Chapter 1. American Indians and Federal Indian Law 161 results (showing 5 best matches)
- Indian law scholars also began developing the field of American Indian tribal law. In important ways, federal Indian law is merely a tool by which Indian nations create space for themselves to enact their own laws and govern themselves. The broad contours of federal Indian law are well known and usually well settled, but tribal law’s potential is unlimited.
- 359 U.S. 217 (1959). The dean of contemporary federal Indian law, Charles F. Wilkinson, called the case the beginning of the modern era of federal Indian law. Charles F. Wilkinson, American Indians, Time, and the Law 1 (1987).
- Felix S. Cohen’s Handbook of Federal Indian Law 47–206 (1982 ed.); Monroe E. Price and Robert N. Clinton, Law and American Indian 68–92 (2d ed. 1983); William C. Canby, Jr., American Indian Law in a Nutshell 9–31 (1981); Conference of Western Attorneys General, American Indian Law Deskbook 9–27 (1993); Cohen’s Handbook of Federal Indian Law §§ 1.02–1.07 (2012 ed.); Robert T. Anderson, Bethany Berger, Philip P. Frickey, and Sarah Krakoff, American Indian Law: Cases and Commentary 15–162 (2008). See also Stephen L. Pevar, The Rights of Indians and Tribes 1–15 (4th ed. 2012).
- Felix S. Cohen, Handbook of Federal Indian Law xxiii, 122 (1941 ed.); Cohen’s Handbook of Federal Indian Law 2 (2012 ed.).
- Second, there is a long tradition of excluding state governments from Indian Country, dating back to the Constitution. According to James Madison, one of the serious flaws of the Articles of Confederation was the failure of the Articles to exclude state governments from Indian affairs. The Framers intended the Indian Commerce Clause to exclude state governments from the field of Indian commerce, while the federal government’s Treaty Power would be used to deal with Indian tribes as independent sovereign nations. The First Congress enacted the Trade and Intercourse Act as a means to fulfill its obligation under the Indian Commerce Clause. But States continued to assert authority to deal in Indian affairs, including executing treaties with Indian tribes, negotiating major Indian land purchases, and asserting their police powers on Indian lands, but they did so in violation of federal law. The situation came to a head in the Cherokee cases, in which the Supreme Court finally declared...
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Chapter 3. Centuries of Shifting American Indian Law and Policy 436 results (showing 5 best matches)
- American Indian citizenship under state law was perhaps even more complicated than under federal law. Some states authorized Indians to vote even before the Reconstruction, such as Michigan, but imposed vague obligations on Indians based on the “civilized” character of an Indian, whether the Indian was a ward of the federal government, or whether the Indian had renounced tribal status or treaty rights.
- for the proposition that the Fifth and Fourteenth Amendments do not require courts to apply strict scrutiny to federal and state statutes that apply only to American Indians. These statutes can be divided into statutes that benefit Indian tribes and those that do not. For example, the first case that reached the Court in which a claimant made the strict scrutiny argument was That case involved a child custody dispute between Indian parents that had been originally adjudicated in tribal court. the Court held that the application of a federal enclave murder statute to tribal members did not constitute race discrimination. Two Coeur d’Alene Indians had been convicted of felony murder under federal law for the murder of an Indian woman in Indian Country, a first degree murder. Had they been classified as non-Indians, they would have been prosecuted under Idaho law, which had no felony murder statute. ...premeditation and deliberation, elements of the crime that federal prosecutors...
- The rule that only the federal government may authorize the alienation or sale of Indian lands extended enormous federal power over tribal lands. Typically, owners of private property in the Western legal tradition have the presumptive authority to sell their own lands, but federal law made an exception of Indians and Indian tribes. The federal government’s exclusive authority in this area allowed the United States to dictate the terms upon which the acquisition of Indian lands would occur. As Indian tribes ceded lands to the United States through treaty provisions, the United States would then control the first alienation of the lands to American citizens and business entities and use that power to generate significant federal revenue. Over time, the Supreme Court’s view of federal authority in this field expanded to allow Congress to alienate Indian lands tribal consent at all, usually by abrogating Indian treaties.
