Chapter 11. Individual Rights and Indian Law 43 results (showing 5 best matches)
- The Indian Civil Rights Act of 1968, 25 U.S.C.A. § 1301 et seq., was passed by Congress in order to impose most of the provisions of the Bill of Rights upon the tribes. The principal guarantees of the Act are found in 25 U.S.C.A. § 1302(a) which provides:
- The second decision is Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), discussed in the previous section. There the Court held that habeas corpus was the sole remedy by which enforcement of the Indian Civil Rights Act could be obtained in federal court. Because prevents the tribes from exercising criminal jurisdiction over non-Indians for most purposes, there will be little opportunity for non-Indians to bring Indian Civil Rights Act cases in federal court.
- of the rights incorporated into the Indian Civil Rights Act is therefore left entirely to the tribal courts. Some tribal court systems are reasonably well equipped for the task; others are not. In either case, the effectuation of the non-criminal portions of the Indian Civil Rights Act lies exclusively with them.
- The general freedom of the tribes from constitutional restraints against governmental action thus remains well supported. In 1968, Congress found this situation unacceptable and decided to intervene by statute. The result was the Indian Civil Rights Act.
- b. The Indian Civil Rights Act of 1968
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Chapter 7. Criminal and Civil Jurisdiction in Indian Country 79 results (showing 5 best matches)
- One additional federal limitation on tribal jurisdiction over internal affairs is found in the Indian Civil Rights Act of 1968, 25 U.S.C.A. § 1301 et seq., more fully described in Chapter 11. The act imposed most of the requirements of the Bill of Rights upon the tribes in the exercise of their jurisdiction. Tribal courts are consequently required to observe due process and enforce other rights analogous to those arising under the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments. ...violation of the provisions of the Act are afforded a right of review in federal court by habeas corpus. The Act also limits the sentences that regularly may be imposed by tribal courts to a maximum of a $5,000 fine and one year imprisonment for any one crime. 25 U.S.C.A. § 1302(a)(7)(B). This maximum may be increased to a $15,000 fine and three years imprisonment if certain conditions, including provision of licensed defense attorneys for indigents, are met. There are no comparable maximum...
- , infra, the civil authority of tribes and their courts did not extend to activities of nonmembers on fee lands. , the tribe does have criminal legislative authority over nonmember Indians in Indian country. 25 U.S.C.A. § 1301(2). Indian country includes fee lands and rights-of-way within a reservation. 18 U.S.C.A. § 1151(a). Thus, the tribal court would not be exceeding the tribe’s legislative jurisdiction if it entertained litigation between nonmember Indians arising from an accident on a right-of-way. If was referring only to the tribe’s civil legislative authority, then the tribe’s civil jurisdiction appears to be narrower than its criminal jurisdiction—the opposite of the condition the Court has previously said to prevail. See National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 854–55 & nn. 16 & 17 (1985).
- That action of Congress did not alter the Supreme Court’s view of civil jurisdiction over nonmembers. The Court subsequently held that tribes had no jurisdiction over a tort action between “nonmembers” arising out of an automobile accident on a state right-of-way through the reservation. Strate v. A-1 Contractors, 520 U.S. 438, 442 (1997). In decision in a civil case, it is no longer safe to assume that a tribe’s civil authority over nonmember Indians is the same as its authority over its members. Thus a state court has been held to have subject matter jurisdiction over a dispute between nonmember Indians over a partnership that managed reservation fee lands. Luger v. Luger, 765 N.W.2d 523 (N.D.2009). Because of this trend, much of the following discussion will refer to “members” as the group over which the tribe has indisputable civil authority. The converse term “nonmembers” is not always employed in opposition to it, however, because of the uncertainty over their jurisdictional...
- held that a tribe, by reason of its domestic dependent status, could not exercise civil jurisdiction over a tort suit between nonmembers arising from an accident on a state highway within a reservation. The Court held that a state highway right-of-way, where the tribe had no gatekeeping authority, was the equivalent of non-Indian fee land, and that tribes had no jurisdiction over nonmember activities on such land under presumptively placing civil jurisdiction in tribal court was said to stand for “nothing more than the unremarkable proposition” that “where tribes possess authority to regulate activities of nonmembers,” jurisdiction presumptively lies in the tribal court. Id. The Supreme Court in is that state courts have exclusive jurisdiction over suits between nonmembers arising on non-Indian fee or right-of-way ...into Indian country, because state courts previously had civil jurisdiction over such a suit. What is new is that the state jurisdiction is now exclusive of...
