TESTIMONY OF
TRACY TOULOU, DIRECTOR, OFFICE OF TRIBAL JUSTICE
before the HOUSE SUBCOMMITTEE ON ENERGY POLICY, NATURAL RESOURCES AND REGULATORY AFFAIRS
Oversight Hearing on the Tribal Acknowledgment Process
February 7, 2002

Mr. Chairman, Mr. Vice-Chairman, members of the Committee, my name is Tracy Toulou and I am the Director of the Office of Tribal Justice in the United States Department of Justice. Thank you for the opportunity to appear before you today to testify on the basic principles of Indian tribal sovereignty and Indian law as they relate to the issue of the acknowledgment of Indian tribes by the Federal Government.

Legal Principles Behind Indian Tribal Sovereignty

The over-arching principle of Indian tribal sovereignty is that Indian tribes pre-existed the federal Union and draw their powers from their original status as sovereigns before European arrival. Indian tribal sovereignty is a retained sovereignty, and includes all the powers of a sovereign that have not been divested by Congress or by tribes' incorporation into the federal Union. As a result, tribal sovereignty is not "conferred" upon tribes through federal recognition. Rather, recognition is a process by which the Federal Government acknowledges that particular Indian entities retain this sovereign status.

Indian tribal sovereignty, like sovereignty in general, has two main components -- an external one and an internal one. The external component of Indian tribal sovereignty relates to the ability of the sovereign entity to engage in relations as a government with other entities. Indeed, the U.S. Constitution contemplates that Indian tribes will engage in government-to-government relations with the United States as evidenced through the Treaty-making and Indian Commerce Clauses of the Constitution. Thus, one feature of Indian tribal sovereignty is that Indian tribes will relate to the United States as sovereign governments. For the Federal Government's part, recognition of an Indian tribe represents a determination that this type of bilateral relationship should exist between the Federal Government and a tribe.

The internal component of tribal sovereignty relates to the tribes' powers in relation to their members and territory. As a matter of federal law, Indian tribes have been deemed "unique aggregations possessing attributes of sovereignty over both their members and their territory." The sovereign powers of tribes include: (1) the power to determine their own form of government, (2) define the conditions of membership in the tribe, (3) regulate domestic relations among its members, (4) prescribe rules of inheritance, (5) levy taxes on members and persons doing business with members or on tribal lands, (6) control entry onto tribal lands, (7) regulate the use and distribution of tribal property, and (8) administer justice among members of the tribe, this latter power including the right to prescribe laws applicable to Indians within their jurisdiction and enforce those laws by criminal sanctions. The governmental, political character of Indian tribes has been found by the Supreme Court to provide the constitutional foundation for the many statutes which provide benefits to Indians.

Of course, a tribe may choose not to exercise any of these powers. An element of sovereignty is the ability to make choices about what powers to exercise. Tribes retain the sovereign prerogative to not exercise any of the powers I have described above without ceding their right to exercise them in the future. In addition, Congress has authority to expand or limit tribal authority.

The Federal Acknowledgment Process

Inherent in the Treaty-making and Commerce Clause powers is the authority of the Federal Government to determine with which entities these government-to-government relations will exist. Courts have recognized that both political branches of the Federal Government have authority to make these determinations.

For its part, Congress has the authority to determine appropriate subjects of the Indian Commerce Clause and Treaty-making powers. Courts give Congress broad deference in making these determinations, subject only to the requirement that they apply to "distinctly Indian communit[ies]." It is worth noting that although the Supreme Court has expressly stated its ability to determine whether Congress has over-stepped this bound, no court has ever overturned a congressional determination that an entity has tribal status.

As with congressional power to recognize tribes, the Supreme Court has stated that the Executive power to determine tribal status is entitled to deference. The Secretary of the Department of the Interior (the Secretary) has, by regulation, set forth criteria that are aimed at identifying groups that are sovereign tribes. (1) The regulatory criteria include factors which determine whether an entity is in fact sovereign. While the Executive power to determine tribal status is presumably subject to at least the same limits that the Constitution would impose on Congress, we are not aware of any court decision overturning a determination by the Secretary of the Interior that a group should be recognized as a tribe. In fact, the three acknowledgment decisions challenged on the merits have been upheld by the courts.

