American Indian Law in a Nutshell
Author:
Canby, Jr., William C.
Edition:
8th
Copyright Date:
2025
21 chapters
have results for indian
Chapter 7. Criminal and Civil Jurisdiction in Indian Country 217 results (showing 5 best matches)
- An appealing argument can be made that the Indian Country Crimes Act should not even be applied to crimes by Indians against non-Indian victims. The Indian who commits a crime in Indian country is subject to the comprehensive criminal jurisdiction of the tribe and, for a few specified crimes, of the federal government under the Major Crimes Act. There is no criminal law vacuum for the Indian (as there was for the non-Indian) and therefore no need to import a body of criminal law by way of the Indian Country Crimes Act and Assimilative Crimes Act. (The Ninth Circuit in , supra, held that the Assimilative Crimes Act also applied in Indian country by reason of the Enclaves Act, , but was nevertheless subject to the exceptions specified in the Indian Country Crimes Act.) To do so merely displaces tribal law that is far more appropriate for governing the conduct of the Indian. See Clinton,
- Until very recently there has been relatively little authority regarding the powers of the federal, state, and tribal police in Indian country. In general, powers of policing and arrest follow the criminal jurisdiction of the three governments in the absence of special arrangements or agreements. For example, federal officers enforce the Major Crimes Act against Indians and the Indian Country Crimes Act against both Indians and non-Indians in Indian country. State officers enforce state law against non-Indians committing crimes in Indian country. Tribal police enforce tribal laws against Indians. Many reservations utilize Indian police of the Bureau of Indian Affairs, who have authority to arrest for violations of either federal or tribal law.
- In colonial days, the Indian territory was entirely the province of the tribes, and they had jurisdiction in fact and theory over all persons and subjects present there. Shortly after the Revolution, federal jurisdiction was extended to non-Indians committing crimes against Indians in Indian territory, as part of the overall federal policy of providing a buffer between the non-Indian and Indian populations. 1 Stat. 138 (1790); 1 Stat. 743 (1799); 2 Stat. 139 (1802). Federal jurisdiction was further extended in 1817 to cover crimes by both Indians and non-Indians in Indian country with the notable exception of crimes by Indians against Indians; the latter were left entirely to be dealt with by tribal law or custom. 3 Stat. 383. That 1817 statute extending federal criminal law into Indian country has undergone several revisions and is now codified as Indian Country Crimes Act. See, generally, Clinton,
- This pattern, emphasizing federal jurisdiction over crimes between non-Indians and Indians while maintaining exclusive tribal jurisdiction over all-Indian crimes, continued until Congress modified it in reaction to the Supreme Court’s decision in involved the conviction of an Indian in territorial court for the murder of another Indian in Indian country. The murder was alleged to have violated the general federal statute against murder, extended to Indian country by the Indian Country Crimes Act. The Supreme Court held that there was no jurisdiction, because the Indian Country Crimes Act excluded from coverage crimes by an Indian against an Indian. The Court left no doubt of its view that in justice the matter should be handled by the tribe:
- 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.
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Chapter 1. Introduction 25 results (showing 5 best matches)
- Indian Law includes within its scope those situations in which a legal outcome is affected by the Indian status of the participants or the subject matter. Obviously, there are many legal disputes involving Indians that do not turn upon points of Indian Law. If an Indian commits a traffic offense in Chicago, the case will be governed by the same law and decided by the same court that would govern and decide a case against a non-Indian; the defendant’s Indian status is irrelevant and Indian Law does not enter at all. But if that same Indian commits a similar offense upon the Navajo Reservation in Arizona, the defendant’s Indian status and the location will combine to confer jurisdiction upon a different court and will result in the application of different law from that which would decide and govern the case if the defendant were a non-Indian. (See Chapter 7, Section D.) The latter situation is very much controlled by Indian Law—that is, by the federal law that allocates jurisdiction...
- The term “Indian Law” is a catchall with various meanings, but it refers primarily to that body of law dealing with the status of the Indian tribes and their special relationship to the federal government, with all the attendant consequences for the tribes and their members, the states and their citizens, and the federal government. In this application, “Indian Law” might better be termed “Federal Law About Indians.”
- As all of these themes suggest, Indian Law is often concerned with actual or potential conflicts of governmental power, federal, state and tribal. When such conflicts arise in a legal setting, they appear as issues of jurisdiction. It is not surprising, therefore, that controversies in Indian Law usually have at their core a jurisdictional dispute.
- “Indian” is another term the meaning of which varies according to the purpose for which the definition is sought. In the most general terms, a person must meet two requirements to be an Indian: he or she must (1) have some Indian blood, and (2) be recognized as an Indian by his or her tribe or by the federal government.
