THE TRIBAL NATIONS OF MONTANA

A Handbook for Legislators
March 1995

Prepared by

The Committee on Indian Affairs

Rep. Bob Gervais, Chairman   Sen. Jeff Weldon, Vice Chairman
Rep. Jay Stovall    Sen. Del Gage
Rep. Rolph Tunby    Sen. Ethel Harding
Rep. Carley Tuss    Sen. Barry "Spook" Stang

Contributors
Eddye McClure, Committee Attorney
Connie Erickson, Committee Researcher
Susan Fox, Staff ResearcherStephen Maly, Staff Researcher

Published by

Montana Legislative Council
Senator Del Gage, Chairman
Robert B. Person, Executive Director
Gregory J. Petesch, Legal Services Director
David D. Bohyer, Research Director
Room 138, State Capitol
Helena, MT 59620-1706
Telephone (406) 444-3064
FAX (406) 444-3036

TABLE OF CONTENTS

PREFACE
MONTANA'S INDIAN TRIBES
BASIC PRINCIPLES OF STATE-TRIBAL RELATIONS
DEFINITION OF "INDIAN" AND "INDIAN TRIBE"
DEFINITION OF "INDIAN COUNTRY"
INTERPRETATION OF INDIAN LAW
TRIBAL SOVEREIGNTY AND STATE POWER
PUBLIC LAW 83-280
CIVIL JURISDICTION IN INDIAN COUNTRY
CRIMINAL JURISDICTION IN INDIAN COUNTRY
TRIBAL GOVERNANCE
ECONOMIC DEVELOPMENT
EDUCATION
INDIAN GAMING
HEALTH AND HUMAN SERVICES
NATURAL RESOURCES AND ENVIRONMENTAL REGULATION
TAXATION

PREFACE

American Indians have a permanent place in the history, politics, culture, and economicdevelopment of the western states. In Montana, Indians from at least a dozen tribal groupscompose the state's largest and fastest growing ethnic minority. Only Arizona and NewMexico contain more reservations than Montana's seven. The Indian nations of Montanaare a living legacy. They are diverse in their history and cultural traditions. They remainrelatively isolated in geographic terms, but not in other aspects. Indians in Montana havebenefited from economic and social changes brought about by technology, education,commercial development, and other factors of modernization, but they have also sufferedfrom the corrosive effects that these same changes have had on traditional ways of life. Indians and non-Indians are challenged by history and present circumstances to findcommon ground on which to build a happy and prosperous future for all Montana citizens.

The Legislature and various state government agencies have the opportunity to honor, andin some cases to help fulfill, binding commitments made to Indians in times past byCongress and the federal government. The 1972 Montana Constitution carried forward the1889 provision from The Enabling Act explicitly acknowledging Congress's absolute controland jurisdiction over all Indian land, including state authority to tax the land, and foreverdisclaiming title to lands owned or held by or reserved for an Indian or for Indian tribes. Article X, section 1(2), of the 1972 Montana Constitution recognizes "the distinct andunique cultural heritage of the American Indians" and commits the state in its educationalgoals to "the preservation of their cultural integrity". Montana is alone among the 50 statesin having made an explicit constitutional commitment to its Indian citizens.

State-tribal relations in Montana have been marked by periodic successes and recurrentmisunderstandings. Indian and non-Indian people have coexisted in relative peace inMontana for the past century. The splendid Charles M. Russell painting in the House Chamber of the Capitol entitled "Lewis and Clark Meeting the Flathead Indians at Ross'Hole" symbolizes the coming together of disparate people under a much celebrated Big Skysome 75 years before Montana became part of the United States. The surrender of SiouxChief Sitting Bull after General Custer's defeat at the fateful Battle of the Little Bighorn in1876 and the capture of Chief Joseph and the Nez Perce in the Bears Paw Mountains in1877 marked the end of sporadic warfare between white settlers and indigenous peoples onthe high plains. These events set the stage for the establishment of Indian reservations andthe granting of U.S. (and state) citizenship in 1924 under the 14th amendment to the U.S.Constitution.

While both the federal constitution and the Montana Constitution, a panoply of federal andstate laws, and numerous works of art and literature manifest a shared sense of purposeand belonging, there are still many instances of intercultural conflict that can cause hardfeelings and lead to further alienation between citizens of different ancestry. At MontanaState University's centennial celebration in the spring of 1994, the president of Little BigHorn Tribal College, Janine Pease Windy Boy, warned her audience about the potential forbitter clashes between the dominant and minority culture groups in Montana. We weremindful of that possibility while preparing this document. Our hope is that this handbookwill contribute to harmonious relations between the Indian minority and the non-Indianmajority of Montana citizens.

The purpose of this handbook is primarily educational--to raise the general level ofknowledge and awareness of Indian nations among legislators, state government personnel,and other interested citizens of Montana, especially teachers and students. The handbook isnot intended to be an exhaustive study of federal Indian law, nor is it intended to answer allquestions relating to issues impacting Indians or tribes in Montana. We hope to offsetmyths and misconceptions with pertinent facts. We believe that accurate informationprovides a strong foundation for mutual respect and mutually rewarding relationshipsbetween people with different traditions, beliefs, and world views who nevertheless sharecommon rights of citizenship and common aspirations for the state as a whole. There arenumerous examples of formal and informal agreements between state government and tribalauthorities, but there are also significant issues that remain unresolved and that warrantinformed discussion.

The handbook does not take a partisan approach, nor does it include or advocate a specificlegislative_agenda. The handbook is modeled after a 1993 document published by theMinnesota House of Representatives entitled Indians, Indian Tribes and State Government. See footnote 1 We have chosen to combine short narrative sections with a question and answer format,similar to the one used in Jack Utter's American Indians: Answers to Today's Questions.

The handbook is divided into different subject areas for easy reference. The authorsrecognize that this method of organizing information has its advantages and disadvantages. While topical arrangements offer convenience, they also slight an important reality: theinterconnectedness of almost all issues affecting the Indian nations of Montana and theother states. For example, questions of jurisdiction permeate many aspects of federal,state, and tribal relations, even though the subject of jurisdiction itself is explained onlyonce in the handbook. It is increasingly clear that economic development is closely linkedto the governance of natural resources and environmental protection, but these subjects aredealt with in separate sections. We trust that readers will take the somewhat artificialseparation of issue areas into account and realize how politics, economics, education, andculture are interconnected for Indians and non-Indians alike.

A note on usage: We believe most Indian people prefer to be identified by their tribalaffiliation when addressed as individuals or as a tribal group. For example, unless one istalking about all of the Indians in Montana, it is preferable to distinguish between Blackfeet,Assiniboine, Crow, and the others. Throughout the handbook, we've chosen to use theterm "Indian" rather than the term "Native American" when referring to the racially andpolitically distinct population in general terms.

MONTANA'S INDIAN TRIBES

INTRODUCTION
With the arrival of Lewis and Clark in the first decade of the 19th century, the traditionalway of life of Montana Indians became increasingly threatened. By the mid-1880s, thefederal government began to deal formally with the tribes, entering into treaties thatassigned tribes to certain areas and obligated them to respect the land of their neighbors. However, the mining invasions of the 1860s disrupted these fragile arrangements as minersand others rushed into the prime gold fields that often lay along or within the designatedtribal lands. These new inhabitants demanded federal protection, thus beginning thegarrisoning of Montana and the eventual relocation of the tribes to smaller and smallerreserves.

The combination of "tribal" and "nation" best encapsulates essential aspects of both thehistorical and contemporary identity of Indian communities in Montana. There are nineprincipal tribal groups living on seven reservations in Montana. (See map for locations.) Three of the reservations are inhabited by more than one tribal group. The ConfederatedSalish, Pend d'Oreille, and Kootenai share the Flathead Reservation; the Gros Ventre andAssiniboine cohabit the Fort Belknap Reservation; and the Assiniboine and Sioux both resideon the Fort Peck Reservation. In each of these cases, the reservation population consists offragments of larger tribal nations. For example, there are 33 bands of Assiniboine Indians,two of which are represented on the Fort Peck Reservation, where each of the sevenprimary bands of the Sioux nation are also represented. The Rocky Boy's Reservation wasoriginally inhabited by members of the Chippewa and Cree Tribes. However, because ofextensive intermarriage over the years, the tribal rolls list members only as "ChippewaCrees". In 1935, the Chippewa Crees adopted a tribal constitution for the "Chippewa CreeTribe", officially recognizing the coming together of the two tribes into one. Montana isalso home to the Little Shell Band of Chippewa, often referred to as "Landless Indians". Although a distinct tribal group, the Little Shell are not yet a federally recognized tribe.

