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287 still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status. . . . B It is evident that the sovereign power to punish tribal offenders has never been given up by the Navajo Tribe and that tribal exercise of that power today is therefore the continued exercise of retained tribal sovereignty. Although both of the treaties executed by the Tribe with the United States provided for punishment by the United States of Navajos who commit crimes against non-Indians, nothing in either of them deprived the Tribe of its own jurisdiction to charge, try, and punish members of the Tribe for violations of tribal law. On the contrary, we have said that “[i]mplicit in these treaty terms . . . was the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed.” . . . Similarly, statutes establishing federal criminal jurisdiction over crimes involving Indians have recognized an Indian tribe’s jurisdiction over its members. . . . Thus, far from depriving Indian tribes of their sovereign power to punish offenses against tribal law by members of a tribe, Congress has repeatedly recognized that power and declined to disturb it. Moreover, the sovereign power of a tribe to prosecute its members for tribal offenses clearly does not fall within that part of sovereignty which the Indians implicitly lost by virtue of their dependent status. The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe. . . . These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the powers to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe’s dependent status. . . . C That the Navajo Tribe’s power to punish offenses against tribal law committed by its members is an aspect of its retained sovereignty is further supported by the absence of any federal grant of such power. If Navajo self-government were merely the exercise of delegated federal sovereignty, such a delegation should logically appear somewhere . But no provision in the relevant treaties or statutes confers the right of selfgovernment in general, or the power to punish crimes in particular, upon the Tribe. . . . In sum, the power to punish offenses against tribal law committed by Tribe members , which was part of the Navajos’ primeval sovereignty, has never been taken away from them, either explicitly or implicitly, and is attributable in no way to any delegation to them of federal authority. It follows that whentheNavajoTribeexercisesthispower,it does so as part of its retained sovereignty and not as an arm of the Federal Government. . . . Thus, tribal courts are important mechanisms for protecting significant tribal interests . Federal pre-emption of a tribe’s jurisdiction to punish its members for infractions of tribal law would detract substantially from tribal self-government, just as federal preemption of state criminal jurisdiction would trench upon important state interests. . . . [432 U.S. Reports, 322–28, 332.] 182. Santa Clara Pueblo v. Martinez May 15, 1978 When Santa Clara Pueblo denied tribal membership to a child of a female member who married outside the tribe, the tribe was charged with violation of the Indian Civil Rights Act of 1968. The court held that Congress did not provide remedies other than habeas corpus for enforcement of the Indian Civil Rights Act and that suits against the tribe were barred by the tribe’s sovereign immunity from suit. 288 . . . . As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority. Thus, in Talton v. Mayes, 163 U.S. 376 (1896), this Court held that the Fifth Amendment did not “operat[e] upon” “the powers of local self-government enjoyed” by the tribes. . . . As the Court in Talton recognized, however , Congress has plenary authority to limit, modify or eliminate the powers of local selfgovernment which the tribes otherwise possess . . . . In 25 U.S.C. §1302 [Indian Civil Rights Act], Congress acted to modify the effect of Talton and its progeny by imposing certain restrictions upon tribal governments similar, but not identical...


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