In the event the federal government dissolved, what would happen to the Native American reservations

[WalterWhite]

If the federal government dissolved (which is not happening any time soon), what would happen to the tribal governments and the territory they control? Would these tribal governments be under the control of the state (now national) government? Would these tribal governments be under the control of the government of the District of Columbia? Would these tribal governments be independent and control their own territory?

[Blue3]

I think this is one of the least important questions to ask, if the federal government dissolves.

[Donerail]

Tribal sovereignty predates the United States and would persist after it.

[Libertas Vel Mors]

Tribal sovereignty predates the United States and would persist after it.

Tribal sovereignty is a myth that is theoretically enforced by the federal government holding "Indian land" in trust and thus stopping state sovereignty from going into effect. If the federal government ceased to exist, "Indian land" would be held by the states under the same provisions as any other state land, and the reservations would disappear.

[Ferguson97]

They would be at war with white supremacist militias.

[BigZuck08]

I think they would fall under the control of the state government, though some might try to gain outright independence, and it would turn to a big fight.

[Donerail]

Tribal sovereignty predates the United States and would persist after it.

Tribal sovereignty is a myth that is theoretically enforced by the federal government holding "Indian land" in trust and thus stopping state sovereignty from going into effect. If the federal government ceased to exist, "Indian land" would be held by the states under the same provisions as any other state land, and the reservations would disappear.

Wrong, see above. States lack sovereignty over tribes, which are not organized under or subject to state law. This is why tribes cannot, for example, be subject to suit in state courts, regardless of whether they have trust land. There are also certain tribes that exercise all the usual powers of tribes over their land despite holding it in fee simple themselves, as opposed to the federal government holding it in trust.

[Blue3]

There’s the weird legal speculation… but if this were to happen, all legal arguments would be void, and it would depend on who’s willing to fight and who wins those fights.

[dead0man]

Tribal sovereignty predates the United States and would persist after it.

Tribal sovereignty is a myth that is theoretically enforced by the federal government holding "Indian land" in trust and thus stopping state sovereignty from going into effect. If the federal government ceased to exist, "Indian land" would be held by the states under the same provisions as any other state land, and the reservations would disappear.

Wrong, see above. States lack sovereignty over tribes, which are not organized under or subject to state law. This is why tribes cannot, for example, be subject to suit in state courts, regardless of whether they have trust land. There are also certain tribes that exercise all the usual powers of tribes over their land despite holding it in fee simple themselves, as opposed to the federal government holding it in trust.

and what would stop a state from changing it's laws on the subject?  If the Federal govt went away, but the state govts didn't, all previous Federal rules wouldn't exist.  The individual states would have to write new laws concerning NA land.  I would assume most state govts would keep them around under a similar situation, but some might not.  There isn't much the Native Americans would able to do about it if the state wanted to be dicks about it.

[Stranger in a strange land]

The key questions to ask here are what, if anything, would replace the federal government, and what's causing the federal government to dissolve? "The 50 states all become independent countries" isn't feasible because many states aren't viable as independent countries

[Donerail]

Wrong, see above. States lack sovereignty over tribes, which are not organized under or subject to state law. This is why tribes cannot, for example, be subject to suit in state courts, regardless of whether they have trust land. There are also certain tribes that exercise all the usual powers of tribes over their land despite holding it in fee simple themselves, as opposed to the federal government holding it in trust.

and what would stop a state from changing it's laws on the subject?  If the Federal govt went away, but the state govts didn't, all previous Federal rules wouldn't exist.  The individual states would have to write new laws concerning NA land.  I would assume most state govts would keep them around under a similar situation, but some might not.  There isn't much the Native Americans would able to do about it if the state wanted to be dicks about it.

For the same reason Ohio cannot write laws and expect them to have any force in Tennessee. States have no power to "write laws concerning NA land" — tribes are separate sovereigns.