Tribal nations are distinctive in several respects. They are based primarily (although notexclusively) on ethnic heritage and are racially distinct from other minority groups inMontana and the United States. Most important from a legislative standpoint, tribal nations

have a unique status in the American federal system. American Indians are not JUST anethnic minority; they are also members of quasi-sovereign tribal nations. The Indian nationsof Montana are governed by tribal governments that are legally empowered to determinewho is and is not a member of the nation. Each of the tribal governments in Montana hasestablished its own criteria for enrollment, with some requiring higher blood quantum levelsthan others.

INDIAN POPULATION
According to the 1990 census, the Indian population in Montana was 47,679 persons,approximately 5.97% of the total population of the state. Of the Montana population 18years of age and older, 4.8% is Indian. While Montana's overall population increased only1.6% from 1980 to 1990, the Indian population increased by 27.9%.

These numbers are only one method of determining the number of Indians in the state. Thenumbers do not necessarily match the number of persons who appear on tribal rolls or thenumber of persons that tribes or federal or state agencies consider to be Indian. Theconcept of race as used by the U.S. Bureau of the Census reflects self-identification. Thedata for race represents self-classification by people according to the race with which theymost closely identify.

Data on American Indians, Eskimos, and Aleuts is combined when reported and includespersons who report their race as one of the three categories. The Bureau of the Censususes the term "American Indian" and includes persons who indicated their race as AmericanIndian, entered the name of an Indian tribe, or entered Canadian-Indian, French-AmericanIndian, or Spanish-American Indian. The term "Eskimo" includes persons who indicatedtheir race as Eskimo or entered other names, such as Arctic Slope, Inupiat, or Yupik. Theterm "Aleut" includes persons who indicated their race as Aleut or entered other terms,such as Alutiiq, Egegik, or Pribilovian.

The census reports information for American Indian areas that includes all American Indianreservations, off-reservation trust lands, and other tribal-designated statistical areas.

Montana has seven Indian areas. The Indian population ranges from 24% of the totalpopulation in the Flathead area to 96% in the Rocky Boy's area.

TABLE 1

Indian Population in Montana

by U.S. Bureau of the Census American Indian Areas

Source: U.S. Bureau of the Census (1990)

Although the Indian population in Montana is highly concentrated in a few counties, Indianslive in all 56 counties of the state, ranging from a small percentage of less than 1% in 19counties to 1% to 10% of the population in 29 counties. There are eight counties in whichIndians compose from 11% to 56% of the total population.

TABLE 2

Source: U.S. Bureau of the Census (1990)

Map of Montana Indian Population Density and Indian Reservations

REAPPORTIONMENT

Reapportionment occurred following the 1990 census and resulted in an increase inlegislative districts in which Indians compose more than 50% of the population: from asingle House district following the reapportionment based on the 1980 census to fourHouse districts and one Senate district following the reapportionment based on the 1990census. Although the districts are composed of more than 50% Indians, a higherpercentage of that population is under 18 years of age than in the total population.

The 15th amendment to the U.S. Constitution has, since 1870, guaranteed the right to voteto all citizens, regardless of race, color, or the previous condition of servitude. That rightwas not clearly outlined or enforced until the Voting Rights Act of 1965, which was furtheramended in 1970, 1975, and 1982. The 1975 amendments extended protection againstdenial or abridgment of the right to vote to "language minority groups", including Indians, inaddition to traditionally recognized minority groups that are identified by race or color.

Reapportionment in the 1990s resulted in a moderate gain in the protection of minorityvoting rights for Indians in Montana, although the first election cycle since reapportionmentdid not result in greater Indian representation. If Indian population continues to outpace thetotal population in the amount of increase, the 2000 census and subsequentreapportionment may result in stronger Indian majority districts and increased Indianparticipation in the state Legislature.

TABLE 3

Summary of Indian Majority/Influence Districts

Source: Montana Legislative Council, based on the 1990 census

STATE-TRIBAL RELATIONS
In 1951, the Montana Legislature created the position of Coordinator of Indian Affairs inrecognition of the need to provide a way for American Indians to communicate with stategovernment. The coordinator serves as a spokesperson for Indian tribes and activelyassists them in their efforts to work with state agencies.

The coordinator is appointed by the Governor from a list a five qualified Indian applicants agreed upon by the tribal councils of the Indian tribes of the state. The coordinator serveson numerous advisory councils in order to represent Indians in those areas in whichrepresentation is needed. The coordinator also works with state agencies involved in state-tribal negotiations on issues such as tax-sharing agreements and gaming compacts.

In recognition of the need to provide a way for Indians to communicate their needs andconcerns to the Legislature, the Legislature established the Committee on Indian Affairs. The Committee was first established in the late 1970s as a temporary committee to studyissues of jurisdiction. The Committee was re-established by the Legislature every 2 yearsuntil 1989, when it became a permanent committee of the Legislature.

The Committee is composed of eight members, equally divided between the House ofRepresentatives and the Senate and between political parties. The Committee works topromote better understanding between Indians and non-Indians; to encourage state-tribaland tribal-local government cooperation; to act as a liaison between the Indian people andthe Legislature; and to gain insight into Indian/non-Indian relations. This handbook is anexample of the kind of work undertaken by the Committee.

In 1981, in recognition of the government-to-government relationship and to promotecooperation, the Legislature enacted the State-Tribal Cooperative Agreements Act (Title 18,chapter 11, part 1, MCA) that authorizes public agencies, including cities, counties, schooldistricts, and other agencies or departments of the state, to enter into cooperativeagreements with Montana's tribal governments. To date, over 500 agreements, relating toa variety of governmental services, have been negotiated and completed.

SUMMARY
The combination of demographic data and historical facts leads us to a conclusion of sortsat the outset of this handbook: American Indians are very much a part of Montana's socialfabric, political culture, and economic future. Tribal nations roamed across or settled inevery region of what is now the State of Montana for hundreds and probably thousands ofyears.

Currently, Indians live in all 56 counties of the state, although some counties have a muchhigher population of Indians than do other counties.

BASIC PRINCIPLES OF STATE-TRIBAL RELATIONS

Indians are not just members of an ethnic minority group in Montana.
 Most Indians are also members of distinct cultural nations with a special political andlegal status that has been enshrined in the U.S. Constitution, bolstered bysubsequent federal laws, and affirmed by the courts.

Tribal governments are not subordinate to state governments and are not bound by state laws.
 With rare exceptions, a state has jurisdiction within a reservation only to the extent that Congress has delegated specific authority to it or in situations in which neitherfederal nor tribal law preempt state law.

There is always a federal dimension to consider in formal state-tribal interactions.
 Tribal governments are subordinate to Congress. In many arenas of governance,including economic development, environmental regulation, and law enforcement,tribal authorities require authorization, appropriations, and approval from theSecretary of the Interior or lower-ranking officials of the Interior Department's Bureauof Indian Affairs (BIA).

Federal Indian policy is generally consistent in some aspects and remarkably inconsistent in others.
 The separation of powers allows the coexistence of contrasting views andcontradictory decisions. Even though every U.S. President since President Nixon hasespoused self-determination as a guiding principle, Congress has both broadlyencouraged self-government and in some instances prescribed in detail the manner inwhich tribes may use their self-governing authority. Federal and U.S. Supreme Courtdecisions have see-sawed between supporting and limiting the sovereignty of Indian nations.

The Indian nations of Montana are similar in some general respects, but distinct from each other in many important ways.
 Although "Indian country" is a useful phrase when considering federal laws andpolicies applicable to all Indian nations, each nation is unique, with differentpriorities, values, cultural attributes, and economic circumstances. The distinctionsbetween different Indian nations in Montana need to be considered in discussionsand negotiations between the state government and tribal governments.

Government-to-government relations are the norm, not the exception.
 Protocol is important. The use of proper channels demonstrates mutual respect andlends dignity to relationships that are often delicate and easily tainted bymisunderstanding and the suspicion that state (or federal) bureaucrats are attemptingto interfere with internal disputes of tribal government officials.

