Recent U.S. Supreme Court cases have highlighted the permanent legal triads of the American Indians, state and federal governments. 2020s McGurt, Oklahomathe court has limited the ability of Oklahoma to prosecute major crimes committed on Muscogee (Cleek) state’s reservations. Two years later, in Oklahoma vs Castro Fuertathe court has made clear that there is simultaneous state and federal jurisdiction over certain criminal prosecutions in American Indian countries. And 2023 Haallandv. Brackenthe court upheld the federal Indian Child Welfare Act in the face of challenges added by several states that argued that the law violated the 10th Amendment.
In most cases, these cases acknowledge the broad federal power over the American Indian issue, based on constitutional provisions such as the Indian Commercial Clause, Treaty Clause, and Supreme Clause. However, American Indians are national citizens too, and each of these cases envisages the ongoing need to balance the interests of national and tribal governments. As a result, both Supporters and Scholar It rethinks the obligations the state has to American Indian citizens and how the National Constitution enlists to protect the interests of American Indians.
State constitutional provisions regarding general applicability are certainly available to American Indians along with other national citizens. For example, the groundbreaking environmental case for 2023 v. Montana Includes Feet Peck Assiniboine and Sioux youth plaintiffs. However, the constitutions of some states go further with provisions that explicitly address the issue of American Indians. The regulations fall into approximately six categories: land, taxation, games, voting, culture and governance.
Due to the legal complexity of tribal, state and federal relations, the following summary should not be considered a conclusive statement of the law, but as a starting point for further research.
Regulations for managing land
American Indian land status is often addressed by the constitutions of several states in a language derived from the original validation laws of states that secured entry into the United States. These provisions make it clear that federally recognized tribal lands within state boundaries are under federal control. Examples of such state constitutional clauses are as follows: Section XXI of Idaho, Section 19provided in the related parts:
The people of Idaho agree and declare that we will forever waived rights and titles on wasteful public lands within their boundaries and to all lands within the above restrictions owned or held by Indian or Indian tribes. He then said that the same would be subject to US disposal until the title for it was extinct by the United States, and that Indian land would remain under the absolute jurisdiction and control of the US Congress.
Similar provisions will be displayed in the state’s constitution under, Arizona, Montana, New Mexico, Oklahora, South Dakota, Yuta, Washingtonand Wyomingthere are several state-specific variations. for example, Article XII, Section 12 The Alaska constitution dealing with federal land within the state indicates that “fishing rights” are included in the definition of “property, or property held for India, Eskimo, or Allue, or its community.” Article XII, Section 1 of the Oklahoma Constitution It contains provisions that preserve Native American rights under the state’s own Homestead Act.
Native Hawaiians have legal recognition as Indigenous people, but as defined by the federal government, they are not members of recognized tribes. Hawaii’s constitution, in contrast to land clauses from other states Provided Specific lands in the state – It is equivalent to about 200,000 acres – “”The state shall hold it as public trust for native Hawaiians and the general public. ”
The Nebraska Constitution addresses the land rights of American Indians in a particularly narrow way: limit Acquisitions of farmland companies in the state exempt Indian tribal companies, particularly those who may engage in commercial agriculture. In contrast, Kansas’ agreement with the federal government to establish the state; Incorporated The state constitution imposes restrictions on the use of American Indian land by specifying that parts of each town include “.The land of reservations and trusts in India shall be granted to the State for the exclusive use of the general school. ”
Taxation and other finances
Some state constitutions specify that American Indian land is exempt from state taxation. For example, the Alaska Constitution Provided that No tax will be imposed on federal property, including American Indian land, “until Congress provides it.” New Mexico’s “Compact with the United States” governs the country’s membership and was incorporated as Article XXI of the state’s constitution, Similar regulationsThe same is true of the constitution of Arizona, South Dakota, Yutaand Washington. Some of these states’ constitutional provisions make it clear that Native Americans who have severed his or her tribal ties may be subject to state taxation. (Of course, the constitutional language of a state is a small part of the tax puzzle. More detailed information about federal taxation is available here,Information on state and local taxation that differs from location to location requires state-specific research. )
Beyond tax laws, Article IX of the Maine Constitution I will specify That the state may not be able to use “funds held in trust for the tribes of India” along with issuing bonds on behalf of the state. At the same time, the constitution permission The Congress will provide mortgage assistance to “members of two tribes on several Indian reservations.” (But be aware that there is now Four federally recognized American Indian tribes in Maine – Collectively known as Maliseet, Micmac, Penobscot, and Passamaquoddy, Wabanaki.
