American Indian Law in a Nutshell
Author:
Canby Jr, William C.
Edition:
6th
Copyright Date:
2015
23 chapters
have results for American Indian Law in a Nutshell
Chapter 1. Introduction 23 results (showing 5 best matches)
- Indian Law includes within its scope those situations in which a legal outcome is affected by the Indian status of the participants or the subject matter. Obviously, there are many legal disputes involving Indians that do not turn upon points of Indian Law. If an Indian commits a traffic offense in Chicago, his case will be governed by the same law and decided by the same court that would govern and decide a case against a non-Indian; the defendant’s Indian status is irrelevant and Indian Law does not enter at all. But if that same Indian commits a similar offense upon the Navajo Reservation in Arizona, his Indian status and the location will combine to confer jurisdiction upon a different court and will result in the application of different law from that which would decide and govern the case if the defendant were a non-Indian. (See Chapter 7, Section D.) The latter situation is very much controlled by Indian Law—that is, by the federal law that allocates jurisdiction over Indian...
- The term “Indian Law” is a catchall with various meanings, but it refers primarily to that body of law dealing with the status of the Indian tribes and their special relationship to the federal government, with all the attendant consequences for the tribes and their members, the states and their citizens, and the federal government. In this application, “Indian Law” might better be termed “Federal Law About Indians.”
- The unique legal posture of the tribes in relation to the federal government is deeply rooted in American history, and a knowledge of historical context is perhaps more important to the understanding of Indian Law than of any other legal subject. Indian Law has always been heavily intertwined with federal Indian policy, and over the years the law has shifted back and forth with the flow of popular and governmental attitudes toward Indians. Yet a few themes have persisted and form the doctrinal bases of present law. At the risk of oversimplification, they may be reduced to four. , the federal government has a responsibility for the protection of the tribes and their properties, including protection from encroachments by the states and their citizens. These principles, while enduring, are not static. The boundaries of tribal self-government referred to in the first proposition, for example, have been considerably narrowed in recent years by the Supreme Court, particularly with regard...
- As all of these themes suggest, Indian Law is greatly concerned with actual or potential conflicts of governmental power, federal, state and tribal. When such conflicts arise in a legal setting, they appear as issues of jurisdiction. It is not surprising, therefore, that controversies in Indian Law usually have at their core a jurisdictional dispute.
- The Indian tribe is the fundamental unit of Indian Law; in its absence there is no occasion for the law to operate. Yet there is no all-purpose definition of an Indian tribe. See Duke v. Absentee Shawnee Tribe of Oklahoma Housing Authority, 199 F.3d 1123, 1125 (10th Cir.1999). A group of Indians may qualify as a tribe for the purpose of one statute or federal program, but fail to qualify for others. See Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d
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Chapter 7. Criminal and Civil Jurisdiction in Indian Country 214 results (showing 5 best matches)
- States traditionally have no criminal jurisdiction in Indian country over crimes by Indians against anyone, or crimes by non-Indians against Indians. Thus state murder convictions of an Indian were overturned when a federal court determined that allotment restrictions remained on the land that was the situs of the crimes, rendering it Indian country. Magnan v. Trammell, 719 F.3d 1159 (10th Cir.2013). A theft of horses by an Indian on a reservation cannot be punished by the state, even though the thief took the horses off-reservation where they were discovered. State v. Eagle Speaker, 4 P.3d 1 (Mont.2000). Crimes by Indians are punishable either by the tribe or the federal government and crimes by non-Indians against Indians are punishable exclusively by the federal government. Williams v. United States, 327 U.S. 711 (1946). The Ninth Circuit has recognized a narrow exception to this principle: the state can prosecute Indians for violation of state laws regarding liquor sales in
- In general, powers of policing and arrest follow the criminal jurisdiction of the three governments in the absence of special arrangements or agreements. For example, federal officers enforce the Major Crimes Act against Indians and the General Crimes Act against both Indians and non-Indians in Indian country. Tribal police enforce tribal laws against Indians and also have sufficient power over non-Indians to exercise the tribal power of exclusion. That power has been held to allow tribal police to investigate a crime committed by a non-Indian, and to turn both the results and the offender over to state authorities. State v. Haskins, 887 P.2d 1189 (Mont.1994). In addition to regular tribal police, many reservations utilize Indian police of the Bureau of Indian Affairs, who have authority to arrest for violations of either federal or tribal law. Finally, state police or county sheriffs and similar state personnel have authority to arrest non-Indians committing crimes against non-Indians
- An appealing argument can even be made that the General Crimes Act and its incorporated Assimilative Crimes Act ought to be applied to Indians (in other words, that not only should victimless crimes by Indians be excluded from those Acts, but also crimes by Indians against non-Indians). The Indian who commits a crime in Indian country is subject to the comprehensive criminal jurisdiction of the tribe and, for a few specified crimes, of the federal government under the Major Crimes Act. There is no criminal law vacuum for the Indian (as there was for the non-Indian) and therefore no need to import a body of criminal law by way of the General Crimes Act and Assimilative Crimes Act. To do so merely displaces tribal law that is far more appropriate for governing the conduct of the Indian. See Clinton,
- The primary need filled by the General Crimes Act was that of a body of law to punish non-Indian crime, and it served that purpose. Although the intention of Congress was almost certainly to apply federal law to crimes committed by non-Indians in Indian country, that intention was eventually frustrated by the Supreme Court. In United States v. McBratney, 104 U.S. 621 (1881), and Draper v. United States, 164 U.S. 240 (1896), the Court held that state courts had jurisdiction over crimes by non-Indians against non-Indians, and that the federal government did not. By the same reasoning, victimless crimes by non-Indians are subject to state and not federal law. United States v. Langford, 641 F.3d 1195 (10th Cir.2011). The Eighth Circuit held to the contrary, however, in a case involving drunken driving and speeding by a non-Indian. United States v. Billadeau, 275 F.3d 692 (8th Cir.2001). In any event, the result of is that, when a non-Indian is prosecuted under the General Crimes Act...
- It has been authoritatively established that tribes have no general criminal jurisdiction over non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). As explained in subsection C(1) of this chapter, arose from attempts by the tribes in the 1970’s to solve some of their law enforcement problems by asserting criminal jurisdiction over non-Indians. The Suquamish Tribe argued in that it had inherent but long-unexercised jurisdiction over non-Indians that had not been limited by treaty or federal statute. The Supreme Court agreed that the tribe’s power had not actually been curtailed by treaty or statute, but held that criminal jurisdiction over non-Indians would be inconsistent with the status of tribes as dependent sovereigns. The court also noted that some of the provisions of federal criminal statutes seemed inconsistent with the existence of dormant tribal jurisdiction over non-Indians. For example, the second exception to the General Crimes Act, 18 U.S.C.A. § 1152,...