- even without specific congressional authorization. It seems likely that a tribal court would still have power to enforce decorum in its courtroom by the use of criminal contempt power against disruptive non-Indians. The exercise of such power may be essential to the very existence of a tribal court, and is therefore not inconsistent with the status of a tribe as a dependent sovereign. The same argument might also be used to support the use of contempt power to enforce subpoenas issued to non-Indians in the course of the tribal court’s exercise of its legitimate jurisdiction. Finally, tribes generally retain the power to exclude unwanted persons from their reservations (a power often guaranteed by treaty). The power of exclusion might be viewed as quasi-criminal, and could be exercised against non-Indians at least to the extent that they do not have a federally-conferred right to be applied the provisions of the Indian Civil Rights Act and ...court has also applied the Indian Civil...
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Chapter 8. Public Law 280: A Federal Grant of Jurisdiction to the States 35 results (showing 5 best matches)
- Like the parallel grant of criminal jurisdiction, this civil section filled in the greatest existing gap in state jurisdiction. Williams v. Lee, 358 U.S. 217 (1959), had denied the state power to adjudicate civil actions against Indians that arose in Indian country; Public Law 280 expressly conferred that power. The state’s adjudicatory power was not made total, however. 28 U.S.C.A. § 1360(b) provided that nothing in the grant should confer jurisdiction upon the states “to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of [trust] property or any interest therein.” The same section declined to grant the state power to encumber trust property or to interfere with treaty rights—a disclaimer that is common to both the civil and criminal grants and that is discussed in Section E below. In addition,
- Public Law 280 expressly declines to authorize states to interfere with hunting and fishing rights, or to take certain actions affecting Indian trust lands. See Section E, below. States also have been held to lack general powers of taxation and regulation in Indian country. See Bryan v. Itasca County, 426 U.S. 373 (1976). The latter limitation, which affects both the civil and criminal jurisdiction of the states, is of considerable importance and is discussed in Section D, below.
- 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
- Each of the States listed * * * shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed * * * to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State * * *.
- One further issue that arose from Public Law 280’s grant of civil jurisdiction overshadows all others and has important implications for criminal jurisdiction as well. The civil grant is one of power over “civil causes of action.” This language would appear to mean that the state simply acquired adjudicatory jurisdiction—the power to decide cases—and not the entire power to legislate and regulate in Indian country. On the other hand, the statutory grant also provides that the “civil laws of [the] State shall have the same force and effect within such Indian country as they have elsewhere within the State.” That language might arguably confer full legislative jurisdiction on the state. The true meaning of the statute was vigorously disputed until the Supreme Court resolved the matter adversely to the states in Bryan v. Itasca County, 426 U.S. 373 (1976).
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Chapter 2. Historical Overview of Federal Indian Law and Policy 10 results (showing 5 best matches)
- By the late 1960’s, the policy of termination was largely regarded as a failure, and the assimilationist ideal began to fade. Partly as a result of this movement, and partly for independent reasons, Congress passed the Indian Civil Rights Act of 1968. 82 Stat. 77, 25 U.S.C.A. § 1301 et seq.
- One provision of the Civil Rights Act of 1968 was unequivocally welcomed by the tribes. The Act amended Public Law 280 so that states could no longer assume civil and criminal jurisdiction over Indian country unless the affected tribes consented at special elections called for the purpose. 25 U.S.C.A. §§ 1321–22, 1326. This amendment brought such extensions of jurisdiction to a virtual halt. In addition, the Act set forth a procedure by which states that had assumed Public Law 280 jurisdiction could retrocede such jurisdiction to the federal government. 25 U.S.C.A. § 1323. Numbers of these retrocessions have occurred.
- The primary effect of the Act was to impose upon the tribes most of the requirements of the Bill of Rights. Traditionally, the tribes had not been subject to constitutional restraints in their governmental actions, because those restraints are imposed in terms either upon the federal government or, by the 14th Amendment, upon the states. Since the tribes were neither, the constitutional restrictions did not apply to them. Talton v. Mayes, 163 U.S. 376 (1896). The Civil Rights Act imposed upon the tribes by statute such basic requirements as the protection of free speech, free exercise of religion, due process and equal protection of the laws, among others. See Chapter 11, infra. In so doing, the Act represented a federal intrusion upon the independence of the tribes, and some tribal members have opposed it upon that ground. On the other hand, imposing constitutional requirements on tribal governments seemed to contemplate the continued existence of those governments, a position...