Like other decisions that the Secretary of the Interior makes, the Secretary is bound to apply her own regulations. Her determinations are subject to challenge under the Administrative Procedures Act (APA) with regard to whether a group has properly been denied, or granted, acknowledgment. A decision may be overturned under the APA if it is "clearly erroneous," "arbitrary or capricious" or "contrary to law." In sum, the criteria set forth for reviewing decisions under the APA, in conjunction with the criteria set forth in the Secretary's regulations, form the primary basis for determining whether an acknowledgment decision is proper. Together, they provide for judicial scrutiny of the Secretary's acknowledgment decisions. It is not for the Department of Justice to speak to the strength of evidence needed under the regulations. The agency tasked with the acknowledgment process, the Department of the Interior, is in the best position to speak to the evidence needed to fulfill the criteria.

Effects of Federal Recognition

As the foregoing discussion makes clear when Interior makes a final determination to acknowledge an entity as a federally recognized Indian tribe, certain consequences follow. First, the tribe has the same status as other federally recognized tribes unless limited by federal law and becomes eligible to enter into bilateral government-to-government relations with the United States. Second, that tribe may exercise sovereign powers as a matter of federal law.

Federal acknowledgment also entails the existence of a relationship of trust between the United States and the tribe. Congress has itself declared that the trust responsibility "includes the protection of the sovereignty of each tribal government." Indian Tribal Justice Support Act, 25 U.S.C. 3601(2). The United States provides assistance to tribes and their members in a variety of forms as directed by Congress or by regulation, as well as in furtherance of responsibilities undertaken by the United States in treaties. In many cases, the United States provides direct services to Indian tribes and their members. In others, the United States provides assistance through grants and other funding mechanisms to the tribes to carry out tribal programs or exercise their own tribal authority.

A federally acknowledged tribe, thus, has sovereign immunity, may exercise jurisdiction over its territory and establish tribal courts, may assert jurisdiction over Indians who commit offenses in Indian country, may administer funds under the Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C. 450-450n, may obtain other federal benefits and may exercise their sovereign authority except as limited by federal law. Like nearly every federal agency, the Department of Justice participates in this relationship. With respect to direct services, the Department of Justice investigates and prosecutes serious crimes by Indians in most areas of Indian country. In Indian country, the Department also has exclusive jurisdiction to prosecute crimes by non-Indians against Indians and shares jurisdiction with tribes to prosecute crimes by Indians against non-Indians in Indian country except where Congress has delegated that authority to states. The Department also provides grants and other assistance to tribal law enforcement agencies and tribal justice systems. In 2002, the Department of Justice will provide about $121 million in grant funding for Indian country criminal justice programs. To be eligible for grants that the Department administers, an entity generally must be a federally recognized Indian tribe or sanctioned by one.

Additionally, the Department's operating bureaus are engaged in a range of activities benefitting tribal governments, such as the investigation, prosecution, and incarceration of serious offenders; and protecting tribal sovereignty in the courts by representing the Federal Government in suits or as amicus curiae in cases involving tribal regulatory, adjudicatory, and tax jurisdiction, including a tribe's sovereignty to exercise jurisdiction in domestic relations cases involving tribal members. Such activities will total approximately $116 million in 2002.

Conclusion

In closing, the Department supports tribal sovereignty and is committed to working with federally acknowledged Indian tribes on a government-to-government basis. Again, I thank you for the opportunity to testify today. I would be happy to answer any questions.

1. Congress has affirmed Interior's authority to determine which entities are federally recognized tribes and affirmed the Secretary's current list of federally recognized tribes in the Federally Recognized Indian Tribe List Act of 1994. Courts have consistently deferred to the Secretary's determinations under the List Act. At Congressional direction, DOI periodically updates this list in the Federal Register. The most current list was published in March 2000. See Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 65 Fed. Reg. 13,298 (March 13, 2000).