Tribal Sovereignty

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Tribal Sovereignty

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Understanding Native American Sovereignty

The Hafsids were a local Berber dynasty and would retain control with varying success until the arrival of the Ottomans in the western Mediterranean. The Fatimids were Shi'a , specifically of the more controversial Isma'ili branch. They originated in Islamic lands far to the east. Today, and for many centuries, the majority of Tunisians identify as Sunni also from the east, but who oppose the Shi'a. In Ifriqiyah , at the time of the Fatimids, there was disdain for any rule from the east regardless if it was Sunni or Shi'a. Initially the local agents of the Fatimids managed to inspire the allegiance of Berber elements around Ifriqiya by appealing to Berber distrust of the Islamic east, here in the form of Aghlabid rule.

Thus the Fatimids were ultimately successful in acquiring local state power. Nonetheless, once installed in Ifriqiya, Fatimid rule greatly disrupted social harmony; they imposed high, unorthodox taxes, leading to a Kharijite revolt. The Fatimids left the Berber Zirids as their local vassals to govern in the Maghrib. In revenge, the Fatimids sent the disruptive Banu Hilal against Ifriqiya, which led to a period of social chaos and economic decline.

The independent Zirid dynasty has been viewed historically as a Berber kingdom; the Zirids were essentially founded by a leader among the Sanhaja Berbers. In addition to their above grievances against the Fatimids per the Banu Hilal , during the Fatimid era the prestige of cultural leadership within al-Maghrib shifted decisively away from Ifriqiya and instead came to be the prize of al-Andalus. During the interval of generally disagreeable Shi'a rule, the Berber people appear to have ideologically moved away from a popular antagonism against the Islamic east al-Mashriq , and toward an acquiescence to its Sunni orthodoxy, though of course mediated by their own Maliki school of law viewed as one of the four orthodox madhhab by the Sunni.

Professor Abdallah Laroui remarks that while enjoying sovereignty the Berber Maghrib experimented with several doctrinal viewpoints during the 9th to the 13th centuries, including the Khariji , Zaydi , Shi'a , and Almohad. Eventually they settled on an orthodoxy, on Maliki Sunni doctrines. This progression indicates a grand period of Berber self-definition. Tunis under the Almohads would become the permanent capital of Ifriqiya. The social discord between Berber and Arab would move toward resolution. Perkins mentions the preceding history of rule from the east al-Mashriq , and comments that following the Fatimids departure there arose in Tunisia an intent to establish a "Muslim state geared to the interests of its Berber majority.

Twenty or so Berber languages [14] [15] [16] also called Tamazight are spoken in North Africa. Berber speakers were once predominant over all this large area, but as a result of Arabization and later local migrations, today Berber languages are reduced to several large regions in Morocco, Algeria, and the central Sahara or remain as smaller language islands. Nota Bene : The classification and nomenclature of Berber languages lack complete consensus. The Libyan Berbers developed their own writing system, evidently derived from Phoenician, [25] as early as the 4th century BC.

Several longer texts exist, taken from Thugga , modern Dougga, Tunisia. Both are bilingual, being written in Punic with its letters and in Berber with its letters. One throws some light on the governing institutions of the Berbers in the 2nd century BC. Berber, however, no longer is widely spoken in present-day Tunisia; e. The grand tribal identities of Berber antiquity were said to be the Mauri , the Numidians , and the Gaetulians. The Mauri inhabited the far west ancient Mauritania, now Morocco and central Algeria. The Numidians were located between the Mauri and the city-state of Carthage.

Both had large sedentary populations. The Gaetulians were less settled, with large pastoral elements, and lived in the near south on the margins of the Sahara. Abdallah Laroui discounts the impact of tribes, declaring the subject a form of obfuscation which cloaks suspect colonial ideologies. While Berber tribal society has made an impact on culture and government, their continuance was chiefly due to strong foreign interference which usurped the primary domain of the government institutions, and derailed their natural political development. Rather than there being a predisposition for tribal structures, the Berber's survival strategy in the face of foreign occupation was to figuratively retreat into their own way of life through their enduring tribal networks.