- The first decision in which the Supreme Court attempted to formulate its views of Indian tribes and their legal and historical relation to the land was Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823). The case concerned the validity of a grant of land made by tribal chiefs to private individuals in 1773 and 1775 (before passage of the Trade and Intercourse Acts, which would have prohibited such transactions). The Court held the conveyance invalid. Discovery of lands in the new world, said the Court, gave the discovering European sovereign a title good against all other Europeans, and along with it “the sole right of acquiring the soil from the natives * * *.” 21 U.S. at 573. The Indians retained a right of occupancy, which only the discovering sovereign could extinguish, either “by purchase or by conquest.” The sovereign was free to grant land occupied by Indians, but the grantee received title subject to that right of occupancy. The result of this decision was to recognize a legal
- Perhaps the most important and effective provision of the Indian Reorganization Act was that which ended the practice of allotment, and extended indefinitely the trust period for existing allotments still in trust. The Act also authorized the Secretary of the Interior to restore to tribal ownership any “surplus” lands acquired from the tribes under the Allotment Act, so long as third parties had not acquired rights in that land. The Act authorized the Secretary to acquire lands and water rights for the tribes, and to create new reservations.
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Table of Contents 26 results (showing 5 best matches)
Chapter 9. Taxation and Regulation in Indian Country 22 results (showing 5 best matches)
- An ultimate limitation of tribal power to regulate either Indians or non-Indians is federal preemption; Congress clearly has the power to oust the jurisdiction of the tribe or to condition its exercise, as it has done in the Indian Civil Rights Act of 1968 (see Chapter 11).
- One limitation upon tribal regulation of non-Indians is a practical one; tribal courts have no criminal jurisdiction over non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). This fact deprives the tribes of one of the most common methods of enforcing regulatory measures. As a result, tribes are attempting to enforce their regulatory ordinances by the use of civil recoveries or, when nonmember fee lands or rights-of-way are not involved, by the power of exclusion.
- Title VII of the Civil Rights Act of 1964 expressly excepts Indian tribes from coverage. 42 U.S.C. § 2000e(b). There is a split in the circuits over whether plaintiffs may avoid this exception by suing tribes or tribal officials for discrimination under 42 U.S.C. § 1981. The Eleventh Circuit held that they may not, Taylor v. Alabama Intertribal Council, 261 F.3d 1032 (11th Cir.2001), and the Fourth Circuit held that they may, Aleman v. Chugach Support Servs., Inc., 485 F.3d 206 (4th Cir.2007). The Title VII exception does not apply to an indirect subsidiary of an Alaska Native Corporation that does business in Virginia. Fox v. Portico Reality Services Office, 739 F.Supp.2d 912 (E.D.Va.2010). Title VII’s exception of tribes has been extended to Alaska Native Corporations but that exception did not include the Americans With Disabilities Act. Pearson v. Chugach Govt. Servs. Inc., 669 F.Supp.2d 467 (D.Del.2009). The Age Discrimination in Employment Act (ADEA), which has no express...
- The usual absence of state power to regulate tribal members in Indian country was emphasized in Bryan v. Itasca County, 426 U.S. 373 (1976). There the Supreme Court held that, even when state civil jurisdiction had been extended into Indian country by Public Law 280, the state lacked power to tax property held by a tribal member there. The Court pointed to the destruction of tribal governments likely to result “if tribal governments and reservation Indians were subordinated to the full panoply of civil regulatory powers including taxation, of state and local governments.” 426 U.S. at 388.
- Interference with treaty rights has had a mixed history. A provision of the federal Contraband Cigarette Trafficking Act requiring notice of shipment of cigarettes was held inapplicable to Yakama tribal members because a treaty guaranteed them the right to travel on the highways to transport goods to market. United States v. Smiskin, 487 F.3d 1260 (9th Cir.2007). The Act does not, however, violate any right to trade encompassed in the Treaty at Point Elliott. United States v. Wilbur, 674 F.3d 1160 (9th Cir.2012). Neither the Jay Treaty nor the Treaty of Ghent precludes the federal government from collecting payments from a tribally incorporated cigarette manufacturer under the Fair and Equitable Tobacco Reform Act. United States v. Native Wholesale Supply Co., 822 F.Supp.2d 326 (W.D.N.Y.2011). One federal circuit has held that the Occupational Safety and Health Act (OSHA) does not apply to a tribal business because it would conflict with treaty-secured rights to exercise sovereignty...
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Chapter 5. Indian Tribal Sovereignty 18 results (showing 5 best matches)
- jurisdiction over a civil case between nonmembers arising out of a vehicle accident on a state highway traversing the reservation. The Court held that the grant of right-of-way to the state, which precluded the tribe from exercising proprietary rights of exclusion, rendered the highway the equivalent of non-Indian fee land. Id. at 454. The Court stated that “ thus described a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation.” Id. at 446. The tribe’s interest in safe driving within the reservation was not sufficient to qualify for the second to preclude tribal court jurisdiction over a civil suit by a against a nonmember arising from an accident on a right-of-way within a reservation. Nord v. Kelly, 520 F.3d 848 (8th Cir.2008); Burlington Northern R. Co. v. Red Wolf, 196 F.3d 1059 (1999); Wilson v. Marchington, 127 F.3d 805 (9th Cir.1997).
