Separation of Powers: State-Tribal Relations and Interstate Compacts
Native American tribal governments are sovereign, self-governing entities. Much like state governments, tribal governments are responsible for the health, safety and welfare of their citizens and their communities. Tribal sovereignty pre-dates the formation of the United States and is recognized through the U.S. Constitution and numerous federal statutes and court cases. Tribal governments are on equal footing with state government and have a government-to-government relationship with federal government. The sovereignty of each entity necessitates a government-to-government relationship at the state and tribal levels as well.
States and tribes have adjacent jurisdictions, with some tribes crossing into the boundaries of more than one state. These bordering jurisdictions are a key reason why state-tribal relationships are necessary. In addition, services are now provided by tribal government to members and non-members who reside on or near the reservations. This makes coordination between state and tribal agencies and service providers essential. There also is an increasing desire to ensure that services provided to tribal members through state programs are culturally-competent in order to increase effectiveness. Finally, tribal citizens are also citizens of the state in which they reside. State legislators have a responsibility to provide for the well-being of all state citizens, tribal and non-tribal alike. The health and well-being of tribal citizens and tribal communities enhance the overall health of a state. In short, strong tribes contribute to strong states.
Intergovernmental agreements and state-tribal compacts are one tool in promoting positive state-tribal relationships and fostering collaborative policy development. There are many policy issues and aspects of Indian law that require a high degree of state-tribal cooperation. The Indian Child Welfare Act (ICWA), taxation, public safety, emergency response and criminal jurisdiction and law enforcement are some of the key areas that can benefit from formalized agreements. Much as interstate agreements allow for government-to-government cooperation, state-tribal agreements accomplish the same end. This type of state-tribal cooperation allows the parties to tailor policy solutions to local situations while respecting state and tribal sovereignty. Consultation and cooperation through the agreement/compact negotiation and formation process can help policymakers avoid legislation that produces unintended consequences and spare the parties the potential costs of litigation.
Negotiating Interstate Compacts
Interstate compacts are critical tools that allow states to cooperate with other states, Indian tribes or foreign jurisdictions on issues that cross jurisdiction boundaries. Legal authority for interstate compacts starts with the U.S. Constitution, which provides that "no state shall without the consent of Congress…enter into any agreement or compact with another state or with a foreign power." But, after federal authorization is established, a significant legal question remains: which branch of state government gets to negotiate the compact on behalf of the state, the executive or the legislative?
The question of negotiation authority is important for all compacts and vitally important for compacts related to controversial topics. In particular, it is important to establish whether the state's chief executive can negotiate compacts without oversight or input from the legislative branch. The powers of the state executive and legislative branches are determined by individual state constitutions. Negotiation authority can vary within a state depending on the compact topic and court interpretations of constitutional provisions. In some examples, constitutional provisions prevent the legislature from delegating authority for particular issues to the executive branch.
- Florida: Attorney General's Opinion AGO 2007-36, "Indian Gaming Compact--Legislature," 2007
- NCSL: NCSL State-Tribal Relations Website
- Wisconsin: Wisconsin Legislative Council, "Wisconsin Supreme Court Decision on Indian Gaming Compact [Panzer v. Doyle]," 2004
- Wisconsin: Wisconsin Legislative Council, "State-Tribal Relations," Wisconsin Legislator Briefing Book 2013-14
- Jim Rossi, Constitutional Isolationism and the Limits of State Separation of Powers as a Barrier to Interstate Compacts, 90 Marq. L. Rev. 721 (2007)
- Steven Andrew Light, Indian Gaming and Intergovernmental Relations: State-Level Constraints On Tribal Political Influence Over Policy Outcomes , 38 Am. Rev. of Public Administration 225 (2008)
- Kathryn Rand, Caught in the Middle: How State Politics, State Law, and State Courts Constrain Tribal Influence over Indian Gaming, 2007
- Tulsa Law Review: The Commission on State-Tribal Relations: Enduring Lessons in the Modern State-Tribal Relationship the Modern State-Tribal Relationship, 2012
Receiving Information and Recommending Additions
If you have any questions, please contact Brenda Erickson. Also, please contact Brenda if you would like to recommend legislative resources or case that may enhance the Separation of Powers website.