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Chapter 15. Indian Hunting and Fishing Rights 60 results (showing 5 best matches)
- The Secretary of the Interior has issued regulations governing Indian fishing on a few reservations, see 25 C.F.R. Pts. 241 and 242, and has provided for identification of treaty Indians fishing off-reservation, 25 C.F.R. Pt. 249. The Secretary has been held to be authorized under the trust power to ban commercial fishing by Indians on their reservation, and he need not show the kind of imminent threat to conservation required for state regulation of treaty fishing. United States v. Eberhardt, 789 F.2d 1354 (9th Cir.1986). The Secretary similarly may regulate Indian hunting. Northern Arapahoe Tribe v. Hodel, 808 F.2d 741 (10th Cir.1987). In general, however, the federal government has been very sparing in the exercise of its power to regulate Indian hunting and fishing. But see Section D, below. The matter has accordingly been left largely for tribal regulation. In one instance where the tribe failed to act, federal authorities attempted to prosecute a tribal member under a federal...
- It is well settled that the establishment of a reservation by treaty, statute or agreement includes an implied right of Indians to hunt and fish on that reservation free of regulation by the state. Menominee Tribe v. United States, 391 U.S. 404 (1968). States have rarely contested that right because of their general lack of power to regulate Indians in Indian country. See McClanahan v. Arizona State Tax Com’n, 411 U.S. 164 (1973). The Indians’ immunity from state law applies on the reservation even in states that have been granted criminal jurisdiction over Indian country by Public Law 280, for that statute provides that it shall not “deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.” 18 U.S.C.A. § 1162(b); see State v. Jim, 273 P.3d 434 (Wash.2012). Nor may state law be applied to Indian...
- The other exception is the Lacey Act, which was amended in 1981 to prohibit transport of or traffic in fish, wildlife or plants taken or possessed in violation of federal, state or tribal law. Mere possession of such fish, wildlife or plants in territory within the exclusive jurisdiction of the United States (which includes Indian country, 18 U.S.C.A. § 1152) is also prohibited. 16 U.S.C.A. § 3372(a). Like the trespass statute, the Lacey Act amendments place the force of federal law behind any state or tribal law regulating non-Indian hunting and fishing on reservations. Federal enforcement of both statutes is sufficiently sporadic, however, that they clearly do not substitute for comprehensive regulation of non-Indian hunting and fishing.
- There is no question, however, that federal regulations authorized by Congress can supersede conflicting state laws regarding Indian hunting and fishing. Metlakatla Indian Community v. Egan, 369 U.S. 45 (1962). The only questions likely to arise are whether a given regulation is intended to preempt state law and, if so, whether it is authorized by Congress. In People v. McCovey, 685 P.2d 687 (Cal.1984), and Mattz v. Superior Court, 758 P.2d 606 (Cal.1988), federal regulation of Indian fishing was held to preempt state laws. In Organized Village of Kake v. Egan, 369 U.S. 60 (1962), the Supreme Court held that the general powers conferred upon the executive by 25 U.S.C.A. §§ 2 and 9 to manage Indian affairs and effectuate any act relating to them were insufficient to support regulation of fish traps in conflict with state law. That case, however, arose under the distinctive historical and legislative conditions of Alaska and no treaty or reservation was involved. It seems likely that...a
- The tribe has power to license hunting and fishing by non-Indians on reservation lands held in trust for the tribe or individual Indians. Montana v. United States, supra; New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983). Tribal regulation of non-Indians has been greatly complicated, however, by Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), which held that tribes have no criminal jurisdiction over non-Indians. Enforcement of tribal game and fish regulations against non-Indians must therefore be accomplished by the use of civil sanctions. See Montana v. United States, supra. Tribal imposition of a forfeiture of arms or other property of non-Indians has been held an impermissible criminal penalty. Quechan Tribe v. Rowe, 531 F.2d 408 (9th Cir.1976). The remedy of expulsion from Indian lands remains available to the tribe, however, and the aid of federal authorities may be enlisted to prosecute violators of tribal game and fish laws under the trespass provision of 18...A
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Chapter 5. Indian Tribal Sovereignty 67 results (showing 5 best matches)
- Tribal sovereignty has operated to a considerable degree as a shield against intrusions of state law into Indian country. Chief Justice Marshall’s view, as described above, was that state laws could simply “have no force” in Indian territory. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832). That rule was modified some fifty years later, however, to permit state law to apply to a crime by a non-Indian against a non-Indian on an Indian reservation. United States v. McBratney, 104 U.S. 621 (1881); Draper v. United States, 164 U.S. 240 (1896). But the Supreme Court has almost always held the line against permitting state law to apply to Indians in Indian country. In Williams v. Lee, 358 U.S. 217 (1959), a unanimous Court ruled that state courts had no jurisdiction over a civil claim by a non-Indian against an Indian for a transaction arising on the Navajo reservation. The Court stated that state law had been permitted to intrude only where “essential tribal relations” were not...
- It is clear that Congress can waive a tribe’s immunity from suit, but that waiver must be clearly expressed. Thus a waiver permitting a state to sue a tribe to enjoin gaming activity on Indians lands in violation of a gaming compact does not waive immunity for tribal gaming off-reservation. Michigan v. Bay Mills Indian Community, 134 S.Ct. 2024, 2032 (2014). The Supreme Court also refused to find a congressional waiver in the Civil Rights Act of 1968, which imposed some of the restrictions of the Bill of Rights upon the tribes. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58–59 (1978). The Native American Graves Protection and Repatriation Act ...) does not waive tribal immunity. White v. Univ. of Cal., 765 F.3d 1010 (9th Cir.2014). A federal statute authorizing state regulation of tribal liquor transactions was held not to waive tribal immunity from dram shop suits. Furry v. Miccosukee Tribe, 685 F.3d 1224 (11th Cir.2012). Even where the Fair Labor Standards Act is held to apply to...
- The Supreme Court’s decision in Nevada v. Hicks, 533 U.S. 353 (2001), expanded the reach of state law into Indian country by upholding the power of state officers to execute a search warrant at an Indian residence on Indian trust land within a reservation, when the officers were investigating an alleged off-reservation crime. The Court stated that “State sovereignty does not end at a reservation’s border.” Id. at 361. Although that proposition has long been true with regard to conduct of non-Indians not affecting tribal interests, it ordinarily had not been applied in a situation where state enforcement mechanisms were applied to an Indian in Indian country. does not, however, establish any general power of states to regulate Indians in Indian country; it was essential to the Court’s holding that state officers were investigating an off-reservation crime, which fell within the state’s jurisdiction.
- Tribal immunity has been held to extend to an intertribal council, Taylor v. Alabama Intertribal Council, 261 F.3d 1032 (11th Cir.2001), and to an insurance risk pool established by three tribes, Amerind Risk Mgmt. Corp. v. Malaterre, 633 F.3d 680 (9th Cir.2011). It applies in both state and federal court. See Pan American Co. v. Sycuan Band of Mission Indians, 884 F.2d 416 (9th Cir.1989). Tribal immunity extends to claims for declaratory and injunctive relief, not merely damages, and it is not defeated by a claim that the tribe acted beyond its power. Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269 (9th Cir.1991). Sovereign immunity protects a tribe against enforcement of a third-party subpoena in private litigation, Bonnet v. Harvest (U.S.) Holdings, Inc., 741 F.3d 1155 (10th Cir.2014), but there is disagreement over whether a tribe is immune from enforcement of subpoenas in federal criminal cases. See United States v. James, 980 F.2d 1314, 1319–20 (9th Cir....