The leaders and other members of Indian nations are generally wary of state government.
 Western American history is peppered with examples of coercion, massacres, brokentreaties, disingenuous overtures of peace and friendship, disrespect, and attempts toassert rights and usurp powers in contravention of federal law and policy.

DEFINITION OF "INDIAN" AND "INDIAN TRIBE"

Who is an Indian?
 There is no single definition of "Indian". In attempting to define the term, it isimportant to keep in mind the differences between tribal membership, federal law,and ethnological status. A person may not be considered an Indian ethnologicallybut may qualify for certain programs or services under a federal definition or mayqualify for tribal membership under tribal enrollment rules.

 As a general rule, however, there are two qualifications for a person to beconsidered an Indian:
  (1) the person has some Indian blood; and
  (2) the person is recognized as an Indian by members of an Indian tribe or community.

 Federal law defines "Indian" in many different ways. The Bureau of the Censusdefines Indians as individuals who identify themselves as Indians. The BIA generallydefines an Indian as a person who:
  (1) is a member of a tribe recognized by the federal government;
  (2) lives on or near a reservation; and
  (3) is one-quarter or more Indian ancestry.

 The Indian Education Act of 1988 uses a much broader definition that encompassespeople of one-eighth Indian ancestry, self-identified Indians, residents of statereservations, and urban Indians. See footnote 2

 The Indian Arts and Crafts Act of 1990 says "member of an Indian tribe, or . . . iscertified as an Indian artisan by an Indian tribe". See footnote 3

 Tribes, as self-governing entities, have the power to determine tribal membership. Membership can refer to the formal enrollment on the tribal roll of a federallyrecognized Indian tribe or to a more informal status as a recognized member of atribal community. Qualifications for formal membership differ from tribe to tribe. Tribal enrollment is the best evidence of a person's Indian status because it is acommon prerequisite for acceptance as a member of a tribal community.

What is the correct term to use when referring to American Indians?
 This question has been the subject of much debate. The preference is to useindividual tribal affiliations whenever possible However, the terms "Indian","American Indian", or "Native American" are acceptable, although the term "Native American" can properly apply to anyone born in America.

Are Indians United States citizens?
 Yes. All Indians born in the United States, or born of citizens who are outside thecountry at the time of birth, are American citizens, with all of the attendant rightsand responsibilities. Indians are also citizens of the states in which they reside. However, U.S. citizenship was not generally conferred on Indians until 1924. Beforethat time, some treaties or allotment acts had extended citizenship to individualIndians.

 In addition, Indians are citizens or members of tribes. American citizenship is notinconsistent with tribal membership, nor does American citizenship affect the specialrelationship that exists between tribes and the federal government.

What is an Indian tribe?
 There is no all-purpose definition of an Indian tribe. There is a legal-political identitythat is determined by federal law. There is also an ethnological identity.

 A general definition offered by William Canby, Jr., in American Indian Law, is "a group of Indians recognized as constituting a distinct and historically continuouspolitical entity for at least some governmental purpose". The key word in thisdefinition is "recognized". The most important and valuable recognition is that of thefederal government.

What is meant by "federal recognition" of an Indian tribe?
 Federal recognition means the existence of a special relationship between the federalgovernment and a particular tribe that may confer specific benefits and services onthat tribe as enumerated in various federal laws. Recognition also means that therecognized tribe has certain inherent rights and powers of self-government but is alsosubject to the broad powers that Congress has in dealing with Indian tribes.

 Recognition usually comes from a treaty, statute, or executive or administrative orderor from the course of dealing with a tribe as a political entity. However, federalrecognition does not necessarily follow ethnological divisions. Separate ethnologicaltribes can be combined into one legal tribe, e.g., the Confederated Salish andKootenai Tribes on the Flathead Reservation. Also, one ethnological tribe can bedivided into separate legal tribes, e.g., the Assiniboine and Sioux Tribes at Fort Peckand the Gros Ventre and Assiniboine Tribes at Fort Belknap.

 In 1978, the Department of the Interior adopted regulations creating an administrativeprocedure to be followed by tribes seeking acknowledgment, which is basically thesame as recognition. Formal "recognition" is generally the prerogative of Congressand the President. A tribe may seek formal recognition of its status directly fromCongress.

 There are two essential elements for recognition or acknowledgment:
  (1) a group exercises some sort of governmental authority over its members; and
  (2) a group occupies a specified territory or inhabits a community viewed as distinctly Indian.

How many tribes in Montana have federal recognition?
 There are seven federally recognized tribes in Montana. They are the Crow Tribe, theNorthern Cheyenne Tribe, the Blackfeet Tribe, the Chippewa Cree Tribe, theConfederated Salish and Kootenai Tribes, the Assiniboine and Sioux Tribes, and theGros Ventre and Assiniboine Tribes.

Are there any tribes in Montana not officially recognized by the federal government?
 Yes, the Little Shell Band. Composed of Chippewa and Cree Indians, the Little Shellwere shut out of reservations in North Dakota and Montana for various reasons. Today, the tribal members live all over Montana but have an elected tribal council andan executive officer. The Little Shell are currently in the process of seeking federal recognition from the Department of the Interior.

DEFINITION OF "INDIAN COUNTRY"

What is "Indian country"?
 Indian country includes:
  (1) all land within the limits of an Indian reservation under the jurisdiction of the United States government;
  (2) all dependent Indian communities, such as the New Mexico Pueblos; and
  (3) all Indian allotments still in trust, whether they are located within reservations or not. See footnote 4

 The term includes land owned by non-Indians, as well as towns incorporated by non-Indians if they are within the boundaries of an Indian reservation.

 It is generally within these areas that tribal sovereignty applies and state power islimited.

What is the difference between Indian country and an Indian reservation?
 A reservation is an area of land "reserved" by or for an Indian band, village, or tribe(tribes) to live on and use. Reservations were created by treaty, by congressionallegislation, or by executive order. Since 1934, the Secretary of the Interior has hadthe responsibility of establishing new reservations or adding land to existingreservations.

 Indian country encompasses reservations.

What is the ownership status of land within Indian country?
 There are three basic categories of land tenure in Indian country: tribal trust lands, allotted trust lands, and fee lands.

  Tribal trust lands are held in trust by the United States government for the use of a tribe. The United States holds the legal title, and the tribe holds the beneficialinterest. This is the largest category of Indian land. Tribal trust land is heldcommunally by the tribe and is managed by the tribal government. Tribal membersshare in the enjoyment of the entire property without laying claim to individualparcels. The tribe may not convey or sell trust land without the consent of thefederal government. Tribes may acquire additional land and have it placed in trustwith the approval of the federal government.

  Allotted trust lands are held in trust for the use of individual Indians (or their heirs). Again, the federal government holds the title, and the individual (or heirs) holds thebeneficial interest.

 During the assimilation period, Congress enacted the General Allotment Act of 1887,also known as the Dawes Act. See footnote 5 The ultimate purpose of the Dawes Act was to break up tribal governments, abolish the reservations, and assimilate Indians into non-Indiansociety as farmers. To accomplish this goal, Congress decided to divide tribal landsinto individual parcels, give each tribal member a parcel, and sell the "surplus" parcelsto non-Indian farmers.

 The Act authorized the President to allot reservation land to individual Indians. Titleto the land remained in the United States in trust for 25 years, or longer if extendedby the President, then was conveyed to the Indian allottee in fee, free of allencumbrances. The trust period was intended to protect the allottee from immediatestate taxation and to allow an opportunity to learn farming. Upon receiving theallotments (or after amendments in 1906 for fee title), allottees became U.S. citizensand were subject to state criminal and civil law. The Dawes Act also authorized the Secretary of the Interior to negotiate for acquisition by the United States of the so-called "excess" or "surplus" lands remaining after allotment. These "surplus" landswere to be opened to non-Indian settlement.
 Although the sponsors of the Dawes Act believed that it would help Indians prosper,the effect on Indians and Indian lands was catastrophic. Most Indians did not wantto abandon their culture to pursue farming. Because much of the land allotted toIndians was unsuitable for small-scale farming, Indians sold their parcels to settlers orlost land in tax foreclosure when, upon receiving a patent after 25 years, the landwas subjected to state taxes.