[dead0man]

For the same reason Ohio cannot write laws and expect them to have any force in Tennessee. States have no power to "write laws concerning NA land" — tribes are separate sovereigns.

and if Oklahoma changes it's laws post dissolve of the Feds, who is going to stop them?

[I spent the winter writing songs about getting better]

Tribal sovereignty predates the United States and would persist after it.

Tribal sovereignty is a myth that is theoretically enforced by the federal government holding "Indian land" in trust and thus stopping state sovereignty from going into effect. If the federal government ceased to exist, "Indian land" would be held by the states under the same provisions as any other state land, and the reservations would disappear.

Wrong, see above. States lack sovereignty over tribes, which are not organized under or subject to state law. This is why tribes cannot, for example, be subject to suit in state courts, regardless of whether they have trust land. There are also certain tribes that exercise all the usual powers of tribes over their land despite holding it in fee simple themselves, as opposed to the federal government holding it in trust.

Wait, so does this mean that any Reservation could legalize and start selling marijuana in any state?

[dead0man]

The key questions to ask here are what, if anything, would replace the federal government, and what's causing the federal government to dissolve? "The 50 states all become independent countries" isn't feasible because many states aren't viable as independent countries

1.there are a lot of currently independent countries that aren't viable
2.I'd assume there would be new, smaller, Federal entities formed in the various regions, certainly some currency sharing would be in the works*
3.lists have three things


*the ways this is going to play out in the midwest states with big cities is going to be interesting.  I could see a further fracturing of states if such a situation were to play out.  It could get ugly fast.  Imagine if 85% of Illinois left the state of Illinois because they hated Chicago and Chicago tried to use force to bring them back inline?

[SteveRogers]

The key questions to ask here are what, if anything, would replace the federal government, and what's causing the federal government to dissolve? "The 50 states all become independent countries" isn't feasible because many states aren't viable as independent countries

Yeah, the OP’s question makes little sense and is impossible to answer without further information.

[Donerail]

For the same reason Ohio cannot write laws and expect them to have any force in Tennessee. States have no power to "write laws concerning NA land" — tribes are separate sovereigns.

and if Oklahoma changes it's laws post dissolve of the Feds, who is going to stop them?

We have seen with the Ukraine situation how democratic nations are willing to band together to fight back against wars of conquest by authoritarian regimes. I would hope we would see similar measures to curb Oklahoma's territorial ambitions and maintain a rules-based international order.

Wrong, see above. States lack sovereignty over tribes, which are not organized under or subject to state law. This is why tribes cannot, for example, be subject to suit in state courts, regardless of whether they have trust land. There are also certain tribes that exercise all the usual powers of tribes over their land despite holding it in fee simple themselves, as opposed to the federal government holding it in trust.

Wait, so does this mean that any Reservation could legalize and start selling marijuana in any state?

No, because marijuana is still listed under the federal Controlled Substances Act — tribes are still subject to federal law. If marijuana became legal federally, then yes, any reservation* could legalize marijuana. "Selling" gets a little more complicated, because a state could still prosecute you if, say, you bought marijuana on the Pine Ridge reservation and then drove back to your hotel room off-reservation. But just having a store on the reservation would probably be okay; I'd expect it would be more focused on on-site consumption/experiences than just a dispensary because of the issue with sales to non-Indians who live off the reservation.

[I spent the winter writing songs about getting better]

Wrong, see above. States lack sovereignty over tribes, which are not organized under or subject to state law. This is why tribes cannot, for example, be subject to suit in state courts, regardless of whether they have trust land. There are also certain tribes that exercise all the usual powers of tribes over their land despite holding it in fee simple themselves, as opposed to the federal government holding it in trust.

Wait, so does this mean that any Reservation could legalize and start selling marijuana in any state?

No, because marijuana is still listed under the federal Controlled Substances Act — tribes are still subject to federal law. If marijuana became legal federally, then yes, any reservation* could legalize marijuana. "Selling" gets a little more complicated, because a state could still prosecute you if, say, you bought marijuana on the Pine Ridge reservation and then drove back to your hotel room off-reservation. But just having a store on the reservation would probably be okay; I'd expect it would be more focused on on-site consumption/experiences than just a dispensary because of the issue with sales to non-Indians who live off the reservation.

