Indian Law Stories
Authors:
Goldberg, Carole E. / Washburn, Kevin K. / Frickey, Philip P.
Edition:
1st
Copyright Date:
2011
21 chapters
have results for tribal
Chapter 8: Mark the Plumber v. Tribal Empire, or Non–Indian Anxiety v. Tribal Sovereignty?: The Story of Oliphant v. Suquamish Indian Tribe 77 results (showing 5 best matches)
- In contrast with the extremely high level of conflict surrounding tribal civil powers, there was relatively little pre- conflict or case law on the actual legal question presented: the extent of tribal criminal power over non-Indians. Two decisions by panels of the Ninth Circuit Court of Appeals skirted the issue. In , the court rejected a criminal defendant’s argument that his federal conviction on drug charges should be reversed because the underlying search for drugs, conducted by a tribal police officer on the Papago Indian Reservation (today, the Tohono O’odham) was illegal. ...tribal officer’s search, the court noted that Indian tribes possess inherent sovereignty except where it has been removed by treaty or federal legislation, and that “[i]ntrinsic in this sovereignty is the power of a tribe to create and administer a criminal justice system.” The court acknowledged that early cases questioned whether tribes could extend their criminal powers to non-members, but that “such...
- case, there is some evidence that Imperial County’s tactic of arresting the tribal police officer for enforcing tribal law, with its underlying message that tribal law enforcement authority is illegitimate and akin to vigilantism, was not unusual. At the time, the California Attorney General’s office maintained the official position that the state, by virtue of a federal statute known as Public Law 280, had exclusive authority over Indian country crimes. State and county law enforcement officials therefore likely felt empowered to question all acts of tribal law enforcement. Similarly, in Washington, where the state had assumed criminal jurisdiction over some but not all tribes, Sheriff and Prosecuting Attorney for their arrest of a tribal officer for unlawful imprisonment stemming from the tribal officer’s arrest of a tribal member for a traffic violation. ...larger state/tribal conflict that, at its heart, addressed the very legitimacy of tribes as governments. Yet, as the Colville...
- Yet the actual impacts on tribal civil powers were slow to surface. The taxation and regulation cases that reached the Supreme Court in the nine years following ’s categorical exclusion of tribal authority over non-Indians. Rather, the cases in the civil context outlined a fuzzier approach, appearing to draw lines between inherent tribal civil powers over non-Indian activity on tribal lands versus non-Indian lands, and also to distinguish somewhat between regulatory, adjudicative, and taxation powers. For example, in 1980, two years after , the Supreme Court upheld tribal cigarette taxes in , yet also upheld state taxation of tribal cigarette sales to non-Indians. That same year, the Court applied Indian law preemption analysis and rejected state taxation of a non-Indian business engaged in contract work for a tribal enterprise. ...retained considerable power over non-Indian activities on tribal lands, and also outlined circumstances in which, even on non-Indian fee land, tribes...
- Even if the Supreme Court had decided in favor of the Suquamish Tribe, it is unlikely the Court would have also decided the case in a way that foreclosed all challenges to tribal civil authority in each of the contexts mentioned—zoning, local taxes, development permits and so forth. The quote is also inartful in its wording, stating that a decision upholding tribal criminal authority could lead to a “grant” of civil jurisdiction, rather than recognition of inherent civil authority. Notwithstanding its hyperbole and inaccuracy, however, the statement captures the sense that onlookers on both sides had at the time about what might mean for the future of tribal governance. To many non-Indians, including powerful politicians in Washington, an affirmation of tribal powers to prosecute non-Indians seemed like a step that could lead to unfettered tribal authority throughout the region. To tribes and their supporters, a rejection of that power would be an unjustified setback in the hard...
- The Tribe had also argued that their authority to enforce the game ordinances stemmed from their criminal powers, but the court rejected this argument on the narrow ground that the Tribe’s own constitution limited its criminal powers to tribal members. court therefore upheld tribal authority to engage in actions with respect to non-Indians that are grounded in the tribal inherent power to exclude. Neither case ruled directly on inherent tribal criminal authority over non-Indians.
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Chapter 6: The Apex of Congress’ Plenary Power over Indian Affairs: The Story of Lone Wolf v. Hitchcock 31 results (showing 5 best matches)
- of ownership status, was Indian country and therefore subject to tribal authority to mediate against the negative jurisdictional ramifications of checkerboard land status. Instead, it has sharply restricted tribal jurisdiction over non-Indian fee lands, rendering tribal governance exceedingly difficult. The checkerboard pattern has also led the Court to hold that certain reservations were “diminished” in size by white settlement. The result is decreased tribal jurisdiction, a lessening of tribal control over territory, and corresponding attacks on tribal sovereignty.
- Congress has tried twice, first in the 1980s and again a decade later, to devise legislation to consolidate Indian lands back into tribal communities. Though the Supreme Court twice struck down Congress’ efforts to utilize its plenary power in an attempt to rebuild the tribal land base, the legislation at least demonstrated that Congress’ plenary power could be used to ameliorate the wrongs of allotment. reversed a negative Supreme Court ruling on the issue of tribal jurisdiction, and re-affirmed inherent sovereignty of tribal governments to assert criminal jurisdiction over all Indians who commit crimes within their territories. This recognition bolsters tribal sovereignty and, in turn, tribal self-government.
- Many tribes have come to the realization that the only solution for this problem is the painstaking and costly process of repurchasing their own ancestral territories. One of the earliest such initiatives is the White Earth Land Recovery Project, a non-profit organization that restores tribal lands of the White Earth Indian Reservation in Minnesota. For a creative approach to recovering tribal lands, see Stacy L. Leeds,
- As many argued even before its implementation, the allotted lands were too small and not sufficiently arable to support a family. Further, by ending collective land holdings and communal tribal life, allotment decimated tribes, tribal culture, and the tribal land base as it simultaneously opened up the west to white settlement and expansion. As one scholar asserts: “Allotment attacked Indian tribalism, root and branch.”