Berber tribal identities survived undiminished during the long period of dominance by the city-state of Carthage. Under centuries of Roman rule also tribal ways were maintained. The sustaining social customs would include: communal self-defense and group liability, marriage alliances, collective religious practices, reciprocal gift-giving, family working relationships and wealth. During the initial centuries of the Islamic era, it was said that the Berbers tribes were divided into two blocs, the Butr Zanata and allies and the Baranis Sanhaja, Masmuda, and others. The Arabs drew most of their early recruits from the Butr. In their medieval Islamic history the Berbers may be divided into three major tribal groups: the Zanata , the Sanhaja , and the Masmuda.

These tribal divisions are mentioned by Ibn Khaldun — The Sanhaja are also widely dispersed throughout the Maghrib, among which are: the sedentary Kabyle on the coast west of modern Algiers , the nomadic Zanaga of southern Morocco the south Anti-Atlas and the western Sahara to Senegal , and the Tuareg al-Tawarik , the well-known camel breeding nomads of the central Sahara. The descendants of the Masmuda are sedentary Berbers of Morocco, in the High Atlas , and from Rabat inland to Azru and Khanifra, the most populous of the modern Berber regions. Medieval events in Ifriqiya and al-Maghrib often have tribal associations. Linked to the Kabyle Sanhaja were the Kutama tribes, whose support worked to establish the Fatimid Caliphate —, only until in Ifriqiya ; their vassals and later successors in Ifriqiya the Zirids were also Sanhaja.

Accordingly, it was from among the Masmuda that the Hafsid dynasty — of Tunis originated. After removing their capital to Cairo from Mahdiya in Ifriqiya, the Fatimids also withdrew from direct governance of al-Maghrib, which they delegated to a local vassal. Their Maghriban power, however, was not transferred to a loyal Kotama Berber, which tribe had provided crucial support to the Fatimids during their rise. Instead authority was given to a chief from among the Sanhaja Berber confederacy of the central Magrib, Buluggin ibn Ziri died For a time the region enjoyed great prosperity and the early Zirid court famously enjoyed luxury and the arts.

Yet political affairs were turbulent. Bologguin's war against the Zenata Berbers to the west was fruitless. His son al-Mansur r. The Fatimids continued to demand tribute payments from the Zirids. The security of civic life declined, due largely to intermittent political quarrels between the Zirids and the Hammadids, including a civil war ending in Armed attacks also came from the Sunni Umayyads of al-Andalus and from the other Berbers, e. Even though in this period the Maghrib often fell into conflict, becoming submerged in political confusion, the Fatimid province of Ifriqiya at first managed to continue in relative prosperity under the Zirid Berbers. Agriculture thrived grains and olives , as did the artisans of the city weavers, metalworkers, potters , and the Saharan trade,.

The holy city of Kairouan served also as the chief political and cultural center of the Zirid state. Soon however the Saharan trade began to decline, caused by changing demand, and by the encroachments of rival traders: from Fatimid Egypt to the east, and from the rising power of the al-Murabit Berber movement in Morocco to the west. This decline in the Saharan trade caused a rapid deterioration in the commercial well being of Kairouan. To compensate, the Zirids encouraged the sea trade of their coastal cities, which did begin to quicken; however, they faced rigorous competition from Mediterranean traders of the rising city-states of Genoa and Pisa.

In , for both economic and popular reasons, the Zirids dramatically broke with the Shi'a Fatimid Caliphate, who had ruled them from Cairo. Instead the Zirids chose to become Sunni always favored by most Maghribi Muslims and hence declared their allegiance to the moribund Abbasid Caliphate in Baghdad. Consequently, many shia were killed during disturbances throughout Ifriqiya.

The Zirid state seized Fatimid wealth and coinage. Sunni Maliki jurists were reestablished as the prevailing school of law. In retaliation, the Fatimid political leaders sent against the Zirids an invasion of nomadic Arabians, the Banu Hilal, who had already migrated into upper Egypt. These warrior bedouins were induced by the Fatimids to continue westward into Ifriqiya. It has since been said that much of the Maghrib's misfortunes to follow can be traced to the chaos and regression occasioned by their arrival, although historical opinion is not unanimous. In Tunisia as the Banu Hilali tribes looted the rural areas, the local sedentary populace were forced to take refuge in the main coastal cities as well as in fortified towns in northern Tunisia Such as Tunis, Sfax, Mahdia, Bizerte During this time, Tunisia underwent rapid urbanisation as famines depopulated the countryside and industry shifted from agriculture to manufactures.

