The Oklahoma Bar Journal April 2024

“T HE ABILITY TO IMPACT SOCIETY through well-written legislation is unparalleled.” 1 The ability of tribal governments to articulate what their people believe and protect and preserve the tribe’s culture is paramount to its very existence. 2 Tribal practitioners are tasked with making sense of the vastly different eras of federal law and policy surround ing Indian tribes and understanding the tribe’s traditional, cultural and spiritual values, while artfully selecting words to shape their current society and preserve its existence for the seven generations to come. The tribal practitioner must “bridge the gap.”

the gaps between the legislation’s mission or purpose and the four sources of authority. The following sections discuss the “gaps” (each of the four sources of authority), the “tools” needed to bridge the gaps and the instructions on how to bridge the gaps. The Four Sources of Authority Inherent authority. Inherent authority can be described in two concepts. The first is related to the phrase “since time immemorial,” which appears in many cases, laws, articles and other sources. Since time immemorial is “used by Indigenous Peoples to describe the temporal depth of their con nections with ancestral lands.” 3 It means “indefinite in the time of history.” 4 Since time immemo rial, Indian tribes have existed and maintained their continuity

through thousands of years of oral traditions passed down to the next generations. Since time immemo rial means that before Europeans came to North America, Indian tribes were forming “complex social, political, economic, and cultural systems.” 5 The second concept of inher ent authority is related to the phrase “bedrock principles.” Legal authors and officials began artic ulating the basic powers of Indian tribes after the enactment of the Indian Reorganization Act of 1934 (IRA). 6 In 1978, the Supreme Court adopted these bedrock principles. 7 The bedrock principles include the following powers: 1. The power to adopt a form of government, to create various offices and to pre scribe the duties thereof ...

BRIDGING THE GAP

What Does it Mean to “Bridge the Gap”? Bridging the gap means the

tribal practitioner must critically analyze the four sources of author ity that determine the extent of an Indian tribe’s powers and the lim itations imposed upon said powers. The four sources of authority are inherent authority, constitutional authority, congressional authority and judicial authority. The tribal practitioner should spend most of their time analyzing the situation that is the subject of the requested legislation, its problems and solu tions, while focusing on the tribe’s traditional, cultural and spiritual values that must be incorporated into the legislation. Once the tribal practitioner understands the mis sion or purpose behind drafting the legislation, they must bridge

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL