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Chapter 5. The Federal-Tribal Relationship 333 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... ...Indian...
- An Act to regulate trade and intercourse with the Indian tribes, July 22, 1790, 1 Stat. 137, now codified as amended at 25 U.S.C. §§ 177, 261–265; 18 U.S.C. § 1152. The protective purpose of the Act is clear: “The Indian Nonintercourse Act, 25 U.S.C. § 177, has been perhaps the most significant congressional enactment regarding Indian lands. The Act’s overriding purpose is the protection of Indian lands.” United States for and on behalf of Santa Ana Indian Pueblo v. University of New Mexico, 731 F.2d 703, 706 (10th Cir.) (citation omitted), cert. denied, 469 U.S. 853 (1984). See also City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y., 544 U.S. 197, 204 (2005) (noting “protective” federal policy of § 177); Wilson v. Omaha Indian Tribe, 442 U.S. 653, 664 (1979) (“Because of recurring trespass upon and illegal occupancy of Indian territory, a major purpose of these Acts as they developed was to protect the rights of Indians to their properties.”); Federal Power Commission v....
- Treaty with the Chippewa, etc., art. 5, Nov. 25, 1808, 7 Stat. 112 (“The several nations of Indians aforesaid, do again acknowledge themselves to be under the protection of the United States, and of no other sovereign; and the United States on their part do renew their covenant, to extend protection to them according to the intent and meaning of stipulations in former treaties.”); Treaty with the Menominee, art. 5, March 30, 1817, 7 Stat. 153 (“The undersigned chiefs and warriors as aforesaid, for themselves and those they represent, do hereby acknowledge themselves to be under the protection of the United States, and of no other nation, power, or sovereign, whatsoever.”); Treaty with the Crow Tribe, art. 2, Aug. 4, 1825, 7 Stat. 266 (“The United States agree to receive the Crow tribe of Indians into their friendship, and under their protection, and to extend to them, from time to time, such benefits and acts of kindness as may be convenient, and seem just and proper to the...
- E.g., Tribal Self-Governance Act, 25 U.S.C. § 458ff(b) (“Nothing in this subchapter shall be construed to diminish the Federal trust responsibility to Indian tribes, individual Indians, or Indians with trust allotments.”); National Indian Forest Resources Management Act, 25 U.S.C. § 3120 (“Nothing in this chapter shall be construed to diminish or expand the trust responsibility of the United States toward Indian forest lands, or any legal obligation or remedy resulting therefrom.”); American Indian Agricultural Resource Management Act, 25 U.S.C. § 3742 (“Nothing in this chapter shall be construed to diminish or expand the trust responsibility of the United States toward Indian trust lands or natural resources, or any legal obligation or remedy resulting therefrom.”); American Indian trust Fund Management Reform Act, 25 U.S.C. § 4041(1)–(3) (“The purposes of this subchapter are … (1) to provide for more effective management of, and accountability for the proper discharge of, the...
- E.g., Treaty with the Sioux, art. 1, April 29, 1868, 15 Stat. 635 (“If bad men among the whites, or among other people subject to the authority of the United States, shall commit any wrong upon the person or property of the Indians, the United States will, upon proof made to the agent and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also reimburse the injured person for the loss sustained. If bad men among the Indians shall commit a wrong or depredation upon the person or property of any one, white, black, or Indians, subject to the authority of the United States, and at peace therewith, the Indians herein named solemnly agree that they will, upon proof made to their agent and notice by him, deliver up the wrong-doer to the United States, to be tried and punished according to its laws; and in case they willfully refuse so to do, the person...
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Chapter 7. Indian Country and Criminal Jurisdiction 397 results (showing 5 best matches)
- 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.
- This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.
- Indians are subject to prosecution under both the Indian Country Crimes Act and the Major Crimes Act. “Indian status” is an element of the offense under both statutes, and federal prosecutors must prove the “Indian status” of defendants beyond a reasonable doubt. As such, the Indian status of the perpetrator may also be subject to thorny litigation.