- Tensions rose. Eventually, tribal members gathered at the Methodist Church and drafted a document that charged they had been defrauded by the commission’s procedures and by the interpreters. The tribal members were now almost unanimously opposed to the agreement. Before Jerome and his commissioners even left the reservation, Lone Wolf and others who had signed went to them and asked to “see the paper they had signed; this was refused, and their request to have their names erased from the agreement was also refused.” Lone Wolf later claimed that they were “threatened with violence if they persisted in their opposition.” Jerome ultimately left the reservation with 456 signatures, more than ¾ of the adult male tribal members as certified by the Indian Agent, though this, too, was also contested in the forthcoming litigation.
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Chapter 14: Three Stories in One: The Story of Santa Clara Pueblo v. Martinez 55 results (showing 5 best matches)
- In later years, Justice Rehnquist tried to turn the Court away from the protection of tribal sovereign immunity. In its 1998 opinion in to affirm tribal immunity, the Rehnquist majority did not disguise its invitation to Congress to change if not eliminate the sovereign immunity of tribes. “There are reasons to doubt the wisdom of perpetuating the doctrine. At one time, the doctrine of tribal immunity from suit might have been thought necessary to protect nascent tribal governments from encroachments by States…. [Some] considerations might suggest a need to abrogate tribal immunity, at least as an overarching rule…. Although the Court has taken the lead in drawing the bounds of tribal immunity, Congress, subject to constitutional limits, can alter its limits through explicit legislation.”
- is evident as tribal governments, affirmed in their sovereignty and immunity, develop their political and economic authority. The reach of applied to outsiders as well as tribal members wishing to challenge tribal actions under ICRA. As Professor Frank Pommersheim has noted, however, “[W]hen direct access to federal courts was sharply curtailed [in ], there was a concomitant growth of tribal court litigation and a renewed litigant and federal interest in prescribing the boundaries of tribal authority.” Eventually, the Supreme Court allowed non-Indians to sue in federal court for the sole purpose of challenging tribal court jurisdiction. The result has been a series of high court decisions limiting tribal powers over outsiders. had been decided otherwise, tribal court jurisdiction might have fared better in the Supreme Court, or that federal legislative initiatives to restore tribal jurisdiction should offer, in exchange, to legislatively overturn
- tribal immunity can and should be stretched is part of the dialogue in Indian law regarding tribal members as well. As tribes have obtained funds from judgments or settlements from federal lawsuits for historical wrongs and income from casinos, membership controversies have arisen. The new money has provoked interest in tribal membership among some Indian descendants, and greed among some members wishing to limit who will share in the monetary benefit. In some tribes elders and longtime members have been disenrolled as unqualified for membership. Supporters of tribal sovereignty now articulate cautionary advice to tribal governments: sovereignty cannot mean the absolute right to be arbitrary and abusive to your own people. The tolerance of the non-Indian world and the protection within federal laws can erode. Tribal governments that fail to govern with fairness can provoke the external interference that
- Individual Rights and Tribal Revitalization
- The proposed legislation proceeded with limited input from the tribal governments, though the process did allow some tribal members to provide testimony of abusive treatment they had suffered under tribal authority. There was concern on all sides about the extent of the tribes’ sovereignty and whether immunity attached to their actions. The tribes’ claim to sovereignty had been treated in divergent ways in the federal courts in a period with shifts in federal Indian policy. It was clear from United States Supreme Court precedent, however, that the Bill of Rights in the United States Constitution did not bind tribal governments. pointed to tribal government practices that failed to meet federal constitutional norms. Each report “advanced the conventional thesis that deviations from constitutional government in the United States were improper in themselves and required eventual correction.”
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Chapter 16: Beating a Path of Retreat from Treaty Rights and Tribal Sovereignty: The Story of Montana v. United States 82 results (showing 5 best matches)
- Non–Indian hunting and fishing on fee lands authorized by the state clearly infringes on both the tribal hunting and fishing right itself and on tribal control of hunting and fishing on the Reservation to protect the interests of its members. The Crow Tribe has a clear and substantial interest in the subject matter, which cannot be protected if tribal jurisdiction is limited to trust lands.
- has done is … [require] tribal governments, whether they are self-governing or otherwise, to plan around the case…. In their contracts they provide that the tribal court is their court of dispute resolution, and they may waive their sovereignty to that extent only, but not waive anything for federal purposes. And they don’t hold up the shield of tribal sovereignty to all contracts, because that would probably keep them out of contracts. But they set it up so that tribal courts have jurisdiction under the contractual requirements. The nonmember individuals have an agreement, being on the reservation, so they fall within ’s requirements. Whether the parties ultimately end up in tribal court is a different issue. But at least in their contracts they acknowledge
- “The river was packed this weekend … people floating it and fishing from state land. I didn’t see any tribal game wardens or tribal members.
- Q: Is that on tribal land or allotted land? A: Some of it [tribal], some of it allotted.
- For the state, the way to avoid such problems was clear—recast inherent tribal sovereignty as authority that is merely incidental to the right to exclude outsiders from tribal land:
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Chapter 13: How a $147 County Tax Notice Helped Bring Tribes More Than $200 Billion in Indian Gaming Revenue: The Story of Bryan v. Itasca County 29 results (showing 5 best matches)
- Several of the tribal amicus briefs unabashedly adopted the strategy successful in which called on the Court to use an interpretive approach. They argued that Indian gaming advanced the then-current governmental policy of tribal self-sufficiency, and thus urged a narrow reading of Public Law 280.
- Perhaps one of the most striking features of this legal narrative, however, is that the tribal gaming phenomenon sprang directly from tribal economic poverty.
- The Court’s opinion also accepted an argument raised in the Solicitor General’s amicus brief, and credited in both contexts to Professor Goldberg, that a broad reading of Public Law 280 would undermine tribal governments and modern federal Indian policy by making tribal governments irrelevant or by “relegat[ing] them to a status below that of counties and municipalities.”