- , 541 U.S. at 202–03. The Major Crimes Act, 18 U.S.C.A § 1153, is an example of federal intrusion on the tribe’s traditional power to punish its own members for crime. See United States v. Kagama, 118 U.S. 375 (1886); Ex parte Crow Dog, 109 U.S. 556 (1883). Public Law 280, 67 Stat. 588, which extended state civil and criminal jurisdiction over certain tribes, and the Civil Rights Act of 1968, 25 U.S.C.A. § 1301 et seq., which imposed most of the restraints of the Bill of Rights on the tribes, were both examples of federal legislation interfering substantially with tribal self-government. Finally, federal statutes terminating the special relationship
- “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 involved, and that “absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be governed by them.” Id....
- power may be limited by federal Indian law constraints on tribal power, a tribal official acting as such is not subject to federal constitutional constraints, because he does not act under color of either federal or state law. Talton v. Mayes, 163 U.S. 376 (1896); see Chapter 11, infra. And there is no private right of action in state or federal court for violations of the Indian Civil Rights Act that a tribal official might commit. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). Probably for these reasons, there is no long line of cases against tribal officers equivalent to the line of cases awarding damages against state or federal officials in their individual capacity. Wholly apart from questions of sovereign immunity, tribal officers may also be immune from liability for damages by reason of their status as judges, or as officers acting in good faith. See Penn v. United States, 335 F.3d 786 (8th Cir.2003); Kennerly v. United States, 721 F.2d 1252, 1259–60 (9th Cir.1983).
- allegedly excessive actions they took in executing a search warrant at the residence of a tribal member on trust land within a reservation. The prelude to the search was interesting. The officers were investigating an alleged off-reservation game violation. They secured two successive search warrants from a state court for the on-reservation search, but the state judge (reflecting a common understanding of tribal sovereignty) made the first search warrant contingent upon tribal court approval. The second search warrant did not contain a similar condition, but in both instances the officers obtained warrants from the tribal court for the searches. The searches found no evidence of crime, but in the second search the officers allegedly damaged some property. The Indian tribal member whose property had been searched and allegedly damaged brought a tort suit in tribal court for trespass, abuse of process, and violation of civil rights pursuant to 42 U.S.C. § 1983. The Supreme Court held...
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Index 49 results (showing 5 best matches)
Chapter 14. Indian Water Rights 41 results (showing 5 best matches)
- 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 reserved right if he does not use it; he is therefore limited to the quantity of water from...
- The result of these circumstances was the growth of the appropriative system. Under that regime, water rights are not appurtenant to the land. The right to water belongs to the first user who appropriates it and puts it to beneficial use. That appropriator is guaranteed the right to continue to take the same amount of water from the source without interference by any later appropriator. The appropriator retains that right only so long as he or she continues to put the water to beneficial use. “Use it or lose it” is consequently one of the slogans describing the appropriative system.
- 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.
- Disputes over Indian water rights are necessarily concentrated in the water-scarce states of the West. To understand these disputes and the evolving legal principles applicable to them, it is necessary to examine briefly the two major systems of water rights in the United States—the “riparian” system of the water-abundant states of the East and the “appropriative” system of the arid West.
- cases, it is possible to summarize some of the characteristics of reserved Indian water rights, commonly referred to as “ rights”:
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Chapter 15. Indian Hunting and Fishing Rights 39 results (showing 5 best matches)
- rights reserved by treaty has been somewhat more precarious, but the Supreme Court protected such a right in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999). That case dealt with claims of several Chippewa bands to hunt, fish, and gather under an 1837 treaty guaranteeing those rights “during the pleasure of the President of the United States.” The Supreme Court held that this right had never been extinguished. It survived an 1850 executive order that decreed removal of the Indians from the ceded lands and revoked their hunting and fishing rights there. The Court held that the President had lacked authority to order removal (the removal was later abandoned) and the revocation of hunting and fishing rights was not severable from the removal order; the entire order was invalid. Id. at 188–95. The 1837 treaty right also survived an 1855 treaty that ...“right, title, and interest, of whatsoever nature the same may be” in the ceded lands; the relinquishment did not...
