Principles of Federal Indian Law
Author:
Fletcher, Matthew L.M.
Edition:
1st
Copyright Date:
2017
22 chapters
have results for Principles of Federal Indian Law by Matthew Fletcher (2017)
Chapter 1 American Indians and Federal Indian Law 106 results (showing 5 best matches)
- For a list of termination acts, see David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 235 (7th ed. 2017).
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., and Matthew L.M. Fletcher, Cases and Materials on Federal Indian Law 94 (6th ed. 2011).
- Matthew L.M. Fletcher, The Eagle Returns: The Legal History of the Grand Traverse Band of Ottawa and Chippewa Indians 2–33 (2012); Mary Lethert Wingard, North Country: The Making of Minnesota (2010).
- The Constitutional text, Indian treaties, Acts of Congress, and the Supreme Court’s jurisprudence can be reduced to a few general, fundamental principles of federal Indian law. , Congress’s authority over Indian affairs is plenary and exclusive. As a concomitant principle, the federal government holds obligations to Indian tribes and individual Indians known as the trust responsibility. , state governments have no authority to regulate Indian affairs absent express Congressional delegation or granted in accordance with the federal government’s trust obligations , the sovereign authority of Indian tribes is inherent, and not delegated or granted by the United States, but can be limited or restricted by Congress in accordance with its trust responsibilities. Congress must clearly express its intent to abrogate an aspect of tribal sovereignty.
- 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.
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Chapter 4 Indian Property Interests 199 results (showing 5 best matches)
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 309 (7th ed. 2017).
- 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.
- 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.
- Trust land parcels are the equivalent of reservation lands, and may be declared a new reservation by the Interior Secretary. In the Supreme Court held that trust lands owned by the Interior Secretary are “Indian country” as that term is used and defined by federal criminal statutes. There, a citizen of the Mississippi Band of Choctaw Indians argued, along with the State of Mississippi, that his federal prosecution under the Major Crimes Act was invalid on the basis that the federal government had no authority to prosecute crimes arising on trust lands. The Court held that land acquired by the United States and declared to be held in trust by the federal government for the benefit of an Indian nation was “Indian country.”
- The Supreme Court held 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.
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Chapter 6 Tribal Sovereignty and Native Nation- Building 98 results (showing 5 best matches)
- See generally David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 415–16 (7th ed. 2017).
- to the United States Constitution could apply to the Cherokee statute that allowed for a grand jury to be composed by as few as five persons on the theory the Cherokee prosecution was in actuality an exercise of federal rather than tribal power. After all, it is Congress that enjoys plenary power over Indian affairs, and perhaps Indian nations, too. The Court firmly rejected that argument, holding that the Cherokees as a sovereign nation possessed inherent criminal prosecutorial power. Moreover, the Court held that Cherokee sovereignty predates the Constitution, which by its terms does not limit or regulate Cherokee nationhood, foreclosing the notion that the Constitution applies to Indian nations. In short, tribes are not arms of the federal government, and therefore beholden to federal constitutional law, merely because Congress possesses plenary power over Indian affairs. The Court borrowed from its jurisprudence on whether provisions of the Bill of Rights applied to ...Indian...
- The lone federal cause of action contained in ICRA is the provision allowing individuals convicted of a tribal offense to petition for a writ of habeas corpus in federal courts. The meaning of this phrase has been extended by some federal courts to include banishment or exclusion from reservation lands. In
- After stating that principles of federal Indian law required the Court to “tread lightly,” the Court noted that the only express avenue for federal court relief under ICRA was the habeas provision in , which allows persons detained by a tribal government to file petitions for writs of habeas corpus in federal court: “ICRA was generally understood to authorize federal judicial review of tribal actions only through the habeas corpus provisions of Moreover, ICRA’s overall purpose, to enhance tribal self-government, was exemplified by Congress’s refusal to incorporate the Bill of Rights wholesale, instead “selectively incorporat[ing] and in some instances modif[ying] the safeguards of the Bill of Rights to fit the unique political, cultural, and economic needs of tribal governments.” Moreover, ICRA’s structure, which provided for limitations on the reach of
- An additional critical aspect of the decision was the rejection of the claim that when the Navajo Nation prosecutes a tribal member, it does so as an arm or instrumentality of the federal government. The Court acknowledged that the Bureau of Indian Affairs had established the earliest incarnation of the Navajo justice system with a Court of Indian Offenses applying a tribal law and order code, and that the tribal code had been approved by the Interior Secretary. While it was (and likely remains) true that the Navajo Nation relies heavily on federal appropriations and technical assistance to enforce criminal laws, even to this day, it does so as a nation largely independent of federal authority.