- The allotment era, more so than any other era in federal Indian policy, contributed to the extreme doctrinal and jurisdictional complexity of federal Indian law. The division of Indian reservations into smaller parcels, with some of the parcels being owned by Indians in fee simple, some owned by non-Indians in fee simple, and some held in trust as reservation land created a jurisdictional morass referred to as “checkerboarding,” with some parcels being under tribal and federal jurisdiction, and others being under state and local jurisdiction. Each allotment implementation act allowed for unique circumstances to develop, often arising under the differing provisions relating to the end of the trust period. In most places, the trust period ended when it expired, but in places like Minnesota, the trust period ended when the local Indian agent made a determination that one of the potential Indian owners was “competent.” And under some federal statutes, an Indian agent had authority to...
- may become the most important footnote in 21st century Constitutional litigation involving federal and state statutes relating to Indian tribes and individual Indians. It was this footnote in which the Court first articulated a theory that federal statutory or regulatory preferences favoring Indians should not be analyzed under the rubric of the strict scrutiny analysis applied to laws that apply specifically to racial minorities. Instead, footnote 24 theorized that federal statutes relating to Indian tribes that are reasonably related to the federal government’s trust relationship with Indian tribes and individual Indians are classifications based on the political status of these groups, not their racial characteristics: “The preference is not directed towards a ‘racial’ group consisting of ‘Indians’; instead, it applies only to members of ‘federally recognized’ tribes. This operates to exclude many individuals who are racially to be classified as ‘Indians.’ In this sense, the...
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Chapter 5. The Federal-Tribal Relationship 375 results (showing 5 best matches)
- E.g., Indian Child Welfare Act, 25 U.S.C. § 1901(2)–(3) (“Recognizing the special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people, the Congress finds … (2) that Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources; (3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe….”); Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450a(a) (“The Congress hereby recognizes the obligation of the United States to respond to the strong expression of the Indian people for self-determination by assuring maximum Indian...
- Felix S. Cohen, Handbook of Federal Indian Law xi, xiii (1941) (“[T]he theory of American law governing Indian affairs has always been that the Government owed a duty of protection to the Indian in his relations with non-Indians.”; “[T]he entire body of federal legislation on Indian affairs … may be viewed in its entirety as the concrete content of the abstract principle of federal protection of the Indian”); Kristen A. Carpenter, Sonia K. Katyal & Angela R. Riley, In Defense of Property, 118 Yale L. J. 1022, 1058–59 (2009) (“[A] foundation principle of federal Indian law has been that the United States has an imperative protect Indian tribes against the encroachments of states and other citizens. This principle of ‘responsibility and trust’ embodies the national obligation to exercise the highest duty of care toward Indian tribes.”) (footnotes omitted).
- A much more difficult area is where a federal statute governs a particular field of law, but does not expressly state whether the statute applies to Indian nations. These statutes, often called federal statutes of general applicability, are silent as to their application to Indian nations, and therefore do not meet the exacting analysis of the clear statement rule. However, several lower courts have cobbled together a body of federal common law to hold that federal statutes of general applicability do apply to Indian nations.
- The federal government’s obligation to provide for law and order in Indian country dates back to the earliest treaties and Congressional enactments. President Washington’s policy statements articulated an early recognition of the United States’ obligation to ensure law and order in Indian country.
- The federal government’s trust responsibility to Indian nations and Indian people constitutes a foundational basis for federal-tribal relations in the modern era. The scope of the federal trust responsibility largely is defined and controlled by statutes creating a federal trust obligation to individual Indians and Indian tribes that often can be enforced against the United States, sometimes incurring enormous liability on the United States. The United States also retains and recognizes a general trust obligation to Indians and tribes that justifies federal Indian affairs legislation and programs.
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Chapter 10. Indian Religion and Culture 132 results (showing 5 best matches)
- Third, Congress found that federal agents directly and indirectly interfered with tribal ceremonies and religious practices. For example, federal officers had a long history of opposing and restricting the practice of tribal religions through the enforcement of Bureau of Indian Affairs-authored reservation law and order codes that prohibited or severely restricted Indian religious ceremonies. These law and order codes were enforced in of Courts of Indian Offenses, with judges hand-picked by federal officers. Federal courts in cases such as upheld federal regulations often used to prosecute Indians engaging in traditional religious practices. . On-reservation federal Indian agents, as a matter of administrative practice, obstinately remained on the grounds at Rio Grande pueblos during religious ceremonies requiring that no non-Indian be present. And federal law enforcement officers would also do little or nothing to stop unwelcome on-lookers from interfering in tribal religious...
- The efforts of the Chilkat Indian Village in Alaska to preserve possession and to repatriate its cultural property made new law both in federal Indian law and in American Indian tribal law. Tribal members, descendants of keepers of tribal cultural property, made efforts over several years to remove cultural items from the tribal community and allegedly sell them to non-Indian collectors. The tribal village was able to successfully block those efforts through a combination of federal and tribal law.
- But foundational federal Indian law principles would have required the Court to address the possibility that in the case of the California Indians, the United States may have agreed via treaty that these specific Indian religious practices or these Indian lands must be protected from federal interference. That might have required the Court to address the difficult question of the Treaty of Guadalupe Hildalgo and the subsequent unratified California Indian treaties of the 1850s. This, unfortunately, the Court did not do. The difficult hypothetical questions concerning the Supreme Court likely would not have arisen in this context, nor would this case have constituted a precedent for any other kind of religious freedom cases. Rather than deal with the rights of communities and people that had a special relationship with the United States under foundational federal Indian law, the Court grouped tribal interests into the same category as the Catholic Church or the Church of Marijuana,...
- The impetus for the Act was a study conducted by the House of Representatives that concluded the federal government was restricting Indian religious freedom in at least three ways. First, federal agencies such as the United States Forest Service, National Park Service, and the Bureau of Land Management frequently prevented Indians from entering federal land where sacred sites were located. to allow the burial of tribal leaders in tribal cemeteries located on federal land. Second, federal law enforcement officials regularly confiscated substances, such as peyote, used by Indians for religious purposes, even though federal cases had protected the use of these substances as a bona fide religious sacrament. Federal officials also confiscated the use of animal parts, such as turkey and eagle feathers, from endangered species that Indians used in religious ceremonies.
- The Supreme Court has held that the federal government does not have an obligation under federal law to preserve and protect American Indian sacred sites on federal lands, even where federal action would destroy the site and severely compromise the religion.
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Chapter 7. Indian Country and Criminal Jurisdiction 450 results (showing 5 best matches)
- In short, the race of the Indian defendants was irrelevant; the Court concluded that they “were not subjected to federal criminal jurisdiction because they are of the Indian race but because they are enrolled members of the Coeur d’Alene Tribe.” Moreover, the Major Crimes Act is a statute designed to implement an aspect of the federal government’s trust obligation to Indian nations to preserve law and order in Indian country, or as the Court out it, “federal regulation of criminal conduct within Indian country implicating Indian interests….” Moreover, there was and could be no claim that Congress treated the Indian defendants any differently than others prosecuted under federal law for crimes committed in other federal enclaves.
- is another critical general federal criminal jurisdictional statute with relevance to Indian country. The Act allows federal prosecutors to “assimilate” state criminal laws to govern state law crimes in federal enclaves by either Indians or non-Indians. Congress intended the statute to fill “voids in the criminal law applicable to federal enclaves created by the failure of Congress to pass specific criminal statutes.”
- Frankly, it is odd that federal law puts a federal jury that is almost certain to consist of persons with little or no experience with Indian people or Indian country in a position to make a finding of fact beyond a reasonable doubt that a criminal defendant is an Indian. “Who is an Indian?” is one of the thorniest legal, social, and political questions in law, but both the Indian Country Crimes Act and the Major Crimes Act place Indian status as an element of the crimes alleged.
- Federal Indian law, along with admiralty or maritime law, is the rare area of law where the Supreme Court’s opportunities to serve as a national policymaker are several and significant. The Court’s policymaking choices in federal Indian law, however, are rarely in the view of the People—American Indians, after all, only became a part of the American policy in the last century; moreover, Indian tribes, by definition, are not part of the composition of the People. The opportunities for mischief by an unaccountable court with extraordinary power are numerous, especially in an area like Indian affairs where Congress rarely legislates.
- In 1817, Congress further extended federal criminal jurisdiction to crimes by Indians against non-Indians in Indian country. Section 2 of the Act foreclosed federal jurisdiction over “any offense[s] committed by one Indian against another, within any Indian boundary.” Section 2 also preserved Indian treaty rights relating to criminal jurisdiction.
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Chapter 2. The Origins of Federal Indian Law 173 results (showing 5 best matches)
- What was a certainty, however—at least at the time of the ratification of the Constitution—was that federal authority in Indian affairs (whatever its scope) was sole and exclusive of state authority. History shows with certainty that one of the greater weakness of the national government under the Articles of Confederation of the non-exclusive character of the Indian Affairs Power. The Court has long interpreted the Indian Commerce Clause as excluding the authority of states to enter the field of Indian affairs, unless Congress consents. . And yet, for decades, Indian activists and scholars decried federal plenary power in Indian affairs because of it was the source of deeply destructive federal Indian law and policy. Beginning especially in the mid-1980s, Indian law specialists and scholars became divided over the scope and legitimacy of federal plenary power in Indian affairs. ...hardships for Indian people, Congress had lately begun using its plenary power, in most instances,...
- Undermining the theoretical foundations of federal plenary power might serve to limit federal authority over Indian affairs, but it might also destroy much of what Indian people and tribes relied upon as their best hopes for a remedy. As Justice Blackmun worried in an analogous context, should the Court hold that the federal government’s Indian Affairs Power is constricted, much of Title 25 of the United States Code could lose its footing and come crashing down. Statutes such as the Indian Child Welfare Act, the Indian Civil Rights Act, or even the various Indian self-determination acts —statutes that did not obviously implicate Indian commerce—appeared to be at risk if Indian law scholars were successful in persuading the Court to limit federal plenary power.
- reasoning drew heavily from Justice Thompson’s dissent, abandoning the “domestic dependent nations” characterization of Indian nations in favor of recognizing Indian nations as “distinct, independent political communities.” The decision is a Supremacy Clause decision, holding that state laws interfering or conflicting with federal laws are void.
- The foundational principles of federal Indian law arrived early in the Supreme Court’s Indian law jurisprudence. This chapter parses the so-called Marshall Trilogy of cases that brought us the working rules for federal, state, and tribal government interaction. These cases were of enormous import to the United States and to the American political elite, raising and deciding questions impacting the massive financial investment in land speculation and states’ rights under the federal government leading up to the Civil War.
- E.g., Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1, 34 (2002) (“ established that U.S. authority over tribes, or at least the United States’ exclusive right to acquire Indian property, originated from two sources: colonial prerogatives deriving from discovery, and the nature of Indians as savages and incomplete sovereigns. Neither of these sources was based on the text of the Constitution. Instead, the U.S. powers resulting from discovery and the Indians’ aboriginal status were original, inherent powers, arising from international law. By deriving U.S. authority over the Indians from an extraconstitutional source and suggesting that Congress’s exercise of the power was inappropriate for judicial review, laid the groundwork for the doctrine of inherent powers to come.”); John P. LaVelle, Strengthening Indian Sovereignty through Indian Participation...
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Chapter 8. Tribal and State Conflicts Over Civil Jurisdiction 371 results (showing 5 best matches)
- dramatically expanded the reach of federal common law in the Indian law context, holding in a simple syllogism that whether tribal courts have jurisdiction over nonmember civil defendants in a given case is a question arising under federal law, and therefore Section 1331 of the Judicial Code authorizes federal courts to give an answer. The Court had a long history of adopting federal common law causes of action in Indian law, but in each instance, Congress had created a right without any specified remedy. For example, Congress had prohibited sales of Indian lands to anyone absent the consent of Congress but did not created a cause of action in federal court to void such sales, and so the Supreme Court created one. Similarly, when the United States sued a county on behalf of an Indian tribe for interest in back taxes illegally collected by the county, the Court applied federal common law to determine whether such interest was recoverable. ...had the Court created a federal... ...law...
- Perhaps the most difficult and tragic area of federal Indian law is Indian child welfare, with its centuries of conflict between Indian people, the federal government, and more recently state governments—with Indian children paying an incredible price as a result.
- Court’s heavy reliance on the Indian trader licensing scheme to void state taxation would no longer be replicated after the late 1980s, and the Court’s turn away from principles of tribal self-determination toward federal Indian affairs regulatory schemes initiated the dominance of federal Indian law preemption.
- also involved federal Indian law preemption, but there through the Indian Trader statutes. The company was not licensed under the Indian trader statutes. The goal of the statutes to prevent Indians and Indian nations from being defrauded would be undermined if a nonmember business simply chose not to be licensed: “One of the fundamental purposes of these statutes and regulations—to protect Indians from becoming victims of fraud in dealings with persons selling goods—would be easily circumvented if a seller could avoid federal regulation simply by failing … to obtain a federal license.” And therefore, the state tax on those transactions was preempted by federal law.