- state had the power to levy a personal property tax on tribal members living on tribal land. While the judge recognized that “the Leech Lake Indians were part of a large Indian tribe, that once upon a time were an Indian sovereign nation,” he noted that the Indians living on Leech Lake were citizens of Minnesota, that they had access to the justice system and county services and that, as citizens, they had the right to vote. He distinguished the Leech Lake reservation, as an “open” reservation, from the Red Lake reservation, which was a “closed” reservation. Following a five-page opinion, Judge Murphy attached twenty pages of analysis from a brief that had been filed by the State Commissioner of Taxation on behalf of the County and the State.
- Before Public Law 280 was implemented, criminal jurisdiction over Indian reservations was divided among the state, the tribe and the federal government depending on the nature of the crime and the tribal membership of the victim and perpetrator. Because the federal law enforcement “was neither well-financed nor vigorous, and tribal courts often lacked the resources and skills to be effective” the complex jurisdictional structure often practically resulted in the absence of law enforcement on reservations.
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Introduction 38 results (showing 5 best matches)
- Of course, there are cases where the tribal losses have devastating consequences that are not easily reversed through tribal initiatives. stands as the quintessential illustration, as it allowed the break-up of collectively held tribal lands through the process of allotment, altering the physical, social, economic, and political features of Indian country in ways difficult for tribes to repair. Professor Angela Riley’s account of that momentous case points to modern-day attempts to reassemble tribal land bases by consolidating highly fractionated allotments and reacquiring so-called “surplus” tribal lands that were opened to non-Indian settlement. No one underestimates, however, the obstacles impeding those efforts. Nonetheless, it is important for Indian law students, scholars, and practitioners to understand that Native peoples take a very long view of their struggles to protect their lands and cultures, and a single Supreme Court defeat cannot extinguish the powerful spirits...
- In other stories, hindsight allows us to see that litigation choices may have contributed to—or at least risked—tribal losses. In the , a case involving state jurisdiction over a debt-collection suit against tribal members, attorney Norman Littell downplayed inherent tribal sovereignty in his briefs to the Supreme Court on behalf of the Navajo defendants, and emphasized federal statutory preemption. As Professor Berger explains, Littell was an unlikely tribal advocate given his history as a federal government attorney fighting tribal land claims. Littell’s failure to stress inherent sovereignty might have led to a loss for tribal interests, or at least a more limited view of the constraints on state jurisdiction in Indian country. But as Professor Berger shows, Justice Hugo Black advanced and wrote up the very tribal sovereignty arguments that attorney Littell had shortchanged.
- The importance of attorney choices regarding fact development in Indian Law cases cannot be stressed enough. Our late colleague, Professor Philip Frickey, made this point often, convinced that doctrinal arguments in favor of tribal sovereignty could not prevail so long as stereotypes and misconceptions about tribes and their governing institutions dominate the thinking of Supreme Court Justices. He encouraged Indian law scholars and those in allied social sciences to conduct empirical research on topics such as the performance of tribal courts and the public safety consequences of court decisions denying tribal criminal jurisdiction. Attorneys could then introduce such studies to overcome judicial bias and skepticism toward tribal sovereignty claims.
- (1978), related by Professor Sarah Krakoff, presents the Supreme Court itself as the instrument of conquest. The Suquamish Indian Tribe sought to prosecute two non-Indians, Mark Oliphant and Daniel Belgarde, for disrupting a tribal ceremony and assaulting a tribal officer. From the Tribe’s perspective, its criminal jurisdiction was necessary because non-tribal authorities—both federal and state—were inattentive to community safety needs on the reservation. Moreover, earlier Supreme Court decisions, notably the , had affirmed that tribes’ pre-contact, inherent authority over their territories persisted unless Congress specifically forbad its exercise; and there was no federal statute on the books that barred tribal criminal jurisdiction over non-Indians. Nonetheless, in ...of the Bill of Rights. A serendipitous feature of the case is that it brought the issue of tribal criminal jurisdiction over non-Indians to the Court from a reservation where Indians made up a small...
- arose from commonplace facts—the effort of a non-Indian trader to collect on goods sold on credit to a Navajo couple. After the trader filed suit in state court, the trial court and Arizona Supreme Court held—consistent with the decisions of several other state supreme courts—that the state had jurisdiction. As the Arizona courts saw it, if the Navajos are citizens of the state, then they must be subject to suit there just as all other citizens are. The United States Supreme Court reversed, holding that tribal self-government prohibits such an incursion into the authority of tribal institutions over reservation affairs. The decision, by affirming the continuing force of tribal sovereignty as a bulwark against state jurisdiction, has been described as initiating the modern era in federal Indian law. Professor Berger’s account of the case identifies several factors that have not been explored in the scholarship on this momentous decision—the extent to which it was a product of the...
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Chapter 15: Challenging the Narrative of Conquest: The Story of Lyng v. Northwest Indian Cemetery Protective Association 53 results (showing 5 best matches)
- Yet there are new developments in contemporary cultural revitalization. The Yurok Tribe formed a modern tribal government in 1988. The Tribal Constitution embodies the cultural and religious covenants previously mentioned. The Preamble identifies:
- Yet the tribal narratives underlying the case suggest the opposite is true—that tribal attachment to place persists before, during, and after legal conquest. Indeed, at every step, the Yurok, Karuk, and Tolowa people have resisted the United States’ attempts to sever their relationship with the land and quash related cultural practices. When the United States asserted title in the mid–19th century, and later turned the area into a national forest, tribal religious practitioners continued to use the High Country for spiritual purposes. When the federal government sponsored programs to “assimilate” tribal people into the white Christian mainstream, some Yurok, Karuk, and Tolowa temporarily suppressed external indicia of Indian culture and identity—only to reclaim these through spirited activism around land, fishing, and governance rights in the 1970s. And despite High Country to prepare for ceremonies, and religious dances flourish with record levels of attendance in tribal villages.