- In McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164 (1973), the Supreme Court made it clear that state law would be permitted to intrude into Indian country only if two conditions were met: (1) there was no interference with tribal self-government; and (2) non-Indians were involved. Thus the Court held that Arizona could not tax the income of an Indian earned on the reservation. In so holding, however, the Court articulated a new approach to the doctrine of tribal sovereignty.
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Chapter 2. Historical Overview of Federal Indian Law and Policy 47 results (showing 5 best matches)
- Indian Law is a reflection of national Indian policy, which has undergone numerous shifts in direction in the course of American history. At some times, the prevailing view has regarded the tribes as enduring bodies for which a geographical base would have to be established and more or less protected. At other times, the dominant position has been that the tribes are or should be in the process of decline and disappearance, and that their members should be absorbed into the mass of non-Indian society. The dominance of one position at any given time does not mean that the other disappears entirely; its influence is diminished but usually observable. That is as true today as it has been in the past, and the continuing tension between the two views makes it unsafe to assume that national Indian policy has found its final direction.
- Congress set the basic pattern of federal Indian Law in a series of Trade and Intercourse Acts passed between 1790 and 1834. E.g., 1 Stat. 137 (1790); 2 Stat. 139 (1802); 4 Stat. 729 (1834). The central policy embodied in the Acts was one of separating Indians and non-Indians and subjecting nearly all interaction between the two groups to federal control. For this reason, some courts refer to the Acts as Non-Intercourse Acts. The Acts established the boundaries of Indian country and protected against incursion by non-Indians in several ways. Non-Indians were prohibited from acquiring Indian lands by purchase or treaty (other than a treaty entered pursuant to the Constitution), or from settling on those lands or entering them for hunting or grazing. Trading with the Indians was made subject to federal regulation. Depredations by non-Indians against Indians were made a federal crime, and federal compensation was provided to victims of depredation by either group, so long as the...Indians
- There is little question that the leadership for passage of the Dawes Act came from those sympathetic to the Indians. They believed that, if individual Indians were given plots of land to cultivate, they would prosper and become assimilated into the mainstream of American culture as middle-class farmers. The tribes, which were viewed as obstacles to the cultural and economic development of the Indians, would quickly wither away. Such a prospect was not, of course, offensive in the least to those non-Indians anxious to break up the tribal land mass.
- Congress in 1975 also established the American Indian Policy Review Commission to undertake a comprehensive review of federal Indian policy and to consider, among other things, “alternative methods to strengthen tribal government * * *.” 88 Stat. 1910. The Commission, which included Indian representation, issued its report in 1977 and called for a firm rejection of assimilationist policies, reaffirmation of the status of tribes as permanent, self-governing institutions, and increased financial aid to the tribes.
- The effect of Public Law 280 was drastically to change the traditional division of jurisdiction among the federal government, the states and the tribes in those states where the law was applied. Assumption of jurisdiction by the state displaced otherwise applicable federal law and left tribal authorities with a greatly diminished role. It ran directly counter to John Marshall’s original characterization of Indian country as territory in which the laws of the state “can have no force.” Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832). Yet an assumption of Public Law 280 jurisdiction by the state did not amount to a termination of the federal trust relationship. The Act disclaimed any grant to the states of power to encumber or tax Indian properties held in federal trust or to interfere with treaty hunting and fishing rights. The Act was subsequently held not to have conferred upon the states general regulatory power within Indian country. Bryan v. Itasca County, 426 .... In...
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Chapter 13. Alaska Natives 48 results (showing 5 best matches)
- The fact that there is no Indian country (except for the Annette Islands) in Alaska may have affected the validity of a borough ordinance containing a Native American hiring preference. The case came before the Ninth Circuit, which certified a question to the Alaska Supreme Court to determine whether the preference was permissible under state law. The Alaska Supreme Court held that the preference violated the state constitution’s equal protection clause. Malabed v. North Slope Borough, 70 P.3d 416 (Alaska 2003). It distinguished the hiring preference of the Bureau of Indian Affairs upheld in Morton v. Mancari, 417 U.S. 535 (1974), on the ground that the borough had no special duty or interest in furthering Indian self-government, as the BIA did. Nor did the state constitution create any special categories for Alaska Natives. “To the extent that the Alaska Constitution implies anything concerning the state’s relations with Alaska Natives, then, it mirrors the constitutional drafters’...
- The Alaska Supreme Court thereafter undertook a major examination of the status of Alaska Native self-government in John v. Baker, 982 P.2d 738 (Alaska 1999). The case involved a custody battle between unmarried parents who were Alaska Native members of different villages. A tribal court of one of the villages had entered a decision after which the state court was asked to rule. The Alaska Supreme Court held that the Indian Child Welfare Act did not apply because the custody dispute between unmarried parents fell by implication within the exception for custody in divorce cases. It also held that Public Law 280 did not apply to give the state court jurisdiction because Public Law 280 extended state jurisdiction into “Indian country” and after the Supreme Court decision in , it was clear that there was no Indian country in Alaska (Annette Islands excepted). The Alaska Supreme Court then went on to hold: (1) it would defer to the federal recognition of Alaska Native entities as sovereign
- attracted the attention of the Supreme Court in Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918). The Court there held that Congress, in setting aside a reserve for the Metlakatla Indians “the body of lands known as the Annette Islands” included by implication the adjacent waters, because the fishery was the Indians’ primary means of subsistence. The Court returned to the subject in Metlakatla Indian Community v. Egan, 369 U.S. 45 (1962), which upheld the power of the Secretary of the Interior to authorize the use of fish traps by Indians in those waters in contravention of state law.
- Congress has included Alaska Natives in post-ANCSA legislation in various ways that could be seen as implementing, if not establishing, a trust relationship. The Indian Self-Determination and Education Assistance Act of 1975, which permits tribes to contract to administer federal Indian programs, defines “Indian tribe” to include “any Alaska Native village or regional or village corporation as defined in or established pursuant to [ANCSA] which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” 25 U.S.C.A. § 450b(e)(as amended); see Cook Inlet Native Ass’n v. Bowen, 810 F.2d 1471 (9th Cir.1987); Aleutian Pribilof Islands Ass’n, Inc. v. Kempthorne, 537 F.Supp.2d 1 (D.D.C.2008). A similar definition appears in the Tribally Controlled Community College Assistance Act, 25 U.S.C.A. § 1801(2), and the Indian Health Care Improvement Act, 25 U.S.C.A. § 1603(d), although the significance of the latter...