- The unique legal posture of the tribes in relation to the federal government is deeply rooted in American history, and a knowledge of historical context is perhaps more important to the understanding of Indian Law than of any other legal subject. Indian Law has always been heavily intertwined with federal Indian policy, and over the years the law has shifted back and forth with the flow of popular and governmental attitudes toward Indians. Yet a few themes have persisted and form the doctrinal bases of present law. At the risk of oversimplification, they may be reduced to four. ...and their properties, including protection from encroachments by the states and their citizens. These principles, while enduring, are not static. The boundaries of tribal self-government referred to in the first proposition, for example, have been considerably narrowed in recent years by the Supreme Court, particularly with regard to tribal authority over non-Indians. Recent assertions of state power also...
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Chapter 2. Historical Overview of Federal Indian Law and Policy 42 results (showing 5 best matches)
- Congress set the basic pattern of federal Indian Law in a series of Trade and Intercourse Acts passed between 1790 and 1834. E.g., 1 Stat. 137 (1790); 2 Stat. 139 (1802); 4 Stat. 729 (1834). The central policy embodied in the Acts was to separate Indians and non-Indians and to subject nearly all interaction between the two groups to federal control. For this reason, some courts refer to the Acts as Non-Intercourse Acts. The Acts established the boundaries of Indian country and protected against incursion by non-Indians in several ways. Non-Indians were prohibited from acquiring Indian lands by purchase or treaty (other than a treaty entered pursuant to the Constitution), or from settling on those lands or entering them for hunting or grazing. Trading with the Indians was made subject to federal regulation. Depredations by non-Indians against Indians were made a federal crime, and federal compensation was provided to victims of depredation by either group, so long as the victims took...
- Reservations were originally intended to keep distance and peace between Indians and non-Indians, but they came to be viewed also as instruments for “civilizing” the Indians. Each reservation was placed in charge of an Indian agent whose mission was to supervise the Indian’s adaptation to non-Indian ways. The appointment of Indian agents came to be heavily influenced by organized religions, and when reservation schools were first set up in 1865, they too were directed by religious organizations with a goal of “Christianizing” the Indians. In 1878, off-reservation boarding schools were established to permit education of Indian children away from their tribal environments.
- During these years when federal control over Indian affairs was being consolidated, the federal government continued to deal with Indian tribes by treaty. Indian agents were appointed as the federal government’s liaison with the tribes. These agents were generally under the jurisdiction of the War Department.
- There is little question that the leadership for passage of the Dawes Act came from those sympathetic to the Indians. They believed that, if individual Indians were given plots of land to cultivate, they would prosper and become assimilated into the mainstream of American culture as middle-class farmers. The tribes, which were viewed as obstacles to the cultural and economic development of the Indians, would quickly wither away. Such a prospect was not, of course, offensive in the least to those non-Indians anxious to break up the tribal land mass.
- Other circumstances combined to render the allotment system a failure even where the land remained in trust. Leasing of allotted trust land to non-Indians became common, defeating the intention of the Act to turn the Indians into small farmers. The Allotment Act had subjected allotted land, whether or not in trust, to state intestacy laws that resulted in highly fractionated ownership that effectively rendered the land unusable. Passage of many of the fee allotments out of Indian hands left large “checkerboard” areas of alternate non-Indian and Indian ownership, making sizable farming or grazing projects impractical.
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Chapter 5. Indian Tribal Sovereignty 47 results (showing 5 best matches)
- Supreme Court specified a further limit on tribal power over non-Indian actions with regard to fee land within a reservation. In that case Indians who had been occupying fee lands owned by a bank claimed that the bank discriminated against them by selling the land to non-Indians on terms more favorable than those offered to the Indians. They sued the bank in tribal court and won a substantial verdict. The bank sued in federal court, claiming that the tribal court had no jurisdiction to award a recovery for discrimination in the sale of land. (The bank did not challenge the tribal court’s jurisdiction over a related breach of contract claim). The Supreme Court held that the tribal court’s discrimination judgment was void because the tribe had no power to regulate a non-Indian’s sale of fee land within the reservation. ’s “rule” that the “ ‘inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.’ ” Id. at 328 (quoting ...-Indian-owned...