- While the Courts of Indian Offenses were not entirely successful at their tasks, Indian agents did suppress religious ceremonies through various means, including the destruction of dance houses, denial of food rations, imprisonment, and the threat of military intervention. According to tribal elders, Indian agents in northern California rigorously enforced the prohibitions on religion. While many Indian dances continued, practitioners were forced to go underground. For the first time in tribal memory, certain ceremonies were not performed on an annual basis. While Indian doctors were harassed and ridiculed by Indian agents, Christian missionaries preached that the tribal religion was the “devil’s religion.”
- Our discussion of tribal perspectives on the case draws largely from co-author Amy Bowers’ knowledge and experience as a Yurok tribal member, as well as interviews with other tribal members, and documentary sources that we cite below. We do not speak universally for the Yurok, Tolowa, or Karuk communities, but try to share both generallyaccepted information and specific opinions on the case. We realize that some people may remember or understand the case differently than we do, and we respect those viewpoints. Finally, as the reader will quickly observe, we make no attempt to discuss
- And yet, the IRA was also criticized in Indian country as undesirable for its failure to observe traditional norms and procedures of tribal government. Tribal elders remember that the Bureau of Indian Affairs continued to control tribal natural resources, financial and government affairs, and even communication with the outside world, through the middle of the 20th century.
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Chapter 11: Sheep, Sovereignty, and the Supreme Court: The Story of Williams v. Lee 44 results (showing 5 best matches)
- The decision affirmed the continuing force of the exclusion of state law from tribal territories first established in acknowledged that subsequent courts had modified this exclusion where “essential tribal relations were not involved and where the rights of Indians would not be jeopardized,” the basic policy had remained. decision went beyond historical promises and precedents to rely on the current tribal efforts to develop independent institutions, citing efforts of the Navajo Nation to develop its own courts and federal support for those efforts. The decision turned on the impact of state jurisdiction on those institutions, finding that “[t]here can be no doubt” that such jurisdiction “would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves.” ...the contemporary needs and struggles of tribal governing institutions, and affirmed the power of federal law to protect and defend them. In...
- On January 16, 1958, tribal attorney Norman Littell met with the Advisory Committee of the Navajo Tribal Council to request permission to seek certiorari and retain a Supreme Court specialist to assist with the case. Although Laurence Davis, an assistant tribal counsel, had primarily handled the briefs in the Arizona Supreme Court, lead attorney Norman Littell now took over.
- decision also provided a legal foundation for the growing tribal sovereignty movement. Over the course of the 1950s, tribes had become more unified in their objections to termination and the extension of state jurisdiction. In 1961, hundreds of representatives of over 90 tribal communities would gather in Chicago to demand an end to the termination policy. provided a legal affirmation of the tribal right to self-government before federal policy shifted to meet these demands.
- , Minutes of Navajo Tribal Council 118 (May 13, 1953); Minutes of Navajo Tribal Council 88 (July 23, 1953).
- Over the next years, Navajo Tribal Council members would speak of their narrow escape from state jurisdiction under the Fernandez Amendment. This experience would influence both the attitude toward and the development of the Navajo courts in the years to follow. Beginning in 1934, the Navajo Tribal Council had petitioned for federal funds and began to contribute tribal funds to the development of a tribal police and law enforcement system to handle the disruption caused by the transition to work for wages and off-reservation employment. ...familial status for social welfare benefits and military and railroad pensions. Although the failure of the federal government to provide sufficient funding and the difficulty of establishing an adequate system of courts and police contributed to the willingness of some Tribal Council members to consider state jurisdiction in 1949, once state jurisdiction was rejected the Navajo people worked even harder at establishing the independence and...
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Chapter 3: Water, Legal Rights, and Actual Consequences: The Story of Winters v. United States 21 results (showing 5 best matches)
- Fort Belknap Tribal Land Department, note 97 (the Department reports that “223,306 acres are tribally controlled and 398,337 are allotted and are held by tribal members…. Only some 6,000 acres are owned in fee status, with about 3,000 owned by tribal members.”). Similarly, citing BIA Realty 2004 as the source, shows 238,668 acres as tribally-owned, 376,058 acres as owned by tribal members, apparently in trust status, and 4308 acres in “federal trust.”
- guaranteed as a matter of law that non-Indian water use would not strip tribal homelands of the water necessary to their survival. The implementation of across the western United States, however, has been fraught with difficulties—inadequate “wet” water, state courtimposed limitations on the use of tribal water, lack of funding for infrastructure, and the like. But that tribal rights to water are paramount over later-created rights under state law.
- An official Montana website states that reservation and “additional tribal lands” comprise about 650,000 acres. Indian Nations of Montana, Fort Belknap, http://indiannations.visitmt.com/fortbelknap.shtm (last visited Feb. 12, 2010). Another publication reports over 652,000 acres. 661 (Veronica E. Velarde Tiller ed., 2d ed. 2005). The tribal government’s official website reports that the reservation consists of just over 675,000 acres. Fort Belknap Indian Community Official Website, http://www.ftbelknap-nsn.gov (last visited Feb. 12, 2010). The Tribal Land Department’s website reports over 737,000 acres. Fort Belknap Tribal Land Department, Fort Belknap Today, http://www.ftbelknapland.com/FORT%20BELKNAP%20TODAY.html (last visited Feb. 12, 2010).
- The transformation of tribal cultures into agrarian societies, of tribal hunters into yeoman farmers, was the cornerstone tenet of the assimilation policy. One of the significant ironies of that policy is that by 1880, when Indian farming “became an article of faith for reformers and government officials alike,” non-Indian farmers were already abandoning the “Jeffersonian model of independent self-sufficiency” in agriculture and moving toward production for wider capital markets.
- provided that the federal government could ignore a treaty provision calling for tribal consent and unilaterally allot tribal land. And yet, no federal action to allot the lands of Fort Belknap was taken.