- Fortunately for Indian nations, Congress took up the challenge and enacted the so-called “Duro fix.” Tribal advocates argued that established an arbitrary line by differentiating between members and nonmember Indians. Nonmember Indians play a significant role in the daily life of any American-Indian community—they participate in cultural ceremonies and powwows, they marry tribal members, they may be drawn to other American Indian communities through the operation of the foster care and adoption provisions of the Indian Child Welfare Act and federal health, housing, and educational programs, and most importantly they are valued and essential members of the American Indian community. For tribal advocates, the Court’s reliance upon the membership of an American Indian was completely out of tune with the reality on the ground—nonmember Indians are far more integrated into an American Indian community than tourists in a foreign land. In response, Congress exercised its plenary authority...
- E.g., United States v. McGowan, 302 U.S. 535, 538–39 (1938) (holding the Reno Indian Colony was Indian country because the “Colony has been validly set apart for the use of the Indians. It is under the superintendence of the government. The government retains title to the lands which it permits the Indians to occupy. The government has authority to enact regulations and protective laws respecting this territory.”); United States v. Pelican, 232 U.S. 442, 449 (1914) (holding Indian allotments were Indian country “because it had been validly set apart for the use of the Indians as such, under the superintendence of the Government”); United States v. Sandoval, 231 U.S. 28, 48 (1913) (holding fee lands owned by Pueblo Indians were Indian country because Congress had enacted legislation in regards to the lands “in the exercise of the Government’s guardianship over those tribes and their affairs”); Donnelly v. United States, 228 U.S. 243, 258 (1913) (holding Hoopa Valley Indian...
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Chapter 4. Indian Property Interests 293 results (showing 5 best matches)
- 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.
- 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.
- But let us not vent out revenge against the Bureau of Indian Affairs by taking it out on the Indians. They are not the ones who should have brought the action: it is the Bureau of Indian Affairs. The Bureau of Indian Affairs has possession of all the maps; the Bureau of Indian Affairs has possession of all the treaties; the Bureau of Indian Affairs has possession of all the surveys, of all the data.
- There are few—and perhaps no—parcels of land upon which Indian title has not been extinguished, although there may be specific aboriginal rights that remain extant. For example, some Indian nations in the southwest remain on unceded lands, but those lands are preserved by treaty or statute. The last Indian title decisions reached by the Supreme Court came in the mid-20th century. However, some tribal and Indian claimants continue to bring claims that a specific aspect of Indian title, such as a hunting or fishing right, remains.
- However, tribal efforts to prevent the alienation of their lands protected by Indian title usually failed, though Congress intermittently would enact jurisdictional statutes to allow specific tribes to bring suit to seek compensation for the loss of Indian title; ultimately, Congress enacted a total of 134 such statutes before 1946. . That year, Congress enacted the Indian Claims Commission Act to allow Indian nations to sue for loss of Indian title.
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Chapter 3. Centuries of Shifting American Indian Law and Policy 398 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.
- The establishment of Indian reservations allowed the federal government to undertake a series of wide ranging experiments in Indian affairs in the latter half of the 19th century designed to undermine measured separatism. Most notably, the Interior Department and then Congress embarked on a program of allotment of Indian reservation lands to individual Indians intending to break up the communal land ownership systems of many Indian nations guaranteed by treaty. The United States also embarked on social programs, often delivered through Indian education programs, designed to assimilate Indian people into the melting pot of American citizenry. The overriding theory of allotment and assimilation was that of the vanishing Indian. Federal Indian affairs was designed to either hasten or ease the end of American Indian cultures in the United States.
- The first efforts by non-Indians to formally educate American Indians—by the Jesuits in Florida during the 16th century—were attempts to “ ‘Christianize’ and ‘civilize’ the heathen.” President Washington articulated a policy favoring the acculturation or assimilation of American Indians, a policy less costly than declaring war Consequently, affairs between Indian tribes and American governments memorialized in Indian treaties often have revolved around the education of Indian children. During the era of federal Indian law and policy in which the United States and Indian tribes engaged in treaty negotiations, tribal treaty negotiators often negotiated for treaty language requiring the federal government to provide funds for the education of American Indian children. Over 150 Indian treaties included provisions relating to Indian education. In 1819, Congress established a fund—later known as the “civilization fund”—usually distributed to missionary societies for the purpose of...Indians
- The Trade and Intercourse Acts, a series of statutes now codified as amended in various places in Titles 18 and 25 of the United States Code, served as the first broad statement of federal Indian law and policy. The Acts, prohibiting any land transactions with Indian tribes without Congressional approval, regulated all commerce with Indians and Indian tribes, and provided for the punishment of non-Indians that committed crimes in Indian Country. The Acts, also known as the Non-intercourse Act(s), provided the legal basis for many of the Indian land claims in the northeastern United States and elsewhere.
- , which prohibited American colonists from purchasing Indian lands or engaging in any kind of commerce with Indians and Indian tribes without the consent of the King or his delegates. The Proclamation contributed a great deal to the animosity between the Americans and the British that led to the American Revolution. The Declaration of Independence is rife with complaints about British Indian affairs policy. The United States’ first take on Indian affairs, Article IX of the Articles of Confederation, nevertheless maintained the primacy of the national government in Indian affairs, but was undermined by a proviso that allowed the states to legislate in the field anyway. . The Constitution’s Indian Commerce Clause offered a clearer provision providing for exclusive Congressional authority in Indian affairs.
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Chapter 1. American Indians and Federal Indian Law 155 results (showing 5 best matches)
- 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...
- The third major federal Indian law principle is the inherent sovereignty of Indian tribes. Because Indian tribes have independent and inherent sovereignty, tribes retain the authority to make laws and be ruled by them. Since before the beginning of the American Republic, some Indian tribes have exercised their sovereignty to enact criminal codes, establish courts, and exercise governmental authority over individuals, Indian and non-Indian. Indian nations long have exercised law enforcement authority, and some still do exercise this kind of governmental authority. It was the Cherokee Nation of Georgia in the 1820s that likely was the first Indian nation to establish a written constitution and criminal code, a court system, and a formalized law enforcement mechanism. By the 1970s, several dozen Indian nations exercised criminal jurisdiction over individuals, including non-Indians. And now, perhaps hundreds of Indian nations exercise criminal jurisdiction, or soon will.
- 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.
- The constitutional text, as consistent with the practice of Congress before the ratification of the Constitution, provides for two means by which Indian tribes and the United States will interact. First, the so-called Indian Commerce Clause provides that Congress has authority to regulate commerce with the Indian tribes. One of the first acts of the First Congress was to implement the Indian Commerce Clause in the Trade and Intercourse Act of 1790. Second, the federal government’s treaty power provides an additional form by which the United States deals with Indian tribes. There are hundreds of valid and extant treaties between the United States and various Indian tribes. The structure of the Constitution and the treaties established a relationship between sovereigns akin to a trust relationship, with the federal government in the position of trustee and Indian nations and Indian people in the position of trust beneficiary. The trust relationship is not merely metaphorical, as the...
- In the modern era, the notion that state laws have no force in Indian Country is riddled with exceptions, both statutory and in the common law, but the general rule remains. The Supreme Court in 1973 stated, “The modern cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look instead to the applicable treaties and statutes which define the limits of state power.” or the reservation-based property of individual Indians, and have no authority to enforce state law against Indian nations whatsoever due in large part to tribal sovereign immunity. States have no authority to regulate Indian lands, except in extremely narrow circumstances. State courts have no jurisdiction over civil cases brought against individual Indians for disputes arising in Indian country, with limited exceptions. And states have no authority to prosecute on-reservation crimes committed by Indians, also with limited exceptions.
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Chapter 12. Fishing and Hunting Rights 153 results (showing 5 best matches)
- Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt
- The State of Michigan’s efforts to undermine the treaty rights also debilitated Michigan Indians. In 1850, Michigan became the first state to grant the franchise to Indians, but only if they abandoned their treaty rights. Those Indians that refused became ensnared in Michigan’s conservation regulations, designed it appears in part to undermine Indian hunting and fishing in favor of non-Indian hunters and fishers, and then much later to favor sports hunters and fishers over commercial and subsistence hunters and fishers.
- 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.
- Dozens of Indian nations agreed to massive land cessions in the Pacific northwest in exchange for the continued right to fish in the rivers and in the ocean guaranteed in this provision. Pacific northwest Indian nations relied heavily on anadromous fish that swim upstream from the ocean to spawn, nonanadromous fish, and seals and whales. Every regional Indian nation celebrates some form of the first salmon ceremony, a hugely important ceremony conducted at the beginning of the annual salmon run. In short, fish was critical to the survival of the Pacific northwest Indians, and for the entire period between the treaty era and the modern day fish-ins of the 1960s and 1970s, Indians continued to fish. ...agricultural enterprises systematically destroyed many of the best fishing places in the region. Most horrifically for the Indian people of the region, the federal government oversaw the destruction of the Si’lailo (Celilo) Falls on the Columbia River, perhaps the greatest fishing...
- The Boldt decision recognized that western Washington treaty tribes have a right to take fish in common with non-Indians in off-reservation waters. Judge Boldt’s even more controversial ruling was that Indian nations have a right to take as much as 50 percent of the harvestable fish off the reservation. Non-Indians labeled the split a “travesty,” given that Indians made up less than one percent of the population and were only taking about five percent of the fish at trial.
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Chapter 2. The Origins of Federal Indian Law 139 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,...
- The leading theory legally supporting the appropriation of Indian lands by non-Indian people and governments remains the “Doctrine of Discovery.” This theory assumes that Indigenous peoples did not own land and resources in the same manner as European nations and their colonial subjects. Indian people merely occupied or possessed the land, taking resources from the land as needed. The designation of this kind of land ownership is original Indian title, or aboriginal title, or Indian title, or a permutation of those phrases. Since the theory assumes Indian people do not own land, the land was free for the taking by European forces. The first European nation that arrived in a particular area occupied by Indigenous peoples acquired “discovery” rights to the land exclusive as to all other nations. European governments with discovery rights could clear title to the land by either purchasing the occupancy rights of the Indian people from them, or by conquering the Indians by military...
- 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.
- In 1876, Canada enacted the Indian Act, a comprehensive statute that “defines and controls nearly all aspects of Aboriginal peoples’ dealings with the government.” The Act defined Indian status, authorized federal control over Indian lands, and provided for provincial controls over Indian people as well. In short, the Act was paternalistic and assimilationist:
- The Indian Act of 1876 was, and remains, a monolithically injurious piece of legislation for Indians in Canada. It excluded Indians from the definition of “person” and dictated the who, what, where, when, and why of being Indian. To this day, it governs virtually every aspect of Indians’ lives on reserves. It was a consolidation of previous legislation passed from 1850 to 1857 that defined who was an Indian; controlled land distribution, land alienation, band membership and status determination, band governance, and management of funds; excluded Aboriginals from general exemptions from hunting and fishing regulatory schemes; and called for the total assimilation of Aboriginals into white society. Until the 1960s, Indian Affairs agents, present on most reserves and empowered by the Indian Act, possessed an almost absolute regulatory power over Aboriginals and were authorized to issue or deny passes that allowed Aboriginals to leave the reserve, even temporarily.
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Chapter 8. Tribal and State Conflicts Over Civil Jurisdiction 304 results (showing 5 best matches)
- A critical aspect to the legislative history of ICWA is the “wholesale” and automatic character of Indian child removal by state actors nationally. As the Executive Director of the Association on American Indian Affairs, William Byler, testified, the “[r]emoval of Indian children is so often the most casual kind of operation….” During the 1974 hearings, witness after witness would testify to the automatic removal of Indian children, often without due process. Byler testified that at the Rosebud Sioux Reservation, state social workers believed that the reservation was, by definition, an unacceptable environment for children and would remove Indian children without providing services or even the barest investigation whatsoever. State actors made decisions to remove Indian children with “few standards and no systematic review of judgments” by impartial tribunals. ...the Sisseton-Wahpeton Sioux Tribe in South Dakota testified that state actors had taken Indian children without even...Indian
- The pre-contact American Indian commercial markets and trading fairs were extraordinary concerns covering the whole of what is now American territory. These networks and markets continued for centuries after the arrival of European outsiders from overseas. Lakes and rivers were the commercial superhighways of North American Indian markets, allowing Indian people to transport goods over a thousand miles if necessary. Regularly held Indian trading fairs were enormous, and may have included thousands of Indian peoples representing dozens of Indian nations. For example, in 1805, Lewis and Clark, were amazed to find enormous trading fairs drawing Indians from dozens of tribes. citizenship, then, could be a formal prerequisite to Indian trade, a kind of permission to access the Indian market.
- The French and Spanish, then the Dutch and the British, and finally the Americans, bargained to access the Indian commercial market. Tribal commercial practices adapted to meet the new trading partners’ particular notions of property rights and trade. The newcomers also adapted to the Indian practices, as the historical survey in Part I of this paper shows, with non-Indians, nonmembers, and noncitizens making significant concessions to Indian nations and Indian people in order to access the Indian market.
- But Americans would not stop at reservation borders. Demand for Indian resources in traditional Indian homelands almost always morphed into demand for reservation resources. The demand for reservation resources brought many American citizens to Indian country seeking access to reservation assets. Here, too, non-Indians had several options and strategies for accessing Indian markets, and usually accepted some form of tribal regulation in bargaining for access. For example, American citizens, sometimes armed with a federal Indian trader license and sometimes not, often used intermarriage to form the kinship ties necessary to access the fur trade. It was an old tactic, if not ritual, going back to the 16th and 17th centuries when the French began marrying Anishinaabe women. Another example involved 19th century legislation enacted by several Indian nations in and around Indian Territory, what is now the State of Oklahoma, purporting to govern non-Indian activity. ...Indian nations...
- involved two questions: first, whether the state could tax on-reservation transactions between individual Indian retailers and nonmembers; and second, whether the state could tax transactions with tribal members. On the first question, the Court held not only that the state could tax the transactions between Indians and nonmembers, but could also force the Indian retailers to collect the tax for the state. by concluding that there was no impact or burden on trading between Indians and Indian traders. The Court flatly rejected claims that the state’s taxes impacted Indian trading, holding that nonmembers purchasing tobacco and motor fuel products without paying state taxes were in violation of state law. The Court further held that the imposition on Indian retailers to collect the state tax was no burden on “tribal self-government.” ...on the analytical play to distinguish Indians from their tribes as separate entities. In fact, the Court was simply wrong to not equate tribal...
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Chapter 9. Indian Gaming 146 results (showing 5 best matches)
- E.g., Kevin K. Washburn, General Counsel, National Indian Gaming Commission to Hon. Douglas W. Hillman, Senior United States District Judge, United States District Court (W.D. Michigan) (Aug. 31, 2001) (Indian lands opinion regarding Grand Traverse Band of Ottawa and Chippewa Indians); Derril B. Jordan, Associate Solicitor, Division of Indian Affairs to George Skibine, Director, Indian Gaming Management Staff (Aug, 5, 1999) (Indian lands opinion regarding Little Traverse Bay Bands of Odawa Indians). Other Indian lands opinions are available at the National Indian Gaming Commission website, http://www.nigc.gov/.
- California v. Cabazon Band of Mission Indians
- The National Indian Gaming Commission announced the 2014 Indian gaming revenues as $28.5 billion. National Indian Gaming Commission, 2014 Indian Gaming Revenues Increased 1.5%, Press Release, July 1, 2015.
- Michigan v. Bay Mills Indian Community
- involves the tribe’s efforts to open a casino on lands normally ineligible for Indian gaming—tribally owned fee lands under state jurisdiction off the reservation. The tribe is the beneficiary of the Michigan Indian Land Claims Settlement Act of 1997 (MILCSA), an act designed to conclude an Anishinaabe land claim brought before the Indian Claims Commission. Section 107(a)(3) of MILCSA authorizes the tribe to purchase land with the settlement funds through a tribal land trust, providing that “[a]ny land acquired with funds from the Land Trust shall be held as Indian lands are held.” the State of Michigan. The Department of the Interior disagreed, and determined that the casino was illegal as it was not located on “Indian lands.” The National Indian Gaming Commission, interestingly, concluded that it could exercise its enforcement authority on the tribe because IGRA only authorized the Commission to shut down illegal Indian casinos on Indian lands.
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Chapter 10. Indian Religion and Culture 113 results (showing 5 best matches)
- No person shall enter onto the property of the Chilkat Indian Village for the purpose of buying, trading for, soliciting the purchase of, or otherwise seeking to arrange a removal of artifacts, clan crests, or other traditional Indian art work owned or held by members of the Chilkat Indian Village or kept within the boundaries of the real property owned by the Chilkat Indian Village, without first requesting and obtaining permission to do so from the Chilkat Indian Village Council.
- Along with land and other natural resources, Indian nations and Indian people have been fighting for centuries to protect and preserve tribal cultures, languages, and cultural property. The federal government’s assimilation program worked dramatic and sometimes irreparable harm on Indian cultures. In the 1970s, the United States finally began to recognize the importance of preserving and protecting tribal cultures. The federal government’s progress in this area is slow, and often hampered by Supreme Court decisions and non-Indian resistance.
- 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. ...officials had either directly interfered or allowed interference in tribal religious practices because they personally opposed Indian...
- The federal government claimed ownership of the High Country. In 1848, the United States acquired California through the Treaty of Guadalupe Hidalgo, in which the government agreed to respect land titles of Indian nations and others. In 1851, the United States set up a land claims process through which any land not claimed by the beneficiaries to the 1848 treaty (including Indian nations) would be effectively forfeited to the federal government. Even so, these Indian nations likely would not have disclosed the critical character of the High Country to the federal government. Though the tribes and the government engaged in decades worth of negotiation and conflict over the establishment of protected Indian lands in the region, the High Country was not included in those discussions. Federal officers interfered with the ability of the Klamath River Indians to visit the High Country thereafter. Like so many other Indian religions and cultures, the Klamath River Indians’ beliefs about...
- 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. ...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, neither of which were affiliated with...
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Chapter 6. Tribal Sovereignty and Native Nation-Building 219 results (showing 5 best matches)
- After the return from Fort Sumner, the first Indian courts—the Courts of Indian Offenses (also known as the CFR Court after the Code of Federal Regulations)—were created in April 1883 by the Commissioner of Indian Affairs. The code was designed to destroy Indian customs and religious practices, and used as a vehicle to control the Navajo People. The code of the Courts of Indian Offenses provided that agency superintendents appoint Indian judges who could have only one wife and wear Anglo-style clothes.
- Id. (“In 1817 federal criminal jurisdiction was extended to crimes committed within the Indian country by ‘any Indian, or other person or persons,’ but ‘any offence committed by one Indian against another, within any Indian boundary’ was excluded.”).
