Cody McBride

Placing a Limiting Principle on Federal Monetary Influence of Tribes

American Indian tribes are strange sovereigns. Though subject to the ultimate sovereignty of the United States in many ways, tribes retain powers that have not been explicitly divested by federal statute or treaty, or implicitly divested by restraints of tribes’ protectorate relationship with the United States. Defining tribal membership is one undivested power, and the federal government, including the Supreme Court, has recognized that particular power’s importance to tribes. Even so, this power, as well as others currently nondivested, appear to be subject to congressional influence should Congress choose to act.

In fact, Congress has chosen to act, and it uses many methods to do so. One such method, monetary influence, is particularly problematic. Because of its historical policy towards Indians, the United States is responsible for tribes and tribal peoples’ reliance on federal services and programs. Moreover, unlimited monetary influence makes it harder for tribes to plan to escape this reliance, and defunding of federal services and programs negatively impact tribal members in ways unrelated to the underlying dispute. When federal influence is necessary, there are better methods for Congress to use. With these things in mind, Congress should not seek to influence tribes through defunding or threats thereof. This is especially true for tribal decisions regarding fundamental, nondivested powers. Yet monetary influence of fundamental, nondivested powers happens.

A striking example of monetary influence is the federal government’s withholding of funding from and threat to sever its government-to-government relationship with the Cherokee Nation until the Nation reinstated as tribal members the Cherokee Freedmen. The Freedmen are descendants of Cherokee-owned slaves who were granted Cherokee citizenship in the Treaty of 1866. A 2007 amendment to the Cherokee Constitution purported to revoke Freedmen citizenship.

Given the complicated relationship between tribes and the federal government, a limiting principle is needed to incentivize Congress to use other methods. Existing legal doctrines are insufficient, so the search must turn elsewhere. Federalism provides a compelling principle in an analogous situation: federal monetary influence of states. The induce-compel principle limits Congress to using funds to “induce” state actions that have some relationship to those funds; Congress cannot “compel” actions. I propose that the induce-compel principle be applied to congressional monetary influence of tribes. Though arguably mild, the principle has teeth, as it likely would have prevented congressional defunding of the Cherokee Nation and certainly would have prevented severance of the Nation’s government-to-government relationship with the United States. More importantly, adoption of such a principle would give tribes more true sovereignty.