Even after the fall of the Zirids, the Banu Hilal were a source of disorder, as in the insurrection of the Banu Ghaniya. Use of the Berber languages decreased in rural areas as a result of the Bedouin ascendancy. Normans from Sicily raided the east coast of Ifriqiya for the first time in Indeed, the Norman king Roger II of Sicily was able to create a coastal dominion of the area between Bona and Tripoli that lasted from to and was supported mainly by the last local Christian communities. In the medieval Maghrib , among the Berber tribes, two strong religious movements arose one after the other: the Almoravids — , and the Almohads — Professor Jamil Abun-Nasr compares these movements with the 8th-and-9th-century Kharijites in the Magrib including Ifriqiya : each a militant Berber movement of strong Muslim faith, each rebellious against a status quo of lax orthodoxy, each seeking to found a state in which "leading the Muslim good life was the professed aim of politics".

The Almoravids [Arabic al-Murabitum , from Ribat , e. The rival Almohads were also a Berber Islamic movement, whose founder was from the Masmuda tribe. They defeated and supplanted the Amoravids and themselves established a large empire, which embraced the region of Ifriqiya , formerly ruled by the Zirids. The Almohad movement [Arabic al-Muwahhidun , "the Unitarians"] ruled variously in the Maghrib starting about until locally in Morocco until After a pilgrimage to Mecca followed by study, he had returned to the Maghrib about inspired by the teachings of al-Ash'ari and al-Ghazali.

Ibn Tumart the Almohad founder left writings in which his theological ideas mix with the political. Therein he claimed that the leader, the mahdi, is infallible. Ibn Tumart trained his own talaba or ideologists, as well as his huffaz , who function was both religious and military. There is lack of certainty about some details, but general agreement that Ibn Tumart sought to reduce the "influence of the traditional tribal framework.

The mahdi Ibn Tumart also had championed the idea of strict Islamic law and morals displacing unorthodox aspects of Berber custom. Then he crossed the straits, occupying al-Andalus in southern Spain ; yet Almohad rule there was uneven and divisive. The only strong Muslim power then in the Maghreb was that of the newly emerging Almohads, led by their caliph a Berber Abd al-Mu'min. He responded with several military campaigns into the eastern Maghrib which absorbed the Hammaid and Zirid states, and removed the Christians.

His armies next entered Zirid Ifriqiya, a disorganized territory, taking Tunis. His armies also besieged Mahdia, held by Normans of Sicily , compelling these Christians to negotiate their withdrawal in Yet twenty years later, by , the revolt in the Balearic Islands by the Banu Ghaniya who claimed to be heirs of the Almoravids had spread to Ifriqiya and elsewhere, causing severe problems for the Almohad regime, on and off for the next fifty years. Ibn Tumart had refused to recognize the fiqh of any established school of law. In practice, however, the Maliki school of law survived and by default worked at the margin. Eventually Maliki jurists came to be recognized in some official fashion, except during the reign of Abu Yusuf Ya'qub al-Mansur — who was loyal to Ibn Tumart's teachings.

Yet the confused status continued to exist on and off, although at the end for the most part to function poorly. After of century of such oscillation, the caliph Abu al-'Ala Idris al-Ma'mun broke with the narrow ideology of the Almohad regimes first articulated by the mahdi Ibn Tumart ; circa , he affirmed the reinstitution of the then-reviving Malikite rite, perennially popular in al-Maghrib. The Sufi master theologian Ibn 'Arabi was born in Murcia in Under the Almohads architecture flourished, the Giralda being built in Seville and the pointed arch being introduced. The unitarian Almohads had gradually modified the original ambition of strictly implementing their founder's designs; in this way the Almohads were similar to the preceding Almoravids also Berber.

Yet their movement probably worked to deepen the religious awareness of the Muslim people across the Maghrib. Nonetheless, it could not suppress other traditions and teachings, and alternative expressions of Islam, including the popular cult of saints, the sufis , as well as the Maliki jurists, survived. The Almohad empire like its predecessor the Almoravid eventually weakened and dissolved.