- With Natives living in scattered locations and attracting little federal attention, it is not surprising that state courts more or less regularly exercised jurisdiction over them. Perhaps in recognition of this fact, Alaska was added in 1958 to the list of mandatory states covered by Public Law 280. See Chapter 8. Alaska was thereby given criminal and civil adjudicatory jurisdiction over “All Indian country within the Territory.” 72 Stat. 545. The criminal provision was subsequently amended in 1970 to provide that the Metlakatla Indian Community of the Annette Islands could exercise jurisdiction over offenses in Indian country in the same manner as tribes not covered by Public Law 280. See 18 U.S.C.A. § 1162(a). The result of the amendment was that both the tribe and the state exercised concurrent criminal jurisdiction. Booth v. State, 903 P.2d 1079 (Alaska App.1995).
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Chapter 9. Taxation and Regulation in Indian Country 80 results (showing 5 best matches)
- The Supreme Court has quite regularly invalidated state taxes imposed on non-Indian contractors engaged in sales or services to the tribes
- The Supreme Court has acknowledged “that in exceptional circumstances a State may assert jurisdiction over the on-reservation activities of tribal members.” New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 331–32 (1983). More recently, in permitting state officers investigating off-reservation crime to execute a search warrant at an Indian residence on trust land, the Supreme Court stated: “When * * * state interests outside the reservation are implicated, States may regulate the activities even of tribe members on tribal land * * *.” Nevada v. Hicks, 533 U.S. 353, 362 (2001). Thus, the preemption test for state regulation is more lenient toward the states than the test for state taxation; where states are subject to a virtually rule against taxation of tribes or Indians in Indian country. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 215 n.17 (1987). It should be emphasized, however, that the occasions when states have been permitted to regulate Indians in Indian...
- A few cracks have begun to appear, however, in the barrier that precludes the states from regulating Indians in Indian country. One is that the states may be as free to regulate “nonmember Indians”—Indians of tribes other than that which beneficially owns the reservation—as they are to regulate non-Indians. “For most practical purposes those [nonmember] Indians stand on the same footing as non-Indians resident on the reservation.” Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 161 (1980). In civil cases, the Supreme Court now draws its jurisdictional lines between tribal members and nonmembers, rather than between Indians and non-Indians. See Strate v. A-1 Contractors, 520 U.S. 438 (1997). Accordingly, at least one state court has applied its regulatory traffic laws against a nonmember Indian on a reservation. Minnesota v. Davis, 773 N.W.2d 66 (Minn.2009).
- In the past, it was assumed that the states were utterly without power to regulate Indians in Indian country. The Supreme Court even cautioned against applying the test of Williams v. Lee in such situations because that test, now viewed as highly protective of tribal sovereignty, might permit undue extension of state power. McClanahan v. Arizona State Tax Com’n, 411 U.S. 164, 179–80 (1973). The state fared no better under a preemption analysis. “When on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State’s regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest.” White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144 (1980). It is not surprising, then, that state traffic safety laws and motor vehicle safety responsibility laws have been held inapplicable to Indians in Indian country, even though the Indians may be using state highways there. United States...
- A federal statute of general applicability that is silent on the issue of applicability to Indian tribes will not apply to them if: (1) the law touches “exclusive rights of self-governance in purely intramural matters”; (2) the application of the law to the tribe would “abrogate rights guaranteed by Indian treaties”; or (3) there is proof “by legislative history or some other means that Congress intended [the law] not to apply to Indians on their reservations.…”
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Chapter 11. Individual Rights and Indian Law 83 results (showing 5 best matches)
- A somewhat different free exercise question is presented when an Indian claims that governmental legislation or regulation interferes with individual religious practices. Such claims are now greatly affected by the Supreme Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), and the Religious Freedom Restoration Act, discussed below. In the past, they led to a balancing of governmental and individual religious interests that produced mixed results. A right of Indian males to wear long hair for religious reasons was upheld against a prison regulation in one case, Teterud v. Burns, 522 F.2d 357 (8th Cir.1975), but denied in another, Henderson v. Terhune, 379 F.3d 709 (9th Cir.2004). It was also rejected in favor of a school dress code, New Rider v. Board of Education, 480 F.2d 693 (10th Cir.1973). A free exercise claim of Indian prisoners of the right to wear headbands in a prison dining hall was defeated in Standing Deer v. Carlson, 831 F.2d 1525 (9th Cir.1987).
- Enforcement of the right of free exercise of religion often takes a distinctive turn when Indians are involved. Many Indian religious beliefs and practices center on particular places or objects. The places may be on federal lands outside of any reservation. The objects may be eagle feathers or peyote. In these cases, federal management or regulation may interfere substantially with religious uses. In recognition of this problem, Congress in 1978 passed the “American Indian Religious Freedom Act.” It provides that
- Equal protection claims have also arisen from the fact that the division of criminal and civil jurisdiction in Indian country often depends upon Indian status of the parties. These claims, too, have been unsuccessful. The most notable example is United States v. Antelope, 430 U.S. 641 (1977). In that case Indian defendants had killed a non-Indian while committing a felony in Indian country. They were prosecuted for first degree murder under federal law, which in those circumstances required no proof of premeditation. Had they been non-Indians, they would have been prosecuted under state law, which required proof of premeditation. The Supreme Court held that this disparity did not violate equal protection because the division of criminal jurisdiction by Indian status was an outgrowth of the entire legal structure dealing with Indians. Relying on ...because they are of the Indian race but because they are enrolled members of the Coeur d’Alene Tribe.” Id. at 646. See also Fisher v...
- Similarly, a court upheld a requirement that a tribal member living off-reservation must utilize employment services of her tribe, rather than of the state, in order to obtain full assistance benefits from a state-administered federal program. Greene v. Commissioner, 755 N.W.2d 713 (Minn.2008). The classification was political and not suspect, and the requirement did not violate the fundamental right to travel, so review was under the rational basis standard. The purposes of encouraging tribal self-government indicate, moreover, separate classification of Indians is permissible even when the classification is not tied to tribal self-government. The employment preference in , for example, was not limited to Indians who were members of the tribes being served by the BIA office in question. See also Johnson v. Shalala, 35 F.3d 402 (9th Cir.1994). Similarly, the federal government has been allowed to favor Indian and Alaska Native firms in awarding construction contracts, even though...