- Tribal sovereignty has operated to a considerable degree as a shield against intrusions of state law into Indian country. Chief Justice Marshall’s view, as described above, was that state laws could simply “have no force” in Indian territory. . That rule was modified some fifty years later, however, to permit state law to apply to a crime by a non-Indian against a non-Indian on an Indian reservation. . But the Supreme Court has almost always held the line against permitting state law to apply to Indians in Indian country. In , a unanimous Court ruled that state courts had no jurisdiction over a civil claim by a non-Indian against an Indian for a transaction arising on the Navajo reservation. The Court stated that state law had been permitted to intrude only where “essential tribal relations” were not involved, and that “absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be...
- , the Supreme Court held that the retained sovereignty of an Indian tribe did not include criminal jurisdiction over nonmember Indians on its reservation, despite a pattern of federal legislation that based criminal jurisdiction on defendants’ status as Indians, rather than as tribal members. See, e.g., , 1153. Congress promptly overruled the Court, defining tribal powers of self-government to include “the inherent power of Indian tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians.” power on the tribes to punish nonmember Indians, or whether Congress had merely recognized inherent tribal power to assert such jurisdiction. The issue was of importance for double jeopardy purposes; if the tribes are exercising delegated federal power in asserting criminal jurisdiction over nonmember Indians, then it would violate the double jeopardy clause of the Constitution for the federal government also to prosecute for the same offense. That question was...
- [T]he trend has been away from the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward reliance on federal preemption. * * * 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. * * *
- , lacked the power to tax non-Indian activities on non-Indian land within the reservation. The tax was a hotel occupancy tax imposed on hotel guests but collected by the resident hotel owner. The Court rejected arguments that hotel guests, who enjoyed the protection of tribal police, fire and emergency services, were in a consensual relationship with the tribe, to bring them within the first , which had upheld a tribal severance tax on non-Indian had permitted taxation of non-Indian activity on within the reservation. The rule now was clear: “An Indian tribe’s sovereign power to tax—whatever its derivation—reaches no further than tribal land.”
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Chapter 9. Taxation and Regulation in Indian Country 75 results (showing 5 best matches)
- A few cracks have begun to appear, however, in the barrier that precludes the states from regulating Indians in Indian country. One is that the states may be as free to regulate “nonmember Indians”—Indians of tribes other than that which beneficially owns the reservation—as they are to regulate non-Indians. “For most practical purposes those [nonmember] Indians stand on the same footing as non-Indians resident on the reservation.”
- State powers of taxation are severely limited in Indian country, particularly where Indian interests are affected. It has long been settled that the states have no power to tax Indian trust lands, whether held tribally or in allotments.
- Indian in Indian country, regardless of the tribal affiliation of that Indian. In 1980, however, the Supreme Court drew a sharp distinction between members of the tribe that governed a given reservation and other Indians not members of that tribe. In
- Federal statutes, even given the broadest reading to which they are reasonably susceptible, cannot be said to pre-empt Washington’s power to impose its taxes on Indians not members of the Tribe. * * * [T]he mere fact that nonmembers resident on the reservation come within the definition of “Indian” for purposes of the Indian Reorganization Act of 1934 * * * does not demonstrate a congressional intent to exempt such Indians from state taxation.
- Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 512–13 (1991)
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Chapter 11. Individual Rights and Indian Law 60 results (showing 5 best matches)
- Indian country often depends upon Indian status of the parties. These claims, too, have been unsuccessful. The most notable example is . In that case Indian defendants had killed a non-Indian while committing a felony in Indian country. They were prosecuted for first degree murder under federal law, which in those circumstances required no proof of premeditation. Had they been non-Indians, they would have been prosecuted under state law, which required proof of premeditation. The Supreme Court held that this disparity did not violate equal protection because the division of criminal jurisdiction by Indian status was an outgrowth of the entire legal structure dealing with Indians. Relying on , supra, the Court noted that “respondents were not subjected to federal criminal jurisdiction because they are of the Indian race but because they are enrolled members of the Coeur d’Alene Tribe.” ...held that subjection of nonmember Indians to the criminal jurisdiction of a tribal court...
- indicate, moreover, separate classification of Indians is permissible even when the classification is not tied to tribal self-government. The employment preference in , for example, was not limited to Indians who were members of the tribes being served by the BIA office in question. See also . Similarly, the federal government has been allowed to favor Indian and Alaska Native firms in awarding construction contracts, even though self-government was not involved and the preferences were not limited to members of the tribes for whom the projects were being constructed. . It was sufficient that the classification was rationally related to Congress’ trust responsibility toward the Indians generally. Id. at 1166–70. The same analysis would support the Indian preference exception to the employment discrimination provisions of the Civil Rights Act of 1964 (Title VII), ...’s exclusion of Indian tribes from the definition of “employer,” § 2000e−2(a). Similar considerations led one court of...