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Chapter 12: What’s Race Got to Do With It?: The Story of Morton v. Mancari 32 results (showing 5 best matches)
- Brief of Amici Curiae Montana Inter–Tribal Policy Board, National Congress of American Indians, and National Tribal Chairmen’s Association at 10,
- Ever since 1822, when Congress transferred management of Indian affairs from the War Department to the Indian Service (later renamed the Bureau of Indian Affairs), that agency has been deeply insinuated into tribal governments and economies. In the second half of the nineteenth century, as the federal government confined Indians on reservations and destroyed their traditional means of subsistence, agents of the BIA began to designate leaders; allocate vital food supplies, so as to maximize their own control; punish traditional practices; and dictate the leasing of tribal resources to non-Indians. By the 1920s, it was evident that tribes were suffering economically and culturally from the BIA’s pervasive involvement in tribal affairs. So in 1934, Congress passed the , did Congress direct the BIA to contract out its functions to tribal governments and hand its budgets over to tribal leaders.
- This preference provision in the IRA was only one manifestation of the Act’s general purpose, which was to restore tribal cultures, economies, John Collier, President Franklin Roosevelt’s Commissioner of Indian Affairs, had crafted and brokered this legislation because of his admiration for tribal cultures and his conviction that those cultures could flourish only if tribal land bases were protected and tribal governments empowered.
- Neither the United States nor the intervenor Amerind offered evidence showing that the preference served an important government purpose. Toward the end of the trial, Amerind’s attorney, Harris Sherman, apologized to the court when the witness he had intended to call, Navajo Nation Chairman Peter McDonald, could not attend because he had to preside over the opening session of the Tribal Council. Sherman noted that McDonald’s testimony would have focused on how the BIA’s unresponsiveness to tribal needs could be remedied by increased Indian participation, particularly in high-level positions. Sherman offered to have this testimony presented via deposition, and the court agreed to let him submit such testimony if he could obtain it within ten days. The deposition was never introduced.
- If the United States and Amerind were emphasizing the tribal membership requirement under the BIA’s preference, attorney Gene Franchini’s brief on behalf of Carla Mancari hammered on the ancestry requirement. Echoing arguments that had prevailed before the threejudge court, he contended that having a specific percentage of Indian blood had not been shown to be related to performance of federal jobs, even those involving relations with Indian nations. In addition, Franchini zeroed in on the divergence between the BIA’s requirement of onequarter ancestry from a federally recognized tribe and the IRA’s alternative requirements of tribal membership or one-half “Indian blood.” The comparison highlighted the race-like dimension of the BIA’s preference, with eligibility based exclusively on ancestry.
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Chapter 5: The Distorted History that Gave Rise to the “So Called” Plenary Power Doctrine: The Story of United States v. Kagama 30 results (showing 5 best matches)
- This line of argument distorted the nature of tribal law and tribal sovereignty, assuming in a racist way that tribal law would be used to protect murderers from justice, rather than developing in creative ways to nurture vital tribal institutions. The Indian nations, as an attribute of their sovereignty, had both the right and the capacity to adapt their own law to rapidly changing conditions. Denying them this right undermined their capacity to function as nations. The Solicitor General here denies any capacity of the tribes to use their law in a positive way in the face of these changing conditions. Nonetheless, the Solicitor General took up the point again two pages later as the government moved to a close:
- holding has not had devastating consequences for Indian people and for Indian nations. As Kevin Washburn has pointed out in his analysis of the Major Crimes Act, the Act has done great damage to tribal sovereignty, and to the functioning of Indian communities and nations. Similarly, the legacy of crime, violence, and damage that now characterizes many Indian communities derives from centuries of colonialism and external regulation of tribal life, separating Indian people from their cultures and communities. The decision demeaned traditional law, and law is a fundamental element of tribal sovereignty. Strong systems of tribal law help build strong Indian nations.
- However, nothing in the Indian agents’ reports provides sufficient ethnographic information to analyze the issues that underlay these killings. White agents were fascinated by the concept of “blood feud,” which they took to represent tribal law, but had little understanding of it. What mattered for the agents was that the continued presence of such feuds was clear proof that the Indians were living under tribal law rather than “civilized” United States law. They paid little attention to the legal or social substance of these feuds, which was complex and clearly defined in Yurok law.
- drew upon concepts developed in earlier Supreme Court decisions that emphasized tribal sovereignty and treaty guarantees, it also described the tribal-federal relationship in both paternalistic and failed terms. In Justice Matthews’ ’s reading of the earlier decisions, tribal nationhood is merely a means to the end of Indian “self-government,” a self-government modeled on non-Indian law. The sovereignty language of the earlier decisions is presented as serving a larger policy aimed at moving the Indian nations toward a “civilized life”—exactly the policy of the Indian reformers of the day.
- The ethnographic and historical records for these Indians from the 19th century use inconsistent spellings. Commonly the Yurok, Karuk, and Hupa had different names for the same place Then whites anglicized these pronunciations. “Pactah” is apparently such an anglicized pronunciation. The author wishes to thank Jeanne Riecke and Abby Abinanti for their help tracing Kagama and Mahawaha through Yurok tribal records, and with their assistance in understanding Yurok tribal history. Errors are, of course, my own.
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Indian Law Stories 3 results
- Chapter 8: Mark the Plumber v. Tribal Empire, or Non–Indian Anxiety v. Tribal Sovereignty?: The Story of Oliphant v. Suquamish IndianTribe
- Chapter 2: The Tribal Struggle for Indian Sovereignty: The Story of the Cherokee Cases
- Chapter 16: Beating a Path of Retreat from Treaty Rights and Tribal Sovereignty: The Story of Montana v. United States
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Chapter 2: The Tribal Struggle for Indian Sovereignty: The Story of the Cherokee Cases 23 results (showing 5 best matches)
- —and the tribal as well as national response to them—is at the heart of knowing what it means to be Cherokee. These cases are intimately tied to the question of Native survival and the challenge of facing an impossible tribal dilemma. Tragically, but inevitably, they lead to the “Trail of Tears,” the forced march in which the Cherokee lost more than one quarter of the entire tribal membership.
