Principles of Federal Indian Law
Author:
Fletcher, Matthew L.M.
Edition:
1st
Copyright Date:
2017
20 chapters
have results for indian
Chapter 4 Indian Property Interests 155 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.
- 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.
- 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.
- Open Chapter
Chapter 2 The Origins of Federal Indian Law 83 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. ...once created untold hardships for Indian people, Congress had lately begun using its plenary power...
- 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.
- 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.
- Indian governments did not enjoy the discovery right. Chief Justice Marshall explained that Indians retained rights in the lands they occupied, but that those rights had been limited post-Discovery. Specifically, the discovering nation acquired superior title to the lands held by Indigenous peoples. Indian title amounted to the right to continue occupying and enjoying the land, subject to the will of the discoverer; Indian nations could not sell the land to anyone except the discovering nation. The federal government, according to the chief justice, held the preemption right, the right to extinguish Indian title via purchase or conquest, but also to the Indian lands.
- Open Chapter
Chapter 12 Fishing and Hunting Rights 88 results (showing 5 best matches)
- Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt
- 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.
- In construing the language of the 1837 and 1842 treaties, the Seventh Circuit applied the canon of construing Indian treaties that the treaty language must be interpreted as the Indians understood the terms at the time of the negotiation. The court held that the Ojibwe nations understood that the President’s discretion to revoke the off-reservation rights was dependent on whether the Indians misbehaved toward non-Indian settlers. The court further held that the 1850 Executive order was invalid. Presidential orders cannot contravene an Act of Congress or a treaty. Since the Ojibwe nations understood that they would remain entitled to usufructuary rights unless they misbehaved, then the President was authorized to revoke those rights only if he found that the Indians had misbehaved. He made no such finding.
- The first major Indian treaty rights case seeking judicial confirmation of off-reservation fishing rights filed in 1970 and which remains the longest running active federal district court matter in American history. The initial trial court decision recognized extant and continuing Indian fishing rights guaranteed under the so-called Stevens treaties, and further provided that Indians were entitled to half of the total annual fishery harvest each year.
- 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.
- Open Chapter
Chapter 1 American Indians and Federal Indian Law 94 results (showing 5 best matches)
- 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.
- 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 ...of Indian and...
- 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...
- 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. 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.
- Once again, militarily powerful Indian communities confronted the United States, forcing the negotiation of several treaties purportedly guaranteeing that large tracts of land would remain tribal lands forever. For example, the 1851 treaty of Fort Laramie between the Lakota, Nakota, and Dakota Indians, the Cheyenne Indians, other tribal nations, and the United States reserved almost all of the Dakota Territory and parts of three other states to the tribal nations. As it had in the east, however, the establishment of the reservations quickly led to hardship for the Indian communities. The declining fortunes of Indian nations, along with the demand for Indian lands, encouraged the United States to seek additional treaty concessions from tribes. Indian tribes on the verge of starvation and threatened with being overwhelmed by the non-Indian intruders on their lands had little choice but to comply.
- Open Chapter
Chapter 3 Centuries of Shifting American Indian Law and Policy 253 results (showing 5 best matches)
- 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 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...
- 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.
- In 1790, the First Congress enacted the first Trade and Intercourse Act, implementing its Indian affairs authority contained in the Commerce Clause. The statute provided for federal regulation of all commerce and other “intercourse” with Indians and Indian tribes; a ban on land purchases without federal consent; and the provision of punishment for non-Indians who committed crimes against Indians in Indian Country.
- Open Chapter
Chapter 7 Indian Country and Criminal Jurisdiction 161 results (showing 5 best matches)
- 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 quickly 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. 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 and quickly enacted what...
- “Indian country” is a term of art that is most useful in the criminal jurisdiction context, but has a long and complicated history arising from its origins as a casual descriptor of where Indian people live. Indian country once meant everything west of the original 13 states, but that understanding was dynamic as the American republic crept westward. Indian country is now statutorily defined as three kinds of Indian lands—reservation lands, dependent Indian communities, and allotments.
- 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.
- Open Chapter
Chapter 9 Indian Gaming 85 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,
- 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.
- California v. Cabazon Band of Mission Indians
- 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 tribe argued that the lands it purchased using the land settlement trust in Vanderbilt, Michigan were eligible for gaming under IGRA and its gaming compact with 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.” ...Indian Gaming Commission, interestingly, concluded that it could exercise its enforcement...