- Literally every piece of legislation dealing with Indian tribes and reservations, and certainly all legislation dealing with the BIA, single out for special treatment a constituency of tribal Indians living on or near reservations. If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code [25 U.S.C.A.] would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized. * * *
- The Fourteenth Amendment is the most important guarantee against infringement of civil liberties by the states. Its due process and equal protection clauses protect all “persons” and its rarely-used privileges and immunities clause protects “citizens.” Indians clearly qualify on both counts. Indians whose constitutional rights have been violated by unauthorized arrest or seizure of property by state officers can maintain a federal suit under
- Voting by Indians was resisted by the states for many years on various grounds. One was non-payment of state taxes by Indians in Indian country, even though taxpayer status was not required of non-Indian voters. Another was that, as wards of the federal government, Indians were under Indian country was not residence within the state for voting purposes—also an argument that had been rejected in other contexts (particularly those dealing with state power over non-Indians in Indian country). All of these state arguments have been discredited in court, and Indians are now entitled to vote in every state. See
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Chapter 13. Alaska Natives 33 results (showing 5 best matches)
- “Indian country” is defined by to encompass (a) land within Indian reservations, (b) “dependent Indian communities,” and (c) allotments under Indian title. The only reservation left in Alaska after the enactment of ANCSA is the Annette Islands Reserve of the Metlakatla Indians; that reserve is indisputably Indian country. There are also Native allotments in Alaska, but they usually have not been a source of jurisdictional controversy. One exception is , in which the court expressed doubt that Alaska Native allotments could qualify as Indian country. The prime jurisdictional question, however, has been whether lands held by Native entities under ANCSA comprise “dependent Indian communities.”
- as implementing, if not establishing, a trust relationship. The Indian Self-Determination and Education Assistance Act of 1975, which permits tribes to contract to administer federal Indian programs, defines “Indian tribe” to include “any Alaska Native village or regional or village corporation as defined in or established pursuant to [ANCSA] which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” , and the Indian Health Care Improvement Act, hough the significance of the latter inclusion is tempered by the fact that the same section extends coverage of the Act to terminated Indians, with whom there is no trust relationship. . The Indian Child Welfare Act, however, begins with a recitation of the “special relationship between the United States and the Indian tribes and their members and the Federal responsibility to Indian people” and then includes as tribes Alaska Native villages as defined...
- , the Supreme Court addressed the eligibility of Native corporations for benefits payable to Indian tribal governments under the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, 42 U.S.C.A. 801 et seq. That Act refers to the Indian Self-Determination and Education Assistance Act for a definition of “Indian Tribe,” namely “any Indian tribe, band, nation or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act[,] which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” 25 U.S.C.A. 5304(e), The Court held that the specification of Native organizations established under ANCSA rendered those organizations eligible, and the subsequent modifying clause did not require that those organizations be federally recognized Indian tribes.
- Congress made clear that recognition of Indian tribes was a prerogative of the Secretary of the Interior when it required the Secretary to publish “a list of all Indian tribes which the Secretary recognizes to be eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” . The Secretary now includes 229 Alaska Native entities in the list of tribes recognized as having “the immunities and privileges of federally recognized Indian Tribes by virtue of their government-to-government relationship with the
- Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955)
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Chapter 14. Indian Water Rights 30 results (showing 5 best matches)
- When tribal land is converted into allotments, the Indian allottees succeed to the tribe’s . A non-Indian purchaser of the allotment acquires rights equal to those of the Indian seller. . The same is true for an Indian or tribal purchaser. . A non-Indian purchaser’s rights have been elaborated as follows: (1) an Indian allottee is entitled to that share of the reservation’s irrigation water rights that his allotment’s irrigable acreage bears to the total irrigable acreage of the reservation; (2) when the Indian allottee sells to a non-Indian, the purchaser acquires the allotment’s reserved water rights; (3) the priority date of those rights remains the date when the reservation was created; (4) the non-Indian allottee, unlike his Indian predecessor, loses his reserved right if he does not use it; he is therefore limited to the quantity of water from his reserved right that he appropriates with reasonable diligence after the transfer of title. ...transferable, the Indian seller of...
- Indian water rights do not fall entirely into either the appropriative or the riparian category. Their foundation lies in the Supreme Court decision of of rights to the use of water. Thereafter, non-Indian settlers off the reservation built dams that diverted the flow of the river and interfered with agricultural uses by the Indians. The settlers claimed that they had appropriated the water after the reservation was established but prior to any use of water by the Indians. The Supreme Court found it unnecessary to determine the truth of the settlers’ claims of prior use, because it held that when the Fort Belknap lands were reserved by the 1888 agreement, water rights for the Indians were also reserved by necessary implication. The Court thought it unreasonable to assume that Indians would agree to reserve lands for farming and pastoral purposes without also reserving the water to make those uses possible. The Court also held that this implied reservation of water was unaffected by...
