Tribal-State Policy 101: What is Tribal sovereignty?

Understanding Tribal sovereignty is key to Tribal-state relations

In order to better understand how the State of Oklahoma and Tribal Nations interact, it’s vital to first understand what tribal sovereignty means. Sovereignty is the authority of a self-governing group of people who can determine their own interests. Tribal sovereignty simply extends this concept to every federally recognized Tribal Nation. Often, non-Tribal citizens get hung up on the historical context and political rhetoric of the historical anti-Indian policies of federal Indian law. But, many laws enacted since then have enabled Tribal sovereignty and self determination today.

Historical overview of eras related to Tribal sovereignty  

The U.S. Constitution generally recognizes Tribal Nations as distinct governments that have the same powers as federal and state governments to regulate their internal affairs. Tribal Nations have the authority to govern their communities, including protecting and managing their historic and cultural resources and preserving their cultural identity and traditions on Tribal lands. Tribal sovereignty is an essential part of the government-to-government relationship that Tribes have with federal and state governments today. All Tribal Nations express sovereignty differently. The historical context in each Tribal Nation’s treaties has defined their sovereignty; these definitions drive each Tribal Nation’s priorities and the policy proposals within their government-to-government relationships.

Tribal Nations remain sovereign nations today

Tribal Nations have had the inherent right to govern their citizens and respective territories since before the existence of the United States. Tribal sovereignty today is rooted in each Tribe’s treaties with the U.S. government; these historical documents grant Tribes federal recognition and the federal government’s promises for trust responsibility to protect and uphold the rights, resources, and sovereignty under treaties and federal law. The relationship between the federal government and Tribal Nations can also be shaped through acts of Congress, presidential executive orders, or certain federal administrative actions, as well as federal court decisions. Treaties’ provisions vary, but most include the federal government providing for the health and welfare of Tribal citizens in exchange for the taking of Tribal lands and resources. And while Tribal Nations have gone through a vast array of policymaking with the federal government, Tribes still have Tribal sovereignty today. Historical context for policymaking matters, especially with Tribal Nations. Tribal sovereignty predates the United States and is affirmed in treaties, the U.S. Constitution, and many Supreme Court decisions – all of which shape federal-Tribal-state relationships today.

Major Federal Indian Policies that impact tribal sovereignty today  

In Oklahoma, Tribal sovereignty is complex and nuanced

Oklahoma and 35 other U.S. states share land and jurisdiction with more than 574 Tribal nations. The relationship between the state government and the Tribal Nations is distinctive because Oklahoma has 39 state- and federally recognized Tribes within the state (Note: The Euchee (Yuchi) Tribe is a state-recognized tribe that is part of the Muscogee Nation.) Oklahoma also has the nation’s largest population of residents who identify as American Indian alone, at 9.5 percent or nearly 1 in 10 Oklahomans. Tribal sovereignty is diverse and complex because no initiative or policy detail is one size fits all.

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Oklahoma is and has been an outlier in how policy is developed between Tribal nations and the state of Oklahoma. Oklahoma has historically done things differently when compared to other states and their relationships with Tribal nations. Tribal sovereignty is complicated by the state’s history, most notably the genocidal forced removal of Tribal Nations to the area designated as Indian Territory, and the federal government subsequently breaking that promise by opening up the Territory for non-Indian settlement in the Land Rush.

However, Oklahoma is also unusual in that Tribal Nations have developed their economies that are shared and intertwined with municipalities across the state. Additionally, Tribal Nations in Oklahoma have chosen to compact with the state in a range of areas, including gaming, tobacco sales and tax, and cooperative detention and cross-deputization, to name a few. Typically referenced as Tribal-state compacts, these agreements allow Tribal and state governments to share authority and/or resources specific to jurisdictional concerns for public safety or revenue sharing for community needs and development.