Then how do Reservations sell marijuana in states where it's legal if state law doesn't matter? The only place in Minnesota currently where you can buy marijuana (aside from the hemp-derived THC edibles and drinks) is the Red Lake Reservation.

[Donerail]

Then how do Reservations sell marijuana in states where it's legal if state law doesn't matter? The only place in Minnesota currently where you can buy marijuana (aside from the hemp-derived THC edibles and drinks) is the Red Lake Reservation.

DOJ generally (especially under Garland) has taken a hands-off approach to prosecution of marijuana sales in Indian country — there's a document called the Wilkinson memorandum that basically says they won't enforce against tribes selling in states that have legalized it.

[I spent the winter writing songs about getting better]

So if state law doesn't apply on Reservations that actually opens up all sorts of questions, like take driver's licenses, those are issued by the state, so how would people on a Reservation get one? My parents definitely had North Dakota ones while on Standing Rock. Does a suspended license mean you can still drive in one? And what determines penalties for crimes, if you kill someone on a Reservation are you actually charged under some tribal statute for murder instead of the state one?

[Donerail]

So if state law doesn't apply on Reservations that actually opens up all sorts of questions, like take driver's licenses, those are issued by the state, so how would people on a Reservation get one? My parents definitely had North Dakota ones while on Standing Rock. Does a suspended license mean you can still drive in one? And what determines penalties for crimes, if you kill someone on a Reservation are you actually charged under some tribal statute for murder instead of the state one?

It is a lot more complicated than I've explained here so far — your suspended license question is actually up in the air right now, different courts have come down different ways. I can say more when I'm off work.

Your last question is the easiest, because murder is a major crime under the federal Major Crimes Act and would be prosecuted by the federal government (excluding certain states exempted by Public Law 280). Tribes retain concurrent jurisdiction but almost always murder ends up a federal prosecution.

[dead0man]

For the same reason Ohio cannot write laws and expect them to have any force in Tennessee. States have no power to "write laws concerning NA land" — tribes are separate sovereigns.

and if Oklahoma changes it's laws post dissolve of the Feds, who is going to stop them?

We have seen with the Ukraine situation how democratic nations are willing to band together to fight back against wars of conquest by authoritarian regimes. I would hope we would see similar measures to curb Oklahoma's territorial ambitions and maintain a rules-based international order.

that clearly isn't 100% though, there are many examples where we didn't do anything other than send a strongly worded letter.  And in a world without the US military to ferry all our allies around?  California or Canada might piss a fit, but what are they going to do if the states in between tell them to go pound sand?

[Skill and Chance]

In a wildly hypothetical situation where the US federal government no longer exists, it's almost surely the case that NATO no longer exists and the idea of interventions in foreign affairs based on universal human rights doctrine no longer exists.  In a world where the US government cannot survive with its nuclear weapons, oceans, mountains and energy reserves, it's quite plausible that no government on the scale of a modern nation state exists anywhere in the world at this point.  Technology has probably regressed.  I would expect a tendency toward feudalism where land = economic and political status.  There would probably be only a handful of places left where non-landowners can still vote or have other political rights. 

The alternative to this is some of the larger states having centralized governments on the scale of European countries population and economy wise.  In this world, the smaller and less economically self-sufficient states from the Rockies west are effectively territories of California.  Texas can effectively dictate policy to everyone between the Rockies and the Mississippi.  A Florida/Georgia coalition and a New York/Massachusetts coalition split the East Coast between them.  There might be several economically powerful states around the Great Lakes, but without any one being able to dominate its neighbors.  Tennessee takes as much of Appalachia as it wants, etc.  The smaller states would probably be allowed to elect their own governments as a formality, but if they go too strongly against their largest neighbor, they get deposed or switch coalitions if it's geographically viable.