- and many other cases illustrate, treaty hunting and fishing rights can be asserted even though they have lain dormant for many years. They can, however, be abandoned. In Ottawa Tribe v. Logan, 577 F.3d 634 (6th Cir.2009), the Ottawa Tribe of Oklahoma sought to enforce a treaty right to fish in Lake Erie free from Ohio state regulation. Although the tribe once had treaty fishing rights that went with its right of occupancy of much of Ohio, those rights were held to be abandoned in the 1830’s when the tribe abandoned its occupancy and removed, under additional treaties, to Kansas and later Oklahoma. The Sixth Circuit noted that its ruling was based on abandonment, not laches. Id. at 639 n.6.
- There has also been litigation by tribes over location of, or participation in, the “usual and accustomed” places specified by treaty. The original decision by Judge Boldt was held not to have awarded the Suquamish Tribe fishing rights in Skagit Bay and Saratoga Passage. Upper Skagit Tribe v. Washington, 590 F.3d 1020 (9th Cir.2010); see also United States v. Lummi Nation, 763 F.3d 1180 (9th Cir.2014). When more than one tribe secured a treaty right to fish at a specified location, the tribe that controlled that location at treaty time was determined to have the “primary right” in that station, and the other tribe’s right to fish was subject to the permission of the primary tribe. United States v. Lower Elwha Tribe, 642 F.2d 1141 (9th Cir.1981); United States v. Skokomish Indian Tribe, 764 F.2d 670 (9th Cir.1985). In a later case, however, the Yakama and the Wenatchi tribes were both held to have fishing rights at a particular location, the Yakama by a treaty of 1855 and the...
- A recent application of the Washington treaties concerned shellfish gathering. The treaties providing for a right of the Indians to take fish “at all usual and accustomed grounds and stations” included a proviso: “That they shall not take shell fish from any beds staked or cultivated by citizens.” The Ninth Circuit held that the treaty clearly guaranteed a right to take shellfish, and that the proviso excluded treaty Indians only from artificial beds created by private owners; it did not prevent access to natural beds claimed or improved by those owners, nor to artificial beds created by the state. United States v. Washington, 157 F.3d 630 (9th Cir.1998)(amended ...the Indians one half of the harvestable shellfish within their accustomed fishing grounds, with an adjustment for harvest from privately-enhanced beds. With regard to natural beds enhanced by private growers, the court awarded the Indians the right to harvest one half of the shellfish that would be produced by... ...right...
- Indeed, the implied treaty right to hunt and fish free from state law has been held to survive a congressional termination of the trust relationship between the tribe and the federal government; the hunting and fishing rights are not extinguished in the absence of a clear indication of congressional intent to that effect. Menominee Tribe v. United States, 391 U.S. 404 (1968); United States v. Felter, 752 F.2d 1505 (10th Cir.1985). Such rights have been upheld even for Indians who withdrew from the tribe upon termination of its trust relationship. Kimball v. Callahan, 493 F.2d 564 (9th Cir.1974), and Kimball v. Callahan, 590 F.2d 768 (9th Cir.1979); but see United States v. Von Murdock, 132 F.3d 534 (10th Cir.1997). Failure of the federal government to recognize a group of Indians as a tribe does not prevent the group from exercising treaty rights if the group descended from a treaty signatory and has maintained an organized tribal structure since. United States v. Washington, 520 F....
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Chapter 6. Indian Treaties 21 results (showing 5 best matches)
- In a recent example of sympathetic interpretation, a tribe was held still to enjoy rights to hunt, fish and gather on ceded land under an 1837 treaty that guaranteed such rights “during the pleasure of the President of the United States.” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999). The 1837 treaty rights were held to have survived, among other challenges, a treaty of 1855 that relinquished all “right, title, and interest, of whatsoever nature the same may be” in the ceded lands; the relinquishment did not mention hunting and fishing rights and any ambiguity had to be resolved in favor of the Indians. The treaty right was also held to survive the admission of Minnesota as a state.
- Nevertheless, important rights were guaranteed to the tribes by treaty, and many of these rights continue to be enforceable. A “bad men” clause in the Fort Laramie Treaty of 1868 recently supported a suit against the United States by the estates of two Sioux Indians killed by a drunken non-Sioux driver; the “bad men” do not have to be government actors. Richard v. United States, 677 F.3d 1141 (Fed. Cir.2012); see also Elk v. United States, 87 Fed. Cl. 70 (2009). Other rights secured to the tribes by treaty today include beneficial ownership of Indian lands, hunting and fishing rights, and entitlement to certain federal services such as education or health care. This is not to say that all such present rights are secured by treaty; many of them are the product
- Assertion of long-dormant treaty rights raises the question whether such claims may be barred by laches. One circuit flatly held that laches did not apply to treaty rights, in a case enforcing a tribe’s treaty shell-fishing rights that the tribe waited 135 years to assert. United States v. Washington, 157 F.3d 630, 649 (9th Cir.1998). Certainly numerous treaties have been enforced after a long dormancy.