- As the Cherokee Nation contemplated the escalating conflict with the state of Georgia, tribal leader Elias Boudinot, the editor of the tell this story from the perspective of Cherokee tribal leaders. The Cherokee Nation saw the United States Supreme Court as their best hope for a resolution to the growing dispute. Indeed, the confidence of the tribal leadership in the Supreme Court was high. The Court, an institution which a generation earlier had been described to them as “wise, beloved old men,” seemed a natural and hospitable forum to which the Tribe might turn. Traditional Cherokee government had often been described as a gerontocracy, a leadership of tribal elders. In fact, the Cherokee Constitution of 1827 had established a tribal Supreme Court, which had only recently moved into its own National Supreme Court Building at New Echota in the Nation.
- A series of events toward the end of the 1820s brought the smoldering hostility between the Cherokee and their Georgia neighbors into full flame. These events included the discovery of gold on Cherokee treaty lands within the boundary of Georgia, the adoption of a Cherokee tribal constitution based on the laws of the United States, designed to move eastern tribes to new lands west of the Mississippi, and finally the unilateral extension of a series of Georgia laws over the tribal treaty lands of the Cherokee. These new Georgia laws declared the Cherokee lands to be “Cherokee County” within the state of Georgia, and designated this as “surplus” land to be opened to Georgia citizens for settlement by lottery. Indians were denied the right to appear in court under this legislation, and non-Indians living within this Cherokee area were required to obtain a permit from officials of the state of Georgia.
- While Wirt contemplated the question of how to get the Cherokee case before the Court, tribal lands were overrun by Georgians who stole horses and cattle, ejected Indians from their homes, and seized their property. Little could be done because Georgia law prohibited Indians from testifying in court proceedings. Finally, after declaring the historic Cherokee Nation to be Cherokee County, Georgia, the state began a lottery to distribute Indian lands to white citizens. At Georgia’s request, President Jackson removed federal troops from Indian land and turned all law enforcement, including tribal criminal law, over to the state.
- The magnitude of the crisis is demonstrated by a little-discussed but extremely important Georgia murder trial. A Cherokee farmer known as Corn Tassell was accused of killing another Cherokee tribal citizen. Corn Tassell was arrested and tried by Georgia. He was convicted and sentenced to hang. He and all of his Cherokee witnesses were prohibited from giving testimony at his trial. The question was not one of his guilt but rather one of Georgia’s authority to enforce her state criminal code within the Cherokee Nation for acts between two Cherokee tribal members. William Wirt saw the Corn Tassell case as his opportunity to get the Cherokee cause before the Supreme Court.
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- Aboriginal title (also known as original Indian title) was a tribal right of use and occupancy, said to be as “sacred as the fee simple of the whites.” Thus, as the wave of settlers moved west across tribal territories in the United States, the federal government negotiated treaties to extinguish tribal aboriginal rights to most land, but subject to reservations of territory held by the tribes for their exclusive use and occupancy. A recent modern treaty substitute in the United States is the Alaska Native Claims Settlement Act of 1971—an agreement imposed by Congress to extinguish tribal land claims, along with hunting and fishing rights, and one which has significant flaws.
- The Canadian Supreme Court developed a jurisprudence distinguishing aboriginal rights from aboriginal title, and at the same time the Court scrupulously avoided dealing with claims to self-government and tribal sovereignty with any precision. The Court’s rulings are filled with caution and use language sensitive to the place of First Nations in Canada. At the same time, the Court frankly acknowledges the reality that the dominant force in Canada is the colonizing government and that the best that can be done is to “reconcile” the preexisting rights of the First Nations with the modern non-Native Canadian society.
- people early in his legal career after a stint as a junior member of a team conducting an inquest into the death of a prominent aboriginal person who was in the hands of the Royal Canadian Mounted Police. Rush was subsequently retained by the Gitksan and Wet’suwet’en to represent over a dozen tribal members facing criminal charges for fishing violations. He won every case and naturally became highly regarded in the aboriginal community. Rush became lead counsel in the
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Biographies of Indian Law Stories Contributors 12 results (showing 5 best matches)
- is Professor of Law and Willard H. Pedrick Distinguished Research Scholar at the Sandra Day O’Connor College of Law at Arizona State University, where she has served as Executive Director of the Indian Legal Program since 1996. She has written and published widely on doctrinal and theoretical issues related to tribal sovereignty, environmental policy, and cultural rights. Professor Tsosie, who is of Yaqui descent, has also worked extensively with tribal governments and organizations, including the Native American Rights Fund. She also serves as a Supreme Court Justice for the Fort McDowell Yavapai Nation. Professor Tsosie speaks at several national conferences each year on topics related to tribal sovereignty, self-determination, and tribal rights to environmental and cultural resources. She is the co-author of Goldberg, Tsosie, Washburn, and Washburn,
- is a Professor of Law at Villanova University School of Law. After graduating from Cornell Law School, Professor Juliano clerked for Judge Stephanie Seymour of the Tenth Circuit and Judge Raymond Pettine of the District Court of Rhode Island. She then worked with the U. S. Department of Justice, both as a trial attorney and a Special Assistant to the Assistant Attorney General. As a practicing attorney, she handled cases involving tribal water rights, tribal acknowledgment decisions, land to trust cases and the application of environmental laws in Indian country. Professor Juliano has written numerous articles in the areas of Indian law and civil rights law.
- (Thomson/West, 2nd ed. 2010). He is a 1983 graduate of the University of Minnesota Law School. For twelve years he was a Senior Staff Attorney for the Native American Rights Fund where he litigated major cases involving state, federal and tribal jurisdiction and water law as well as hunting and fishing rights. He has extensive experience in Alaska Native law and water law. From 1995–2001 he served as an appointee of Interior Secretary Bruce Babbitt. He was the Department’s Associate Solicitor for Indian Affairs and spent the last three years of the Administration as Counselor to the Secretary. He is a member of the Bois Forte Band of the Minnesota Chippewa Tribe.
- (Thomson/West 2nd ed. 2010) and author of a number of articles on legal history, tribal jurisdiction, and issues of race and gender in Indian law and policy. She served as the Oneida Indian Nation Visiting Professor at Harvard Law School in the 2008–2009 academic year.