- E.g., City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005) (announcing the application of equitable defenses to certain tribal claims never before applied); National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985) (announcing a federal common law right to be free of unwarranted tribal civil jurisdiction and a federal common law cause of action, the so-called tribal court exhaustion doctrine, never before recognized by the Supreme Court); Oneida County, N.Y. v. Oneida Indian Nation of N.Y., 470 U.S. 226 (1985) (announcing a federal common law cause of action allowing Indian tribes to sue to enforce rights under the Non-Intercourse Act, 25 U.S.C. § 177).
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Chapter 11. Indian Water Rights 123 results (showing 5 best matches)
- recognized that a competing doctrine of law that would trump state appropriation law—federal and Indian reserved water rights based on the Constitution. placed Indian reservation users (Indian nations or individual Indians) at the first priority. But Indian and federal reserved water rights, it appears, cannot be forfeited by abandonment or through other creature of state law.
- Conflicts over the regulation of Indian water also arise. State water rules may be preempted under a federal Indian law preemption analysis, as in analysis to conclude that the state, not the Indian nation, had authority to regulate non-Indian water use on non-Indian-owned reservation lands.
- American Indian rights to water in the arid west are tied to the doctrine of federal reserved water rights, a controversial area of law, and often Indian treaties. As a result, Indian water rights claims are often superior to those of states, localities, and private property owners, despite periods of neglect of Indian rights by the federal government. Resistance to Indian water rights is robust.
- the Supreme Court held that a federal law setting aside lands for Indian exclusive use and occupancy may also create Indian rights to water even in the absence of express language in the statute reserving those rights.
- (1) a federal investment in water development facilities or acquisition of water to enable tribes to put their water to use without infringement on established non-Indian uses; (2) non-federal cost sharing—state and local contributions toward the costs of construction and other elements of the settlement; (3) creation of substantial Indian trust funds from federal and non-federal [money] that may be used by the tribes to develop their water and for other purposes; (4) limited off-reservation water marketing, allowing tribes to gain economic benefits from their water resources and non-Indians to use water that would otherwise be unavailable if tribes put it all to use on the reservations; (5) deference to states and to interstate water compacts (such as the “Law of the River” when the Colorado River system is involved; (6) emphasis on efficient management, conservation, and environmental concerns and; (7) a strategy of tying Indian water delivery projects to proposed projects that...
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Chapter 4. Indian Property Interests 310 results (showing 5 best matches)
- Indian land claims have been a controversial part of federal Indian law and policy for centuries. Individual Indians and Indian nations have brought claims arising under treaties and federal statutes seeking return of illegally taken land or money damages or specific relief. This section surveys the major types of claims and the history behind them.
- Indian title, also known as original Indian title, aboriginal title, or other derivative names, under federal Indian law is a right of Indian nations to possess and occupy lands. Indian title may also be known as unrecognized title, in contrast to vested or recognized title. . Indian title may only be alienated by an Indian nation to the federal government, either through purchase or conquest. Indian title still meant that Indian nations and individual Indians retained significant possessory rights over the land. Indian people could farm, extract resources, and improve the land as any landowner could. The Supreme Court’s decision in , originally noted the contours of Indian title.
- The Supreme Court reversed, holding that a right to possession conferred by federal law, such as a treaty or other law, creates a federal question. The Court held that Indian tribal claims to lands always originated in federal law from before the Founding of the Republic. The Court also noted that it had previously decided numerous cases involving Indian claims to land.
- From the vantage point of Indian nations and Indian people, Indian title suffered from enormous defects. The United States could extinguish Indian title at will, and the federal government often treated Indian people living on unceded territory as squatters. On occasion, the United States would not even seek tribal consent to extinguishment of Indian title, and simply turned Indian lands and resources over to third parties. The requirement that the federal government acquire Indian title from Indian nations before it may alienate the land to others was real and significant. In the Supreme Court cancelled a federal patent issued to a railroad because the government failed to acquire title from the Indians occupying the land since the mid-19th century. The Court noted that Indian title could be possessed either by Indian nations or individual Indians.
- Though federal law requires the United States attorney to represent Indians in all suits at law and equity, in 1978, the United States Attorney General Griffin Bell explicitly stated that he would not bring any land claims suits on behalf of Indian tribes or individual Indians because of the harm to the current landowners, who he claimed to be “innocent.” Arlinda Locklear, who litigates Indian land claims in New York state and elsewhere, persuasively argued that these “innocent” landowners
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Chapter 9. Indian Gaming 156 results (showing 5 best matches)
- California v. Cabazon Band of Mission Indians
- The theory was straight-forward. Foundational principles of federal Indian law have long affirmed that state laws have no force in Indian Country. State criminal laws that might otherwise prohibit high stakes bingo would not apply to tribally-owned and operated bingo halls that might otherwise violate state laws and regulations.