Except for the Muslim Kingdom of Granada, Spain was lost. In Morocco, the Almohads were to be followed by the Merinids ; in Ifriqiya Tunisia , by the Hafsids who claimed to be the heirs of the unitarian Almohads. The Hafsid dynasty — succeeded Almohad rule in Ifriqiya, with the Hafsids claiming to represent the true spiritual heritage of its founder, the Mahdi Ibn Tumart c. For a brief moment a Hafsid sovereign would be recognized as the Caliph of Islam. Tunisia under the Hafsids would eventually regain for a time cultural primacy in the Maghrib. Abu Hafs 'Umar Inti [] was one of the Ten , the crucial group composed of very early adherents to the Almohad movement [ al-Muwahhidun ], circa These Ten were companions of Ibn Tumart the Mahdi, and formed an inner circle consulted on all important matters.

Abu Hafs 'Umar Inti, wounded in battle near Marrakesh in , was for a long time a powerful figure within the Almohad movement. His son 'Umar al-Hintati was appointed by the Almohad caliph Muhammad an-Nasir as governor of Ifriqiya in and served until his death in His son, the grandson of Abu Hafs, was Abu Zakariya. In during disturbances within the Almohad movement, Abu Zakariya declared his independence, having the Mahdi's name declared at Friday prayer, but himself taking the title of Amir : hence, the start of the Hafsid dynasty — He solidified his rule among the Berber confederacies.

Government structure of the Hafsid state followed the Almohad model, a rather strict hierarchy and centralization. Abu Zakariya's succession to the Almohad movement was acknowledged as the only state maintaining Almohad traditions, and was recognized in Friday prayer by many states in Al-Andalus and in Morocco including the Merinids. Abu Zakariya the founder of the Hafsids became the foremost ruler in the Maghrib. For an historic moment, the son of Abu Zakariya and self-declared caliph of the Hafsids, al-Mustansir r.

Yet the moment passed as a rival claimant to the title advanced; the Hafsids remained a local sovereignty. Since their origins with Abu Zakariya the Hafsids had represented their regime as heir to the Almohad movement founded by the Mahdi Ibn Tumart , whose name was invoked during Friday prayer at emirate mosques until the 15th century. Hafsid government was accordingly constituted after the Almohad model created by the Mahdi, i.

The Amir held all power with a code of etiquette surrounding his person, although as sovereign he did not always hold himself aloof. The Amir's counsel was the Ten , composed of the chief Almohad shaiks. Next in order was the Fifty assembled from petty shaiks, with ordinary shaiks thereafter. The early Hafsids had a censor, the mazwar , who supervised the ranking of the designated shaiks and assigned them to specified categories. Originally there were three ministers [ wazir , plural wuzara ]: of the army commander and logistics ; of finance accounting and tax ; and, of state correspondence and police.

Over the centuries the office of Hajib increased in importance, at first being major-domo of the palace, then intermediary between the Amir and his cabinet, and finally de facto the first minister. Constitution, which provides that "Congress shall have the Power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" Art. I, Sec. This clause has resulted in what is known as Congress's "plenary power" over Indian affairs, which means that Congress has the ultimate right to pass legislation governing Native Americans, even when that legislation conflicts with or abrogates Indian treaties.

The most well-known case supporting this congressional right is Lone Wolf v. Hitchcock , U. In justifying this abrogation, Justice edward d. Another source for the federal government's power over Native American affairs is what is called the "trust relationship" between the government and Native American tribes. This "trust relationship" or "trust responsibility" refers to the federal government's consistent promise, in the treaties that it signed, to protect the safety and well-being of the tribal members in return for their willingness to give up their lands. This notion of a trust relationship between Native Americans and the federal government was developed by U.

Supreme Court Justice John Marshall in the opinions that he wrote for the three cases on tribal sovereignty described above, which became known as the Marshall Trilogy. In the second of these cases, Cherokee Nation v. Georgia , Marshall specifically described the tribes as "domestic dependant nations" whose relation to the United States was like "that of a ward to his guardian. Georgia , Marshall declared that the federal government had entered into a special relationship with the Cherokees through the treaties they had signed, a relationship involving certain moral obligations.

Protection does not imply the destruction of the protected. The federal government has often used this trust relationship to justify its actions on behalf of Native American tribes, such as its defense of Indian fishing and hunting rights and the establishment of the Bureau of Indian Affairs. Perhaps more often, however, the federal government has used the claim of a trust relationship to stretch its protective duty toward tribes into an almost unbridled power over them. The United States, for example, is the legal title-holder to most Indian lands, giving it the power to dispose of and manage those lands, as well as to derive income from them.