- is an Associate Professor at the University of Colorado Law School where she teaches Property and American Indian Law. Her research examines the real property interests of Indian nations, as well as issues of culture, religion, and language. Before entering academia, Professor Carpenter clerked for the Honorable John C. Porfilio on the United States Court of Appeals for the Tenth Circuit and then practiced at Hill & Barlow, P.C., in Boston. She has also worked at the Mashantucket Pequot Tribal Nation’s Office of Legal Counsel and private Indian law firms in Colorado and Alaska. Professor Carpenter’s previous academic appointments were at the University of Denver Sturm College of Law and Suffolk University Law School. She recently served a four-year term on the Board of the Colorado Indian Bar Association and as chair of the Federal Bar Association’s Annual Indian Law Conference. Professor Carpenter is a graduate of Dartmouth College and Harvard Law School.
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Chapter 7: Erasing Indian Country: The Story of Tee–Hit–Ton Indians v. United States 46 results (showing 5 best matches)
- Paul’s philosophy of treating Indians as individuals, rather than as citizens of Native nations, led him to the view that Alaska Natives should relate to the federal government as individuals rather than as tribes. In 1941, this view was the opposite of that taken by John Collier and the Indian Reorganization Act, which had sought to revitalize tribal sovereignty and protect tribal property rights. This view also put Paul at odds with many other Alaska Natives. Paul wanted to bring lawsuits to test his view. Among the first brought by Paul, Sr.’s sons on his behalf was the 1947 case of Remarkably, if upheld, this would have meant that there was no tribal title at all in Alaska, a ruling at odds with prior cases that had held that tribal title can only be extinguished by an affirmative act of
- suit and decided to go it more or less alone. He was the principal witness in the trial and the evidence of clan use of the territory was sketchy. The result was disastrous for Native claims when the Claims Court ruled (and the Supreme Court affirmed) that the United States has no obligation to compensate when it takes tribal title unless it has previously recognized that title by treaty or statute. At the same time, the ANB pursued its independent lawsuit which resulted in a clear ruling that the Tlingit and Haida Indians had aboriginal title to their territories in Alaska and that these rights had not been extinguished by the Treaty of Cession. Moreover, the Claims Court found a statutory basis for awarding compensation to Tlingit and Haida Indians for the loss of their tribal lands.
- At that point, Paul had to decide whether to appeal. Failure to do so would leave a ruling that denied Alaska Natives any constitutionally protected property rights, but it would not result in a Supreme Court ruling that would make that result permanent and possibly applicable to all tribal property in the United States that had not been recognized by treaty or statute. Appealing and winning might vindicate the rights of Alaska Natives at the cost of defining the rights of other Native Americans as less protected than those of Alaska Natives. The choice of ...one, involving not only strategic considerations but an ability to predict what the Supreme Court will do and on what grounds it will do it. Today the National Congress of American Indians has joined with the Native American Rights Fund in creating a Tribal Supreme Court Project whose purpose is to advise litigants on whether to appeal cases to the Supreme Court and to shape and improve advocacy of cases that are being heard by...
- The result was that the United States enshrined certain principles in the Constitution in 1789 and in the Nonintercourse Act of 1790, as well as early case law decided by the Supreme Court, that affirmed tribal property rights while subjecting tribal rights to limitations designed to ensure American interests. Contrary to the view expressed by Justice Reed in
- decision did not mean that the tribes could not grant property rights to individuals. As the Court pointed out, a non-Indian who entered tribal lands without the consent of the United States could obtain rights in Indian lands from the tribe itself, but those rights would be governed by tribal law.
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Chapter 10: Property, Power, and American “Justice”: The Story of United States v. Dann 9 results (showing 5 best matches)
- The Danns’ claim is, fundamentally, not a human rights claim, but an attempt by two individual Indians to reopen the question of collective Western Shoshone tribal property rights to land—a question that has been litigated to finality in the U.S. courts.
- Round One in Federal Court: The Tribal Claim to Aboriginal Title as a Defense to Trespass
- With the collective claim to aboriginal title resolved against them as a matter of law, the Danns’ only hope was to allege that they maintained an individual claim to aboriginal title. A comparison of group claims to aboriginal title with individual claims demonstrates the incoherent nature of Native title law as a means to vindicate Indian “ownership.” Drawing on the law of adverse possession, if the land is held in “individual ownership,” rather than tribal ownership, this would seem to impart a better quality of title, according to Anglo–American legal standards. If the claim is “individual,” rather than “tribal,” why should it matter if the claimant is Native or non-Native? Doesn’t a “private” property right arise? At least in theory, the individual aboriginal title claim should have presented the strongest defense to the government’s allegation of “trespass.”
- Notably, any attorney who was awarded a contract to represent a claimant tribe by the BIA and who successfully litigated the claim would receive 10% of the judgment awarded. The statutory fee structure therefore gave a substantial incentive to attorneys to litigate for the maximum amount of damages. Wilkinson received the supervised attorney contract from the BIA to represent the Te–Moak Bands Council, a federally recognized band of the Western Shoshone that organized its tribal government under the Indian Reorganization Act of 1934 (“IRA”). ...Treaty of Ruby Valley), the Interior Department saw a need to form a small, functional tribal council that could manage property and enter agreements. As detailed in correspondence by Commissioner John Collier, then head of the BIA, the main obstacle to approval of an IRA constitution was that the group proposing to organize was composed of individual Shoshones from many disparate colonies who wished to “organize as a Tribe” in order to secure...
- The Court of Appeals’ opinion, again written by Indian law expert William C. Canby, Jr., created a much narrower standard for individual aboriginal title than the district court had applied. The court found that the Western Shoshone aboriginal title claims had been extinguished as of 1872, and that to the extent the Danns’ individual claim related to the use of tribal lands, it was inseparable from the group claim and barred from adjudication. The court noted that the Danns had never asserted rights “excluding the tribe or its members from the land they were occupying,” and thus, their primary claim was indistinguishable from that adjudicated in the ICC proceeding. ...title, which centered on whether individual tribal members could prove that they had “actually occupied and enclosed” public lands, on a similar basis to white homesteaders, during the years before Indians were recognized as eligible to claim property rights on the same basis as white citizens. These claims...
