[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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