- There is one major constitutional distinction in the manner in which the federal government deals with Indians. Congress and the courts have created an entire body of law dealing with Indians as such. This treatment has led to challenges under the equal protection principles of the Fifth Amendment. These challenges have been uniformly rejected by the Supreme Court. In Morton v. Mancari, 417 U.S. 535 (1974), the Court upheld a statutory “Indian preference” in hiring by the Bureau of Indian Affairs. The Court relied upon the statute’s purpose of, and the BIA’s special role in, aiding Indian self-government. The Court rejected the claim of unconstitutional discrimination in the following manner:
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Chapter 8. Public Law 280: A Federal Grant of Jurisdiction to the States 50 results (showing 5 best matches)
- The existence of the optional provisions of Public Law 280 has had an important collateral effect. The Supreme Court has held that Public Law 280 provides the exclusive method by which states may acquire jurisdiction over Indian country, and that conclusion has resulted in the invalidation of less formal acquisitions of state power. In Kennerly v. District Court, 400 U.S. 423 (1971), a tribal council by resolution had provided that civil jurisdiction over suits against Indians should be concurrent in the state and the tribe. The state court exercised jurisdiction in such a case, but the Supreme Court reversed, holding that the state could not acquire jurisdiction without following the requirements of Public Law 280 as amended by the 1968 Indian Civil Rights Act. See also ...138 (1984) and 476 U.S. 877 (1986). Subsequently, the failure of the State of Arizona to assume general Public Law 280 jurisdiction was used by the Supreme Court to reinforce its conclusion that the state had no...
- involved the attempt of a Minnesota county to assess a state and local property tax against personal property owned by an Indian in Indian country over which the state had been granted jurisdiction by Public Law 280. The personal property involved was not trust property, and the state argued that it therefore became subject to the general “civil laws” of the state, including its tax laws. The Supreme Court concluded that the primary purpose of the civil provisions of Public Law 280 was to provide a state forum for the resolution of disputes. Viewed in that light, the provision that the civil laws of the state should have effect in Indian country simply “authorizes application by the state courts of their rules of decision to decide such disputes.” 426 U.S. at 384.
- The grant of civil jurisdiction to the states in § 1360 did not deprive tribal courts of concurrent jurisdiction if they chose to exercise it. Teague v. Bad River Band of Lake Superior Tribe of Chippewa Indians, 612 N.W.2d 709, 717 (Wis.2000). The Indian Child Welfare Act’s grant of exclusive jurisdiction to tribes for any child custody proceeding of an Indian Child residing or domiciled on the reservation contains an exception “where such jurisdiction is otherwise vested in the State by existing Federal law.” 25 U.S.C.A. § 1911(a). Public Law 280 is such an existing Federal law. Doe v. Mann, 415 F.3d 1038 (9th Cir.2005). In Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 559–62 (9th Cir.1991), the state argued that its Public Law 280 jurisdiction over child custody was exclusive of the tribe, because the Indian Child Welfare Act authorized tribes in Public Law 280 states to petition the Secretary to “reassume” child custody jurisdiction. See 25 U.S.C.A. § 1918(a)....
- One controversy that arose from the language of the grant of civil jurisdiction to the states in 28 U.S.C.A. § 1360 concerned the applicability of local law. The question was whether a county or city ordinance qualifies as one of the “civil laws of [the] State that are of general application to private persons or private property” and that are to have the same force and effect in Indian country as they have “elsewhere within the State.” The Ninth Circuit has held that the provision referred to laws of the , and not those of the state’s local subdivisions, largely on the ground that Congress could not have intended the severe interference with tribal self-government that would result from imposing detailed local regulations upon Indians in Indian country. Santa Rosa Band v. Kings County, 532 F.2d 655 (9th Cir.1975); Segundo v. City of Rancho Mirage, 813 F.2d 1387, 1390 (9th Cir.1987). The Supreme Court has not ruled squarely on this issue, but has expressed doubt that Public Law 280...
- While Public Law 280 conferred both criminal and civil jurisdiction on the mandatory states, the criminal provision was clearly the most important to Congress. Non-Indians living on or near reservations believed that law enforcement in Indian country had broken down, and urged state jurisdiction as a remedy. See Goldberg,
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Chapter 3. The Special Relationship Between the Federal Government and the Tribes 51 results (showing 5 best matches)
- It was with regard to the executive branch that the Supreme Court began to enforce the federal trust responsibility toward the Indians. The guardian-ward relationship was held not to authorize the Secretary of the Interior to dispose of lands claimed by an Indian Pueblo in the same manner that he could dispose of other public lands. “That would not be an exercise of guardianship, but an act of confiscation.” Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 113 (1919). In Cramer v. United States, 261 U.S. 219, 229 (1923), the Court construed a doubtful statute to protect Indian-occupied lands from being patented to third parties, because to fail to protect the Indians’ right of occupancy “would be contrary to the whole spirit of the traditional American policy toward these dependent wards of the nation.” It also held that the United States had standing to assert the Indians’ interest, by reason of its position as guardian. Some years later, the Court observed that, at least in the case of...
- To avoid these problems of conflict of interest, President Nixon proposed the establishment of an independent Indian Trust Counsel Authority that would undertake legal representation of Indian trust interests. 116 Cong.Rec. 23258, 23261 (1970). The American Indian Policy Review Commission went even further; it recommended a cabinet level Department of Indian Affairs with its own Office of Trust Rights Protection to litigate trust cases. Neither proposal has been enacted by Congress.
- In recent years courts have delineated additional characteristics or limitations of the federal trust responsibility. The federal government’s responsibility runs to Indian tribes; it therefore cannot be invoked to prevent the Indian Health Service from terminating a program favoring one Indian subgroup in order to use the resources in programs benefitting Indians generally. Lincoln v. Vigil, 508 U.S. 182, 194–95 (1993). A tribe seeking judicial redress for federal mismanagement of its resources ordinarily must first exhaust administrative remedies. White Mountain Apache Tribe v. Hodel, 840 F.2d 675, 677–78 (9th Cir.1988). The trust duty does not extend to the federal government in its disposition of an off-reservation Indian school; the school was not trust property, even though operated for the benefit of Indian tribes. Inter Tribal Council of Arizona, Inc. v. Babbitt, 51 F.3d 199 (9th Cir.1995). Even when the federal government owes a trust duty to inform an Indian allottee of...
- A more favorable outcome for claimants resulted from the immense Cobell litigation, in which it was determined that the United States breached its fiduciary duties over a period of many years in managing Individual Indian Money trust accounts (representing revenues produced by trust assets held for the benefit of individual Indians). The problem of mismanagement of these accounts induced Congress in 1994 to enact the Indian Trust Management Reform Act, 25 U.S.C.A. § 4001 et seq., which called for the government to provide an accounting, and established an Office of Special Trustee for American Indians within the Department of the Interior. Id. at § 4041. After further litigation, the case was settled for $ 3.4 billion. See Cobell v. Salazar, 679 F.3d 909 (D.C.Cir.2012). The Reform Act has since been held to authorize individual Osage beneficiaries to sue the United States for an accounting of oil and gas royalties. Fletcher v. United States, 730 F.3d 1206 (10th Cir.2013).
- a fiduciary relationship necessarily arises when the Government assumes such elaborate control over forests and property belonging to Indians. All of the necessary elements of a common-law trust are present: a trustee (the United States), a beneficiary (the Indian allottees), and a trust corpus (Indian timber, lands, and funds).