The federal government has also used its powers in ways that seem inconsistent with a moral duty to protect Indian interests, such as terminating dozens of Indian tribes and consistently breaking treaty provisions. Because the trust responsibility is moral rather than legal, Native American tribes have had very little power or ability to enforce the promises and obligations of the federal government.

Several disputes have erupted over the relationship between the federal government and Native Americans. Beginning in , beneficiaries of Individual Indian Money IIM , which is held in trust by the federal government, brought a Class Action against the secretary of the interior and others, alleging mismanagement and breach of fiduciary duties against trustee-delegates of the funds.

The case has spawned dozens of orders and rulings by the U. District Court for the District of Columbia. In , the district court in Cobell v. Babbitt , 91 F. The U. Norton , F. Since the appeals court ruling, the district court has considered numerous motions and has issued several orders, including a holding that the secretary of the interior and the secretary of the Treasury were guilty of civil Contempt for refusing to comply with a court order to produce certain documents. Other issues involving the federal government's power over Native Americans have likewise resulted in litigation. The struggle to define the jurisdictional boundaries between Native American tribal courts and state courts has occupied the federal courts for many years.

Although Indian reservations are deemed sovereign states, both Congress and the U. Supreme Court have placed limitations on their sovereignty. Therefore, as specific issues arise about tribal court jurisdiction, the federal courts must intervene to decide these cases. Such was the case in Nevada v. Hicks , U. Supreme Court ruled that tribal courts do not have jurisdiction to hear federal Civil Rights lawsuits concerning allegedly unconstitutional actions by a state government officer on tribal land.

The case arose when the home of a member of the Fallon Paiute-Shoshone Tribes of western Nevada was searched under suspicion that the tribe member had killed a bighorn sheep in violation of Nevada law. The tribe member brought a federal civil rights lawsuit against the game warden who had searched his house. The suit was brought in tribal court, which ruled that it had jurisdiction to hear the claim against the warden. The district court and the U. Court of Appeals for the Ninth Circuit both found that the warden was required to exhaust his remedies in the tribal court before proceeding to federal court. Supreme Court, per Justice Antonin Scalia disagreed, finding that Congress had not extended the jurisdiction of tribal court to hear federal civil rights claims.

The case severely limits the scope of tribal jurisdiction. Hunting and fishing rights are some of the special rights that Native Americans enjoy as a result of the treaties signed between their tribes and the federal government. Historically, hunting and fishing were critically important to Native American tribes. Fish and wildlife were a primary source of food and trade goods, and tribes based their own seasonal movements on fish migrations. In addition, fish and wildlife played a central role in the spiritual and cultural framework of Native American life.

As the Court noted, access to fish and wildlife was "not much less necessary to the existence of the Indians than the atmosphere they breathed" United States v. When Native American tribes signed treaties consenting to give up their lands, the treaties often explicitly guaranteed hunting and fishing rights. When the treaties created reservations, they usually gave tribe members the right to hunt and fish on reservation lands.

In many cases, treaties guaranteed Native Americans the continued freedom to hunt and fish in their traditional hunting and fishing locations, even if those areas were outside the reservations. Even when hunting and fishing rights were not specifically mentioned in treaties, the reserved-rights doctrine holds that tribes retain any rights, including the right to hunt and fish, that are not explicitly abrogated by treaty or statute. Controversy and protest have surrounded Native American hunting and fishing rights, as state governments and non-Indian hunters and fishers have fought to make Native Americans subject to state hunting and fishing regulations.

The rights of tribal members to hunt and fish on their own reservations have rarely been questioned, because states generally lack the power to regulate activities on Indian reservations. Tribes themselves have the right to regulate hunting and fishing on their reservations, whether or not they choose to do so. Protests have arisen, however, over the rights of Native Americans to hunt and fish off of their reservations. Such rights can be acquired in one of two ways. In some instances, Congress has reduced the size of a tribe's reservation, or terminated it completely, without removing the tribe's hunting and fishing rights on that land.

In other cases, treaties have specifically guaranteed tribes the right to hunt and fish in locations off the reservations. In the Pacific Northwest, for example, treaty provisions commonly guaranteed the right of tribes to fish "at all usual and accustomed grounds and stations," both on and off their reservations. Tribes in the Great Lakes area also reserved their off-reservation fishing rights in the treaties they signed.