- Open Chapter
Chapter 8 Tribal and State Conflicts over Civil Jurisdiction 164 results (showing 5 best matches)
- 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 The Court further held that the imposition on Indian retailers to collect the state tax was no burden on “tribal self-government.” ...rely on the analytical play to distinguish Indians from their tribes as separate entities. In fact, the Court was simply wrong to not equate tribal self-government with the interests of individual...
- Oklahoma Tax Commission v. Citizen Band of Potawatomi Indian Tribe of Oklahoma
- 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.
- Congress enacted the Indian Child Welfare Act (ICWA) in 1978, after more than four years of hearings, deliberation, and debate, in order to alleviate a terrible crisis of national proportions—the “wholesale separation of Indian children from Hundreds of pages of legislative testimony taken from Indian Country over the course of four years confirmed for Congress that many state and county social service agencies and workers, with the approval and backing of many state courts and some federal Bureau of Indian Affairs officials, had engaged in the systematic, automatic, and across-the-board removal of Indian children from Indian families and into non-Indian families and communities. State governmental actors following this pattern and practice removed between 25 and 35 percent of all Indian children nationwide from their families, placing about 90 percent of those removed children in non-Indian homes.
- Indian nations retain regulatory jurisdiction over tribal members within and without Indian country, and likely retain jurisdiction over nonmembers on Indian lands. . However, Indian nations generally do not possess inherent authority to regulate nonmember activity on nonmember-owned fee lands within reservation boundaries. This general rule has two exceptions; the first is that a tribe may regulate a nonmember that consents, and the second is that a tribe may regulate nonmember conduct that significantly imperils tribal self-government.
- Open Chapter
Chapter 10 Indian Religion and Culture 70 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...
- Indian religious communities and Indian nations have been unsuccessfully challenging the federal government’s approval and subsidization of the so-called Arizona Snowbowl ski lodge on the San Francisco Peaks for decades.Indian tribes demonstrated that the Peaks held critical religious significance, most notably the Navajo The tribes objected, claiming that the expansion of the ski lodge would burden the free exercise of Indian religions. The court rejected the claim, noting that Indian people could still access the area, and that expansion of the Snowbowl would not “prevent [Indians] from engaging in any religious practices.”
- Open Chapter
Chapter 5 The Federal-Tribal Relationship 165 results (showing 5 best matches)
- 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.
- As the fortunes of Indians and tribes declined throughout the rest of the 19th century and early 20th century, Congress and the Supreme Court asserted greater authority over the internal sovereignty of Indian nations as well. The Supreme Court adopted a position extremely deferential to Congressional judgment on Indian affairs legislation closely aligned with the political question doctrine that was firmly rooted in the guardian-ward model of Indian affairs. In short, applying a guardianship model of Indian affairs, the Supreme Court would decline to review Congressional enactments in Indian affairs—even where they effectuated a taking of Indian and tribal property, for example—so long as Congress acted in “good faith.”
- Congress began its slow retreat from the guardianship model in 1934 when it enacted the Indian Reorganization Act. The Act, for the first time in Indian affairs history, sought tribal consent to the statute’s operating provisions. While Congress continued to vacillate on Indian affairs through the middle part of the 20th century, by 1975 the United States recognized “the obligation of the United States to respond to the strong expression of the Indian people for self-determination by assuring maximum Indian participation in the direction of . . . Federal services to Indian communities. . . .” tribal self-determination, and continues to recognize that its obligations to Indians and tribes is in the nature of a trust.
- Congress’s enactment of the Indian Self-Determination and Education Assistance Act, was designed to reverse federal control over Indian lives, allowing Indian tribes to “gain[ ] greater control over the primary and secondary education of their children.” The Act authorized Indian tribe to contract with the federal government to provide their own educational services, formerly administered by the United States. In places, the tribal control over Indian
- One of the largest federal agencies providing services to American Indians is the Indian Health Service. The federal duty to provide health care to Indian people originates in many Indian treaties.