Voting rights
nThe debate when voting based on race was an important part of many states’ acts of efficacy when they joined the union. The lack of clarity regarding American Indian voting rights should have been eliminated in 1924, when Congress passed the Indian Citizenship Act and granted citizenship and the right to vote for all Native Americans born within the United States.
Additionally, the constitutions of some states speak directly to the status of American Indians as voters. Main Constitution “eVery Indians who reside in tribal reservations and otherwise qualify will be elected in all county, state and national elections. ” The New Mexico Constitution addresses access to voters in the context of amendments to the state constitution. Statement “The Secretary of State will also make reasonable efforts to minority language groups to inform the electors of the amendments to provide notice of the content and purpose of the constitutional amendment legislated in Indigenous languages.” Michigan’s constitution specifies that it can be used by future voters. Photo identification It was issued by the tribal government to establish their identity for the purposes of the vote.
Games, lottery tickets, alcohol
Games on American Indian Lands are governed by the Federal Indian Games Regulation Act of 1988. The law recognizes tribal sovereignty over their land, but requires tribes to negotiate tribal compacts to provide casino-style games. The state government plays a role in setting these parameters, and the constitutions of some states recognize tribal games rights. For example, the California Constitution isMachines, lottery games, banks, and percentage card games are. . . It is permitted to be negotiated between the governor and the American Indian tribe and implemented and operated on tribal lands covered by the Congress approved compact. Colorado, Floridaand Michigan Specifically, exempt Indian land from the state’s generally applicable gaming laws and clear the path to filing for federal gaming laws. For federal authorities in this field, regardless of the constitutional provisions of this state, the act and tribal state compact are the main source of tribal games arrangements in all states.
It holds the New Mexico constitution Obsolete regulations See long-standing federal laws that banned the introduction of liquor on reserved lands in India. That was the federal ban on alcohol on Native American lands. It was lifted In 1953, these lands were subject to state liquor laws.
Protecting American Indian and Indigenous Cultures
The Hawaii Constitution, Article XII, Section 7, speaks directly to Hawaii’s Indigenous Culture, with the pledge to protect all rights exercised and owned for self-sufficiency, cultural and religious purposes. Whikak “Tenants” refer to descendants of Native Hawaiians. Although they joined the United States in 1959 and sometimes had large Native peoples a few months before their Hawaiian membership, the Alaska Constitution does not include recognition of traditional customs. author I believe this omission stems from the fact that Alaska Native Americans had little voice in the state’s constitutional drafting process.
Other state constitutions do not widely recognize native rights as Hawaii, but some contain provisions that recognize Native Americans’ rights to education and language. In particular, some of these provisions appear to expand beyond federally recognized tribes, depending on their terms.
Montana Constitution, Adopted in 1972includes provisions addressing education for American Indians. “The nation recognizes the clear and unique cultural heritage of American Indians and is committed to its educational goals to maintain their cultural integrity.” The passage of Montana in 1999. Indian education in all laws It made it clear that the goal of this education would “extend to all Montanans, whether Indian or non-Indian.”
Two states that adopted the “English only” constitutional provisions include exceptions to the American Indian language. Oklahoma English Method “Nothing in this article shall be construed as reducing or undermining the use, research, development, or encouragement of Native American languages for any purpose or for any purpose.” Arizona Law Obligation The exclusive use of English by the state government exempts government activities, including “using or preserving Native American languages.”
Governance
The constitutions of at least two states address the relationship between tribal governance and national governance. For example, the New York Constitution Exemption “Peacemaker Court or other Indian Courts” from the judiciary provisions of the state constitution. Hawaii establishes AN Hawaii office Manage realistic and personal property trusted for native Hawaiians. Furthermore, the state constitution I’ll clarify State laws enacted to comply with federal obligations may not be able to “reduce or limit the interests of Native Hawaiians” under a trust.
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The constitutional provisions of many states addressing the Indian issue remain trapped in Amber, reflecting a historical context that is unrelated today. They also fail to provide a platform primarily to address the fundamental issues of state law regarding Indigenous people’s experiences regarding historic and contemporary discrimination and efforts to protect cultural rights. As Professor Matthew Fletcher has observation“We have not yet kept up to our obligations to American Indian citizens.” From challenges to diversity initiatives to expanded recognition of the role of states in federal state-wide dialogue, federal level development provides a promotion of new attention to state constitutional provisions addressing Indigenous rights.
Martha F. Davis is a renowned professor at Northeast University Law School.
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