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35 Exhibit A.1: U.S. Policymaking and Current Issues Impacting Tribal Transportation A P P E N D I X A Policy Resources Current Issues Impacting Tribal Transportation Description Y ea r C ul tu ra l C om pe te nc y Pr ot ec t/ Pr es er va tio n C on fid en tia lit y So ve re ig nt y La nd O w ne rs hi p M on et ar y Formative Years (1789-1873) U. S. Constitution â Native American tribes are sovereign nations and the federal government established the principle of consent in negotiations between the federal and Native American governments. 1787 X X Supreme Court Cases Marshall Trilogy â Supreme Court cases framed the federal government relations with tribes for interpreting federal Indian law and defining tribal sovereignty. Tribes retained inherent powers of self- determination. 1823- 1832 Johnson v. McIntosh â The Supreme Court held that the tribes only had a right of possession and only the federal government can transfer ownership. 1823 X X Cherokee Nation v. Georgia â The Supreme Court determined that tribes were 'domestic dependent nations' and established the federal trust relationship with Native American tribes. 1831 X Worcester v. Georgia - The Supreme Court decided that states have no power on tribal lands; Congress has plenary over tribal affairs. 1832 X X
36 Current Issues Impacting Tribal Transportation Description Y ea r C ul tu ra l C om pe te nc y Pr ot ec t/ Pr es er va tio n C on fid en tia lit y So ve re ig nt y La nd O w ne rs hi p M on et ar y Era of Allotment and Assimilation (1887 to 1934) Legislative Initiatives General Allotment Act â (also known as the Dawes Act) This Act broke up communal tribal lands and resulted in checkerboard patterns of land ownership, including by non-Indians, and the imposition of non- tribal government authority over those lands, which then led to overlapping policies. 1887 X X Supreme Court Cases Talton v. Mayes â The Supreme Court reaffirmed the principle of inherent tribal sovereignty, and tribes can govern their internal relations as they saw appropriate. 1896 X Buster v. Wright â The Supreme Court upheld tribesâ authority to tax nonmembers for the privilege of conducting business within Tribesâ borders. Court characterized this as 'inherent' to the Tribesâ "authorityâ¦to prescribe the terms upon which noncitizens may transact business within its borders." 1905 X X Reorganization Period (1928 to 1953) Legislative Initiatives Indian Reorganization Act â Congress reversed the federal government's allotment policies and established procedures for internal tribal business, including the adoption of tribal constitutions. 1934 X X X Supreme Court Cases Seminole Nation v. United States â The Supreme Court determined that the federal government has a plenary power to regulate tribal affairs and a trust responsibility, which is accompanied by a fiduciary obligation. 1942 X X Termination Policy (1953 to 1961) Legislative Initiatives House Concurrent Resolution No. 108 â Reversed federal tribal self-determination policies and terminated the trust relationship between the federal and tribal governments. 1953 X Public Law 83-280 â Transferred jurisdiction from the federal to state governments, which significantly changed the division of legal authority among tribal, federal, and state governments. Congress gave six states (five states initially - California, Minnesota, Nebraska, Oregon, and Wisconsin; and then Alaska upon statehood) extensive criminal and civil jurisdiction over tribal lands. 1953 X Supreme Court Cases Williams v. Lee â The Supreme Court decided that tribal jurisdiction was exclusive in a lawsuit resulting from an on-reservation sales transaction between a non-member and tribal member. 1959 X
37 Current Issues Impacting Tribal Transportation Description Y ea r C ul tu ra l C om pe te nc y Pr ot ec t/ Pr es er va tio n C on fid en tia lit y So ve re ig nt y La nd O w ne rs hi p M on et ar y Self-Determination Policy (1961 to present) Legislative Initiatives National Historic Preservation Act â Requires federal agencies to consult with any Native American tribe that attaches historical, religious, or cultural significance to historic properties that may be affected by a project. This process is known as a Section 106 Review. 1966 X X X Indian Civil Rights Act â Entitled Native Americans to provisions of the Bill of Rights and mandated that tribal consent be required for states to assume civil and criminal jurisdiction over tribal lands. 1968 X National Environmental Protection Act (NEPA) â Established a national policy for the protection and enhancement of the human environment including preserving important historic, cultural, and natural aspects of our national heritage and requires an Environmental Impact Statements for projects with significant negative impacts. 1969 X X X Indian Self-Determination and Education Assistance Act â Gave tribal governments the authority to assume federal actions and make those actions tribal functions. Previously these functions were largely a federal operation handled through the BIA. 1975 X X American Indian Religious Freedom Act â Protects and preserves Native Americansâ right of freedom to believe, express, and exercise their traditional religions. 1978 X X X Archaeological Resources Protection Act â Protects and manages archaeological resources and sites that are on public lands or tribal lands. 1979 X X X Native American Graves Protection and Repatriation Act (NAGPRA) â Provides a series of rights by which Native Americans can influence the deposition and treatment of human remains and associated artifacts. 1990 X X X National Historical Preservation Act (NHPA) â Enhanced the tribal role in historic preservation and created the Tribal Historic Preservation Officer (THPO) position. 1992 X X X Religious Freedom Restoration Act â Applies to all religions, but is most applicable to Native American religions that are impacted by increasing expansion of federal government projects onto sacred land. 1993 X X Supreme Court Cases Oliphant v. Suquamish Indian Tribe â The Supreme Court determined that tribal courts do not have criminal jurisdiction over non-tribal members. 1978 X United States v. Mitchell â The Supreme Court established the federal government's fiduciary relationship with tribes. This case was based on a claim for money damages by members of the Quinault Tribe for federal mismanagement of the timber on their allotments. 1980/ 1984 X X X