It’s always good to go to the source, Zab, but that reply isn’t the clearest thing I’ve ever read. So they are basically saying that their law gives them the right to exclude, regardless of free speech protections? I guess that will be up to the courts to decide if anyone ever sues over it.
Read it again, there are two states with laws that set a precedence.
In the USA Indian Tribes aren’t really sovereign. In many ways, each is like a little State, not like a Nation. At best, you could call them “semi-autonomous”. None have the power to make treaties with foriegn nations, declare war, print currency, leave the Union, or so forth. They all fall under the US Constitution. Yes, technically they can say they agreed to do this under a treaty, but so can many of the States when they petitioned to join the Union as a State. AFAIK, no US Tribes are recognized by Foriegn nations as soveriegn, none are part of the UN, and no US tribes maintain diplomatic relations with foriegn powers- although there is some talking back and forth with their fellow tribes in Canada, to be sure. Being able to make treaties with foriegn powers is pretty much the “proof test” for a true sovereign nation.
However, pretty much they can do whatever a State can do- allow gambling, etc. The State in which borders the Tribe exists doesn’t have much authority over that Tribe, and what little they do have is by mutual agreement.
However, a State could pass such a Law, also*. The difference being that- that State’s Supreme Court would likely rule it UnConstitutional. Not nessesarily so with a tribe as in some cases their Council has that authority. In this case, we’d have to wait for SCOTUS, and they have much bigger fish to fry.
- The various States have passed quite a few laws which were UnConstitutional.
Tribes aren’t exactly autonomous from the states in which they are located. The tribes in Idaho, for instance, can only have gambling machines that, in essence, duplicate the Idaho state lottery. They cannot have full casinos. This is due to some sort of compact they have with the state. If the states truly did not have any authority over them, tribes would do much more than they are doing now in terms of gambling.
There are also a variety of cases involving state cigarette and gasoline taxes on reservations. I don’t think there is one national standard in terms of state authority over tribes.
Whoa, how did I get sucked back into this? I did not state anything, all I said was
If anything, I was asking for more information. Since the Phelps are not protesting on tribal land, but on land outside the reservation, I think the issue is moot anyway.
Indeed, the States do not have any authority over a Tribe. However, what’s to stop the State from deciding to close down the highways that lead into a Reservation? Or, as I beleive happened once for Cig taxes- stop every car coming out?
Tribes need the cooperation of States much more than States need the cooperation of other states- no state is encirled completely by a single other state for example.
Thus, the Tribes and the States make agreements, such as in the case with Indian casinos.
Meh. I’m still hoping for a meteor strike on the Phelps compound. Either that or they protest at the funeral of the beloved younger sibling of the leader of a group of Hells’ Angels.
I would totally pay to see that.
The Phelps group was supposed to protest here a few weeks back - and my newspaper that I work at ran a story about it, and they showed up, took one look from their hotel room at all of the people who had showed up to beat the crap out of them, and bolted.
~Tasha
Which? The meteor strike or the angry Hell’s Angels?
Not that I can arrange either, of course. Reports that I am developing a bolide-recruitment-and-targeting-system are vicious canards put about by my enemies.
If I may wade in . . . .
This is not strictly correct. Tribes are “quasi-sovereign” entities, which possess all rights of sovereignty that have not been divested from them by federal law. Which tribes are accorded federal recognition is also a matter of federal law, and only federally-recognized tribes are accorded “quasi-sovereign” status. There is an obvious contradiction in this, namely that an entity that has had “some” of its sovereign powers divested from it is not really a sovereign entity – hence the use of the not-governmentally-accepted, frowned-on-by-the-Tribes shorthand, “quasi-sovereign.”
For the same reasons, this also is not correct. The tribes are considered separate nations for many purposes (including, importantly, sovereign immunity) and do not have to abide by many U.S. laws. For example, OSHA (Occupational Safety and Health Administration), FOIA (Freedom of Information act), and the ADA (Americans with Disabilities Act) generally do not apply to Indian tribes. (Note there is a split of authority on the OSHA issue, with most courts concluding it cannot be applied to Tribes without their consent.) Although individual Tribal members pay federal income tax like all other Americans (except for trust or treaty income), Tribes do not pay taxes any more than states do. So, respectfully, Renob since you appear to want Zabali to unequivocally admit his/her error, it seems only fair for you to fall on your sword as well.
Here is a very brief overview of tribal sovereignty.
Roads and sidewalks are neither inherently private nor inherently public. Some are public rights of ways and some are publicly owned. You could pave your whole front yard with sidewalk squares; that wouldn’t make it public land. By the same token, some roads through the reservations are privately owned, some are owned and maintained by the Tribe, and some are owned and maintained by the state or federal government. The Tribes generally are not interested in asserting authority over state highways because they don’t want to pay to maintain them. Even in this area, the “quasi-sovereign” nature of the Tribe comes into play: Generally, state law enforcement officers have the right to stop non-Tribal members for traffic offenses on the rez, but lack the power to do so to Tribal members.
Congress made the Bill of Rights applicable to the Tribes by the Indian Civil Rights Act of 1968. You are correct in noting that there is no constitutional requirement that the Bill of Rights extend to the Tribes. It is worth noting that the rights protected by the Bill of Rights (including the right to free speech) have been explicitly adopted by the Mandan-Hidatsa-Arikara Nation in their constitution, that being the Tribe at issue in this case.
Under certain circumstances, governments certainly can ban certain types of speech from public rights-of-way – provided the bans are content-neutral and very narrowly drawn. Such laws are subject to strict scrutiny and tend to be disfavored, but they do exist and have been upheld, thanks in no small part to Mr. Phelps and others of his ilk (like abortion clinic protesters) who have behaved so manifestly offensively that courts have – in some cases reluctantly – determined that some regulation (like requiring them to remain X feet away, or requiring them to refrain from hate speech) is appropriate.
Tribes are in fact almost completely autonomous from the states in which they are located – unless they choose to be otherwise, or unless directed to be otherwise by the federal government, not by the state government. The states have almost zero power to assert independent authority over the Tribes. The general rules for Tribal gaming (and the requirement that states negotiate in good faith to allow it are set forth in the Indian Gaming Regulatory Act, which is a federal law, not an extension of state law.
Indian law and Indian tribal sovereignty is a very complicated area. In this case, it is not clear to me if the Tribe passed a content-neutral, “stay X feet away” law or if it simply banned the Phelps from coming on the rez, period. The allusion in the e-mail sent to Zabali of patterning the resolution on Kansas and Colorado law would seem to indicate the former, while the language of the linked article would seem to indicate the latter. If the Tribe did just ban these people from the rez entirely, they probably would not be out of line to do so – reservations are not public land and no non-Tribal member has an inherent right to trespass upon them. (Crossing them on, say, a federal interstate is another story, but that’s not what we’re talking about.) But I can’t speak to that with any authority, because I have been unable to find a copy of the resolution on the web. Personally, I have no problem with the Tribe saying such hateful people are not welcome on their lands.