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4 2.2 U.S. Policies Affecting Native exists in the U.S. Constitution, Article 1. The clause in the Con- American Tribes stitution identifying tribes as sovereign governments gives Congress the authority to regulate commerce with States, Intergovernmental collaboration on transportation projects foreign nations, and Native American tribes. The U.S. Consti- is impacted by tribal sovereignty, tribalstate relations, inter- tution formed the initial framework for these government-to- governmental agreements, and jurisdictional issues. Native government relations (3). American tribes recognized by the federal government have a When the U.S. Constitution was signed in 1787, Native unique legal and political relationship with the federal govern- American tribes were considered to be foreign governments. As ment which continues to be defined by history, treaties, statutes, a result, agreements between the federal government and tribal court decisions, and the U.S. Constitution. Historically, three nations were considered to be nation-to-nation and required areas of Congressional action have affected Native Americans, the consent of part of the tribes. Federal policy, not state their rights, and property: establishing the laws under which policy, governed the relationships with tribes. The United tribes relate to the federal government; appropriating and over- States had nearly 400 treaties with tribes from 1785 to 1871 (3). seeing the expenditure of funds; and dealing with the rights and property of states and citizens that have some relationship to the rights and property of tribes (7). 2.2.2 Relocation of Native Americans On the other hand, the judiciary through the Supreme Court (1828-1887) has addressed tribal sovereignty matters including civil, crim- The relocation period was a time when the federal govern- inal, and other jurisdictional issues. Jurisdictional issues are ment adopted policies including the Indian Removal Act important in the planning, design, construction, operation, (1830), which forced tribes in the east to surrender their land and maintenance of tribal transportation projects (4). by treaty in exchange for reserved land in the west. Congress Six major issues impact communication, cooperation, and recognized the treaty "reserved" lands as permanent areas coordination between tribes and other government entities on under tribal jurisdiction known as reservations (4). In 1881, tribal transportation projects. Project coordination and collab- Congress passed 21 U.S. 543 that prohibited any additional oration are impacted by cultural competency; protection and treaties with tribes. As a result, tribes were no longer consid- preservation of tribal sensitive resources; confidentiality of ered to be independent nations, and Congress could limit tribal tribal sensitive matters; sovereignty; land ownership; and mon- powers including the ability to take tribal lands (1). etary issues. Insights gained from history and changing tribal Currently, there are about 300 tribal reservations in the legal policies are important for understanding these complex United States and 562 federally recognized tribes meaning that intergovernmental relationships and their impact on trans- many tribes have no land. Reservations are lands owned by the portation projects. federal government that are held in "trust" for use by tribes. U.S. tribal policymaking initiatives have been categorized The federal government has the responsibility to protect the into six historical periods, which will be examined in subse- reservations, but the federal government can, and has, termi- quent sections. These periods are: nated and removed tribes from reservations (5). The judiciary branch became involved in tribal matters in Agreements between Equals (1787 to 1828) three U.S. Supreme Court cases known as the Marshall Trilogy. Relocation of the Indians (1828 to 1887) These cases provided the framework for the status of tribes by Allotment and Assimilation (1887 to 1934) defining their relationship with the federal government and the Indian Reorganization (1934 to 1945) concept of tribal sovereignty, and established the doctrine of Termination (1945 to 1968) federal trust responsibility. The Marshall Trilogy set prece- Tribal Self-Determination (1968 to Present) (1). dence for many Supreme Court cases since that time (5). Exhibit A.1 in Appendix A includes a summary of legislative In Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823), the actions, Supreme Court decisions, and executive initiatives as Supreme Court held that Native Americans had only a right they relate to current tribal transportation issues. of possession of tribal lands, and only the federal govern- ment had the power to transfer land ownership (3). In Cherokee Nation v. Georgia, 30 U.S. 1 (1831), the Supreme 2.2.1 Agreements Between Equals Court clarified that tribes are neither states nor foreign (1787-1828) nations, but "domestic dependent nations." This case estab- The "Agreements between Equals" period primarily focused lished the trust relationship in which the federal govern- on sovereignty and land ownership issues. Early recognition of ment has the duty to protect Native American tribes and Native American tribes as separate and sovereign governments their lands (3).