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3 CHAPTER 2 Assessment of Legal and Policy Requirements This chapter provides an assessment of legal and policy eignty and intergovernmental relations (3). Each is defined requirements that support or detract from successful collab- as follows: oration between tribes and governmental agencies on trans- portation initiatives. Sovereignty is the legal power of a Native American nation to manage its own internal affairs as a domestic dependent nation within the United States. Court decisions and legis- 2.1 Overview lation have changed the boundaries of what constitute sov- ereignty. Sovereignty includes tribal rights to self-govern, Many intergovernmental programs have been implemented self-determination, and economic self-sufficiency (2). to facilitate practical collaboration strategies for communi- Trust relationship is the special historic relationship between cation, cooperation, and coordination. By their nature, trans- the federal government and Native American tribes, with the portation projects are complex as stakeholders often include assumption that the federal government will protect tribes multiple government entities from federal, tribal, state, and act in the tribe's best interests (1). and/or local governments. Tribal transportation projects Plenary powers means that tribal sovereignty may be altered require working within an intergovernmental framework by Congress, which has the power to legislate laws govern- between sovereign nations. To have a context for current ing Native American tribes and limit tribal sovereignty (1). issues in U.S. tribal policymaking, understanding these issues in a historical perspective of past U.S. tribal policymaking is The federal government's relationship is based upon unique necessary. trust obligations as domestic dependent nations that are sub- Collaboration on transportation initiatives is impacted by ject to federal--but not state--law. From a broad perspective, complex issues which arise from tribal-state sovereignty, inter- tribal sovereignty has been upheld by the U.S. Constitution, governmental agreements, jurisdictional matters, regional tribal laws, tribal institutions, federal courts, federal acts and planning efforts, land ownership, and/or funding issues. Even legal decisions (3). Tribes have retained inherent sovereignty when there are common interests, the planning, design, and over their lands except to the extent that they have been with- implementation of transportation projects requires coordina- drawn by treaty or federal statute (4). Issues of sovereignty tion and cooperation among tribal governments and federal affect all aspects of tribal transportation programs. and state transportation agencies. Current issues impacting tribal transportation projects The concept of tribal sovereignty has been established by include cultural competency, protection and preservation of the U.S. Constitution, treaties, trust relationships, and plenary tribal-sensitive resources, confidentiality of tribal sensitive power doctrines (1). Six periods of U.S. tribal policymaking matters, sovereignty, land ownership, and monetary issues. have been identified. Each policymaking period took promi- These issues are complex and steeped in history. Since the nence at different times, resulting in shifting U.S. tribal policies early 1820s, the federal judiciary has significantly reduced (2). Sovereignty and the principle of tribal consent are basic tribal sovereignty. In contrast, since the 1960s Congress and principles, which guide relations between the federal govern- the Executive Branch have broadened and strengthened tribal ment and Native American tribes. Treaties, trust relationships, self-determination, which guides contemporary strategies to and plenary powers of Congress are the framework for sover- address tribal-specific issues on transportation initiatives.