- Many Indian tribes are just beginning to assert their unexercised water rights, and each new assertion is almost certain to engender bitter controversy. Non-Indians contend that recognition of long-dormant Indian rights defeats the entire purpose of the appropriative system, which was to create certainty that would stimulate beneficial use. They argue that appropriators who saw unused water and spent large sums in creating transportation and irrigation systems ought not to be shut out today by the Indians. The tribes contend, however, that the reason for their non-use of the water was the failure of the United States to fulfill its responsibility as trustee in developing and protecting water resources, and that it would only compound injury to deprive the tribes of their water forever. and its progeny have decided this argument in favor of the Indians, but that outcome has by no means ended the controversy.
- It is well established that Indian water rights may be leased to non-Indians along with a lease of Indian lands. rights may be leased separately to non-Indians for use on other land. Because tribes are not confined to any particular use of their agricultural water, see Section B, supra, there would seem to be no reason to prohibit them from leasing it as an alternative means of making the reservation self-sufficient. Use of such water by non-Indian lessees would not be inconsistent with the trust nature of
- One other area of collateral jurisdictional contention concerns state power to regulate water use by non-Indians on fee lands they own within reservations. In one instance, where a stream lay . In another, where the stream lay largely outside the reservation and formed a boundary of the reservation only for part of its course, the state was allowed to regulate water use by non-Indians on their fee lands within the reservation. , to regulate non-Indian use of “surplus” water (water in excess of that needed to satisfy
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Chapter 3. The Special Relationship Between the Federal Government and the Tribes 38 results (showing 5 best matches)
- a fiduciary relationship necessarily arises when the Government assumes such elaborate control over forests and property belonging to Indians. All of the necessary elements of a common-law trust are present: a trustee (the United States), a beneficiary (the Indian allottees), and a trust corpus (Indian timber, lands, and funds).
- In recent years, courts have delineated additional characteristics or limitations of the federal trust responsibility. When the United States acts against third parties in its sovereign capacity as trustee for Indian land, it is not subject to a defense of equitable estoppel. Indian tribes; it therefore cannot be invoked to prevent the Indian Health Service from terminating a program favoring one Indian subgroup in order to use the resources in programs benefitting Indians generally. . The trust duty does not extend to the federal government in its disposition of an off-reservation Indian school; the school was not trust property, even though operated for the benefit of Indian tribes. . Even when the federal government owes a trust duty to inform an Indian allottee of trust . Limitations on a breach of trust thus run from the time the facts are known by the Indian plaintiff; the knowledge of illegality is irrelevant.
- To avoid these problems of conflict of interest, President Nixon proposed the establishment of an independent Indian Trust Counsel Authority that would undertake legal representation of Indian trust interests. 116 Cong.Rec. 23258, 23261 (1970). The American Indian Policy Review Commission went even further; it recommended a cabinet level Department of Indian Affairs with its own Office of Trust Rights Protection to litigate trust cases. Neither proposal has been enacted by Congress.
- The contention in effect ignores the status of the contracting Indians and the relation of dependency they bore and continue to bear towards the government of the United States. To uphold the claim would be to adjudge that the indirect operation of the treaty was to materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians, and to deprive Congress, in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, of all power to act, if the assent of the Indians could not be obtained.
- From time to time Indian litigants have urged the enforcement of a broader trust responsibility, going beyond protection of tribal lands and resources and encompassing a duty to preserve tribal autonomy or to contribute to the welfare of the tribes and their members. These attempts have not met with success in the courts, which tend to insist upon a statute or regulation establishing conventional trust responsibility, or upon the buttressing of bare trust language with a provision for active federal management of tribal funds or other trust property. See, e.g.,
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Chapter 15. Indian Hunting and Fishing Rights 49 results (showing 5 best matches)
- Some of the most intense controversies in Indian affairs have concerned hunting and fishing. The right to take game and fish has always been of immense economic importance to many tribes, and it has equally great cultural significance for most Indians. Attempts to exercise hunting and fishing rights have brought Indians into conflict with non-Indians who have very strong economic and sporting motivations of their own.
- The subject is perhaps best attacked by first examining the basic nature of Indian hunting and fishing rights and then considering the complications introduced by strong state conservation interests. Finally, problems of jurisdiction over non-Indian hunting and fishing in Indian country can be
- It is well settled that the establishment of a reservation by treaty, statute or agreement includes an implied right of Indians to hunt and fish on that reservation free of regulation by the state. . States have rarely contested that right because of their general lack of power to regulate Indians in Indian country. See . The Indians’ immunity from state law applies on the reservation even in states that have been granted criminal jurisdiction over Indian country by Public Law 280, for that statute provides that it shall not “deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.” . Nor may state law be applied to Indian hunting and fishing in Indian country by way of the Assimilative Crimes Act, ...from prohibiting the possession or sale off-reservation of fish or game by Indians who had taken...
- The Secretary of the Interior has issued regulations governing Indian fishing on a few reservations, see 25 C.F.R. Pts. 241 and 242, and has provided for identification of treaty Indians fishing off-reservation, 25 C.F.R. Pt. 249. The Secretary has been held to be authorized under the trust power to ban commercial fishing by Indians on their reservation, without showing the kind of imminent . The Secretary similarly may regulate Indian hunting. . In general, however, the federal government has been very sparing in the exercise of its power to regulate Indian hunting and fishing. But see Section D, below. The matter has accordingly been left largely for tribal regulation. In one instance where the tribe failed to act, federal authorities attempted to prosecute a tribal member under a federal trespass statute that forbids unauthorized entry upon Indian lands for the purpose of hunting, trapping or fishing, . The statute was held inapplicable to Indians. ...to Indians exercising...Indians
- , Washington authorities decided to permit Indian net fishing of salmon, but they banned net fishing of steelhead altogether. The matter returned to the Supreme Court, which pointed out that limiting steelhead fishing to hook-and-line had the effect of granting the entire run to non-Indian sports fishermen. The Court held that this result discriminated against the Indians and consequently did not meet the standards set in the previous ). Some accommodation between non-Indian and Indian rights had to be found, said the Court, but if a total ban was essential to save the steelhead from extinction, that ban could be applied to Indians.
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Chapter 6. Indian Treaties 37 results (showing 5 best matches)
- . The Supreme Court on numerous occasions has adhered to “the general rule that statutes passed for the benefit of the dependent Indian tribes or communities are to be liberally construed, doubtful expressions being resolved in favor of the Indians.” Public Law 280, a statute that deals with Indians but was not necessarily passed for their . On the other hand, the Supreme Court rejected a “sympathetic” construction of a statute giving Kansas jurisdiction over major crimes by Indians, partly because it doubted that the statute was passed for the benefit of the Indians. . The fact that legislation may benefit Indians more than others does not necessarily make the statute one enacted for their benefit.
- Indian treaties are the exclusive prerogative of the federal government. The first Trade and Intercourse Act, 1 Stat. 137 (1790), forbade the transfer of Indian lands to individuals or states except by treaty “under the authority of the United States.” This provision, repeated in later Trade and Intercourse Acts and now found at importance in recent years because several eastern states acting on their own negotiated large land cessions from Indian tribes near the end of the eighteenth century. In
- Nor can we say that the pro-Indian canon is inevitably stronger—particularly where the interpretation of a congressional statute rather than an Indian treaty is at issue.
- The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians.
- “all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to members of the tribe, and the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction.”
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Chapter 8. Public Law 280: A Federal Grant of Jurisdiction to the States 40 results (showing 5 best matches)
- The effect of this section is clear from its wording; it gives the named states the same power to enforce their regular criminal laws inside Indian country that they had always exercised outside of it. The states already possessed jurisdiction over wholly non-Indian crimes within Indian country, see Chapter 7, Section D(3), Public Law 280 filled in all the remaining gaps by extending state power to crimes “by or against Indians.”
- Each of the States listed * * * shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed * * * to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State * * *.
- Each of the States or Territories listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State or Territory to the same extent that such State or Territory has jurisdiction over offenses committed elsewhere within the State or Territory, and the criminal laws of such State or Territory shall have the same force and effect within such Indian country as they have elsewhere within the State or Territory:
- All Indian country within the State except [the Annette Islands with regard to the Metlakatla Indians]
- . The two principal effects of these limitations are to preserve the trust status of Indian property and to protect Indian treaty rights.
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Chapter 12. Indian Lands 37 results (showing 5 best matches)
- Indian lands may be held in a variety of ways, each of which presents its own problems and advantages. Two points must be made at the outset of any review of the subject. The first is that the term “Indian lands” refers to those lands that are held by Indians or tribes under some restriction or with some attribute peculiar to the Indian status of its legal or beneficial owners. Today any Indian can purchase real property (such as a residence in Phoenix or Chicago) in the public market and thereby acquire a fee title that is freely disposable. That real property is not “Indian land.”