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Chapter 12. Indian Lands 53 results (showing 5 best matches)
- The allotment system of landholding is in total contrast to communal ownership by the tribe. Under various statutes, particularly the General Allotment (Dawes) Act of 1887, 25 U.S.C.A. § 331 et seq., Congress provided for Indian lands to be allotted to individual Indians. Tribally held lands were consequently divided into small farm-sized tracts to be held by individuals. The land was to remain in trust for a certain period, usually 25 years, and then was to become a totally alienable and taxable fee interest in the hands of the Indian, who often sold it. Once the land becomes freely alienable in this manner, it remains taxable by the state even if it is repurchased by the tribe or an individual Indian. Cass County, Minnesota v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998); In re Kaul, 4 P.3d 1170 (Kan.2000). Reservation allotments that have become alienable fee land in the hands of Indians are not, however, subject to state land-use laws. Gobin v. Snohomish County, 304...
- Although Marshall softened his language somewhat in the later , supra Chapter 2, Section C, and shifted his emphasis from conquest to purchase as the preferred method of extinguishment, his formulation of Indian land title in Johnson v. McIntosh has remained essentially intact. Indian tribes that occupied and used land to the exclusion of others (except for mere temporary incursions) had an interest denoted as a “right of occupancy.” This right later came to be known as “original Indian title” or, more frequently today, as “aboriginal title.” In pre-Revolutionary times, that title could be extinguished by the British Crown, Seneca Nation v. New York, 382 F.3d 245 (2d Cir.2004), or, under certain circumstances, by colonial governments, Delaware Nation v. Pennsylvania, 446 F.3d 410 (3d Cir.2006). After the Constitution was adopted, however, aboriginal title could not be compromised by anyone except the federal government. Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667 (...in
- Dissatisfaction with the existing method of handling claims led to passage of the Indian Claims Commission Act of 1946, 25 U.S.C.A. §§ 70–70v. The Act established the Indian Claims Commission to hear suits brought by tribes, bands or other identifiable groups of Indians. Appeal was permitted to the Court of Claims and by certiorari to the Supreme Court. The Act was liberal in defining the scope of permissible claims. In addition to regular claims in law or equity (including those in tort), the Act authorized recovery for the following:
- Indian lands may be held in a variety of ways, each of which presents its own problems and advantages. Two points must be made at the outset of any review of the subject. The first is that the term “Indian lands” refers to those lands that are held by Indians or tribes under some restriction or with some attribute peculiar to the Indian status of its legal or beneficial owners. Today any Indian can purchase real property (such as a residence in Phoenix or Chicago) in the public market and thereby acquire a fee title that is freely disposable. That real property is not “Indian land.”
- The allotment system has led to immense practical problems. Allotted lands may be disposed of by a will approved by the Secretary of Interior, 25 U.S.C.A. § 373, but in most cases wills are not executed. In the absence of a will, the interest of a deceased allottee descends according to the law of intestate succession of the state where the allotment is located. 25 U.S.C.A. § 348. The result of this system of descent operating on trust land is that over a period of generations the beneficial interest of many allotments has come to be shared by as many as a hundred allottees. Productive use of the lands is then a near impossibility because the consent of all allottees is necessary for leasing. Intestacy also results in allotted land passing to non-Indians, which removes it from trust status altogether and creates “checkerboard” patterns of Indian and non-Indian land that further complicate proper land use. Because state courts cannot adjudicate the status of trust lands, allotments...in
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Chapter 6. Indian Treaties 39 results (showing 5 best matches)
- The rule of sympathetic construction has been carried over from treaties to statutes dealing with Indian matters, as well as to executive orders establishing reservations. See Confederated Tribes of the Chehalis Indian Reservation v. Washington, 96 F.3d 334, 342 (9th Cir.1996). Thus an unrecognized tribe may assert a right to hunt arising from establishment of a reservation by executive order and statute. Timpanogos Tribe v. Conway, 286 F.3d 1195 (10th Cir.2002). The Supreme Court on numerous occasions has adhered to “the general rule that statutes passed for the benefit of the dependent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians.” Alaska Pacific Fisheries Co. v. United States, 248 U.S. 78, 89 (1918). Indeed, the Court resolved ambiguity in favor of the tribes in construing Public Law 280, a statute that deals with Indians but was not necessarily passed for their benefit. Bryan v. Itasca County, 426 U.S....
- One of the most important applications of the rules of sympathetic construction is found in Winters v. United States, 207 U.S. 564 (1908), which dealt not with a treaty but with an Indian agreement made in 1888 and ratified by an act of Congress. The tribes involved in that agreement had ceded to the United States a large tract of land to be opened up for settlement, while reserving to themselves other lands, bordered by a flowing stream, which became the Fort Belknap Reservation in Montana. Non-Indian settlers diverted the stream, and the United States brought suit on behalf of the Indians. The settlers argued that lands would not have been ceded for settlement without also ceding the water that would permit them to become fruitful. The United States argued that lands would not have been reserved for the tribes unless water also had been reserved to make the reservation productive. Faced with these plausible contradictory interpretations, the Court chose to construe the agreement...
- The usual rule, however, is that the canon of sympathetic construction has more strength than the ordinary canons of statutory interpretation. “[T]he standard principles of statutory construction do not have their usual force in cases involving Indian law.” Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985). Two circuits have held that the canon of sympathetic construction also overcomes the rule of deference to an administrative agency’s interpretation of a statute that it administers—a rule that is something more than a mere interpretive aid. Ramah Navajo Chapter v. Lujan, 112 F.3d 1455 (10th Cir.1997); Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 59 (D.C.Cir.1991); contra Williams v. Babbitt, 115 F.3d 657, 663 n.5 (9th Cir.1997). Certainly in the general run of cases the rule of sympathetic construction continues to offer substantial benefit to Indian interests, such as exemption of tribes from state excise taxes, Quinault Indian Nation v. Grays Harbor County,...
- “all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to members of the tribe, and the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction.”
- The laches defense ultimately dominated when the Oneidas brought claims against state and local governments arising from the unauthorized conveyance in 1795 of many thousands of acres of their lands. The Supreme Court held that the Oneidas stated a viable claim, not barred by any statute of limitations, but the Court noted that it did not address whether “equitable considerations should limit the relief available to the present day Oneida Indians.” County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 253 n.27 (1985). Subsequently, the Oneida Nation purchased in the open market parcels of land located within its original reservation that had passed out of Indian ownership 200 years earlier. The tribe sought to establish sovereignty and freedom from taxation for the parcels. The Supreme Court rejected the claim. City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005). The Court held that to grant the tribe its requested relief would create a disruptive “checkerboard of...
