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Q. Who is considered to be an Indian?
A. Indian tribes have the authority and power to define their own requirements for membership. Tribal membership or citizenship is most frequently defined by blood quantum, however, some tribes also have requirements involving reservation residency, descendency from original roles and enrollment deadlines. Beyond tribal definitions, there are also federal definitions of “Indian” for various purposes, including eligibility for social programs, jurisdiction in criminal matters, preference in governmental hiring and administration of tribal property. There is no single statute that defines “Indian” for all federal purposes, but most definitions typically require membership in a federally recognized tribe or being one-quarter Indian blood.
Q. What is a Federally recognized Indian Tribe?
A. Simply put, a Federally recognized Indian Tribe is a group of Indians recognized by the United States as an Indian Tribe. This recognition establishes a tribe as an entity with the capacity to engage in government-to-government relations with the United States or individual states and also as one eligible to receive federal services. Federal recognition or acknowledgment is a legal and political status conferred by the federal government as a result of a tribe’s historical and continued existence proven through the federal recognition process, Executive Order or Legislation.
Q. What is Indian Country?
A. Indian Country is defined by federal law, 18 USC § 1151 as including:
1. All land within the limits of any Indian reservation under the jurisdiction of the United States . . .;
2. All dependent Indian Communities within the borders of the United States . . .;
3. All Indian allotments, the Indian titles to which have not been extinguished . . .
This statute defines Indian Country for purposes of criminal jurisdiction, however, it has been held by federal courts to define the territorial extent of civil jurisdiction as well.
Q. Who governs an Indian Tribe?
A. Indian tribes possess inherent powers of self-government that predate the establishment of the United States. Some Tribes and Pueblos maintain traditional forms of government. Others have adopted constitutions and established tribal councils elected by democratic vote pursuant to the Indian Reorganization Act of 1934.
Q. What is the role of the Federal government with regard to Indian Tribes?
A. The United States has what federal courts have described as plenary power to regulate Indian affairs. The United States, through its various departments within the Executive branch, stands in the role of trustee for Indian tribes in many matters. Indian tribes are subject to federal laws of general application unless a specific law provides otherwise.
Q. What is the role of state government with regard to Indian Tribes?
A. Generally, state governments have no role with regard to Indian tribes and have no authority over tribes or Indians within Indian Country unless specifically authorized by Congress. However, limited exceptions exist for certain state regulatory and taxing interests.
Q. What is Trust Land?
A. Trust land refers to land held in trust by the United States for an Indian tribe or an individual tribal member. This means that the United States holds legal title to that land while the tribe or individual tribal member holds beneficial title—which means that they have the right to use the property and derive benefits from it. Because the United States owns trust land, state and local laws regarding matters such as taxation, zoning, land use and the like have no application to these lands.
Q. Is all Indian Land Trust Land?
A. No. Many tribes and individual Indians have purchased land to which they hold fee simple title. In order for fee land to gain trust status, the Secretary of the Interior must accept legal title to the land in the name of the United States in trust for a tribe or individual Indian. In addition, some Indian lands were made subject to restrictions against alienation—a device intended to protect against the loss of the particular property—and are not eligible for trust status.
Q. Do Indian Tribes pay taxes?
A. As governmental entities, Indian tribes are not subject to taxes imposed upon individuals. They do, however, pay certain federal and state taxes as a result federal statute, specifically federal employment and excise taxes.
Q. Do individual Indians pay taxes?
A. Individual Indians are exempt from state income taxes if they live on and derive their income from reservation resources. If they live and work outside their reservation, they are subject to state income and sales taxes. Items purchased outside a reservation by an Indian person which are delivered for use within a reservation, are not subject to a state sales tax. All individual Indians are subject to federal income tax.
Q. Are all tribes involved in gaming activities?
A. No. Indian gaming is governed by federal law—Indian Gaming Regulatory Act, 25 USC §§ 2701 et. seq. A tribe engaged in gaming must comply with the provisions of that law.
Q. What is different about doing business in Indian Country?
A. Doing business in Indian Country is an atypical and exceptionally complex experience that can implicate unique issues of sovereignty, taxation, civil and criminal jurisdiction, environmental regulation and exhaustion. For those doing business in Indian Country or with Indian Tribes, special attention and concern is required. |