 The result was a checkerboard pattern of land ownership within many reservationsthat were allotted either under the Dawes Act or under other specific allotment acts,with much of the allotted land passing out of trust status and Indian ownership. While not all reservations were allotted, the effect was still devastating as the totalamount of Indian-held land declined from 138 million acres in 1887 to 48 millionacres in 1934 when the allotment system was abolished.

  Fee lands are held by an owner, whether Indian or non-Indian.

 Other lands in Indian country can be held by federal, state, or local (nontribal)governments. These lands include such areas as national wildlife refuges and stateparks.

What is the ownership status of land within Montana's seven reservations?
 

RESERVATION	TOTAL ACREAGE	% TRUST LANDS (tribal & individual)	% FEE LANDS (non-Indian & federal & stategovernment)
Blackfeet	1.5 million	65	35
Crow	2.3 million	68	32
Flathead	1.2 million	52	48
Fort Belknap	650,000	96	4
Fort Peck	2.1 million	44	56
Northern Cheyenne	445,000	98	2
Rocky Boy's	108,000	100	0

 Source: Montana Indians: Their History and Location, Office of Public Instruction, March 1989

Were lands on Montana reservations allotted?
 In most instances, yes. The only reservation that was not allotted was Rocky Boy'sReservation. The Fort Belknap and Northern Cheyenne Reservations were allotted,but the surplus lands were not put up for sale to non-Indians. The BlackfeetAllotment Act was repealed 12 years after it was passed, and the surplus lands werereturned to the tribe. The Flathead Reservation was specifically allotted under theFlathead Allotment Act, See footnote 6 which has been amended more than 80 times since 1904. On those reservations that were allotted, many of the allotted lands passed out ofIndian control through sale to non-Indians or through loss to taxation.

INTERPRETATION OF INDIAN LAW

Are the rules for interpreting Indian law different from those used to interpret other laws?
 Yes. From the early 1800s, the United States Supreme Court, in numerous decisions, held that the federal government had a special trust responsibility with Indian tribes. See footnote 7 From this trust relationship, the Court also developed and used a unique set of rules, commonly known as "canons of construction", for interpreting or construing treaties, statutes, or executive orders that affected Indian tribes and peoples.

 These canons of construction acknowledged the existence of the unequal bargainingpositions that existed between the federal government and the tribes duringnegotiations. In many cases, tribal negotiators did not speak or understand Englishand were, therefore, placed at a significant disadvantage during the negotiationprocess. Often, the federal government negotiated with individuals whom it hadselected and who were not the traditional leaders of a particular tribe.

 More importantly, these canons reflect a presumption, based on this federal trustresponsibility, that an act of Congress was meant to protect tribes and Indianpeoples. As a result, these canons assume that unless there is a "clear purpose" oran "explicit statement" to the contrary in treaties, statutes, or executive orders,Congress intended to preserve or maintain the rights of tribes.

 Specifically, these canons provide that the treaties, statutes, orders, or agreementswith Indian tribes are to be construed liberally in favor of Indians. If ambiguitiesexist, they are to be resolved in favor of Indians. See footnote 8

Can the abrogation of tribal rights be presumed under the canons?
 No. Unless Congress clearly indicates through a treaty or legislation or in an agreement that rights are extinguished or altered, it is presumed that all tribal rightsare retained. See footnote 9 Congress must demonstrate a clear purpose to abrogate tribal rights. See footnote 10

TRIBAL SOVEREIGNTY AND STATE POWER

What is tribal sovereignty?
 Although sovereignty is often loosely defined, it refers to the inherent right or power to govern a people and a territory. When Europeans arrived in North America, tribesconducted their own affairs and depended upon no outside authority. Both thecolonial powers and later the federal government recognized the sovereign status oftribes by treating them as foreign nations and leaving them to regulate their ownaffairs. At the same time, Europeans also claimed dominion over all new worldterritories. The issue was left to the United States Supreme Court to resolve.

 Chief Justice Marshall described the federal-tribal relationship as one of "domesticdependent nations" to whom the federal government had a fiduciary relationship. See footnote 11 At the same time, the Chief Justice declared:
  The Cherokee nation . . . is a distinct community . . . inwhich the laws of Georgia can have no force . . . but withthe assent of the Cherokees themselves, or in conformitywith treaties, and the acts of Congress. See footnote 12

 Through the years, however, the federal government's Indian policy has appeared somewhat schizophrenic, shifting from protection to termination in the 1950s toencouraging self-determination since the 1970s.

If the U.S. Constitution prohibits discrimination based on race, why do Indians retain special rights not held by other citizens in the United States?
 The special status of Indian tribes predates the U.S. Constitution and federal law. When the United States was founded, tribes were self-governing and sovereignnations whose powers were not extinguished by the constitution. The constitutionmay have subjected the tribes to federal power, but it did not extinguish tribalinternal sovereignty or subject them to the powers of the states. See footnote 13

 The different treatment of Indians and non-Indians is allowed because Indians are aseparate political group. The United States did not enter into treaties with Indiansbecause of their race, but rather because of their political status. Congress treatsIndians and non-Indians differently because the Commerce and Treaty Clauses of theU.S. Constitution authorize Congress to do so.

Were treaties necessary to grant certain powers to Indian tribes?
 No. Many mistakenly believe that a treaty contains those rights that the federal government granted to a tribe. As recognized by both the United States and the Montana Supreme Courts, a treaty is not a grant of rights to the Indians, but instead is a grant of rights from Indians. See footnote 14

 Indian treaties stand on essentially the same footing as treaties with foreign nations. Because they were made pursuant to the U.S. Constitution, treaties take precedenceover conflicting state law because of the Supremacy Clause of the U.S. Constitution. See footnote 15

 What tribes lost with adoption of the U.S. Constitution was "external sovereignty" orthe ability to interact with foreign nations. Similar to states, tribes retainedsovereignty within tribal territories and retained the power of self-government withrespect to their land and members. See footnote 16

Does the United States government still make treaties with Indians?
 No. Treaty negotiations with Indian tribes ended with an act of Congress in 1871. See footnote 17 However, the act did not impair or abolish existing treaty obligations. Since thattime, agreements with tribes have been made by congressional acts, executive order,and executive agreements.

Can treaties with tribes be abrogated?
 Yes. Congress maintains the power to unilaterally abrogate Indian treaties. See footnote 18 Because many treaties often contained language stating that they would remain in effect "aslong as the grass shall grow" or similar terms, many incorrectly believe that changes

in terms must be mutually negotiated by the federal government and the tribes. Thatis not the case. Treaties, like international treaties, are similar to federal statutes. They can be repealed or modified by later federal statutes.

Can abrogation of treaties be implied by passage of other acts?
 No. The trust relationship between the federal government and Indians tribes weighs heavily against implied abrogation of treaties. See footnote 19 It must be clear that Congress considered the conflict between its intended action and a treaty and chose to resolvethat conflict by abrogating the treaty. See footnote 20

 Congress's power to abrogate a treaty does not free it from the duty to compensatefor the destruction of a property right. Although an abrogation itself may beeffective, a tribe may have a "takings" claim under the fifth amendment. See footnote 21

Can Montana unilaterally enact legislation affecting jurisdiction?
 No. The Indian Commerce Clause of the U.S. Constitution gives Congress, not the states, plenary or absolute authority over Indian tribes. Only Congress can repealtreaties, eliminate reservations, or grant the states jurisdiction over Indians onreservations. The actions of the federal government are controlled by the rightsguaranteed through the Bill of Rights and the 14th amendment to the U.S.Constitution. A state only has the power over Indian affairs within Indian countrythat Congress specifically grants it. A state only has power in Indian country ifCongress has delegated power to it or if the exercise of state authority is notpreempted.

PUBLIC LAW 83 - 280

What is Public Law 83-280?
 The years between 1953 and 1968 were known as the "termination" era in federal-tribal relations. During this period, Congress's goal was to assimilate Indians into thewhite culture and reduce the federal government's assistance to Indians.

 During this time and in response to a perceived need to strengthen law enforcementon some Indian reservations, Congress enacted Public Law 83-280, commonly referred to as P.L. 280. See footnote 22 The act mandated that, initially, five states assume criminal and civil jurisdiction over most of the reservation lands within their borders. See footnote 23 Alaska

became the sixth mandatory state in 1958. Reservations that were considered tohave well-functioning law enforcement in these six states were exempted from P.L.280. Montana was not included in the "mandatory" states.
 
