Understanding Tribal Law
Providing effective legal aid in tribal communities requires knowledge of the communities’ culture and of the benefits, laws, and jurisdictional issues that apply uniquely to their populations.
Providing effective legal aid in tribal communities requires knowledge of the communities’ culture and of the benefits, laws, and jurisdictional issues that apply uniquely to their populations.
Page last updated: 03/05/2024
Consideration of disaster-related legal issues and tribal laws must begin with the understanding that each tribe has distinct cultures and laws. It is also essential to familiarize yourself with tribal terminology:
As of January 2023, the U.S. government officially recognizes 574 Native American tribes in the contiguous 48 states and Alaska. Federal recognition denotes the United States’ acknowledgment of a tribal nation’s political status as a government. Federally recognized tribes are eligible for Bureau of Indian Affairs funding and services, which are provided either directly or through contracts, grants, or compacts.
Of these 574 federally recognized tribes, 229 are located in Alaska, with the remainder spread across 35 other states. The Bureau of Indian Affairs provides contact information for each federally recognized tribe’s tribal leader. Native Hawaiians have not been federally recognized as a tribe.
Various U.S. Supreme Court opinions have interpreted the Constitution as recognizing the sovereignty of tribal nations. These tribal governments have the power to determine their own governance structures, pass laws, and enforce laws through police departments and tribal courts.
Tribal governments are responsible for a broad range of governmental functions on tribal lands, including education, law enforcement, judicial systems, health care, environmental protection, and natural resource management. Tribal governments also provide for the development and maintenance of basic infrastructure such as housing, roads, bridges, sewers, public buildings, telecommunications, broadband and electrical services, and solid waste treatment and disposal.
Throughout the United States, there are also tribes that are recognized by their respective state governments. As of 2016, there are 63 such tribes in 11 states: Alabama, Connecticut, Georgia, Louisiana, Maryland, Massachusetts, New York, North Carolina, South Carolina, Vermont, and Virginia. Some of these tribes are also federally recognized.
State recognition does not confer benefits under federal law unless federal law authorizes such benefits.
The question of jurisdiction is complex when tribal land is involved. This is because recent U.S. Supreme Court opinions have greatly altered the extent to which people who are not tribal citizens are covered by federal, state, or tribal laws while on these lands.
Currently, for any criminal or civil question of jurisdiction, a legal practitioner must ask:
You also should be aware that:
Cultural competence has been defined as “the ability to effectively interact with people from cultures different from one’s own, especially through a knowledge and appreciation of cultural differences.”
Demonstrating this ability is important when interacting with tribal communities and providing services to tribe members. Their accepting or declining services could hinge on an advocate’s cultural competence.
Know that all tribes are unique, with highly individual cultures, governance, and belief systems. Find out the best way to offer response assistance for the tribe with which you are working.
— Substance Abuse and Mental Health Services Administration (SAMHSA), “Tips for Disaster Responders: Cultural Awareness When Working in Indian Country Post-Disaster”
“You can offer your best in disaster response and recovery by developing relationships, building partnerships, and getting to know trusted tribal liaisons such as a tribal emergency manager,” SAMSHA advises. “Remember, you are a guest in a sovereign nation, so by showing respect and working with a tribal liaison, you will increase your professional credibility.”
Federal law gives federally recognized Native American tribal governments the option to request a presidential emergency or major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, P.L. 100-707, known as the Stafford Act.
Tribal governments can decide whether they want to seek Stafford Act assistance independently of a state or as part of a state request, which is made by the governor. An independent request follows the same process as a request made by a governor.
In most respects, the types of assistance provided by the federal government in response to the declaration are also the same, as authorized by that particular declaration. That assistance may include Federal Emergency Management Agency (FEMA) assistance, Small Business Administration (SBA) loans, Disaster Unemployment Assistance, and more.
As with all federal assistance for disaster survivors, the duplication of benefits restriction applies.
By law, FEMA cannot provide financial assistance when any other source has provided assistance for the same disaster-caused need or when such assistance is available from another source. For example, FEMA cannot pay for home repairs if the homeowner is already receiving sufficient funds from their insurance company for the same repairs. Further, some types of FEMA aid cannot be provided to someone who qualifies for an SBA disaster loan.
The duplication of benefits issue can become complicated in tribal areas because of other possible sources of assistance. For example, federally recognized tribes can apply for funding to administer and operate their own Temporary Assistance for Needy Families (TANF) programs. In some tribal areas, households use the Food Distribution Program on Indian Reservations (FDPIR) instead of the Supplemental Nutrition Assistance Program (SNAP).