In the first scenario, it would depend on each individual tribe's ability to organize and credibly threaten deadly force against outsiders coming into their land.  Various cultural traditions lead me to think Indian tribes would be better equipped to hold onto their land than the average American in this kind of environment.  But it obviously depends on the tribe, the land they have to defend, and their elected leaders at the time.  Native Alaskan villages almost surely get left alone to do their own thing.  A geographically large, high population, and mountainous reservation like the Navajo seems like it would be impregnable against any opponent without an air force.  Small reservations that lie flat on the Plains might not fare as well.   

In the second scenario, it would depend entirely on what the government of the nearest megastate wanted.  Eastern tribes would have multiple alliances to choose from to get the best deal.  For Western tribes, it's California, Texas, or bust. Today, you might expect them to get a better deal under the protection of California than Texas, but with an imperial California that might be natural resource starved, who knows?  Maybe Texas finds common cause with them because they agree to be the mercenaries who depose rebellious governments in the Plains states whenever needed?

[Donerail]

So if state law doesn't apply on Reservations that actually opens up all sorts of questions, like take driver's licenses, those are issued by the state, so how would people on a Reservation get one? My parents definitely had North Dakota ones while on Standing Rock. Does a suspended license mean you can still drive in one? And what determines penalties for crimes, if you kill someone on a Reservation are you actually charged under some tribal statute for murder instead of the state one?

Okay, so here's how law applies on reservations:

In criminal matters, it depends on the Indian status of the parties involved. Crimes committed by Indians are never under state jurisdiction. Instead, "major" crimes (murder manslaughter kidnapping maiming incest burglary robbery arson etc) fall under federal and tribal jurisdiction concurrently. In practice, these are almost always punished by the federal government, given their resources and given certain limits on sentencing available in tribal court under the Tribal Law and Order Act. "Non-major crimes" (anything not on the list) are under federal and tribal concurrent jurisdiction if the victim is non-Indian and exclusively within tribal jurisdiction if the victim is also Indian (or pursuant to certain treaty provisions). These you much more often see the tribes prosecute, given limited federal resources to prosecute and the fact that sentences tend to be shorter. (It is unclear whether the federal government can prosecute Indians who commit victimless crimes like, say, marijuana possession; one of the many reasons they are reluctant to try.)

Crimes committed by non-Indians against non-Indians on the reservation, assuming they are not independent federal crimes, are punished under the law of the applicable state by state prosecutors. Crimes committed by non-Indians against Indians, on the other hand, typically fall under federal jurisdiction; certain offenses (domestic/dating violence) can also be prosecuted by tribes. The Supreme Court has also erroneously concluded that states also have jurisdiction over these offenses; this was recent, so not clear how much that will change things. And non-Indians who commit victimless crimes on the reservation can definitely be punished by the state; whether the federal government can exercise jurisdiction here is unclear, though that has not stopped them in the past.

For civil laws, federal and tribal laws apply to Indians. States are presumed to have no authority to regulate Indians on Indian land. For non-Indians coming onto the reservation, whether states can apply their law to these individuals is subject to a complex balancing test that comes from a case called Bracker that looks at factors like off-reservation effects of the on-reservation activity, the compatibility of the state regulatory regime with tribal and federal law, whether value is being produced in or outside of Indian country, the extent of the state activity, and the backdrop of tribal sovereignty.

Whether tribes can apply their civil laws to non-Indians coming onto the reservation, meanwhile, is even more complicated and varies widely by subject matter and by which federal circuit the reservation is located on. There's a multi-stage test you work through, with flowcharts. Usually you think (I think) that tribal law will apply if you are on tribal land within the reservation boundaries, but not if you are on non-Indian-owned fee land within the reservation or just passing through on a right-of-way. You also then look at the relationship between the party being regulated and the tribe (if they have a contract, for example) and whether questions of tribal government or welfare are involved.