 Public Law 280 also authorized the other 44 states, at their option, to assume thesame jurisdiction that mandatory states had received. See footnote 24 Of the 44 "optional states", only 10 took steps to assume jurisdiction under P.L. 280.

Has P.L. 280 been amended?
 Yes. Between 1953 and 1968, states were allowed to assume jurisdictionunilaterally. Most tribes strongly opposed P.L. 280 when passed because they fearedthat optional states could increase their jurisdiction at will. In response to these tribalconcerns, Congress amended P.L. 280 in 1968 to place a tribal consent requirementin the law and to authorize the United States to accept a "retrocession" or the returnof jurisdiction acquired by a state under P.L. 280.

Did Montana participate in P.L. 280?
 Yes. In 1963, the Montana Legislature passed legislation that allowed the state toassume "280" jurisdiction over tribal members on the Flathead Reservation. See footnote 25 The legislation also allowed the state to assume jurisdiction over other Indian tribes ifthose tribes requested it. See footnote 26 The bill also provided a method for tribes to withdraw their approval to P.L. 280 jurisdiction. See footnote 27

Did a Montana tribe consent to be subject to P.L. 280?
 Yes, but only one. The Confederated Salish and Kootenai Tribes of the Flathead Reservation supported the legislation enacted in 1963. In 1965, the tribes enacted atribal ordinance defining the scope and terms under which the tribes agreed to comeunder P.L. 280 jurisdiction. See footnote 28 The Governor of Montana then issued a proclamation providing for state assumption of jurisdiction as defined in the tribal ordinance. See footnote 29

 In 1993, at the request of the Confederated Salish and Kootenai Tribes, the Legislature enacted Senate Bill No. 368 that allowed for partial retrocession from P.L. 280. See footnote 30

 In September of 1994, the tribes entered into a memorandum of agreement, pursuantto the State-Tribal Cooperative Agreements Act, with the State of Montana; Flathead,Lake, Missoula, and Sanders Counties; and the cities of Hot Springs, Ronan, and St.Ignatius to implement Senate Bill No. 368, allowing the tribes to reassume exclusive jurisdiction over misdemeanor crimes committed by Indians and providing for continued concurrent state-tribal jurisdiction over felony crimes committed by Indians. The tribes' resolution to withdraw from P.L. 280 provides for cooperation betweenstate, tribal, and local law enforcement agencies and includes language allowingcontinued state misdemeanor criminal jurisdiction in limited areas, such as a guiltyplea entered in state court, pursuant to a plea bargain agreement that reduces afelony crime to a misdemeanor, or in the case of a conviction in state court on alessor included offense in a felony trial. For felonies committed by Indians, both thestate and tribes retain concurrent jurisdiction, but either may transfer prosecution tothe other if consideration of the factors specifically outlined in the agreementwarrants transfer.

 Montana's other six tribal governments have never been, and are not presently,subject to P.L. 280.

CIVIL JURISDICTION IN INDIAN COUNTRY

Although criminal jurisdiction is used to maintain law and order, civil jurisdiction is used toregulate matters such as taxes, domestic relations, child custody, probate, zoning, andtraffic accidents.

Early in America's history, the question of jurisdiction in Indian country was answered bythe United States Supreme Court in 1832 quite simply: "State laws can have no force in Indian country without the approval of Congress." See footnote 31 This test was simple and totally geographic.

When states continued to assert control without congressional approval, the Supreme Courtdeveloped parallel tests to determine which state laws can be enforced in Indian country

without congressional consent: the infringement test and the federal preemption test. Additionally, a state law affecting reservation activities must be viewed against a "backdrop" of tribal sovereignty, a tribe's inherent right to be self-governing.

What is the infringement test, and how is it applied?
 In 1959, the Supreme Court modified its earlier absolute test and ruled that withoutcongressional authority, a state may not infringe "on the right of reservation Indians to make their own laws and be ruled by them". See footnote 32 This principle, commonly known as the "infringement test", protects the inherent right of tribes to be self-governing andapplies in subject areas in which federal legislation is absent.

 Therefore, if Congress is silent on an issue, the question of which government hasjurisdiction will be determined by focusing on the inherent sovereign authority andlaws retained by the tribes and on whether state action has infringed on thatauthority.

What constitutes federal preemption, and how is it applied?
 If Congress has passed legislation regulating a particular subject matter, the issue of which government has jurisdiction is determined by applying what is known as the "preemption" test. If a state enacts legislation to regulate a matter that is already heavily regulated by the federal government, the court will evaluate or "balance" theinterests of the state against the federal and tribal interests and make a "particularized inquiry into the nature of the state, federal and tribal interests at stake" . See footnote 33 Because the test is very fact specific, results can vary from state to state and issue to issue. See footnote 34

How have the courts defined the civil adjudicatory authority of tribes?
 In Indian law cases, one must first determine which court, state or tribal, has the authority to "adjudicate" or decide the particular matter. The United States SupremeCourt and the Montana Supreme Court have both stated that civil jurisdiction over the activities of non-Indians on reservations presumptively lies in tribal court unless limited by Congress. See footnote 35 In a case involving a Montana tribe, the United States Supreme Court ruled that petitioners must first exhaust tribal court remedies before the federal courts can entertain a challenge to tribal court jurisdiction. See footnote 36 The Court provided:

  [T]he existence and extent of a tribal court's jurisdictionwill require a careful examination of tribal sovereignty, theextent to which that sovereignty has been altered,divested, or diminished, as well as a detailed study ofrelevant statutes, Executive Branch policy as embodied intreaties and elsewhere, and administrative or judicialdecisions.

  We believe that examination should be conducted in thefirst instance in the Tribal Court itself. Our cases haveoften recognized that Congress is committed to a policyof supporting tribal self-government and self-determination. That policy favors a rule that will providethe forum whose jurisdiction is being challenged the firstopportunity to evaluate the factual and legal bases for thechallenge. Moreover the orderly administration of justicein the federal court will be served by allowing a full recordto be developed in the Tribal Court before either themerits or any question concerning appropriate relief isaddressed The risks of the kind of "proceduralnightmare" that has allegedly developed in this case willbe minimized if the federal court stays its hand until afterthe Tribal Court has had a full opportunity to determineits own jurisdiction and to rectify any errors it may havemade. Exhaustion of tribal court remedies, moreover, willencourage tribal courts to explain to the parties theprecise basis for accepting jurisdiction, and will alsoprovide other courts with the benefit of their expertise insuch matters in the event of further judicial review. See footnote 37

May a non-Indian avoid tribal court by taking a civil complaint directly to federal court?
 No. Although the question of whether a tribe has the power to compel a non-Indian to submit to the civil jurisdiction of the tribal court is a "federal question", courtshave consistently held that a non-Indian must first exhaust tribal court remedies. See footnote 38 Once tribal court remedies have been exhausted, a defendant may ask for review infederal court. Courts believe that this exhaustion policy supports Congress'scommitment to tribal self-determination and encourages tribal courts to explain toparties the precise basis for accepting jurisdiction.

 The United States Supreme Court has defined three exceptions to this exhaustionrequirement:
  (1) when the assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith;
  (2) when the tribal action is patently violative of express jurisdictional prohibitions; or
  (3) when exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction.

 However, federal court review will involve only a review of the tribal court'sdetermination of jurisdiction.

What is civil regulatory jurisdiction?
 Governments regulate conduct through zoning, licensing, taxation, or other methods. Unless limited by Congress, a tribe has exclusive regulatory jurisdiction over itsmembers and over land held in trust.

Does a tribe have exclusive regulatory jurisdiction over all people and land within the boundaries of a reservation?
 No. The United States Supreme Court has applied the infringement-preemption tests to hold that:
  (1) a tribe may regulate the actions of non-Indians who enter consensual relations with the tribe or its members; See footnote 39
  (2) a tribe may regulate the conduct of non-Indians on fee land within its reservation when the conduct threatens or has some direct effect onthe political integrity, the economic security, or the health and welfareof the tribe; See footnote 40
  (3) a state may regulate non-Indians and lands held by non-Indians on reservations unless the regulation is prohibited by federal law or the federal regulatory scheme, including tribal regulations, is so pervasivethat it leaves no room for state regulation or unless the exercise of

state jurisdiction, in the absence of federal law, interferes with theright of the tribe to govern itself. See footnote 41

CRIMINAL JURISDICTION IN INDIAN COUNTRY

Every government exercises a power, called criminal jurisdiction, to prohibit certain behaviorwithin its borders by enacting criminal laws and by punishing those persons who violatethem. Criminal jurisdiction in Indian country is complex. There is not an Indian reservationin the United States in which the federal, state, and tribal governments can simultaneouslyexercise their full criminal jurisdiction.