- A tribe need not be federally recognized to establish that it is the beneficiary of a treaty. United States v. Suquamish Tribe, 901 F.2d 772 (9th Cir.1990); Greene v. Babbitt, 64 F.3d 1266, 1270 (9th Cir.1995). It is enough that a group establish that it has preserved an organized tribal structure that it can trace back to the treaty. United States v. Oregon, 29 F.3d 481, amended 43 F.3d 1284 (9th Cir.1994). Federal recognition is thus a wholly separate issue from entitlement to treaty rights; a tribe with treaty fishing rights accordingly is not entitled to intervene in a recognition proceeding of another tribe in order to protect against dilution of those treaty rights. United States v. Washington, 593 F.3d 790 (9th Cir.2010) (en banc) (amended opinion). For the same reason, a tribe that was unrecognized when it was denied treaty rights cannot reopen the proceeding on the ground that it has since become recognized. Id.
- A treaty between the United States and an Indian tribe is a contract between two sovereigns, and the rights and obligations primarily bind the contracting parties. Because treaties are also the supreme law of the land, they can occasionally provide equitable relief against a non-party when that relief is essential to fulfillment of the treaty’s undertakings. Skokomish Indian Tribe v. United States, 410 F.3d 506 (9th Cir.2005)(en banc). Treaty violations do not, however, give rise to a claim for damages against non-parties to the treaty. Id. Typically, treaty rights are communally held by the tribe; an individual cannot sue for a treaty violation under 42 U.S.C. § 1983, and a tribe cannot sue under § 1983 because it is not a “person.” Id. The Tenth Circuit has held, however, that an individual tribal member may assert the tribe’s treaty right to hunt and fish. United States v. Fox, 573 F.3d 1050 (10th Cir.2009). That right may be lost by conviction of a felony that triggers the...
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Chapter 13. Alaska Natives 19 results (showing 5 best matches)
- Because ANCSA extinguished aboriginal title “in Alaska,” it left a possibility that Natives could claim aboriginal rights beyond the three-mile limit from shore. See Village of Gambell v. Hodel, 869 F.2d 1273 (9th Cir.1989), appeal dism. as moot, 999 F.2d 403 (9th Cir.1993). The paramount rights of the federal government were held, however, to preclude a claim of exclusive fishing rights based on aboriginal rights in the outer continental shelf. Native Village of Eyak v. Trawler Diane Marie, 154 F.3d 1090 (9th Cir.1998). Subsequently, a divided en banc court upheld a district court’s findings that the plaintiff villages had failed in their bid to establish aboriginal rights in the outer continental shelf because they had not established use and control in the past. Native Village of Eyak v. Blank, 688 F.3d 619 (9th Cir.2012)(en banc). That ruling made it unnecessary for the court to decide whether federal paramountcy and aboriginal rights could coexist. Id.
- Alaska Native hunting and fishing thus generally proceeded under state regulation. There were, of course, no treaties and therefore no treaty hunting or fishing rights to be asserted. Any uncertainty concerning the nature and extent of aboriginal rights to hunt and fish were ended in 1971 with the passage of the Alaska Native Claims Settlement Act. It extinguished “any aboriginal hunting or fishing rights that may exist.” 43 U.S.C.A. § 1603(b). Within the state, then, ANCSA made clear that no pre-existing rights remained and any distinctive treatment of Native hunting and fishing out of Indian country therefore had to be a creature of statute or regulation.
- The Alaska Statehood Act provided that Alaska disclaimed all right and title “to any lands or other property (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts * * * or is held by the United States in trust for said natives.” 72 Stat. 339 (1958). The Act also authorized the State to select huge tracts from the vacant public lands within the former Territory. It soon became clear that the question of competing aboriginal land claims would have to be addressed. Impending development of oil production and pipeline facilities added greatly to the impetus. The result was the Alaska Native Claims Settlement Act.
- In the companion case of Organized Village of Kake v. Egan, 369 U.S. 60 (1962), the Court reached a different result when the Secretary attempted to authorize the use of fish traps by Village fishermen in waters not part of any reserve. The Court held that the Secretary was not authorized to issue any such permits. One point in issue was the effect of the clause in the Alaska Statehood Act providing that the State “forever disclaim[ed] all right and title * * * to any lands or other property (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts” and that such lands or property “shall be and remain under the absolute jurisdiction and control of the United States * * *.” 72 Stat. 339 (1958). The Court held that the reference to fishing rights was intended neither to recognize nor to extinguish any aboriginal or possessory rights held by the Natives; it was intended merely to maintain the status quo. The provision for “absolute...