- Open Chapter
Chapter 11 Indian Water Rights 74 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 creation of the reservation came at a time when the United States was formally encouraging the development of agriculture throughout the country. By 1895, non-Indian farmers began to divert water from the Milk River upstream from the Fort Belknap Indian Reservation. In 1898, the Fort Belknap Indian Agency also began taking water from the river for agricultural purposes on behalf of the tribes. In 1904 and 1905, a severe drought hit the area, and preventing any water from reaching the Indian users. For the Indian people, the loss of water meant possible starvation. The federal government sued on behalf of the tribes, seeking and receiving an injunction on upstream non-Indian water users.
- Open Chapter
Chapter 6 Tribal Sovereignty and Native Nation- Building 57 results (showing 5 best matches)
- For modern Indian nations engaged in the process of nation building, tribal sovereignty is the most critical legal instrument required to achieve self-determination. Tribal sovereignty allows Indian nations to make their own decisions, free from the interference of federal, state, and local government entities. Absent tribal sovereignty, there would be no Indian nationhood, no ability of Indians to create and maintain their own governance structures, economies, and local laws.
- 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.
- The Bay Mills Indian Community had purchased off-reservation fee land using proceeds from a trust fund account it acquired in the Michigan Indian Land Claims Settlement Act, quickly opening a casino on the lands. The State and another Indian tribe, the Little Traverse Bay Bands of Odawa Indians, sued the tribe in federal claim to enjoin the operation of the casino, arguing that the operation violated the Indian Gaming Regulatory Act. Court’s decision held first that the Indian
- Tribal sovereignty is a catch phrase in modern American Indian law. Since the American constitutional law treats the United States and the several states as “sovereigns,” it is an easy and important fit for Indian nations to also be treated as sovereigns. In fact, after visiting three tribal courts in the 1990s, Supreme Court Justice Sandra Day O’Connor referred to Indian nations as the third sovereign, writing, “Today, in the United States, we have three types of sovereign entities—the Federal government, the States, and the Indian tribes. Each of the three sovereigns has its own judicial system, and each plays an important role in the administration of justice in this country.” the Cherokee Nation of Oklahoma Wilma Mankiller referred to American Indian sovereignty as a “sacred trust.”
- Both the text of the United States Constitution and the earliest major Indian law decisions of the Supreme Court—the Marshall Trilogy, —expressly recognized that tribal governments are sovereign entities. The Commerce Clause recognizes three types of sovereigns—states, foreign nations, and Indian tribes. The United States entered into hundreds of treaties with Indian nations, continuing a practice started by French, Spanish, and British nations had started before, an additional recognition of Indian nations as sovereign entities.
- Open Chapter
Chapter 13 Alaska Natives 34 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.
- 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 was whether the lands were “dependent Indian communities” under
- Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 58 Fed. Reg. 54,364, 54,368–69 (1993).
- The United States’ disparate treatment of Alaska Natives and Alaska Native tribal governments forced them to walk a substantially different path than Indian nations in the lower 48 states. The federal government did not enter into treaties with Alaska Natives, and imposed modified forms of allotment, assimilation, state jurisdiction, and tribal government reorganization on Alaska Natives. Still, in recent decades, the federal government has slowly begun narrowing the differences between Alaska Native tribal governments and other federally recognized Indian nations.
- Metlakatla Indian Community v. Egan
- Open Chapter
Table of Contents 30 results (showing 5 best matches)
Table of Cases 77 results (showing 5 best matches)
- Narragansett Indian Tribe v. National Indian Gaming Commission, 287
- Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, 94, 314
- Babbitt Ford, Inc. v. Navajo Indian Tribe, 245
- Besadny v. Lac Courte Oreilles Band of Lake Superior Chippewa Indians, 97, 338, 340, 341
- Brendale v. Confederated Bands and Tribes of Yakima Indian Nation, 226, 227
- Open Chapter
Summary of Contents 8 results (showing 5 best matches)
Index 53 results (showing 5 best matches)
Chapter 14 Native Hawaiians 8 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., 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).
- 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.
- The petitioner was a Hawaiian citizen who sought to vote in the state election to elect the OHA board of trustees. He did not qualify as a “Hawaiian” as the statute provided. He claimed that the Fifteenth Amendment prohibited the voting requirement. The State of Hawaii, represented by later-Chief Justice Roberts, argued that the United States and the State acknowledged an obligation to Native Hawaiians similar to that of the trust relationship with other Indian nations that precluded the application of the Fifteenth Amendment. The Supreme Court agreed with the petitioner.
- Open Chapter
Title Page 1 result
- 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.
