REPORT - Schlosser Law Files

17Recognition of Indian Tribes; Tribal MembershipAs noted above, the relationship between the United States andIndian tribes is a political one. While the validity of congressionalor administrative actions may depend upon the existence of tribes,the courts have made clear that it is up to Congress or the Executiveto extend recognition of that status. Handbook on FederalIndian Law, 1982, p. 3-5; US. v. Rickert, 188 U.S. 432 (1903). Whilethe power of Congress, in the exercise of it plenary power overIndian affairs under the Commerce clause, to extend political recognitionto an Indian tribe is very broad, it cannot be used arbitrarily.In US. v. Sandoval, 231 U.S. 28, 46 (19131, the SupremeCourt held:Of course, it is not meant by this that Congress maybring a community or body of people within the range ofthis power by arbitrarily calling them an Indian tribe, butonly that in respect of distinctly Indian communities thequestions whether, to what extent, and for what time theyshall be recognized and dealt with as independent tribesrequiring the guardianship and protection of the UnitedStates are to be determined by the Congress, and not bythe courts.As the power of Congress to extend such recognition is very broad,so also is the power to terminate that recognition. Menominee Tribev. US., 391 U.S. 404 (1968).In general, an Indian tribe has the power to establish its ownmembership and membership requirements and this right has beenconsistently recognized by the Congress and the courts. Tribalmembership and membership requirements are normally determinedby the tribal governing authorities, typically under a tribalconstitution or other recognized governing documents.Nevertheless, Congress retains broad power to determine ormodify, for various purposes, a tribe’s membership. The UnitedStates may assume full control over Indian tribes and determinemembership in the tribe for the purpose of adjusting rights intribal property. Stephens v. Cherokee Nation, 174 U.S. 445 (1899).Congress may disregard existing tribal membership rolls. In thecase of Sizemore v. Brady, 235 U.S. 441, 447 (19141, the SupremeCourt said:Like other tribal Indians, the Creeks were wards of theUnited States, which possessed full power, if it deemedsuch a course wise, to assume full control over them andtheir affairs, to ascertain who were members of the tribe,to distribute the lands and funds among them, and to terminatethe tribal government.And it is clear that tribal membership does not confer upon the individuala vested right in tribal or communal property. As statedin Handbook on Federal Indian Law, 1982, p. 605-606:It is well established that title to the communal land orpersonal property of a tribe resides in the tribe itself andis not held by tribal members individually. An individualmember cannot convey title to any particular tract of