Tribes are afforded specific protections and resources based on their treaties with the federal government in combination with their Tribal sovereignty; this distinguishes Tribal Nations from the state’s authority. Treaties between Tribal Nations and the federal government supersede any conflicting state law. Understanding Tribal sovereignty and the Tribal policies enacted here require recognizing each Tribal Nation’s governance systems, jurisdictions, and policies.

Tribal sovereignty – Tribes’ authority to self-govern – is important because it means Native Nations can preserve their Tribal cultures, languages, and resources; enable Tribal economic growth; and protect Tribal citizens through the restoration of governance that earlier eras of federal anti-Indian policies diminished or attempted to eradicate altogether.

Tribal-state policy was further impacted by a pair of U.S. Supreme Court decisions in the last few years. In the July 2020 decision in McGirt v. Oklahoma, the U.S. Supreme Court found that nearly half of Oklahoma is legally Indian Country, as Congress had never disestablished reservations across eastern Oklahoma. As the majority opinion in the case wrote, “At the end of the Trail of Tears was a promise.” To some, the McGirt ruling further complicates an already complicated legal landscape; others view it righting a wrong by respecting Tribal sovereignty and holding the federal government accountable to its treaty agreements. The McGirt decision affirmed that Oklahoma Tribes retained criminal jurisdiction across a broad swath of eastern Oklahoma.

However, that affirmation was turned on its head just one year later. In Oklahoma v. Castro-Huerta, the U.S. Supreme Court ruled that Tribal, federal, and state governments had concurrent/simultaneous jurisdiction to prosecute crimes committed against Indians by non-Indian offenders in Indian Country. The decision reversed more than 200 years of legal precedent. Reversals like this hinder Tribal sovereignty and government-to-government relations. Tribal sovereignty requires that states coordinate with Tribal Nations with regard to their Tribal citizens and Tribal jurisdictions. When states choose not to respect Tribal sovereignty and coordinate with Tribal Nations, it can create dangerous, inequitable criminal and civil law enforcement.

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Oklahoma can do better by respecting Tribal sovereignty and working directly with each Tribal Nation

Tribes’ sovereignty is affirmed in treaties, and the Oklahoma Constitution contains some provisions specific to Indian Country. Government-to-government policymaking requires governments to collaborate and partner in implementing equitable policymaking at the intersection of the sovereigns. This means the state and its agencies need to continue working directly with each Tribal Nation individually. Fortunately, Oklahoma has a history of Tribal-state policies we can choose to learn from.

This first begins with the state respecting Tribal sovereignty and respecting the relationship between the Tribes and the federal government. We know that the state can work together with Tribal Nations for the betterment of all Oklahomans. We have seen this with the rise of Tribally-operated casinos and the generated revenue shared with the state. For Fiscal Year 2023, the state collected more than $202 million in Tribal gaming exclusivity fees under Tribal-state gaming compacts alone, positively impacting all Oklahomans.

There has been successful Tribal-state consultation and collaboration in health care – when the Oklahoma Health Care Authority (Medicaid/SoonerCare) formalized Tribal consultation as the first stage of their policy promulgation process. It occurred again in care coordination agreements with non-Tribal providers for health care delivery to eligible American Indian/Alaska Native patients, and again with Oklahoma’s expansion of Medicaid.

There has also been successful Tribal-state policy when the state compacts with each Tribal nation in revenue sharing for tobacco sales, Tribal license plates, and even local law enforcement, among others. But when the state does not treat Tribal Nations as full partners, progress stalls. Broken treaties and anti-Indian policy burden potentially successful and equitable Tribal-state policy formation in Oklahoma.

Oklahoma is better when sovereign nations work together

Unless expressly authorized by Congress, the political and legal status of Tribal Nations and their Tribal citizens remain sovereign. While the federal government has an obligation to Tribal governments through trust responsibilities, Tribal-state policy requires that the state actively collaborate with each Tribal Nation. This is more than just acknowledgement, but a working respect for Tribal sovereignty. This should be centered around both Tribes and the state working together to create a more prosperous future for the Oklahoma that we share. When Tribal sovereignty and state sovereignty are mutually understood and respected, all Oklahomans benefit.