Certain public benefits are exclusive to tribal communities. These benefits may be a source of aid for people whose financial situation worsens because of the disaster. Also, they could create a duplication of benefits issue (as described above).
Federally recognized Native American tribes can apply for funding to administer and operate their own TANF programs. Tribes are permitted to use TANF grants in the same way states are, including to provide monthly payments to low-income families with children. The money can also be used to support a wide range of services that address one or more of the program’s four purposes:
By administering their own TANF program, tribal governments can determine program elements such as:
The U.S. Department of Health and Human Services provides more information on tribal TANF programs. In preparation for disaster response, ask tribal partners about the extent of a particular tribe’s involvement in federal assistance programs such as TANF.
FDPIR provides food to eligible-income households on reservations, to Native American households in approved areas near reservations, and to Native American households anywhere in Oklahoma.
Many households participate in FDPIR instead of SNAP because they do not have easy access to SNAP offices or authorized food stores.
Households are certified for participation in the program according to income standards set by the federal government. Households cannot participate in FDPIR and SNAP simultaneously.
The FDPIR fact sheet (PDF) provides more information about the program generally. For information about the program’s use in a specific tribal community, USDA’s Food and Nutrition Service lists contacts by program and tribe.
The Bureau of Indian Affairs administers the Housing Improvement Program, a home improvement and replacement grant program for tribal areas. The program serves American Indians and Alaska Natives who have substandard housing or no housing at all and no immediate source of housing assistance.
The program provides up to $7,500 in housing repairs for conditions that threaten the health or safety of the occupants. It also provides up to $60,000 in repairs and renovation to improve the condition of a home so that it meets building code standards.
Applicants can apply for assistance at the nearest tribal or Bureau of Indian Affairs-operated social service provider. To find a provider for a particular area, contact the nearest Bureau of Indian Affairs regional office.
The U.S. Department of Housing and Urban Development administers the Indian Community Development Block Grant (ICDBG) program, which provides grants to federally recognized American Indian tribes and Alaska Native villages.
Tribes use ICDBG’s single-purpose grants to support housing, community facilities, and economic development, primarily for the benefit of low- and moderate-income residents. The grant is not disbursed directly to individual residents, but legal advocates working on disaster recovery with tribal clients can look for potential recipients of these block grants and help them obtain relief.
Tribes also can apply for ICDBG’s imminent threat grants to eliminate or mitigate issues posing an imminent threat to the public health or safety of tribal residents, as after a disaster. For example, in fiscal 2017, the government awarded a $432,950 grant to a reservation to permanently reconstruct a storm-ravaged roadway that provided the only access to the reservation.
There are some additional considerations and complexities for certain disaster-related issues on tribal lands. These include some property and family law issues.
There may be special considerations when establishing or proving land or home ownership on tribal land. That’s especially true if a homeowner dies in a disaster. These considerations involve:
The passing down of land and home ownership on reservations can be complicated by several factors. These include whether the reservation land in question is fee land or trust land.
Fee land is real property owned outright by an individual or an entity such as a tribe, rather than land held in trust for the person or entity by the United States government. “Real property” in this context includes land and anything that is permanently erected on land, such as a house. This land goes through a standard probate process.
Trust land is land for which the federal government holds the legal title but the beneficial interest remains with the individual or tribe. This land goes through a probate process conducted by the Department of the Interior’s Office of Hearings and Appeals with assistance from the Bureau of Indian Affairs.
Another usual factor in the ownership of trust land is undivided interest. This means that the person owns part of the whole land but no particular segment. Also, the land may be “fractionated,” or have so many small interest owners that no single owner can effectively use the land, as California Indian Legal Services explains.
Upon an owner’s death, individually owned trust land can be passed down in a few ways:
The full complexities of these issues cannot be covered here. To learn more, you can start with:
The Indian Child Welfare Act (ICWA), enacted by Congress in 1978, provides guidance to states regarding the handling of child abuse and neglect cases and adoption cases involving Native American children. It also sets minimum standards for the handling of these cases.
Congress passed the statute to amend agency policies and practices that resulted in wholesale separation of Native American children from their families.
ICWA governs state child-custody proceedings in multiple ways. These include:
To learn more about ICWA, consult these sources:
Disaster-related outreach to tribal communities should not be confined to the time of the disaster, as relationship-building is key. Outreach planning should also account for the fact that tribal communities are often in rural locations, where power and communications outages can be more severe and prolonged than in other areas after a disaster.
Some steps to consider: