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PROBABLE POWERS OF AN OFF-RESERVATION TRIBE

Each tribe would almost certainly have these powers:

--  the power to define its own membership
--  the power to control its own internal affairs [It is unclear what this category entails, but it probably includes selection of its own officers and control of its own finances]
--  the right to sue in federal court
--  sovereign immunity as to some matters, e.g., those directly affecting purely tribal matters [Note that the Alaska Supreme Court may disagree since it has tied sovereign immunity to sovereign powers of a government]

An off-reservation tribe almost certainly would not have the following powers in the absence of a reservation or other area defined as Indian country.

--  authority to exclude non-members
--  authority to condemn property
--  authority to manage wildlife, including hunting and fishing
--  regulatory authority over non-members without their consent
--  judicial authority over non-members without their consent
--  taxation authority over non-members without their consent
--  immunity from state laws

There is a sizeable grey area, in which an off-reservation tribe may have an argument for its own authority, but where we believe the better legal view is that the lack the power outside of Indian country:

--  judicial authority, including criminal misdemeanor authority, over their own members
--  authority to tax their own members authority over domestic relations (marriage, divorce, child custody); in addition to authority already granted by Congress over children's matters in the Indian Child Welfare Act
--  sovereign immunity for some matters, such as torts committed away from the community and contracts entered into for business or proprietary reasons

This listing of powers does not reflect where federal law may delegate powers in the absence of Indian country such as in the Indian Child Welfare Act and in the federal Indian liquor laws. It is still possible for Congress to grant or clarify off-reservation tribal powers in the future, for example, affirmatively permitting tribal judicial authority over misdemeanors by members.

This listing also does not reflect possible policy preferences by the state. For example, the state could choose not to contest--or could even advocate in Congress--expanding the Indian liquor laws or tribal authority over member misdemeanants, or exercise of some governmental powers by tribes over their own members, such as taxation, judicial authority, or education.

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