How does one determine whether the federal, state, or tribal government has jurisdiction to prosecute and punish crimes committed in Indian country in Montana?
 The answer to this question depends on a number of factors, including:
  (1) the location of the crime;
  (2) the type of law violated; and
  (3) whether the victim or perpetrator was an Indian or non-Indian.

What federal statutes determine criminal jurisdiction in Indian country?
 (1) the General Crimes Act;
 (2) the Assimilative Crimes Act;
 (3) the Major Crimes Act; and
 (4) Public Law 83-280.

General Crimes Act (often called the Federal Enclaves Act):
 Under federal law, there are criminal offenses, such as an assault on a federal officer,that are applied nationally without regard to the location of the offense. The federalgovernment has exclusive jurisdiction over these crimes, whether they occur in Indiancountry or elsewhere. In addition to these crimes of nationwide application, federal criminal law contains references to crimes that apply to those areas under the soleand exclusive jurisdiction of the United States government. These areas are knownas " federal enclaves" and initially included military installations and national parks.

 In 1817, Congress enacted a jurisdictional statute, the General Crimes Act, See footnote 42 which was also known as the Federal Enclaves Act, providing that with certain exceptions, federal criminal laws apply in Indian country to the same extent that they apply inother federal enclaves. The Act was originally passed to permit punishment of all crimes committed by non-Indians in Indian territory, as well as some crimescommitted by Indians against non-Indians. Such crimes, at the time, were assumedto be beyond the reach of state or tribal law. Today, the Act's primary function is toprovide for prosecution of crimes by non-Indians against Indians and of nonmajorcrimes by Indians against non-Indians.

 In 1825, Congress enacted a second jurisdictional statute known as the Assimilative Crimes ActSee footnote 43 that provided that state criminal laws not otherwise included in the federal criminal code were incorporated into federal law by reference and madeapplicable to federal enclaves. A violator of the Assimilative Crimes Act is charged with a federal offense and is tried in federal court, but the crime is defined and thesentence is prescribed by state law.

Does the Assimilative Crimes Act apply to Indian country?  Yes. In 1946, the U.S. Supreme Court ruled that the Assimilative Crimes Act appliesin Indian country. See footnote 44 Under this ruling, the criminal laws applicable to Indian country and subject to federal jurisdiction include both federal enclaves crimes and statecrimes not otherwise included in the federal criminal code. The Assimilative CrimesAct is relevant because it is one of the general laws of the United States that isextended to Indian country by the General Crimes Act.

Are there any exceptions to the General Crimes and Assimilative Crimes Acts?
 Yes. The scope of the General Crimes Act and the Assimilative Crimes Act is limited

by two statutory exceptions and one judicially created exception. The exemptionsinclude:
  (1) offenses committed by one Indian against the person or property of another Indian;
  (2) offenses over which criminal jurisdiction has been conferred on a particular tribe by treaty; and
  (3) according to Supreme Court cases, See footnote 45 crimes committed in Indian country by a non-Indian against another non-Indian.

 The General Crimes Act extends only to crimes in which an Indian is involved aseither a defendant or a victim.

Major Crimes Act:
 In 1885, Congress's policy of not asserting federal criminal jurisdiction over Indian versus Indian crimes was reversed by passage of the Major Crimes Act. See footnote 46 The Act came in response to an 1883 Supreme Court ruling See footnote 47 in which the Court had ordered federal officials to release an Indian who had murdered another Indian because thegovernment did not have jurisdiction over reservation crimes committed by one Indianagainst another.
 
 Congress reacted to this decision by passing the Major Crimes Act, which gave the federal government jurisdiction over seven major crimes when committed by an Indian against the person or property of any other person in Indian country. The Major Crimes Act has been amended several times and now covers more than a dozen crimes. Unlike the General Crimes Act, the Major Crimes Act applies only to Indians. Today, the Major Crimes Act is the primary federal jurisdictional statute for major offenses committed by Indians in Indian country.

Public Law 83-280:
 Public Law 83-280 See footnote 48 was passed by Congress in 1953. A product of the "termination" era, P.L. 280 gave six states mandatory and substantial criminal and civil jurisdiction over Indian country within their borders. In these states, P.L 280gave the states the same power to enforce their regular criminal laws inside Indiancountry that they had always exercised outside it. State law supplanted federal law. The General Crimes Act and the Major Crimes Act no longer applied. Other  states,including Montana, were given the option to acquire similar jurisdiction in Indiancountry, and tribal approval was not required until 1968.

 From the outset, P.L. 280 was criticized by tribes and states. States resented beingdirected to provide law enforcement services with no federal assistance, and tribesresented state jurisdiction being forced upon them without their consent. This jointdissent led to amendments to P.L. 280, which now requires tribal approval andprovides a process for states to "retrocede" or transfer back jurisdiction to thefederal government. In Montana, only one reservation, the Flathead, was affected byP.L. 280. (See chapter on Public Law 83-280 for discussion of the law in Montana.)

Are there any limitations to a state's criminal jurisdiction under P.L. 280?
 Yes. Public Law 280 contains express exceptions See footnote 49 to criminal jurisdiction to preserve the trust status of Indian property and to protect Indian treaty rights. ReservationIndians are not required to comply with state law on zoning, hunting, or fishing or topay property taxes on trust land, and the state may not impose criminal penalties forfailure to do so. See footnote 50

Does P.L. 280 grant a state jurisdiction to impose all state law defining offenses and imposing penalties in Indian country?
 No. In a 1987 decision, See footnote 51 the United State Supreme Court ruled that a state could not enforce its gambling laws on Indian land because the laws were regulatory innature, not criminal. To determine whether a law was criminal/prohibitory orcivil/regulatory, the Court stated:

  [I]f the intent of a state law is generally to prohibit certainconduct, it falls within Pub. L. 280's grant of criminaljurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified ascivil/regulatory and Pub. L. 280 does not authorize itsenforcement on an Indian reservation. The shorthand test iswhether the conduct at issue violates the state's public policy. See footnote 52

Does a tribe have criminal jurisdiction over a non-Indian committing a crime in Indian country?
 No. Until 1978, it was believed that a tribe retained sovereign powers unless those powers were specifically removed by Congress or relinquished by treaty. In a 1978decision, See footnote 53 the United State Supreme Court ruled that powers not implicitly removed as a result of an Indian tribe being incorporated within the United States do not existunless delegated to tribes by Congress. Absent congressional authority, the Courtruled that tribes may not exercise criminal jurisdiction over crimes committed againstIndians on Indian land by non-Indians. Jurisdiction over these crimes on sixreservations in Montana resides with the federal government or, on the FlatheadReservation because of P.L. 280, with the state.

Guidelines for Criminal Jurisdiction

Jurisdiction

Location of Crime  Federal State Tribal

1. Outside Indian Country (Indian defendant)

A. Federal law involved Yes No No
B. State law involved No Yes No
C. Tribal law involved No No  #Maybe

2. Inside Indian Country (Indian defendant)
P.L. 280 state  No Yes No

3. Inside Indian Country
No P.L. 280 state

A. Crimes by I vs. I
1. Major Crimes Act Yes No No *
2. Other crimes No No Yes

B. Crimes by I vs. NI
1. Major Crimes Act Yes No No *
2. General Crimes Act Yes No Yes **
3. Assimilative Crimes Act Yes No Yes

C. Crimes by NI vs. I
1. General Crimes Act Yes No No
2. Assimilative Crimes Act Yes No No

D. Crimes by NI vs. NI No Yes No

E. Victimless/Consensual Crimes
1. Crimes by I No No Yes
2. Crimes by NI  Yes ***
a. General Crimes Act Yes Yes * No
b. Assimilative Crimes
Act  Yes Yes * No
# If tribal member involved.

* Law is unsettled in this area.

** If prior punishment by tribal court or if tribal jurisdiction is established by treaty or statute, federal jurisdiction under General Crimes Act is withheld.

*** Some statutes permit concurrent jurisdiction.

Source: American Indians Today, Utter, 1993, p. 157

TRIBAL GOVERNANCE

How do Indian tribes govern themselves?
 Most tribal governments are organized in much the same way as state and localgovernments. Legislative authority is vested in an elected body often referred to as a tribal council, although it can be known by other names, such as business committeeor executive board. The council members can be elected either by district or at large. In some instances, the members are nominated by district but are elected at large. The council governs the internal affairs of the tribe with one important exception. Many tribal resolutions and ordinances may be subject to review by the Secretary ofthe Interior. In some instances, the Secretary may have veto power over tribalordinances.

 Executive authority is exercised by a presiding officer often called a tribal chairman. The chairman can be elected either at large or by the members of the council. Theduties of the chairman are often not spelled out in the tribal constitution or bylaws. Therefore, the role of the chairman often depends on the governing structure of thetribe.

 Tribal governments also have a court system. The system can vary from a highlystructured system with tribal prosecutors and tribal defenders and an appellatesystem to a simpler judicial system that operates on a part-time basis. Tribal judgescan be popularly elected or appointed by the tribal council. Tribal judges generally arenot attorneys, but some tribes require preparation for office by administering judicialqualification examinations; tribal court judges all receive judicial training while inoffice. Tribal governments often do not have the "separation of powers" that callsfor an independent judiciary. How independent a tribal court is from a tribal councildepends on the method of selecting judges, council tradition, and the character of theindividual judge. In many ways, this is similar to the federal judiciary that also reliesupon appointed rather than elected judges.

Are modern tribal governments based on traditional governance structures of the Indian tribes?
 No. Most modern tribal governmental structures have their origin in the IndianReorganization Act (IRA) of 1934 (25 U.S.C. § 476). Prior to the arrival of theEuropeans, tribal governments varied from the highly complex, as represented by the roquois League, to the less formal, as represented by the tribes of the Great Basindeserts. However, within this range of complexity were certain commoncharacteristics: the integration of the political with the religious; the importance ofthe tribe over the individual; and consensus decisionmaking.
 
 With displacement and the confinement of tribes on reservations and theestablishment of the Indian agent system by the federal government, traditional tribalgoverning structures were forcibly suppressed. In 1934, the federal governmentpassed the IRA in an attempt to re-establish tribal self-government, but basing it on awestern European model. The BIA drew up a standard constitution that established arepresentative form of government that tribes were free to adopt and that almostthree-fourths of the tribes did adopt, with limited expressions of historic tribalgoverning principles. Tribes that adopted IRA constitutions have revised them overthe years to reflect individual tribal concerns and to exercise greater tribal autonomy. However, the constitutions still retain many of the original provisions.

 One result of the IRA was the creation of a single tribal government for more thanone Indian tribe. This occurred because in some instances, the federal governmenthad placed more than one tribe on a single reservation. In Montana, an example isthe placement of the Assiniboine and the Sioux together on the Fort PeckReservation. The IRA did not allow for separate governments for each tribe. In orderto retain some cultural identity, some tribal governments have made constitutionalprovisions for elected representatives of each tribe to serve on the tribal council. TheFort Belknap Tribes go one step further by requiring the candidates for chairman andvice chairman to run as a team, with one being a Gros Ventre and the other anAssiniboine.

Are there any tribes that did not reorganize under the IRA?
 Yes. Approximately 30% of the tribes in the United States chose not to come underthe IRA. The most notable exceptions are the Navajos and the Pueblos. In Montana,the Crow Tribe rejected the IRA in favor of a general council form of government, in which each enrolled tribal member has a vote if the member attends the generalcouncil meeting. The general council elects the tribal officers who are responsible forthe day-to-day operations of the tribal government. The Fort Peck Tribes alsorejected the IRA and operated with a general council form of government until 1960when a representative tribal council was established.

What types of activities do tribal governments engage in today?
 Tribal governments engage in a number of activities that relate to the governance ofreservation affairs. These activities include: defining conditions of membership;regulating domestic relations of members; prescribing rules of inheritance forreservation property not in trust status; levying taxes; regulating property under tribaljurisdiction; controlling conduct of members by tribal ordinance; administering justice;conducting elections; developing tribal health and education programs; managingtribal economic enterprises; managing natural resources; enacting environmentalprotection; and maintaining intergovernmental relations at the federal, state, and locallevels.

ECONOMIC DEVELOPMENT

The 1990 census data shows that American Indians are the most poverty-stricken group inthe United States. Three of the 10 poorest counties in the country are within Indianreservations. Of the five counties with the highest unemployment rates in Montana, threeare part of Indian country. Annual unemployment rates range from 40% on the FlatheadReservation to nearly 70% on the Rocky Boy's Reservation.

Each of the seven reservations has different material bases for future wealth. The CrowReservation has millions of tons of strippable, low-sulphur coal, as well as abundant acreageof good rangeland. The neighboring Northern Cheyenne Reservation also has large coalreserves in addition to some valuable timber. The Blackfeet Reservation is mostlyrangeland, but there are oil and gas deposits along the Rocky Mountain Front, as well asvaluable water resources and good potential for wind-generated energy. While the Fort Peck Reservation consists of mostly agricultural land, some of which is irrigated, the reservationalso has good oil and gas deposits. Like Fort Peck, Fort Belknap also has irrigatedagricultural land, and though there is a huge gold mine just outside the reservation boundaryand quantities of hard-rock minerals in the mountains, the benefits to people on thereservation are limited. The Rocky Boy's Reservation is the smallest in the state; itsresource base is meager. The Flathead Reservation enjoys the greatest diversity ofresources. The potential for tourism and gaming around Flathead Lake is almost incalculable. The water resources of Indian nations in Montana are considerable and may play key rolesin the future development of reservation-based and regional economies.

How do Indians earn a living in Montana?
 Montana Indians are engaged in much the same variety of occupations as are non-Indians in other mostly rural communities around the state. Government is the chiefemployer on most Indian reservations. Federal and tribal agencies hire Indians tostaff a diversity of programs, ranging from finance to health and welfare to timberand waste management. Education also provides jobs, including administrators,teachers, and support personnel. The seven tribal colleges are important both astraining and learning institutions for both Indians and non-Indians and as a locus ofemployment for highly educated Indians.

 In the private sector, perhaps the most visible occupation in Indian country is farmingand ranching and related activities, such as equipment sales, feed and fuel suppliers,and shops for the maintenance and repair of vehicles. This is a deceptive picture,however. According to the Montana Bureau of Business and Economic Research(which relied on 1990 data), about 40% of the Indian businesses in the state are inthe service sector. The next largest category is retail trade (21%), followed byconstruction (11%), manufacturing (7%), transportation (6%), and agriculture (5%). See footnote 54

 Arts and crafts is a growth industry in Indian country as a subset of tourism and inits own right. There is some controversy over what constitutes authentic Indian art. In response, Congress passed the Indian Arts and Crafts Act of 1990. See footnote 55 Title 30, chapter 14, part 6, of the Montana Code Annotated concerns the sale of imitationIndian art. The statutes require a registered trademark or a label authenticating Indianorigin.

 Indians also receive income from various types of tribal resources, such as per capitadisbursements based on tribal resource royalties, tribal government investments,various trust accounts, and treaty settlements.

 There is some manufacturing. The Montana Indian Manufacturing Network (MIMN) isfunded by the Northwest Area Foundation, assisted by the Montana United IndianAssociation and Eastern Montana College (now MSU-Billings) with organizationaldevelopment. One of the attractive aspects of the MIMN is that companies doingbusiness on an Indian reservation are relieved of a long list of taxes, depending onthe degree of tribal participation. The MIMN was formed to use existingmanufacturing capabilities on a cooperative basis.

 Members of the MIMN are the Blackfeet Indian Writing Company in Browning; theNorthern Cheyenne Industries in Lame Deer; ISC Distributors in Bozeman; FortBelknap Industries, Inc.; Great Divide Manufacturing Company in Wolf Point; A&STribal Industries (ASTI) in Poplar; West Electronics, Inc., in Poplar; Rocky Boy'sManufacturing, Inc., in Box Elder; and S&K Electronics in Pablo.