- First, the Act extinguished “[a]ll aboriginal titles, if any, and claims of aboriginal title in Alaska based on use and occupancy, including submerged land underneath all water areas, both inland and offshore, and including any aboriginal hunting or fishing rights that may exist.” 43 U.S.C.A. § 1603. It is noteworthy that the Act did not acknowledge whether or not such aboriginal title existed; it simply extinguished such title “if any.” It also extinguished all claims based on aboriginal title, including pre-Act claims of trespass. § 1603(b),(c); United States v. Atlantic Richfield Co., 612 F.2d 1132 (9th Cir.1980). The Act did not proceed on the theory of the Indian Claims Commission Act, which provided a means for tribes to prove the existence of their particular aboriginal title and to be compensated for its taking, measured by the value of the right. ANCSA instead extinguished and, as discussed below, compensated without regard to the value of particular claims.
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Chapter 10. Indian Gaming 12 results (showing 5 best matches)
- 480 U.S. at 209. The Supreme Court held that the laws were civil/regulatory. California’s public policy did not forbid gambling: the state operated its own lottery, authorized pari-mutual betting on horse races, and permitted many organizations to conduct bingo and card games. The county, too, permitted municipalities to authorize card games otherwise prohibited by the county ordinance. The fact that California’s regulations were enforced by misdemeanor penalties did not change their nature. “[T]hat an otherwise regulatory law is enforceable by criminal as well as civil means does not convert it into a criminal law within the meaning of Pub. L. 280.” 480 U.S. at 211.
- , therefore, was whether the state and county laws were “criminal/prohibitory” or “civil/regulatory” in nature. The Supreme Court described the distinction as follows:
- [I]f the intent of a state law is generally to prohibit certain conduct, it falls within Pub. L. 280’s grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and Pub. L. 280 does not authorize its enforcement on an Indian reservation. The shorthand test is whether the conduct at issue violates the State’s public policy.
- The Act provides that compacts may include provisions relating to “the application of the criminal and civil laws and regulations of the Indian tribe or the State” concerning the gaming activity, “the allocation of criminal and civil jurisdiction between the State and the Indian tribe” necessary to enforce such laws and regulations, remedies for breach of contract, and other matters concerning the gaming operation. § 2710(d)(3)(C). There is accordingly an unprecedented degree of freedom on the part of the parties to allocate jurisdiction over Class III gaming under the umbrella of the federal Act. An attempt by the Commission, however, to regulate minimum internal control standards for Class III gaming was struck down as unauthorized by IGRA; the Commission’s Class III authority did not equal its Class II authority. Colorado River Indian Tribes v. NIGC, 466 F.3d 134 (D.C.Cir.2006). On the other hand, the requirement of § 2710(b)(3) that the Secretary approve any plan for the per...
- Others seeking to sue on an implied right of action for violations of IGRA have had little success. An implied right was rejected in Friends of Amador County v. Salazar, 2010 WL 4069473 (E.D.Cal.2010). Moreover, third parties seeking to challenge outright the validity of existing compacts, including their provision for automatic extension, are required to join the signatory tribe as an indispensable (now “required”) party, which normally requires dismissal of the action (or claim) if the tribe does not waive its immunity. See American Greyhound Racing, Inc. v. Hull, 305 F.3d 1015 (9th Cir.2002); Mudarri v. State, 196 P.3d 153 (Wash.App.2008). A tribal member who ...3d 490 (7th Cir.2005). Even less drastic private attempts to recover under IGRA have met with severe difficulties. A management contractor has been held to have no private right of action under the Act to compel the tribe to license the contractor’s employees. Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians of...
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Chapter 12. Indian Lands 16 results (showing 5 best matches)
- 21 U.S. (8 Wheat.) at 574. The United States was accordingly free to grant to others land held by Indian tribes, but the grantee took title subject to the Indian “right of occupancy.” Most important from the standpoint of the Indians, however, was Marshall’s point that the United States, and the United States, could extinguish the Indian right of occupancy, “either by purchase or by conquest.” Id. at 587.