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Chapter 14. Indian Water Rights 44 results (showing 5 best matches)
- When tribal land is converted into allotments, the Indian allottees succeed to the tribe’s rights for that land. United States v. Powers, 305 U.S. 527 (1939). A non-Indian purchaser of the allotment acquires rights equal to those of the Indian seller. United States v. Ahtanum Irrigation Dist., 236 F.2d 321, 342 (9th Cir.1956). The same is true for an Indian or tribal purchaser. In re General Adjudication of Big Horn River System, 48 P.3d 1040, 1056 (Wyo.2002). A non-Indian purchaser’s rights have been elaborated as follows: (1) an Indian allottee is entitled to that share of the reservation’s irrigation water rights that his allotment’s irrigable acreage bears to the total irrigable acreage of the reservation; (2) when the Indian allottee sells to a non-Indian, the purchaser acquires the allotment’s reserved water rights; (3) the priority date of those rights remains the date when the reservation was created; (4) the non-Indian allottee, unlike his Indian predecessor, loses his...
- The Court also made it clear in that the nature and extent of reserved Indian water rights remain matters of federal law, even though they are subject to adjudication in state court. Federal question review is therefore available in the Supreme Court. Despite these assurances, the prospect of state adjudication of their water rights causes great apprehension on the part of Indian tribes, who believe that the state forum is likely to be unsympathetic to Indian rights. Indeed, one state supreme court has held that state and not federal law governs the question whether a tribe may change the use of its reserved water from agriculture to instream fisheries! In re Big Horn River System, 835 P.2d 273 (Wyo.1992). Even when federal law is acknowledged to govern, water rights cases often depend upon detailed fact determinations, such as the extent of practicably irrigable acreage of a ...In re Yakima River Drainage Basin, 296 P.3d 835 (Wash.2013), that are very difficult to upset upon...
- It may be seen from this summary that Indian water rights have some of the characteristics of appropriative rights, such as a date of appropriation and the total priority of a prior appropriator over a later one in times of short supply. On the other hand, they also have some of the characteristics of riparian rights; they apply most clearly to water bordering, crossing or within the Indian land, and they are not lost by non-use.
- One other area of collateral jurisdictional contention concerns state power to regulate water use by non-Indians on fee lands they own within reservations. In one instance, where a stream lay wholly within the reservation, the state was held to be preempted from regulating allotted water use. Colville Confederated Tribes v. Walton, 647 F.2d 42, 51–53 (9th Cir.1981). In another, where the stream lay largely outside the reservation and formed a boundary of the reservation only for part of its course, the state was allowed to regulate water use by non-Indians on their fee lands within the reservation. United States v. Anderson, 736 F.2d 1358 (9th Cir.1984). Conversely, a tribe has been held without power under Montana v. United States, 450 U.S. 544 (1981), to regulate non-Indian use of “surplus” water (water in excess of that needed to satisfy ...or off-reservation. Holly v. Confederated Tribes and Bands of Yakima Indian Nation, 655 F.Supp. 557 (E.D.Wash.1985), aff’d, 812 F.2d... ...In...a
- Indian water rights do not fall entirely into either the appropriative or the riparian category. Their foundation lies in the Supreme Court decision of Winters v. United States, 207 U.S. 564 (1908). That case involved the Fort Belknap Reservation in Montana, which had been created by an 1888 agreement out of a much larger area previously set aside for the concerned tribes. The agreement described one boundary of the reservation as being the middle of the Milk River, but it made no mention of rights to the use of water. Thereafter, non-Indian settlers off the reservation built dams that diverted the flow of the river and interfered with agricultural uses by the Indians. The settlers claimed that they had appropriated the water after the reservation was established but prior to any use of water by the Indians. The Supreme Court found it unnecessary to determine the truth of the settlers’ claims of prior use, because it held that when the Fort Belknap lands were reserved by the 1888...
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Chapter 10. Indian Gaming 60 results (showing 5 best matches)
- The present system of regulation of Indian gaming grew out of the division of jurisdiction among the federal government, the states, and the tribes that has been described in Chapters 7–9, but from those fundamental materials Congress fashioned a structure that is unique. The governing federal statute, the Indian Gaming Regulatory Act of 1988 (IGRA), 25 U.S.C.A. §§ 2701–2721, occupies the field of Indian gaming regulation, but also provides for the application of state law to a significant degree. The Act requires compacts between the tribes and states to govern the scope and conduct of Indian casino-type gaming, and those compacts may further allocate jurisdiction between tribe and state. The Act requires states that meet certain criteria to bargain in good faith to arrive at such compacts. In order to enforce that duty, the Act authorized tribes to bring an action in federal court against states that failed to comply. That key provision for the enforcement of the duty to bargain...in
- A central feature of IGRA is its unique criminal jurisdictional provision, 18 U.S.C.A. § 1166. That section extends all state laws pertaining to gambling, including but not limited to criminal provisions, into Indian country. “State laws” include state decisional law authorizing injunctive relief against illegal gaming enterprises. United States v. Santee Sioux Tribe, 135 F.3d 558 (8th Cir.1998). The statute excepts from the definition of “gambling” any Class I gaming, any Class II gaming regulated by the Commission, and any Class III gaming under a compact approved by the Secretary that is in effect. Finally, § 1166 provides that the United States has exclusive jurisdiction to enforce those state gambling laws extended to Indian country unless the tribe, by compact, consents to the state’s exercise of that jurisdiction. IGRA is sufficiently pervasive that it leaves no room for the Assimilative Crimes Act to import state law to be applied to an Indian gaming operation. United...Indians
- California was (and is) a Public Law 280 state, with the consequence that its criminal laws had been extended to Indians in Indian country, but its regulatory and legislative authority had not. See Chapter 8, Section D. The primary issue in , therefore, was whether the state and county laws were “criminal/prohibitory” or “civil/regulatory” in nature. The Supreme Court described the distinction as follows:
- opened a gaping hole in the system established by Congress in IGRA. The Act gave state laws a reach that they otherwise did not have; state laws relating to gambling were extended into Indian country. The compensation for the tribes was that they could force the states to bargain in good faith for a compact permitting Class III gaming. After , the tribes could force the states no longer. Although some states have continued to bargain, the balance of forces in such bargaining is altered by the inability of the tribes to sue and may be reflected in the compacts reached. States may waive their immunity, but not many do; California is a notable exception. See Rincon Band of Luiseno Mission Indians v. Schwarzenegger, 602 F.3d 1019 (9th Cir.2010). Thus a state that is opposed to Indian gaming may simply refuse to bargain. The fact that a state may have bargained in the past does not waive its Eleventh Amendment immunity. Ponca Tribe of Oklahoma v. Oklahoma, 89 F.3d 690, 691 n.2 (10th Cir...
- The usefulness of the exceptions described in the previous paragraph has been very substantially impaired by the Supreme Court’s decision in Carcieri v. Salazar, 555 U.S. 379 (2009). There the Supreme Court held that the Secretary’s authority to acquire land in trust for Indians, conferred in the Indian Reorganization Act of 1934, 25 U.S.C. § 465, was subject to the definition of “Indian” in § 479. Section 479 defined “Indian” to include “all persons of Indian descent who are members of any recognized Indian tribe under Federal jurisdiction.” (Emphasis supplied). The Court held that the “now” must be taken literally to mean “at the time of enactment of the Indian Reorganization Act.” As a result, numbers of acquisitions by the United States of land in trust for tribes recognized after 1934 have been placed under a cloud. Completed transfers into trust may not be challenged under the Quiet Title Act by one claiming an adverse title, because that Act’s waiver of the sovereign... ...an...