 In August of 1994, the Fort Peck Tribes declared the reservation an economicdisaster zone after sharp cutbacks at ASTI reduced the full-time workforce from ahigh of 500 employees during Desert Storm to 5 employees. This misfortune pointsto the vulnerability of manufacturing enterprises that are wholly dependent on federalcontracts. The decrease in defense spending forced ASTI to lay off over 75% of itsworkers in 1993. The Rocky Boy's enterprise is reportedly on the verge of shuttingdown completely. S&K Electronics in Pablo has one private sector arrangement toproduce medical bags and is certified as a minority contractor under a United StatesSmall Business Administration program. The members of MIMN recognize that all are in need of commercial marketing expertise and private capital to reduce their relianceon federal contracts.

Why are unemployment rates so high and incomes so low on the Indian reservations in Montana?
 Conditions on Indian reservations are similar to those in developing countries. The lack of certain key resources, such as financial capital, leads to shortages of otherresources, such as adequate water and sewer systems. Disincentives for capitalinvestment include out-migration of educated workers, the underdevelopedinfrastructure, a disadvantaged labor force, the inability to use land assets ascollateral, and vulnerability to double taxation.

 Poverty begets poverty. Wage levels are low; manufacturing jobs pay only $5 to $7an hour. Tribal members suffer from relatively low levels of education and training.There is an absence of finance capital (only one Indian bank) in Montana's Indiancountry. Because most land is held in trust, a lack of collateral makes it difficult fortribes and individual tribal members to obtain business loans. The downsizing offederal defense contracts has reduced the demand for Indian manufactured products. Substandard water and sanitation, transportation and communication, and housingmake it difficult to attract and retain business investors.

What are some of the major barriers to economic development on Indian reservations?
 There are a number of barriers that prevent tribes and tribal members from developingviable economic activities on Indian reservations, including the following:
 * requirement of federal approval for land sales and encumbrances, such as mortgages;
 * jurisdictional complexity;
 * complicated, checkerboard patterns of land ownership;
 * underdeveloped infrastructure;
 * perception among investors that Indian country is politically volatile;
 * vulnerability of firms to double taxation (state and tribal) of operations on Indian reservations;
 * reluctance of some outside business interests to invest in Indian country when conventional remedies for breach of contract may not always be obtainable.

Aren't there a host of federal aid programs designed to boost economic development on Indian reservations?
 There are some programs, but they are limited in scope and magnitude. The BIA administers a number of financial assistance programs for economic developmentprojects. The Indian Revolving Loan Fund will lend up to $350,000 per project toeconomic enterprises that will contribute to an Indian reservation's economy. TheIndian Loan Guarantee Fund provides loan guaranties for tribes and individual Indiansfor any purpose consistent with Indian economic development, including loans foreducational purposes. The Indian Business Development Grant program providesseed capital for profit-making businesses on or near reservations. In addition tofinancial assistance, the BIA operates business promotion and technical assistanceprograms that publicize investment potential on reservations and assist Indianbusinesses to get established or to expand facilities.

 The Economic Development Administration (EDA) in the U.S. Department ofCommerce provides grants or loans to fund public works projects, such as industrialparks, recreational facilities, and water and sewer systems. The EDA also providesplanning grants to Indian organizations to develop long-range economic developmentplans.

 The U.S. Small Business Administration administers a special certification program toassist small, minority-owned companies to grow into viable, competitive businesses. The 8(a) program, as it is known, also helps federal agencies to meet mandatedminority business development goals. Program benefits include the provision of skillstraining, technical assistance, and limited financial aid. Indian entrepreneurs andtribally owned enterprises are both eligible to compete for contracts under thisprogram. (Sovereign immunity must be waived.)

 The U.S. Department of Transportation administers a Disadvantaged BusinessEnterprise (DBE) program for minority businesses that are qualified to participate infederal highway construction. The DBE program provides supportive services, suchas help with marketing, business plans, financial accounting, and advertising. At theend of 1993, there were 45 Indian-owned firms certified as DBEs. (The MontanaDepartment of Transportation maintains a directory of Indian DBEs in the state.)

 Funding for most Indian aid programs has gone down in recent years. A March 1994Congressional Research Service report found that, after taking inflation into account,funding for every major program benefiting Indian country (BIA; Office of IndianEducation; and HUD's Indian housing effort) has fallen off over the past 20 years. Only the Indian Health Service has enjoyed increased funding. See footnote 56 In addition, some programs intended to benefit Indian nations do not result in appreciable gains, eitherbecause so much of the capital outlay is absorbed by administrative overhead costsor because tribal governments lack the technical expertise (or patience) to complywith heavy paperwork and recordkeeping requirements.

 President Clinton's 5-year, $500 billion deficit reduction plan includes two provisionsfor Indian reservations: an employment tax credit and a property depreciation taxdeduction. Both are aimed at attracting private industry to reservation areas. Theemployment tax measure provides a single-rate, 20% wage credit for the first$20,000 of qualified wages and health insurance costs paid to an Indian employee. The property depreciation feature is not likely to have much effect because Indiangovernment enterprises are not liable for federal taxes anyway, except for personalincome taxes.

If economic conditions are so bad on the reservations, why don't the people just leave and move to where the jobs are?
 It is dangerous to generalize, and each individual has different reasons for deciding to stay or move on. American Indians typically have strong ties to their homeland andto their extended families. Maintaining them across great distances is difficult and expensive. This is not unlike other people in Montana whose families have inhabitedthe same area for generations. Many Indians feel strong attachments to the land aswell as to their home communities. Also, the prospects for succeeding off thereservation are not great. Off the reservation, many Indians end up stranded withoutadequate income (if they have any employment at all) and no networks or other basesof support to help them struggle through rough times. Although jobs are moreplentiful in the metropolitan areas of the country, there is no guaranty that relocationwill reap any reward, let alone benefits that exceed the incalculable worth of being athome with friends, relatives, and legal protections in the trust relationship with thefederal government.

 Urban Indians face additional barriers and challenges, and they may not qualify forthe benefits afforded federally recognized tribes. A mere 1% of the Indian HealthService budget is allocated to medical clinics and related facilities in urban areas. Indian families in urban areas are sometimes discriminated against in their search foraffordable housing and jobs.

Is there evidence of economic success and positive potential among the Indian nations in Montana?
 Yes, quite a bit. Growth in the gaming industry is the most visible example ofeconomic success in the making, even though it is fraught with controversy and hasnot progressed as far in Montana as in other states with significant Indianpopulations.

 The Inter-Tribal Bison Cooperative (ITBC) is a consortium of 32 tribes, including theCrow, Blackfeet, Confederated Salish and Kootenai, Gros Ventre and Assiniboine atFort Belknap, and the Northern Cheyenne. The ITBC is a nonprofit cooperativefunded through grants and donations. The ITBC's mission is to restore buffalo to theIndians as a means of cultural enhancement, ecological restoration, and economicdevelopment that is compatible with the cultural and spiritual beliefs and practices ofthe member tribes. The number of buffalo among member tribes increased from 3,000 in 1990 to over 5,000 today. The U.S. Department of Agriculture hasrecognized tribal buffalo programs as examples of sustainable agriculture.

 The Montana Arts Council received a $25,000 Rural Development Project matchinggrant from the national Endowment for the Arts to use Blackfeet cultural resources asa tool for economic development. The grant will support Blackfeet crafts and culturalprogramming at Glacier National Park to replace nonlocal, non-Indian programs. Theproject is using arts and culture to renew community spirit, provide jobs, and enablemore people to learn about traditional ways.

 The Montana Community Foundation selected Browning to be one of three "BeaconCommunities" in Montana to participate in a rural revitalization program funded bythe Ford Foundation. The town will receive $350,000 over 3 years to develop arecycling center that will in turn serve as a hub for spinoff cottage industries and jobtraining programs.

 High school graduates on the Fort Belknap, Blackfeet, and Flathead Reservations havenew opportunities to work at day-care centers, Head Start, alcohol rehabilitationprograms, and parks maintenance jobs under Montana AmeriCorps, a federal initiativelaunched in September of 1994.

 The main goal of the Council of Energy Resource Tribes is to improve the flow ofprimarily private capital to Indian nations so that they reta