- Works such as Dean Strickland’s highlight that American Indian nations have a long history of sophisticated governance structures, contrary to the beliefs of so many observers and policymakers that Indian people were “a people without law,” an epithet imposed on Indian nations by the esteemed James Bradley Thayer in an 1880 tract.
- 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.”
- After several years of taking testimony from Indian country witnesses about civil rights violations in Indian country by federal, state, and tribal governments, Congress enacted the Indian Civil Rights Act (ICRA). Congress enacted ICRA as Title II of the 1968 Civil Rights Act. Portions of the ICRA that substantially mirror the Bill of Rights are popularly called the “Indian Bill of Rights.” The Indian Bill of Rights extends most—but not all—of the constitutional protections of the Bill of Rights to individuals under the jurisdiction of Indian tribal governments. In order to preserve certain aspects of tribal government and sovereignty, some of the Bill of Rights were modified or left out.
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Chapter 11. Indian Water Rights 114 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.
- Selling water rights may be a beneficial action for Indian nations to take in some instances, especially where a tribe’s capacity to utilize the available water may be limited by a tribe’s lack of resources or development. But Indian nations likely may not market their water rights without federal authorization. Water rights settlements may authorize an Indian nation to market some of its water, especially to non-Indian water users who might use the water more efficiently. Water rights settlements involving Arizona tribes allowed major cities there to purchase Indian water.
- 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 Fort Belknap Indian Reservation and the Milk River are linked together by the treaties between the United States and what is now the Fort Belknap Indian Community consisting of Gros Ventre and Assiniboine Indian nations. The nations were dependent on bison, and though neither tribe had a permanent base on the Milk River until treaty times, the river provided bison for Indian people. The federal government repeatedly shrank the tribes’ reservations with promises to support Indian agricultural enterprises.
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Chapter 13. Alaska Natives 48 results (showing 5 best matches)
- 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.
- 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.”).
- Id. at 747 (“The United States Supreme Court’s recent Venetie II decision suggests that P.L. 280, which grants states jurisdiction over disputes in Indian country, has limited application in Alaska because most Native land will not qualify for the definition of Indian country. By its very text, P.L. 280 applies only to Indian country. If Northway Village does not occupy Indian country, then our rulings interpreting P.L. 280 are not germane to this appeal.”) (footnotes omitted).
- The Supreme Court’s analysis focused exclusively on whether Alaska Native-owned lands are Indian country, presuming that if the land upon which the activities that Alaska Native tribal governments were trying to tax were not in Indian country, then the power to tax would be lacking. ANSCA revoked Alaska Native reservations, and there were not allotments at issue, so the Court determined that the only way the Alaska Native governmental lands could be Indian country under 18 U.S.C. § 1151 was whether the lands were “dependent Indian communities” under § 1151(c).
- 2.2: Congress and the President should amend the definitions of Indian country to clarify (or affirm) that Native allotments and Native-owned town sites in Alaska are Indian country.
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Table of Contents 44 results (showing 5 best matches)
Index 120 results (showing 5 best matches)
Summary of Contents 8 results (showing 5 best matches)
Table of Cases 110 results (showing 5 best matches)
- 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
- Babbitt Ford, Inc. v. Navajo Indian Tribe ................................................... 397
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Chapter 14. Native Hawaiians 10 results (showing 5 best matches)
- 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,
- 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).
- For the most part, outside observers of Native Hawaiian affairs have focused on the efforts of Hawaii’s congressional delegation to enact a bill, usually referred to as the Akaka bill after Sen. Daniel Akaka, to extend formal federal recognition to a Native Hawaiian government akin to the recognition extended to Indian nations.
- Id. at 529 (Stevens, J., dissenting) (“Finally, even if one were to ignore the more than two centuries of Indian law precedent and practice on which this case follows, there is simply no invidious discrimination present in this effort to see that indigenous peoples are compensated for past wrongs, and to preserve a distinct and vibrant culture that is as much a part of this Nation’s heritage as any.”).
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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.