These off-reservation rights have led to intense opposition and protests from non-Indian hunters and fishermen and state wildlife agencies. Non-Indian hunters and fishermen resent the fact that Indians are not subject to the same state regulations and limits imposed on them. State agencies have protested the fact that legitimate conservation goals are compromised when Indians can hunt and fish without having to follow state wildlife regulations. Supreme Court, however, has consistently upheld the off-reservation hunting and fishing rights of Native Americans. In the case United States v. Winans , it ruled that treaty language guaranteeing a tribe the right to "tak[e] fish at all usual and accustomed places" indeed guaranteed access to those usual and accustomed places, even if they were on privately owned land.

The most intense opposition to Native American off-reservation hunting and fishing rights has occurred in the Pacific Northwest, where tribal members have fought to defend their right to fish in their traditional locations, unhindered by state regulations. In a series of cases involving the state of Washington and local Native American tribes, the federal courts ruled on aspects of the extent and limits of tribal fishing rights. In a case, Tulee v. Washington , U. In the first of those cases, the Court ruled that the state of Washington has the right, in the interest of conservation, to regulate tribal fishing activities, as long as "the regulation meets appropriate standards and does not discriminate against the Indians" Puyallup Tribe v.

Department of Game , U. In the second case, the Court ruled that the state's prohibition on net fishing for steelhead trout was discriminatory because its effect was to reserve the entire harvestable run of steelhead to non-Indian sports fishermen Department of Game v. Puyallup Tribe , U. In its ruling, the Court declared that the steelhead "must in some manner be fairly apportioned between Indian net fishing and non-Indian sports fishing. This notion of a fair Apportionment of fish was clarified by United States v. Washington , F. This decision set off a firestorm of controversy throughout the Pacific Northwest. Hundreds of legal disputes erupted over the allocation of individual runs of salmon and steelhead, and state and non-Indian fishing interests attacked the decision.

Supreme Court ultimately upheld the decision in a collateral case, Washington v. In that case, the Court upheld the district court's ruling and went on to clarify the details of the way the fish should be apportioned. Writing for the majority, Justice John Paul Stevens stated that the treaties guaranteed the tribes "so much as, but no more than, is necessary to provide the Indians with a livelihood—that is to say a moderate living. The Court resolved a decade-old legal dispute in involving Indian fishing and hunting rights with the decision in Minnesota v. It ruled in favor of the Chippewa Indians' right to fish and hunt in northern Minnesota without state regulation. By a vote, the Court upheld an appeals court decision finding that the tribe's rights under an treaty were still valid.

The ruling marked a final victory for the tribe in its long fight to assert its treaty rights and to defend its cultural traditions. But two lower federal courts and the U. Supreme Court rejected the state's arguments that the year old treaty had been invalidated by presidential order, later treaties, and even by Minnesota's gaining of statehood. Supreme Court's majority opinion, written by Justice Sandra Day O'Connor , detailed the history of the treaty and subsequent actions that the state, nine counties, and landowners claimed had rendered the treaty invalid.

She found nothing in this historical information that had bearing on the continued validity of the treaty. Access to water is another area in which Native Americans enjoy special rights. The issue of Water Rights has been most pertinent in the western part of the United States, where most Indian reservations are located and where water is the scarcest. In the West, rights to water are determined by the "appropriative" system, which holds that water rights are not connected to the land itself.

Rather, the right to water belongs to the first user who appropriates it for a beneficial use. That appropriator is guaranteed the right to continue to take water from that source, unhindered by future appropriators, as long as the water continues to be put to a beneficial use. When the appropriator ceases to use the water, he or she loses the right to it. In contrast to this appropriative system, states in the East, where water is plentiful, follow the "riparian" system, which gives the owner of land bordering a body of water the right to the reasonable use of that water.

All riparian owners are guaranteed the right to a continued flow of water, whether or not they use it continuously. Native American water rights combine the features of the appropriative and riparian systems. The legal foundation for Indian water rights is the U. Supreme Court case Winters v. United States , U. That case involved a Montana Indian reservation that had a river as one of its borders. After the reservation was established, non-Indian settlers diverted the river's water, claiming that they had appropriated the water after the reservation was created but before the Indians had begun to use the water themselves.

Supreme Court ruled against the settlers, finding that when the reservation was created, reserved water rights for the Indians were necessarily implied. It was unreasonable, the Court argued, to assume that Indians would accept lands for farming and grazing purposes without also reserving the water that would make those activities possible. A second important case involving Native American water rights is Arizona v. California , U. In that case, as in Winters , the U.