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Preface 5 results
- The scope of this edition is substantially the same as that of the fifth edition. I have attempted to canvass the major categories of law applying to domestic Indian tribes and Alaska Natives. I have not included the subject of Native Hawai’ians, who seek to apply some of the concepts of Indian law to their own situation. I include cases dealing with Indians in Oklahoma and a few of the eastern states with state-recognized tribes, but I have not attempted to delve into the numerous specialized federal and state statutes dealing with those groups over the years.
- The purpose of this book remains as it was in the first five editions. It is to set forth in succinct form the essentials of a very complex body of federal Indian Law, with attention to the governmental policies underlying it.
- The views expressed in this book are attributable to me individually as a student and former teacher of Indian Law. They do not represent the views of the United States Court of Appeals for the Ninth Circuit, Arizona State University, or even of myself in any official capacity.
- The volume of litigation continues to increase; in the past five years more than five hundred reported cases have addressed one or more issues of federal Indian Law. This surge is primarily the result of greatly increased economic activity of many tribes, particularly those engaged in gaming. There are a great many cases challenging tribal sovereign immunity, but the Supreme Court has reiterated its adherence to that immunity unless Congress modifies it. Numerous issues related to gaming are also finding their way to court, as are very frequent fact-specific state-court applications of the Indian Child Welfare Act.
- The Supreme Court has made no change in its cases of the last few decades limiting tribal sovereignty when tribes attempt to exercise jurisdiction over nonmembers. In a slightly different vein, it has recently employed a strictly literal (but not uncommon) approach to statutory interpretation that has threatened the program of the Secretary of the Interior of taking lands into trust for some of the tribes. The Court has also narrowly construed the Indian Child Welfare Act. As before, many cases in the lower courts struggle with the question of just how far the boundaries of tribal civil jurisdiction have been moved.
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Copyright Page 5 results
- Nutshell Series, In a Nutshell
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
- © West, a Thomson business, 1998, 2004
- © 2015 LEG, Inc. d/b/a West Academic
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Chapter 4. Indian Tribal Governments 19 results (showing 5 best matches)
- The tribal courts have a history long antedating the Indian Reorganization Act. Their forerunners were Courts of Indian Offenses, first established in the 1880’s by the Secretary of the Interior to help “civilize” the Indians. Those courts administered a code promulgated by the Secretary and incorporated in volume 25 of the Code of Federal Regulations (C.F.R.). Courts of Indian Offenses continued in existence even after the passage of the Indian Reorganization Act, because the tribes lacked the resources to establish new courts on their own authority. Some still function today. During the past forty years, however, most tribes have organized their own tribal courts that administer tribal codes passed by the council and, where required, approved by the Secretary of the Interior. The jurisdiction of these courts is discussed in Chapter 7, Sections D(2) and F(2). Tribal court systems vary from the highly structured, multiple court system of the Navajo Nation, served by tribal... ...a...law
- The Indian Reorganization Act (I.R.A.) provided that tribes could vote not to be governed by its organizational provisions, and several tribes rejected application of the Act. The Navajos and many of the Pueblos are examples. As a consequence, these tribes do not necessarily follow the constitutional pattern described above, and it is unsafe to generalize about their characteristics. For example, the Navajo Nation has no written constitution although provisions are made for one in the Navajo-Hopi Rehabilitation Act of 1950, 25 U.S.C.A. § 631 et seq. Yet the Navajos operate under a detailed tribal code, and have an elected tribal council and chairman in much the same manner as the I.R.A. tribes. On the other hand, many of the Pueblos operate entirely under unwritten customary law, with traditional leaders and a governmental structure wholly different from the I.R.A. constitutional model.
- The Indian Reorganization (Wheeler-Howard) Act provided that any tribe or tribes “residing on the same reservation” had the right to organize and adopt a constitution and by-laws which became effective upon a majority vote of the adult members of the tribe and upon approval by the Secretary of the Interior. 25 U.S.C.A. § 476. The Act also permitted the tribe to incorporate under a charter issued by the Secretary and approved by a majority vote of the members. 25 U.S.C.A. § 477. Under these provisions, a large number of the tribes adopted constitutions within a few years of passage of the Act, and many also became incorporated as an aid to the transaction of tribal business. Because these measures were adopted for entire reservations, the new constitutional “tribes” often included more than one ethnic tribe.
- By the late 1920’s, when the allotment policy came to be acknowledged as a failure, very little was left of the once-healthy tribal structures. The Indian Reorganization Act of 1934, which marked the shift in federal policy toward preservation of the tribes, did little to revive them in their familiar form. Instead, the Act built upon the tribal situation as it found it, and created an entirely new framework for tribal self-government.
- The standard constitution contained provisions describing the tribal territories, specifying eligibility for membership, and establishing the governing bodies and their powers. It also contained provisions for amendment (subject, of course, to the approval of the Secretary of the Interior). The Indian Reorganization Act was amended in 1988 to provide that the Secretary must approve constitutions or amendments within 45 days unless the Secretary finds “that the proposed constitution, bylaws or any amendments are contrary to applicable laws.” 25 U.S.C.A. § 476(d)(1). Many of the tribes have since revised their constitutions to reflect individual tribal concerns and a desire to exercise more complete tribal autonomy. In particular, the new constitutions generally dispense with the requirement of ..., much of the original structure persists in many cases, so that it is still possible to generalize about the components of tribal government with the caveat that individual tribal...
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Table of Cases 204 results (showing 5 best matches)
- Pan American Co. v. Sycuan Band of Mission Indians ...... 100
- Cabazon Band of Mission Indians v. National Indian Gaming Comm’n ...... 372
- Rumsey Indian Rancheria of Wintun Indians v. Wilson ...... 369
- Indian Gaming Related Cases, In re ...... 364
- Indian Country, U.S.A. v. Oklahoma Tax Comm’n ...... 147, 368
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Index 135 results (showing 5 best matches)
Table of Contents 75 results (showing 5 best matches)
Advisory Board 11 results (showing 5 best matches)
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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- Publication Date: December 5th, 2014
- ISBN: 9781628100082
- Subject: American Indian Law
- Series: Nutshells
- Type: Overviews
- Description: This guide provides a reliable resource on American Indian law. Its authoritative text covers the essentials of this complex body of law, with attention to the governmental policies underlying it. The work emphasizes both the historical development of Federal Indian Law and recent matters such as the evolution of Indian gaming, issues arising under the Indian Child Welfare Act, and the present enforcement of treaty rights. It addresses the policy and law applicable to Alaska Natives, but does not deal with Native Hawai'ians.