- In Cramer v. United States, 261 U.S. 219 (1923), however, the Supreme Court held that individual Indians may also claim a right of occupancy that predates competing claims of record title acquired by non-Indians. Id. at 227. The Court later characterized this right of occupancy as “individual aboriginal title.” United States v. Dann, 470 U.S. 39, 50 (1985). The Ninth Circuit subsequently held that individual Indians (or their lineal ancestors) could acquire aboriginal title to land by settling on it before it was withdrawn from settlement, and could acquire aboriginal grazing rights by grazing cattle prior to withdrawal of the land from open grazing by enactment of the Taylor Grazing Act of 1934. The individual aboriginal grazing rights were limited to the numbers and type of livestock being grazed at the time of the withdrawal, however. United States v. Dann, 873 F.2d 1189 (9th Cir.1989). Individual aboriginal title does not arise as part of tribal aboriginal title; it must arise...
- The primary advantage of recognized title is its relative permanence. Recognized title is “property” within the meaning of the Fifth Amendment, so that its taking by the federal government gives rise to a right of compensation. United States v. Creek Nation, 295 U.S. 103 (1935). Moreover, interest may be charged against the federal government for a Fifth Amendment taking, a fact of great importance when the taking may have occurred a century before judgment. See United States v. Sioux Nation, 448 U.S. 371 (1980). Where the tribe’s land title is recognized, a taking of timber or mineral rights is also compensable under the Fifth Amendment, because the tribe’s interest in the land is presumed to include timber and minerals in the absence of an expression to the contrary in the governing treaty or statute. United States v. Shoshone Tribe, 304 U.S. 111 (1938).
- They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the
- , 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 (1974). It was pointed ...rise to any right of compensation...
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Chapter 1. Introduction 1 result
- The failure of the federal government to recognize a particular group of Indians as a tribe cannot deprive that group of vested treaty rights. Timpanogos Tribe v. Conway, 286 F.3d 1195, 1203–04 (10th Cir.2002). To enjoy treaty rights, however, the group must have maintained itself as a distinct community with some defining characteristic that permits it to be identified as the group named in the treaty. United States v. Washington, 641 F.2d 1368 (9th Cir.1981).
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Chapter 3. The Special Relationship Between the Federal Government and the Tribes 14 results (showing 5 best matches)
- If the tribe is able to maintain its existence, termination will not put an end to its treaty rights in the absence of a clear expression of legislative intent to accomplish that purpose. Thus the Menominee and Klamath tribes were held to have hunting and fishing rights that survived each tribe’s “termination.” Menominee Tribe v. United States, 391 U.S. 404 (1968); Kimball v. Callahan, 493 F.2d 564 (9th Cir.1974), and Kimball v. Callahan, 590 F.2d 768 (9th Cir.1979).
- Another element of termination is the transfer of jurisdiction over the tribal territory from the federal government to the state. The state and local governments acquire complete legislative power; they can regulate all activity taking place on the former reservation. State laws may be applied to the tribe itself. South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 506 (1986). The state also acquires judicial jurisdiction; civil and criminal matters that were formerly tried in federal or tribal court go to state court instead. Individual members of the tribe, should they be found in Indian country, will not even
- the tribe in 1794 without the approval of the federal government, in violation of the Trade and Intercourse Act of 1790. The trust responsibility also figured prominently in litigation concerning water rights of several of the western tribes. One such controversy involved the Pyramid Lake Paiute Tribe, which succeeded in requiring the United States to bring a water rights suit on its behalf. Pyramid Lake Paiute Tribe v. Morton, 354 F.Supp. 252 (D.D.C.1972).
- Primary support for the trust relationship came, however, from the judiciary, beginning with Chief Justice John Marshall’s decision in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). There he characterized the tribes as “domestic dependent nations” with a right of occupancy of the land until the federal government chose to extinguish their title. Marshall added:
- benefit of the Indians. E.g., Jicarilla Apache Nation v. United States, 112 Fed. Cl. 274 (2013). Although the Court relied on the more general, overall trust relationship to buttress its decision in Mitchell II, 363 U.S. at 225, it has never granted relief for breach of that general duty by itself. Nor is the Court always ready to apply the law of private trusts to the federal trustee, as it appears to have done in Mitchell II, 363 U.S. at 226, and White Mountain Apache Tribe, 537 U.S. at 475–76. The governing rule for recovery of damages remains the two-step requirement of Navajo II: first, a statute must contain rights-creating or duty-imposing conventional trust-like prescriptions and, second, the trust duty must be money-mandating. 556 U.S. at 290–91. Principles of trust law may be relevant for purposes of the second step, but not the first. Id. at 291. The requirements of the ...rights-creating or duty-imposing statute or regulation, originating in Tucker Act cases for damages...
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Preface 1 result
- 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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Table of Cases 3 results
Chapter 4. Indian Tribal Governments 1 result
- 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.
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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.