C. Self Determination and Tribal-State Compacting

In addition to the reaffirmation of a government-to-government relationship between tribes and the federal government, states began to realize that tribes were not going away and that in the federalist system there were three separate sovereigns. In part because of this recognition of a federalist triumvirate, a delicate but vital spirit of cooperation between tribes and states has grown across the nation. For example, the Western Governors' Association has determined that, especially in rural areas, tribes and states face many of the same problems, and the Association has begun projects among state governors, tribal chairmen, and interested groups to promote these mutual concerns. In addition, the Conference of State Chief Justices has recognized the jurisdictional confusion that inevitably arises between a tribe and a state. Accordingly, the Conference has begun implementing strategies to promote communication, cooperation, and comity between state and tribal courts. Emphasizing the need for mutual respect between the two courts and their common interest in serving all of the people within their jurisdictions, the Conference reiterated that effective enforcement is needed to create an orderly environment and that tribal and state authorities should be full participants in justice. One of their specific recommendations is to make intergovernmental agreements that provide for cross-utilization of facilities, programs, and personnel by state and tribal court systems.

Certain states have developed actual frameworks for entering into intergovernmental agreements with tribes. For example, South Dakota has enacted a statute that states, It is the policy of the state to consult with a tribal government regarding the conduct of state government programs [that] have the potential of affecting tribal members on the reservation. South Dakota also recognizes tribal court orders and judgments. In Wisconsin, an executive order provides that state agencies recognize the unique government-to-government relationship between the State of Wisconsin and Indian Tribes and accord Tribal governments the same respect accorded other governments.

Even Nevada, which fought a contentious battle against tribal jurisdiction in Nevada v. Hicks, has entered into a number of tribal-state cooperative agreements and has experienced amicable relationships with tribes. The Nevada Attorney General described the relationship as follows: [the current atmosphere] allows the state and the tribes to approach each other (warily certainly, but not from the narrow vantage point of absolute mistrust of motive and ultimate intent) on a government-to-government basis. Also in Nevada, the Attorney General has issued a number of opinions delineating tribal-state cooperation, and the legislature has passed a number of statutes regarding tribal-state cooperation.

Some of the tribal-state cooperation has been a result of congressional mandate. For example, the Indian Child Welfare Act (ICWA) identifies the Tribal Courts as the vehicle for the implementation of federal policy. ICWA mandates that tribes have exclusive jurisdiction over certain Indian child custody proceedings and requires their transfer from state to tribal court. Under ICWA, states shall give full faith and credit to any Indian tribe proceeding applicable to Indian child custody. ICWA also authorizes states and tribes to enter into agreements with each other respecting care and custody of Indian children and jurisdiction over child custody proceedings. Congressional requirements of state-tribal cooperation extend outside the arena of child welfare as well.

In addition to mandated federal policy, tribes and states also have initiated cooperative activity on their own. Formal and informal agreements between state or local governments and tribes cover a wide range of issues. These legal instruments take many forms, including memoranda of understanding, memoranda of agreement, inter-governmental agreements, compacts, and collaboration agreements. Professor Frank Pommersheim's 1991 law review article detailed eighty-seven such agreements, including agreements on jurisdiction, the environment, hunting and fishing, health and welfare programs, and Indian burial sites.

States have numerous and powerful interests in creating agreements with tribes, as evidenced by the fact that the states have negotiated hundreds, if not thousands, of such agreements since the 1980s. An empirical examination of this activity indicates that, as he suspected, Professor Pommersheim barely scratched the surface in terms of assessing the level of tribal-state compacting activity.