The Evaluation of the Tribal Welfare-to-Work Grants Program: Initial Implementation Findings. Legal Status of Tribes and Indian Self-Determination


The legal status of tribes affects their economies, relations with governments (federal, state, county, and local), and relations with private-sector businesses. The legal-political status of Indian tribes is reflected in treaties, legislation, and administrative and judicial decisions. Collectively, these treaties, statutes, and administrative and judicial decisions are often referred to as "Indian law." (1)

Early in its history, the United States regulated many aspects of Indian affairs, by military conquest, treaty, and legislation. The U.S. government regulated where tribal members could live (for example, reservations), hunt, and fish. Laws were passed that encouraged (or required) tribes to adopt particular forms of government, policies, or procedures. (2) In some cases, children were forced to leave their families to attend Bureau of Indian Affairs (BIA) boarding schools, where non-Indians prescribed the language they spoke, the religion they practiced, and the material they studied. (3) A goal of federal policy was to eliminate the language, traditions, religion, and customs of the tribe and to replace them with those of European descent. (4) The United States also established trust responsibility for Indian tribes. In an 1831 Supreme Court case, Chief Justice John Marshall held that Indian tribes are "distinct political communities that [are] domestic dependent nations" whose "relation to the United States resembles that of a ward to his guardian." (5)

In the 1970s, federal policy shifted to support Indian self-determination, with passage of the Indian Self-Determination and Education Assistance Act of 1975 (ISEAA). This law was subsequently amended and expanded to promote Indian self-governance, and a series of presidential proclamations and directives has supported a "government-to-government" relationship between the United States and tribes. Starting in 1975, tribes have had the option of taking over operation of all or a portion of their education and, subsequently, their health programs. In addition, tribes have been able to operate education, training, and employment programs such as JTPA and JOBS, funded by DOL and DHHS, respectively. PRWORA gave the tribes the opportunity to take responsibility for the relatively small WtW and NEW programs, as well as for the relatively large TANF program. At each step, Congress and federal agencies have consulted with tribes and have provided for tribal operation of programs associated with welfare reform.