Supreme Court held that the establishment of a reservation necessarily implied the rights to the water necessary to make the land habitable and productive. Arizona went beyond Winters , however, in also ruling on the quantity of water to which the reservation had a right. Although competing water users argued that the amount of water reserved to the reservation should be limited to the amount that was likely to be needed by the relatively small Indian population, the Court ruled that the Indians were entitled to enough water "to irrigate all the practicably irrigable acreage on the reservation," a much more generous allotment. Based on Winters and Arizona , Native American water rights today are determined by a set of principles called " Winters rights. Second, when Congress establishes a reservation, it is implied that the reservation has the right to water sources within or bordering the reservation.

Third, reservation water rights are reserved as of the date of the reservation's creation. Competing users with earlier appropriation dates take precedence, but those with later dates are subordinate. Fourth, the amount of water reserved for Indian use is the amount necessary to irrigate all of the practically irrigable land on the reservation. Finally, Winters rights to water are not lost through non-use of the water. All of these rights apply to both surface water and groundwater.

Even with the acknowledgement of Native Americans' Winters rights, water use in the West continues to be highly contested, as reservations fight to maintain their rights against the competing demands of state governments and non-Indian users. Several issues are yet to be resolved, such as the precise quantity of water that is needed to irrigate all "practically irrigable acreage" and the question of whether states can regulate non-Indian water users on Indian reservations. Because of the high costs and other difficulties involved in litigation, many tribes and states are choosing to try to negotiate water rights and then ask to Congress or the courts to approve their agreements. In recent years, gaming has become one of the most important areas of economic development for Native American tribes.

Since , when the federal courts ruled that tribal-sponsored gaming activities were exempt from state regulatory law, the Indian gaming industry has grown tremendously, with more than tribes operating gaming establishments. Tribe members benefit from the creation of jobs on the reservation and from the cash generated, which some tribal governments choose to distribute through direct payments to tribe members and others choose to reinvest in improving reservation infrastructure, educational facilities, and other programs and services designed to benefit tribe members. The impetus for the growth of Native American gaming began in the late s, when the Oneida tribe in Wisconsin and the Seminole tribe in Florida sought to open high-stakes bingo operations on their reservations.

The applicable laws in those states imposed limitations on the size of jackpots and the frequency of bingo games. The tribes asserted, however, that as sovereign nations, they were not bound by such limitations; they claimed that they could operate bingo games and regulate them under tribal law, deciding for themselves how large prizes could be and how often games could be played. Both suits ended up in federal court, and both tribes won Seminole Tribe of Florida v. Butter worth , F. Wisconsin , F. The rulings in both cases hinged on whether the states' laws concerning gaming were criminal laws that prohibited gaming, or civil laws that regulated gaming. If the laws were criminal-prohibitory, they could be applied to activities on Indian reservations, but if they were civil-regulatory, they could not.

The courts ruled that because the states allowed bingo games in some form, the laws were civil-regulatory and thus did not apply to gaming operations on Indian reservations. Other tribes subsequently sued in federal court on the same issue and also won. The issue finally reached the U. Supreme Court in California v. Cabazon Band of Mission Indians , U. Concern over Indian gaming had been building in Congress during the s, and Congress responded to California v. The IGRA specifically provides that Indian tribes "have the exclusive right to regulate gaming activity on Indian lands if the gaming activity is not specifically prohibited by Federal law and is conducted within a State which does not, as a matter of Criminal Law and public policy, prohibit such gaming activity.

Its principal provision is the classification of Indian gaming, with each category of games being subject to the different regulatory powers of the tribes, the states, and federal agencies, including the National Indian Gaming Commission NIGC , which was created by the IGRA. The IGRA classifies games into three types. Class I games are traditional Indian games, such as those played in connection with tribal ceremonies or celebrations; those games are regulated exclusively by the tribes. Class II games include bingo and related games; those games are regulated by the tribes, with oversight from the NIGC. Class III games include all games that do not fall into classes I and II, including casino-style games, parimutuel wagering, slots, and dog and horse racing.

Class III games, according to the IGRA, may be conducted if three conditions are met: if the state in which the tribe is located permits any such games for any purposes; if the tribe and the state have negotiated a compact that has been approved by the secretary of the interior; and if the tribe has adopted an ordinance that has been approved by the chair of the NIGC.

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