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Chapter 9: A Step Backward in the Government’s Representation of Tribes: The Story of Nevada v. United States 13 results (showing 5 best matches)
- The affairs and activities of Department of Justice are directed by the Attorney General. Litigation, either defensive or affirmative, by the Department of Justice occurs as a result of a request from a federal agency. In the area of Indian law, such litigation includes protection of tribal assets or jurisdiction, assertion of Indian rights to property including hunting, fishing, and water rights, and the protection of tribal sovereignty in such areas as taxation and reservation boundaries.
- decision earned only a few sentences in the major newspapers, it was devastating for the Pyramid Lake Paiute Tribe. The Tribe was not a wealthy tribe and tribal members considered themselves stewards of Pyramid Lake. Consideration of the course of action in the wake of the
- from administration to administration affect, in real ways, the results of litigation over tribal resources.
- In 1981, President Ronald Reagan took office. As part of his administration, the infamous James Watt became the Secretary of the Interior. Watt, a westerner who grew up on a ranch in Wyoming, was not a supporter of Indian reserved water rights. In addition, President Reagan sought to encourage negotiated settlements of water rights as opposed to litigated solutions. Although at first blush, negotiation may seem preferable to all involved, as a practical matter, negotiation undercut the position of the Tribe. Often, preparation for negotiation of water rights is as expensive as litigation. Negotiation is often risky for politically weak parties such as tribes. Finally, in an effort to obtain a secure amount of water, tribes may be required to sacrifice some measure of their sovereignty over tribal resources.
- to undo the damage from Orr Ditch demonstrates the importance of a tribe securing its own attorney to protect its own interests. Further, the numerous cases surrounding Pyramid Lake provide an object lesson in thinking outside of the box and discovering any and all methods to protect a tribal resource.
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Chapter 4: Who Is an Indian? The Story of United States v. Sandoval 8 results (showing 5 best matches)
- Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 530 (1998).
- , Solem v. Bartlett, 465 U.S. 463 (1984). These cases address whether federal statutes opening up tribal lands for allotment to individual Indians and for non-Indian homesteading also had the effect of reducing the acreage of those reservations.
- In 1891, the United States attorney general ruled that federal statutes authorizing the commissioner of Indian affairs to regulate Indian traders had no application to the Pueblos. In 1894, the Department of the Interior ruled that laws relating to the approval of leases of Indian tribal land had no application to the Pueblos. In 1900, the Territorial Court, in a suit to suppress title brought by one who claimed to have legally acquired some Pueblo land, issued a decree against Nambe Pueblo, stating that the pueblo had actually granted away the land.
- Of course, the argument could be made that the treaty would not have affected the status of the Pueblo Indians (or any other Indians for that matter) since they were not parties to it, but the dependent status of tribal Indians would have made them subject to federal law in any event whether exercised through treaty or statute. Their citizenship status would have complicated the analysis, but as the Supreme Court later indicated, not by much.
- ...on the facts that the Pueblo Indians were not Indians in the sense contemplated by the federal statute prohibiting liquor sales in Indian country, and thus they were not within the statute’s regulatory ambit. That ought to be sufficient, in his view, to invalidate Sandoval’s prosecution. But if more were needed, Judge Pope’s other point was that the Pueblo Indians’ citizenship removed them from the ambit of the statute. Either line of legal analysis led to a conclusion that robbed the federal government of the competence to exercise its power over the Pueblo Indians and their territory. In response, Justice Van Devanter was sensitive to both arguments. Having disposed of the ethnographic point he felt it unnecessary to address the citizenship point, since, as he pointed out, the federal government had long exercised its jurisdiction over Indians who were both citizens and tribal members. “As before stated, whether [the Pueblo] are citizens is an open question, and we... ...tribal...
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- offered rules relating to the nature and scope of tribal sovereignty.
- ...Hemisphere, European states began devising legal rules to justify and rationalize the process of acquiring title to them. In the British colonies of North America, governments decided that to reduce the likelihood of indigenous tribal disaffection, lands would be purchased, but that no purchase of Indian lands could be made without the consent of the colonial government. The prohibition of unlicensed individual purchases of Indian land became a common part of colonial codes. With the coming of the American Revolution, the question of how to regulate Indian land acquisition again came to the fore, as the new United States government had the option to replicate or revise the colonial model. In 1790, the United States Congress passed the first in a series of Trade and Intercourse Acts carrying forward the proscription of individual unlicensed purchases, indeed expanding the proscription to make purchases of Indian lands by states illegal. This proscription of non-federal Indian land...
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Acknowledgments 1 result
- We would like to thank the UCLA Native Nations Law & Policy Center and the UCLA School of Law Dean’s Fund for grants that supported the production of this volume. These grants provided summer support for Professor Goldberg and also underwrote a conference, held at UCLA in the spring of 2009, that permitted the contributors to present their chapters, comment on each other’s work, and receive feedback from tribal leaders, Indian law scholars, and practitioners. Former Dean Michael Schill, Cathy Yu, Leigh Iwanaga, and Hang Nguyen all played key roles in making the conference a reality. Our thanks to attorneys Jerry Gardner, Colin Hampson, Jerry Levine, Laura Miranda, and Bill Wood, as well as Professor Bryan Wildenthal and Executive Director Ron Andrade of the Los Angeles Native American Indian Commission, for attending the conference and providing their comments on the various chapters.
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- Publication Date: December 28th, 2010
- ISBN: 9781599417295
- Subject: American Indian Law
- Series: Law Stories
- Type: Overviews
- Description: This book covers the often complex and unfamiliar doctrine of federal Indian law, exposing the raw conflicts over sovereignty and property that have shaped legal rulings. Fifteen distinguished authors describe gripping cases involving Indian nations over more than two centuries, each story emphasizing initiative in tribal communities and lawyering strategies that have determined the fate of nations.
