** PART I **
I HAVE RESEARCHED YOUR QUESTIONS CONCERNING HEALTH CARE FACILITIES ON INDIAN LAND. AS I UNDERSTAND IT, YOU WANT TO KNOW WHETHER A HEALTH CARE FACILITY ON INDIAN LAND MUST COMPLY WITH THE STATE LAWS AND REGULATIONS THAT GOVERN SUCH FACILITIES ON NONINDIAN LAND. AS PART OF THIS GENERAL QUESTION, YOU HAVE SPECIFICALLY INQUIRED WHETHER THE FACT THAT A PARTICULAR FACILITY ON INDIAN LAND TREATS NON-INDIAN PERSONS MEANS THAT THE FACILITY MUST COMPLY WITH STATE REGULATIONS. IN ADDITION, YOU HAVE ASKED WHETHER THE FACT THAT A PARTICULAR FACILITY APPLIES FOR AND RECEIVES A CERTIFICATE OF NEED ESTABLISHES THE STATE'S JURISDICTION OVER FUTURE ACTIVITIES OF THE FACILITY. YOU HAVE NOT ASKED FOR AN OFFICIAL OPINION OF THE ATTORNEY GENERAL. THE VIEWS EXPRESSED IN THIS LETTER ARE, THEREFORE, THOSE OF THE UNDERSIGNED ASSISTANT ATTORNEY GENERAL.
YOUR QUESTIONS RAISE ISSUES INVOLVING THE SOVEREIGNTY OF INDIAN TRIBES. IN ORDER TO ANSWER THEM, I WILL FIRST OUTLINE SOME GENERAL SOVEREIGNTY PRINCIPLES. THEN I WILL CONSIDER HOW THESE GENERAL PRINCIPLES APPLY TO YOUR SPECIFIC QUESTIONS.
A. INDIAN SOVEREIGNTY
THE EXTENT OF INDIAN TRIBES' SOVEREIGN POWERS HAS BEEN ANALYZED IN AN EXTENSIVE AND EVOLVING BODY OF CASE LAW BEGINNING WITH THE SUPREME COURT'S DECISION IN WORCESTER V. GEORGIA, 31 U.S. 515 (1832). IN WORCESTER, THE COURT HELD THAT INDIAN NATIONS ARE "DISTINCT POLITICAL COMMUNITIES, HAVING TERRITORIAL BOUNDARIES WITHIN WHICH THEIR AUTHORITY IS EXCLUSIVE, AND HAVING A RIGHT TO ALL THE LANDS WITHIN THOSE BOUNDARIES, WHICH IS NOT ONLY ACKNOWLEDGED, BUT GUARANTEED BY THE UNITED STATES." 31 U.S. AT 557. FROM THE CHARACTERIZATION OF INDIAN TRIBES AS SEPARATE POLITICAL ENTITIES, IT FOLLOWED THAT STATE LAWS WERE GENERALLY INAPPLICABLE TO INDIAN ACTIVITIES WITHIN RESERVATION BOUNDARIES. THE WORCESTER COURT THUS DESCRIBED THE RELATIONSHIP BETWEEN THE LAWS OF GEORGIA AND THE PARTICULAR INDIAN TRIBE INVOLVED IN THE CASE (THE CHEROKEE NATION) AS FOLLOWS:
"(T)HE ACTS OF GEORGIA ARE REPUGNANT TO THE CONSTITUTION AND LAWS AND TREATIES OF THE UNITED STATES. THEY INTERFERE FORCIBLY WITH THE RELATIONS ESTABLISHED BETWEEN THE UNITED STATES AND THE CHEROKEE NATION, THE REGULATION OF WHICH, ACCORDING TO THE SETTLED PRINCIPLES OF OUR CONSTITUTIONS ARE COMMITTED EXCLUSIVELY TO THE GOVERNMENT OF THE UNION. THEY ARE IN DIRECT HOSTILITY WITH TREATIES, REPEATED IN A SUCCESSION OF YEARS, WHICH MARK OUT THE BOUNDARY THAT SEPARATES THE CHEROKEE COUNTRY FROM GEORGIA, GUARANTY TO THEM ALL THE LAND WITHIN THEIR BOUNDARY, SOLEMNLY PLEDGE THE FAITH OF THE UNITED STATES TO RESTRAIN THEIR CITIZENS FROM TRESPASSING ON IT, AND RECOGNIZE THE PRE-EXISTING POWER OF THE NATION TO GOVERN ITSELF."
31 U.S. AT 561-62.
WORCESTER ESTABLISHED A TERRITORIAL RULE: WITHIN THE BOUNDARIES OF AN INDIAN RESERVATION, TRIBAL AND FEDERAL LAWS, BUT NOT STATE LAWS ARE APPLICABLE; OUTSIDE OF THOSE BOUNDARIES, STATE LAW DOES APPLY. SEE GENERALLY WILKINSON, AMERICAN INDIANS, TIME AND THE LAW, PP. 87-119 (1987). THE WORCESTER, DECISION WAS BASED ON TWO PRINCIPLES: THE LEGISLATIVE AUTHORITY OVER INDIAN MATTERS GRANTED TO CONGRESS BY THE CONSTITUTION; AND (2) THE RETENTION OF TRIBAL SELF-GOVERNMENT WITHIN THE RESERVATION THAT HAD BEEN NEGOTIATED IN