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.

Page last updated: 03/05/2024

Understanding Tribes and Tribal Governments

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:

  • Native Americans and American Indians are the terms most often used to describe two or more people of different tribal affiliations.
  • Alaska Natives is the collective term for Indigenous groups in Alaska.
  • American Indian/Alaska Native (abbreviated AIAN) is frequently used when describing both groups together.
  • Native Hawaiians is the term for people belonging to the Indigenous ethnic group in the Hawaiian Islands.
  • Tribe refers to a sovereign political entity; a set of communities sharing a common ancestry, culture, or language; and a social group of linked families who may be part of an ethnic group.

Federally Recognized Tribes

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.

State-Recognized Tribes

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:

  • Are the parties involved Native American?
  • Does the crime or claim involve Native American land?
  • Is the state a Public Law 280 state? The law lets some states assume criminal and civil jurisdiction over federal Native American lands, although with some limitations and caveats.

You also should be aware that:

Cultural Competence

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.”

Disaster Declarations in Tribal Areas

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.

Duplication of Benefits

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).

Public Benefits

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).

Tribal Temporary Assistance for Needy Families (TANF)

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:

  • Assist families in need so children can be cared for in their own homes or the homes of relatives.
  • Reduce the dependency of parents in need by promoting job preparation, work, and marriage.
  • Prevent out-of-wedlock pregnancies.
  • Encourage the formation and maintenance of two-parent families.

By administering their own TANF program, tribal governments can determine program elements such as:

  • Service area.
  • Eligible population (for example, all Native American families in the service area or only enrolled members of the tribe).
  • Time limits for the aid.
  • Benefits and services.

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.

Food Distribution Program on Indian Reservations (FDPIR)

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.

Housing Improvement Program

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.

Indian Community Development Block Grants

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.

Land and Home Ownership

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:

  • Wills.
  • Probate law and procedures.
  • Title clearing.
  • Homeownership of only the structure, not the land.

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 owner has a written will that names the individuals to receive the owner’s undivided interests in trust lands.
  • The owner does not have a written will. In this scenario, the owner’s undivided interests in trust lands are usually distributed to eligible heirs under the American Indian Probate Reform Act of 2004 (AIPRA)if the tribe has not adopted its own tribal probate code approved by the secretary of the interior. The Department of the Interior maintains a list of approved tribal probate codes.
  • AIPRA also does not apply to communities in Alaska, the “Five Civilized Tribes” in Oklahoma (Cherokee, Chickasaw, Choctaw, Creek, and Seminole), or the Osage Nation. For the Five Civilized Tribes, a 1947 law requires that their estates’ probates take place in the district court for their restricted land (i.e., the Oklahoma County District Court).

The full complexities of these issues cannot be covered here. To learn more, you can start with:

Child Custody and Child Welfare Proceedings

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:

  • Recognizing tribes’ jurisdiction over decisions for their Native American children.
  • Establishing minimum federal standards for the removal of Native American children from their families.
  • Establishing preferences for placement of Native American children with extended family or other tribal families.
  • Instituting protections to ensure that birth parents’ voluntary relinquishments of their children are truly voluntary.

To learn more about ICWA, consult these sources:

Outreach Tips

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:

  • Build relationships with tribal leaders in your area, including tribal emergency managers, so you will be more familiar and trusted when you arrive to help members of the community after a disaster.
  • Pay attention to how members of the local tribal community refer to disasters and use the same words and phrases they use.
  • Work collaboratively with other organizations, agencies, departments, and tribal nations to host in-person and social media events.
  • Communicate and collaborate with Native American social media influencers.
  • Be prepared to work around post-disaster power supply issues with battery packs, mini generators, and fully charged electronic devices.


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