FAX: (202) 
514-9078.

SUPPLEMENTARY INFORMATION: Attached is a copy of the ``Department of 
Justice Policy on Indian Sovereignty and Government-to-Government 
Relations with Indian Tribes,'' which the Attorney General signed on 
June 1, 1995.

    Dated: June 3, 1996.
Herbert A. Becker,
Director, Office of Tribal Justice.
Office of the Attorney General
Washington, DC 20530

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

[[Page 29425]]

tribes as ``domestic dependent nations.'' Cherokee Nation v. 
Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). Our Constitution recognize 
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 an 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 justifiable in some circumstances, while in 
its broader sense the definition and implementation of the trust 
responsibility is committed to Congress and the Executive Branch.

[[Page 29426]]

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. Sec. 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 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.

    Dated: June 1, 1995.
Janet Reno,
Attorney General.
[FR Doc. 96-14513 Filed 6-7-96; 8:45 am]
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