- In the first of several Trade and Intercourse Acts, 1 Stat. 137 (1790), Congress provided that non-Indians could not acquire lands from Indians except by treaty entered pursuant to the federal Constitution. While providing a measure of protection for existing Indian landholdings, that legislation made no attempt to characterize the nature of the Indian interest in those lands. It remained for Chief Justice Marshall and the Supreme Court to define the title by which Indian tribes held land, and to determine the incidents of that title.
- 21 U.S. (8 Wheat.) at 574. The United States was accordingly free to grant to others land held by Indian tribes, but the grantee took title subject to the Indian “right of occupancy.” Most important from the standpoint of the Indians, however, was Marshall’s point that the United States, and the United States, could extinguish the Indian right of occupancy, “either by purchase or by conquest.”
- City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005)
- et seq., Congress provided for Indian lands to be allotted to individual Indians. Tribally held lands were consequently divided into small farm-sized tracts to be held by individuals. The land was to remain in trust for a certain period, usually 25 years, and then was to become a totally alienable and taxable fee interest in the hands of the Indian, who often sold it. Once the land becomes freely alienable in this manner, it remains taxable by the state even if it is repurchased by the tribe or an individual Indian.
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Outline 42 results (showing 5 best matches)
Chapter 10. Indian Gaming 56 results (showing 5 best matches)
- . There the Supreme Court held that the Secretary’s authority to acquire land in trust for Indians, conferred in the Indian Reorganization Act of 1934, , was subject to the definition of “Indian” in § 479 (now § 5129). Section 479 defined “Indian” to include “all persons of Indian descent who are members of any recognized Indian tribe under Federal jurisdiction.” (Emphasis supplied). The Court held that the “now” must be taken literally to mean “at the time of enactment of the Indian Reorganization Act.” As a result, numbers of acquisitions by the United States of land in trust for tribes recognized after 1934 have been placed under a cloud. Completed transfers into trust may not be challenged under the Quiet Title Act by one claiming an adverse title, because that Act’s waiver of the sovereign immunity of the United States contains an exception for Indian trust lands.
- The present system of regulation of Indian gaming grew out of the division of jurisdiction among the federal government, the states, and the tribes that has been described in Chapters 7–9, but from those fundamental materials Congress fashioned a structure that is unique. The governing federal statute, the Indian Gaming Regulatory Act of 1988 –2721, occupies the field of Indian gaming regulation, but also provides for the application of state law to a significant degree. The Act requires compacts between the tribes and states to govern the scope and conduct of Indian casino-type gaming, and those compacts may further allocate jurisdiction between tribe and state. The Act requires states that meet certain criteria to bargain in good faith to arrive at such compacts. In order to enforce that duty, the Act authorized tribes to bring an action in federal court against states that failed to comply. That key provision for the enforcement of the duty to bargain was struck down, however, by...
- IGRA provides for and regulates gaming “on Indian lands” within the tribe’s jurisdiction. § 2710(a),(d). The term includes lands within a reservation and individual or tribal trust lands over which the tribe “exercises governmental power.” § 2703(4);
- The definition of “Indian” in 25 U.S.C.A. position that “such members” referred only to Indians of recognized tribes, and did not include
- . That section extends all state laws pertaining to gambling, including but not limited to criminal provisions, into Indian country. “State laws” include state decisional law authorizing injunctive relief against illegal gaming enterprises. provides that the United States has exclusive jurisdiction to enforce those state gambling laws extended to Indian country unless the tribe, by compact, consents to the state’s exercise of that jurisdiction. Indian country. . IGRA is sufficiently pervasive that it leaves no room for the Assimilative Crimes Act to import state law to be applied to an Indian gaming operation.
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Preface 5 results
- The volume of litigation of federal Indian Law issues remains high, reflecting the greatly increased economic activity of many tribes, particularly those engaged in gaming. There are also many state-court cases applying the Indian Child Welfare Act.
- The Supreme Court has decided several major Indian law cases in the last few years. The most surprising was McGirt v. Oklahoma, 591 U.S. 894 (2020), which held, contrary to the prevailing twentieth century belief, that the Creek Reservation had never been disestablished. The reasoning of applied to several other Oklahoma tribes with the result that nearly half of Oklahoma is now recognized as Indian country. A follow-up case three years later held, again contrary to existing belief, that state courts had jurisdiction over crimes by non-Indians against Indians. Oklahoma v., Castro-Huerta, 597 U.S. 629 (2023). The Court also upheld Congress’s power to enact the Indian Child Welfare Act in Haaland v. Brackeen, 599 U.S.255 (2023) but did not reach possible equal protection issues because no party had standing to raise them. It seems certain that the Supreme Court will have much left to do in the coming few years.