[I spent the winter writing songs about getting better]

So if state law doesn't apply on Reservations that actually opens up all sorts of questions, like take driver's licenses, those are issued by the state, so how would people on a Reservation get one? My parents definitely had North Dakota ones while on Standing Rock. Does a suspended license mean you can still drive in one? And what determines penalties for crimes, if you kill someone on a Reservation are you actually charged under some tribal statute for murder instead of the state one?

Okay, so here's how law applies on reservations:

In criminal matters, it depends on the Indian status of the parties involved. Crimes committed by Indians are never under state jurisdiction. Instead, "major" crimes (murder manslaughter kidnapping maiming incest burglary robbery arson etc) fall under federal and tribal jurisdiction concurrently. In practice, these are almost always punished by the federal government, given their resources and given certain limits on sentencing available in tribal court under the Tribal Law and Order Act. "Non-major crimes" (anything not on the list) are under federal and tribal concurrent jurisdiction if the victim is non-Indian and exclusively within tribal jurisdiction if the victim is also Indian (or pursuant to certain treaty provisions). These you much more often see the tribes prosecute, given limited federal resources to prosecute and the fact that sentences tend to be shorter. (It is unclear whether the federal government can prosecute Indians who commit victimless crimes like, say, marijuana possession; one of the many reasons they are reluctant to try.)

Crimes committed by non-Indians against non-Indians on the reservation, assuming they are not independent federal crimes, are punished under the law of the applicable state by state prosecutors. Crimes committed by non-Indians against Indians, on the other hand, typically fall under federal jurisdiction; certain offenses (domestic/dating violence) can also be prosecuted by tribes. The Supreme Court has also erroneously concluded that states also have jurisdiction over these offenses; this was recent, so not clear how much that will change things. And non-Indians who commit victimless crimes on the reservation can definitely be punished by the state; whether the federal government can exercise jurisdiction here is unclear, though that has not stopped them in the past.

For civil laws, federal and tribal laws apply to Indians. States are presumed to have no authority to regulate Indians on Indian land. For non-Indians coming onto the reservation, whether states can apply their law to these individuals is subject to a complex balancing test that comes from a case called Bracker that looks at factors like off-reservation effects of the on-reservation activity, the compatibility of the state regulatory regime with tribal and federal law, whether value is being produced in or outside of Indian country, the extent of the state activity, and the backdrop of tribal sovereignty.

Whether tribes can apply their civil laws to non-Indians coming onto the reservation, meanwhile, is even more complicated and varies widely by subject matter and by which federal circuit the reservation is located on. There's a multi-stage test you work through, with flowcharts. Usually you think (I think) that tribal law will apply if you are on tribal land within the reservation boundaries, but not if you are on non-Indian-owned fee land within the reservation or just passing through on a right-of-way. You also then look at the relationship between the party being regulated and the tribe (if they have a contract, for example) and whether questions of tribal government or welfare are involved.

Interesting. My parents are somewhat familiar with some of this but because they weren't running afoul of the law much obviously, (the closest thing is probably buying black market alcohol from importers from Bismarck/Mandan when Standing Rock was briefly dry, and buying their own alcohol in Bismarck and bringing it back, but that's not illegal, only the sellers were breaking the law.) but not that level.

So does this mean that marijuana is de facto legal for anyone with recognized Indian status in Tulsa, Oklahoma? (Which as we learned from Update applies to quite a few people in Oklahoma who definitely would not be considered Indian in any other context.)

[Person Man]

So if state law doesn't apply on Reservations that actually opens up all sorts of questions, like take driver's licenses, those are issued by the state, so how would people on a Reservation get one? My parents definitely had North Dakota ones while on Standing Rock. Does a suspended license mean you can still drive in one? And what determines penalties for crimes, if you kill someone on a Reservation are you actually charged under some tribal statute for murder instead of the state one?