- Robert N. Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503, 568 (1976); Franklin Ducheneaux & Peter S. Taylor, Tribal Sovereignty and the Powers of the National Indian Gaming Commission (unpublished and undated manuscript) (on file with author) (“It is also elementary law that, because the Constitution confers upon the Congress plenary power over Indian affairs, the laws of the state do not apply to Indian tribes and Indians on their own land unless Federal law permits it.”).
- majority opinion reaffirmed and clarified two important aspects of federal Indian law, the civil-regulatory/criminal-prohibitory analysis under Public Law 280 and the federal Indian law preemption analysis. Perhaps because the Court has retreated somewhat from those doctrines, the most important aspect of the opinion is the public policy analysis employed by the Court. California argued that state restrictions on gaming should apply in Indian Country because of the possibility of organized criminal infiltration of tribal gaming operations, and the possible zones of unethical behavior that the state alleged would develop if gaming continued without state intervention. The tribes responded, and California had no choice but to concede, that the state had authorized multiple forms of gaming, such as the lottery, card rooms, horse and dog racing, charity bingo, and other forms of gambling. The state really couldn’t argue with any force that gaming-related criminal activity was unique to
- Even many local governments often cooperated with tribes to develop gaming operations. Frank Ducheneaux and Peter Taylor, legislative insiders during this period, noted that local communities approached Indian tribes with proposals to begin gaming operations. However, some state and county law enforcement officials began to crack down on the attempts of these early gaming tribes as soon as the bingo halls opened. States exercising authority under Public Law 280, , including California, Florida, and Wisconsin, attempted to enforce state anti-gambling laws against tribes. In states that had not assumed criminal jurisdiction over Indian Country, law enforcement personnel relied upon arresting bingo hall patrons as they left the reservation borders. As the modest revenue potential of bingo halls gave way to casino-style gaming replete with slot machines, poker tables, blackjack, and so on, federal law enforcement began to investigate and prosecute alleged federal criminal violations.
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Chapter 12. Fishing and Hunting Rights 170 results (showing 5 best matches)
- The decision is colloquially referred to as the “Boldt decision,” after the federal judge who decided the case, Judge George H. Boldt. Judge Boldt wrote in the context of fierce and violent conflicts between Indian treaty fishers in the Puget Sound area, state conservation and law enforcement officers, and non-Indians opposed to Indian rights. The decision ignited a firestorm of protest against Indians and death threats against Judge Boldt, who allegedly spent the rest of his life under federal protection.
- Id. at 337–38 (“Moreover, this aspect of tribal sovereignty has been expressly confirmed by numerous federal statutes. Pub. L. 280 specifically confirms the power of tribes to regulate on-reservation hunting and fishing…. This authority is afforded the protection of the federal criminal law by 18 U.S.C. § 1165, which makes it a violation of federal law to enter Indian land to hunt, trap or fish without the consent of the tribe…. The 1981 amendments to the Lacey Act, 16 U.S.C. § 3371 et seq., further accord tribal hunting and fishing regulations the force of federal law by making it a federal offense ‘to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife … taken or possessed in violation of any … Indian tribal law.’ ”) (citations of footnotes omitted).
- E.g., Dick v. United States, 208 U.S. 14 340, 405–406 (1908) (upholding Indian country status of Nez Percé Indians; noting federal regulation of that land “was not inconsistent, in any substantial sense, with the constitutional principle that a new state comes into the Union upon entire equality with the original states”); Winters v. United States, 207 U.S. 564, 577 (1908) (rejecting argument that Montana’s admission to the Union abrogated Indian reservation a year after its establishment, reasoning that “it would be extreme to believe that within a year Congress destroyed the reservation and took from the Indians the consideration of their grant, leaving them a barren waste,—took from them the means of continuing their old habits, yet did not leave them the power to change to new ones”). See also Cohen’s Handbook of Federal Indian Law § 6.01, at 501 n.84 (2012 ed.); id. § 18.07, at 1197–1198.
- Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt
- Even before the 1985 consent decree, the tribes and the State had been studiously avoiding litigation over the inland right. Some tribes occasionally had offered a deer hunting season earlier and longer than that allowed under state law, and some tribal members had crossed into private property to exercise treaty rights, but none of those instances ever forced litigation in federal court. Unlike the Great Lakes litigation, inland treaty rights did not have the same commercial value to the State of Michigan and to non-Indian commercial and sports fishers, and so there appeared to be less financial impetus to challenge the exercise of inland treaty rights. Moreover, the Great Lakes litigation did not involve the private property interests of thousands of non-Indians, many of whom were hostile to tribal sovereignty and American Indians. Throughout the 1980s and 1990s, there had been numerous flare-ups, especially where local law enforcement had arrested treaty hunters on ceded lands or...
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Chapter 6. Tribal Sovereignty and Native Nation-Building 303 results (showing 5 best matches)
- Justice Black’s opinion re-established foundational principles of federal Indian law, most notably that Indian nations once were independent sovereigns that the United States persuaded through the treaty process “to give up complete independence and the right to go to war in exchange for federal protection, aid, and grants of land.” The Court held that the “basic policy” of the Marshall Trilogy remained: “Essentially, 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 ruled by them.” Moreover, the Court reviewed the history of state power under American Indian law and concluded that “Congress has also acted consistently upon the assumption that the States have no power to regulate the affairs of Indians on a reservation.”
- In 1957, the Arizona legislature introduced and nearly enacted legislation that would extend state law and state court jurisdiction into Navajo Indian Country under Public Law 280, a federal statute enacted in 1953 that authorized state governments to assert criminal and civil jurisdiction over Indian reservations if they chose to do so—and without tribal consent. . The Navajo Tribal Council quickly formulated a strategy to preempt attempts by Arizona unilaterally to invoke Public Law 280: “First, the Navajo Nation tapped the federal courts to define its sovereign rights, and second, the Navajo Nation took control of police and court functions—services typically provided by sovereigns—that were then under the administration of the Bureau of Indian Affairs.”
- Moreover, although Congress had extended federal criminal jurisdiction in Indian country in statutes dating back to 1790, it had never repudiated tribal criminal jurisdiction. The Court noted that Congress in the first Trade and Intercourse Act, from 1790, was silent as to tribal criminal prosecutorial authority. An 1817 Act federalized criminal jurisdiction over crimes by Indians, but expressly excluded Indian-on-Indian crimes in Indian country. In the legislative history attached to the 1834 statute that made the Trade and Intercourse Acts permanent, Congress “carried forward the intra-Indian offense exception because ‘the tribes have exclusive jurisdiction’ of such offenses and ‘we can [not] with any justice or propriety extend our laws to’ them.” In short, “far from depriving Indian tribes of their sovereign power to punish offenses against tribal law by members of a tribe, Congress has repeatedly recognized that power and declined to disturb it.”
- where the court affirmed the Nation’s authority to prosecute noted American Indian Movement activist Russell Means for domestic violence and other crimes. Mr. Means had argued that, as a citizen of the Oglala Sioux Tribe, he was immune from criminal prosecution by the Navajo Nation. The Navajo court affirmed the Nation’s criminal jurisdiction over Mr. Means, a nonmember Indian, on three grounds—federal Indian law, Navajo treaty law, and Navajo common law. The court’s treatment of Navajo common law is worthy of exposition here:
- Alvin J. Ziontz, In Defense of Tribal Sovereignty: An Analysis of Judicial Error in Construction of the Indian Civil Rights Act, 20 S.D. L. Rev. 1, 18 (1975) (“This bill does not provide for the federal courts to review all the decisions of the Indian courts. In fact, provision for federal review was in there originally, and at the request of a number of tribes we eliminated that entirely. The only provision in this bill that provides for federal court interference is writ of habeas corpus, and that probably exists as law now, although I am not quite certain. If the man was convicted in violation of a law, the federal court would have the jurisdiction to issue a writ of habeas corpus. I don’t imagine that there would be too many of those.”) (quoting Hearing Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, Amendments to the Indian Bill of Rights, 91st Cong., 1st Sess. 15 (1969) (Statement of Sen. Sam Ervin)).