- The scope of this edition is substantially the same as that of the seventh edition. I have attempted to canvass the major categories of law applying to domestic Indian tribes and Alaska Natives. I have not included the subject of Native Hawai’ians, who seek to apply some of the concepts of Indian Law to their own situation. I include cases dealing with Indians in a few of the eastern states with state-recognized tribes, but I have not attempted to delve into the numerous specialized federal and state statutes dealing with those groups over the years. As for technical matters, I continue to follow the Uniform System of Citation (Blue Book) to the extent practicable, including the practice of not noting denials of certiorari or other discretionary review unless the case cited is less than two years old.
- The purpose of this book remains as it was in the first seven editions. It is to set forth in succinct form the essentials of a very complex body of federal Indian Law, with attention to the governmental policies underlying it.
- The views expressed in this book are attributable to me individually as a student and former teacher of Indian Law. They do not represent the views of the United States Court of Appeals for the Ninth Circuit, Arizona State University, or even of myself in any official capacity.
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Table of Cases 195 results (showing 5 best matches)
- Cabazon Band of Mission Indians v. National Indian Gaming Comm’n, 415
- Makah Indian Tribe v. Quileute Indian Tribe, 137, 592
- Rumsey Indian Rancheria of Wintun Indians v. Wilson, 413
- Upper Skagit Indian Tribe v. Sauk-Suiattle Indian Tribe, 587
- Upper Skagit Indian Tribe v. Suquamish Indian Tribe, 587
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Chapter 4. Indian Tribal Governments 12 results (showing 5 best matches)
- The tribal courts have a history long antedating the Indian Reorganization Act. Their forerunners were Courts of Indian Offenses, first established in the 1880s by the Secretary of the Interior to help “civilize” the Indians. Those courts administered a code promulgated by the Secretary and incorporated in volume 25 of the Code of Federal Regulations (C.F.R.). Courts of Indian Offenses continued in existence even after the passage of the Indian Reorganization Act, because many of the tribes lacked the resources to establish new courts on their own authority. Some still function today. During the past forty years, however, most tribes have organized their own tribal courts that administer tribal codes passed by the council and, where required, approved by the Secretary of the Interior. The jurisdiction of these courts is discussed in Chapter 7, Sections D(2) and F(2). Tribal court systems vary from the highly structured, multiple court system of the Navajo Nation, served by tribal...
- TRIBES NOT ORGANIZED UNDER THE INDIAN REORGANIZATION ACT
- At the time of their first contact with the Europeans, Indian tribes were characterized by a variety of traditional forms of government. As the tribes were pushed westward and ultimately confined to reservations, these ancient systems were totally disrupted. The social fabric of most of the tribes was severely damaged, and federal administration replaced traditional forms of communal decision-making and internal control. Only a few tribes, most notably the Pueblos, escaped this fate and retained most of their customary ways.
- By the late 1920s, when the allotment policy came to be acknowledged as a failure, very little was left of the once-healthy tribal structures. The Indian Reorganization Act of 1934, which marked the shift in federal policy toward preservation of the tribes, did little to revive them in their familiar form. Instead, the Act built upon the tribal situation as it found it, and created an entirely new framework for tribal self-government.
- Even for tribes that have not amended their constitutions, the present policy of the Secretary (through the Bureau of Indian Affairs) is to approve nearly all ordinances that require secretarial approval, but the existence of the veto power has its effect nonetheless. When the council is unsure of itself, or when the agency superintendent or area director is particularly assertive, the council may seek guidance from those federal officials before taking important action.
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Center Title 1 result
Index 118 results (showing 5 best matches)
Title Page 1 result
- Publication Date: February 3rd, 2025
- ISBN: 9781685611187
- Subject: American Indian Law
- Series: Nutshells
- Type: Overviews
- Description: This guide provides a reliable resource on the federal law of American Indians. Its authoritative text is drawn from primary sources of judicial decisions, statutes, and regulations that comprise the essentials of this complex body of law. The work emphasizes both the historical development of Federal Indian Law, with attention to the shifting governmental policies underlying it, and recent matters such as the evolution of Indian gaming, issues arising under the Indian Child Welfare Act, and the present enforcement of treaty rights. It addresses the policy and law applicable to Alaska Natives but does not deal with Native Hawai’ians.