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Chapter 12 Fishing and Hunting Rights 125 results (showing 5 best matches)
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 909–10 (7th ed. 2017).
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 910 (7th ed. 2017).
- See generally David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 903–05 (7th ed. 2017) (surveying cooperative agreements).
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 908–10 (7th ed. 2017).
- The Court did not, however, that both tribal and non-tribal parties have secured a treaty right in the Stevens treaties; non-Indian interests may not use state power or property law to defeat the tribal right, and Indian interests may use totally exclude non-Indian fishing. The “fair share” reached by Judge Boldt—essentially a 50–50 split—had previously been ratified in similar form by several state and federal courts previously, and so the Supreme Court here affirmed Judge Boldt’s general division and the federal judicial supervision of the details of that division. The Court was careful to note that the federal court could adjust a given tribe’s share downward from the 50–50 split if certain conditions changed, such as the dwindling of tribal population numbers down to “just a few members.”
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Chapter 14 Native Hawaiians 39 results (showing 5 best matches)
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 999 (7th ed. 2017).
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 1047 (7th ed. 2017).
- The historical survey that follows derives largely from David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 994–1002 (7th ed. 2017), which is significantly 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).
- 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,
- In the 1921 Act, Congress recognized that the federal government owed a duty to the Native Hawaiians akin to that duty owed by the government to American Indians. Even then, the House of Representatives report defended the bill from critics who charged that the law was “unconstitutional class legislation.”
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Chapter 7 Indian Country and Criminal Jurisdiction 204 results (showing 5 best matches)
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 522–23 (7th ed. 2017).
- Carole Goldberg & Duane Champagne, Searching for an Exit: The Indian Civil Rights Act and Public Law 280, in The Indian Civil Rights Act at Forty 247, 249–54 (Kristen A. Carpenter, Matthew L.M. Fletcher & Angela R. Riley eds., 2012).
- Matthew L.M. Fletcher, United States v. Lara: Affirmation of Tribal Criminal Jurisdiction over Nonmember Indians, 83 Mich. B.J., July 2004, at 24, 26.
- 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.”
- Public Law 280 (2012)
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Chapter 11 Indian Water Rights 92 results (showing 5 best matches)
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 860 (7th ed. 2017).
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 858 (7th ed. 2017).
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 863 (7th ed. 2017).
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 876 (7th ed. 2017) (citations omitted).
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 878 (7th ed. 2017).
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Chapter 13 Alaska Natives 57 results (showing 5 best matches)
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 960 (7th ed. 2017).
- David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 960 (7th ed. 2017).
- Shortly after statehood, Alaska banned all fish traps in the state and began prosecuting Alaska Natives for the continued use of the traps. Two suits brought by Alaska Native tribal governments challenged the law on the grounds that Alaska had disclaimed jurisdiction over them. The first suit,
- 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.
- The Supreme Court concluded that lands must be set aside by the federal government for Indian purposes over which the federal government maintains jurisdiction. The lands alleged to be “Indian country” in Venetie had not been reservation lands after the enactment of ANCSA. Moreover, the Act stated that the lands acquired by the Alaska Native village corporations would not “creat[e] a reservation system or lengthy wardship or trusteeship.” Relying on the language, the Court noted that “ANCSA transferred reservation lands to private, state-chartered Native corporations, without any restraints on alienation or significant use restrictions, and with the goal of avoiding ‘any permanent racially defined institutions, rights, privileges, or obligations.’ ” Without ongoing federal guardianship as evidenced, for example, by restraints on alienation, the lands could not be Indian country.
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Chapter 3 Centuries of Shifting American Indian Law and Policy 310 results (showing 5 best matches)
- See generally David H. Getches, Charles F. Wilkinson, Robert A. Williams, Jr., Matthew L.M. Fletcher, and Kristen A. Carpenter, Cases and Materials on Federal Indian Law 273–76 (7th ed. 2017); Harvard Project on American Indian Economic Development, The State of Native Nations: Conditions under U.S. Policies of Self-Determination (2008); Rebuilding Native Nations: Strategies for Governance and Development (Miriam Jorgensen, ed. 2007).
- See generally Matthew L.M. Fletcher, American Indian Tribal Law 143–79 (2011).
- The foundational principles of federal Indian law have directly affected American Indian citizenship, voting rights, and political rights throughout American history. It is now well established that American Indians are American citizens entitled to all of the privileges and immunities enjoyed by all American citizens. But the United States did not grant citizenship to most American Indians until 1924, and some states still did not allow American Indians to vote as late as mid-20th century.
- 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 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 alienate trust patents if...
- 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 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...
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Chapter 2 The Origins of Federal Indian Law 131 results (showing 5 best matches)
- See generally Charles Wilkinson, Blood Struggle: The Rise of Modern Indian Nations (2005);
- 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.
- 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.
- The Doctrine of Discovery is an early federal common law set of principles, now thoroughly repudiated as a legitimate doctrine, governing land transactions between Indian nations and outsiders. The “doctrine” holds that Indian people do not hold their lands in fee simple absolute, but instead only hold a right to occupy their land—a so-called “Indian title.” The “discovering” sovereign and its successors own a preemption right that bars Indian people and Indian nations from selling their lands to anyone except the sovereign. This theory dominates the imagination of legal scholars and Indian affairs policy makers even today, but never had firm historical or practical basis.
- Justices Johnson and Baldwin wrote stinging concurrences arguing that Indians and Indian tribes were too degraded and insignificant to meet the international law definition of “nation” at all, and agreeing that Indian tribes were dependent. Justice Thompson, joined by Justice Story, later added a dissent that argued for finding that Indian tribes such as the Cherokee Nation are foreign nations, whether understood to be so by the Founders or not. Applying international law principles, the dissent argued that the Cherokee Nation did not lose its status as a foreign nation by virtue of agreeing to be dependent on the United States for military protection.
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Chapter 8 Tribal and State Conflicts over Civil Jurisdiction 237 results (showing 5 best matches)
- 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.
- 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. ...of these prior circumstances had the...
- 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.
- Federal Indian law pre-emption doctrine provides that where a state tax impermissibly interferes with federal law or federal policies, the state tax is invalid. A state tax might also be pre-empted by tribal law if the state law interferes with the marketing of on-reservation resources. Finally, a state tax that infringes on the right of reservation Indians to govern themselves is void. Whether a state tax is pre-empted is subject to a case-by-case analysis.
- 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.
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Chapter 10 Indian Religion and Culture 95 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.
- Peyote is a small cactus that grows in the desert southwest used by many Indian people as a religious sacrament. Indian Some Indian people successfully use peyote, which is not habit-forming, as a means of controlling alcoholism. decided by the California Supreme Court in 1964, the court vacated the convictions of several Navajo Indians who had ingested peyote as members of the Native American Church. Since that time, peyote use by religious practitioners usually had been protected by the laws of many states, and from federal laws by the judiciary.
- 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. Moreover, the agencies refused 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 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. Klamath River tribes did not make a claim, perhaps because they were unaware of the land claims process. 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...
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Chapter 5 The Federal-Tribal Relationship 240 results (showing 5 best matches)
- More recent Supreme Court decisions hold that the foundational principle for the canon of statutory construction is the trust relationship and federal policies favoring tribal self-determination: “The canons of construction applicable in Indian law are rooted in the unique trust relationship between the United States and the Indians.”
- The Supreme Court also moved toward applying the principles of common law trust doctrine to Congress’s enactments in relation to Indians and tribes. Congress’s waiver of federal immunity from suit works a dramatic change in the Court’s analysis of Congressional Indian affairs enactments. In in Indian property takings cases because Congress had expressly waived federal immunity from suit to allow the Sioux Nation to sue to recover damages for the taking of the Black Hills. involving Congressional waivers of immunity such as the Indian Tucker Act, the Court recognized that the federal government’s control over tribal resources may give rise to a fiduciary duty arising out of common law trust principles that mandates compensation in the event of a breach of duty.
- The original legal relationships between Indian nations and the United States were established and governed by treaties. Indian treaties negotiated by the Executive branch and ratified by the Senate are the supreme law of the law under the Constitution’s Supremacy Clause. From the point of view of Indian nations, Indian treaties are sacred, often familial arrangements that cannot be broken. From the point of view of the United States, Indian treaties are nothing more than simple legislation that can be unilaterally abrogated by Congress. Under international law, a treaty relationship meant basically that the tribe had agreed to turn over its external sovereign rights to form military and other alliances with nations other than the United States—and nothing more. Later treaties would provide for a greater intrusion in the internal sovereignty of Indian tribes, but not so much that they would lose their fundamental sovereign existence. Hundreds of Indian treaties remain extant, and...
- Federal trust obligations arose in the formation of the relationship between the United States and Indian tribes. “Protection” was a term of art under international law that the Supreme Court in interpreted in the context of treaties with Indian tribes to encapsulate the federal obligation to the tribes. “Protection” meant then and now that the United States agreed to a legal duty of preserving Indian and tribal property and autonomy to the maximum extent allowable in the national interest. In , the foundational Supreme Court case on federal Indian law, Chief Justice Marshall wrote that the concept of protection required the United States to prevent trespass against Indian lands and to protect reservation Indians from violence by outsiders: “
- The clear statement rule is a foundational and canonical principle of federal Indian law originating in the Marshall Trilogy, but being most aptly announced in the modern era in There, the Supreme Court stated that “a proper respect both for tribal sovereignty itself and for the plenary authority of Congress in this area cautions that we tread lightly in the absence of clear indications of legislative intent.” In the Indian Civil Rights Act (ICRA), Congress had imposed upon tribal governments the so-called “Indian Bill of Rights,” which loosely tracked the federal constitution’s individual rights protections. However, Congress did nothing to abrogate tribal immunity from suits to enforce those rights in federal, state, or tribal courts, nor did Congress expressly provide a federal court cause of action to enforce the rights, except for habeas petitions. nor allow for federal civil suits to enforce the Indian Bill of Rights.
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Table of Contents 44 results (showing 5 best matches)
Title Page 3 results
Chapter 9 Indian Gaming 109 results (showing 5 best matches)
- Michigan v. Bay Mills Indian Community, 134 S.Ct. 2024, 2043–44 (2014)
- California v. Cabazon Band of Mission Indians
- majority opinion reaffirmed and clarified two important aspects of federal Indian law, the civil-regulatory/criminal-prohibitory analysis under
- The “lands are taken into trust as part of: (i) the settlement of a land claim; (ii) the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgement process; or (iii) the restoration of lands for an Indian tribe that is restored to Federal recognition.” [
- An Indian tribe may qualify as a “restored tribe” if the tribe’s federal recognition had been terminated by an Act of Congress or through the actions of the Executive branch, and then later Congress took action “recognizing, acknowledging, affirming, reaffirming, or restoring” the tribe to federal recognition. may also be recognized through the Federal Acknowledgment Process, or by federal court order.
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Summary of Contents 11 results (showing 5 best matches)
Index 95 results (showing 5 best matches)
Table of Cases 133 results (showing 5 best matches)
- Federal Power Commission v. Tuscarora Indian Nation, 160, 194
- Narragansett Indian Tribe v. National Indian Gaming Commission, 287
- Fletcher v. Peck, 23, 24
- Confederated Bands and Tribes of Yakima Indian Nation v. State of Washington, 209
- Delaware Tribe of Indians v. Cherokee Nation of Oklahoma, 125
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Copyright Page 3 results
- © 2017 LEG, Inc. d/b/a West Academic
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- Printed in the United States of America
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West Academic Publishing’s Law School Advisory Board 10 results (showing 5 best matches)
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Earle K. Shawe Professor of Law, University of Virginia School of Law
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
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- Publication Date: August 23rd, 2017
- ISBN: 9781634606233
- Subject: American Indian Law
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: Fletcher’s Principles of Federal Indian Law covers the basics of federal Indian law, the relationships between tribal, state, and federal sovereigns, also touching on federalism, agency law, civil rights, and criminal jurisdiction aspects of Indian law. This concise hornbook offers comprehensive coverage of the blackletter law, with statutory, regulatory, and historical context. The origins behind important doctrines of Indian law and critical statutes are explored in detail. This book is a useful introduction to the field for both students and practitioners.