Okay, so here's how law applies on reservations:

In criminal matters, it depends on the Indian status of the parties involved. Crimes committed by Indians are never under state jurisdiction. Instead, "major" crimes (murder manslaughter kidnapping maiming incest burglary robbery arson etc) fall under federal and tribal jurisdiction concurrently. In practice, these are almost always punished by the federal government, given their resources and given certain limits on sentencing available in tribal court under the Tribal Law and Order Act. "Non-major crimes" (anything not on the list) are under federal and tribal concurrent jurisdiction if the victim is non-Indian and exclusively within tribal jurisdiction if the victim is also Indian (or pursuant to certain treaty provisions). These you much more often see the tribes prosecute, given limited federal resources to prosecute and the fact that sentences tend to be shorter. (It is unclear whether the federal government can prosecute Indians who commit victimless crimes like, say, marijuana possession; one of the many reasons they are reluctant to try.)

Crimes committed by non-Indians against non-Indians on the reservation, assuming they are not independent federal crimes, are punished under the law of the applicable state by state prosecutors. Crimes committed by non-Indians against Indians, on the other hand, typically fall under federal jurisdiction; certain offenses (domestic/dating violence) can also be prosecuted by tribes. The Supreme Court has also erroneously concluded that states also have jurisdiction over these offenses; this was recent, so not clear how much that will change things. And non-Indians who commit victimless crimes on the reservation can definitely be punished by the state; whether the federal government can exercise jurisdiction here is unclear, though that has not stopped them in the past.

For civil laws, federal and tribal laws apply to Indians. States are presumed to have no authority to regulate Indians on Indian land. For non-Indians coming onto the reservation, whether states can apply their law to these individuals is subject to a complex balancing test that comes from a case called Bracker that looks at factors like off-reservation effects of the on-reservation activity, the compatibility of the state regulatory regime with tribal and federal law, whether value is being produced in or outside of Indian country, the extent of the state activity, and the backdrop of tribal sovereignty.

Whether tribes can apply their civil laws to non-Indians coming onto the reservation, meanwhile, is even more complicated and varies widely by subject matter and by which federal circuit the reservation is located on. There's a multi-stage test you work through, with flowcharts. Usually you think (I think) that tribal law will apply if you are on tribal land within the reservation boundaries, but not if you are on non-Indian-owned fee land within the reservation or just passing through on a right-of-way. You also then look at the relationship between the party being regulated and the tribe (if they have a contract, for example) and whether questions of tribal government or welfare are involved.

It is very sad but it sounds a lot like ceremonial law. That is, the tribes have their jurisdiction until they become a nuisance. If the Federal Government were to be dissolved, these tribes would either sink or swim. Many of them are only a few hundred or a couple of thousands of people. A few of them are a few tens of thousands.

And as S&C said, there could be a situation like a major natural disaster or nuclear war where the global survival rate was high enough that the concept of "society" survived, but low enough where civilization as we currently know it has gone extinct. Think what happened to the Mayans. Their civilization disappeared but its survivor's descendants are still around. At that point, my guess is that a lot of these native people just go back to living how they used to and there really wouldn't be a way to quantify or analyze what they do from an American Legal perspective. I am tempted to think that at least the smaller tribes would either have no survivors or not enough to continue the tribe in any meaningful way but these smaller groups of people, who have already been marginalized, would probably simply lose less since they had less to lose.

The other alternative scenario for the abolition of the Federal Estate that S&C alluded to is that we have a classical Dark Age intermediary period where modern civilization has continuity but our way of life and our current cultural situation deteriorates or changes in a way that is no longer really recognizable as "modern civilization". Basically what happened to Rome in Roman Proper where a series of unfortunate events over the course of a few decades led to a situation where people slowly and then quickly just went off and did their own things. In this sort of situation, I think the long story short would be that everything will happen to the tribes. Some tribes might become completely independent countries, some might experience total continuity with the successor states and societies that host them, and some of them might have their interests rendered totally irrelevant instead of simply only irrelevant when its something important.