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Table of Contents 51 results (showing 5 best matches)
Summary of Contents 9 results (showing 5 best matches)
Chapter 13. Alaska Natives 66 results (showing 5 best matches)
- Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 530–31 (1997) (“[I]n enacting § 1151(b), Congress indicated that a federal set-aside and a federal superintendence requirement must be satisfied for a finding of a “dependent Indian community”—just as those requirements had to be met for a finding of Indian country before 18 U.S.C. § 1151 was enacted. These requirements are reflected in the text of § 1151(b): The federal set-aside requirement ensures that the land in question is occupied by an “Indian community”; the federal superintendence requirement guarantees that the Indian community is sufficiently “dependent” on the Federal Government that the Federal Government and the Indians involved, rather than the States, are to exercise primary jurisdiction over the land in question.”).
- In 2013, the Indian Law and Order Commission condemned the State of Alaska for its failures in protecting Alaska Natives from crime, especially Alaska Native women from sexual assault and domestic violence. The Commission recommended paradigm-shifting changes to federal law and policy affecting Alaska Natives:
- Dependent Indian communities are lands that are not reservation lands, trust lands, or allotments, and otherwise might be consider outside of Indian country. However, dependent Indian communities include areas in which the federal government has set aside lands for Indian or tribal purposes and that are under federal superintendence. For example, some tribal housing projects located outside reservation lands or allotments may be considered dependent Indian communities. New Mexico pueblos, whose lands are owned in fee simple under grants from Spain and who have retained sovereignty over their territory through confirmation of their land ownership by Congress, are the source of the term.
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., and Matthew L.M. Fletcher, Cases and Materials on Federal Indian Law 889 (6th ed. 2011).
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., and Matthew L.M. Fletcher, Cases and Materials on Federal Indian Law 890 (6th ed. 2011).
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Index 177 results (showing 5 best matches)
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Chapter 14. Native Hawaiians 18 results (showing 5 best matches)
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., and Matthew L.M. Fletcher, Cases and Materials on Federal Indian Law 914 (6th ed. 2011).
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., and Matthew L.M. Fletcher, Cases and Materials on Federal Indian Law 951 (6th ed. 2011).
- The volcanic island chain of Hawai’i is home to indigenous people usually known by Americans as Native Hawaiians. Native Hawaiians do not enjoy—and many Native Hawaiians would reject—the type of relationship with the federal government that 567 Indian nations know as federal recognition. For decades, Alaska Natives and Native Hawaiians were the indigenous peoples in the United States that did not have a relationship with the federal government similar to other Indian nations. Now that the federal government has formally recognized Alaska Native tribal governments,
- Justice Stevens dissented, largely on the grounds that federal and state efforts to remedy the history of property and cultural dispossession of America’s indigenous persons—including Native Hawaiians—is not the kind of “invidious” discrimination the Fifteenth Amendment was intended to remedy. He wrote that the majority’s reluctance to acknowledge that distinction placed more than 150 federal laws referencing the government’s duty to Native Hawaiians in jeopardy. He further suggested, contrary to much of Indian country’s hopes that he would not do so, that
- The historical survey that follows derives largely from David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., and Matthew L.M. Fletcher, Cases and Materials on Federal Indian Law 910–17 (6th ed. 2011), which is largely informed by the work and assistance of Melody Kapilialoha MacKenzie, and Breann Swann Nu’uhiwa, Government of the People, By the People, For the People: Cultural Sovereignty, Civil Rights, and Good Native Hawaiian Governance, 14 Asian-Pac. L. & Pol’y J. 57 (2013). See also Native Hawaiian Land Law: A Treatise (Melody Kapilialoha MacKenzie ed. 2015).
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Table of Cases 110 results (showing 5 best matches)
- Federal Power Commission v. Tuscarora Indian Nation ............... 183, 229, 237, 306
- Indians of Ft. Berthold Indian Reservation v. United States .................. 57, 58, 59, 60
- Narragansett Indian Tribe v. National Indian Gaming Commission ............... 458
- Absentee Shawnee Tribe of Indians of Okla. v. State of Kansas .............................. 188
- Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District ......... 118
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Advisory Board 9 results (showing 5 best matches)
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- 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: February 9th, 2016
- ISBN: 9780314290717
- Subject: American Indian Law
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: Fletcher’s Hornbook on Federal Indian Law is a deep survey of the history and substantive law governing the relations between the three American sovereigns, federal, state, and tribal. Interwoven are issues of federalism, administrative law, constitutional rights, and international relations. This hornbook includes original research and novel analysis of foundational Supreme Court decisions and critical federal statutory schemes – the stories beyond the stories. In addition to delving into the origins and histories of cases and statutes, the hornbook analyzes modern Indian rights settlements, the international and comparative frontiers of Indian law, and the future of the field.