American Indian Law

Front 1

Royal Proclamation of 1763

Back 1

British citizens/colonies cannot purchase lands from Indians except with authority and in name of crown

Front 2

Doctrine of discovery

Back 2

Discovering nation gets sole right to obtain native lands

Front 3

Johnson v. McIntosh

Back 3

Discovery doctrine: discovering nation gets sole right to obtain native lands; Indians can't sell to anyone but them. Land sold directly from Indians to settlers-->invalid claim.

Front 4

Aboriginal title

Back 4

Indigenous nations have legal claim to retain possession of land and use it according to their own discretion. Can only be abrogated expressly by Congress

Front 5

Trade and Intercourse Act of 1790

Back 5

Statutory restraint on alienation of Indian lands without consent of Congress

Front 6

Cherokee Nation v. Georgia

Back 6

Cherokees are a nation, but not a foreign nation. Domestic dependent nation

Front 7

Worcester v. Georgia

Back 7

Indian sovereignty and self-governance; states have no authority over Indian affairs

Front 8

Ex Parte Crow Dog

Back 8

Any exercise of federal jurisdiction over Indian affairs requires clear expression by Congress

Front 9

McBratney

Back 9

Non-Indian on non-Indian crime on reservations is within state court jurisdiction.

Front 10

Major Crimes Act

Back 10

Extends federal jurisdiction over certain major felonies committed by Indians against Indians and others in Indian country

Front 11

United States v. Kagama

Back 11

Major Crimes Act is constitutional; part of Congress's plenary power because tribes are dependent on federal government

Front 12

Lone Wolf v. Hitchcock

Back 12

Congress can abrogate treaties unilaterally

Front 13

United States v. Winans

Back 13

Can't use state license to abrogate a treaty right; supremacy clause; through Indian treaty, the fed can reserve rights for Indians that would otherwise go to the state

Front 14

Indian Reorganization Act (goal + 5 provisions)

Back 14

Goal: preserve existing landbase

Permanent end to allotment; restriction on alienation extended indefinitely; surplus lands could be restored to res; constitution and bylaws; Sec Int could take land into trust

Front 15

Indian Claims Commission Act

Back 15

Tribunal for bringing monetary claims against US to compensate for past injustices

Front 16

Menominee v. United States

Back 16

Clear statement rule re: hunting and fishing rights; termination did not abrogate those rights

Front 17

United States v. Dion

Back 17

Don't need clear statement if evidence of congressional intent is compelling

Front 18

Test for whether federal statutes of general applicability apply in Indian Country

Back 18

1. Is there compelling evidence of Congressional intent? (Dion)

2. If not, follow Cour d'Alene approach

Front 19

Reich v. Great Lakes Indian Fish and Wildlife Commission

Back 19

No explicit treaty right re: law enforcement officers, so nothing to abrogate, so FLSA applies (but so does exception for police); Comity

Front 20

Donovan v. Cour D'Alene

Back 20

State of general applicability doesn't apply to Indians if:

1) law touches on exclusive rights of self-governance in purely intramural matters, or

2) application of the law to the tribe would abrogate rights guaranteed by treaty, or

3) there is proof by legislative history/some other means that Congress intended the law not to apply to Indians on their res.

Front 21

Morton v. Mancari

Back 21

NO equal protection violation/discrimination where BIA preferred Indians in promotions; unique legal status of Indian tribes as sovereign. Rational basis

Front 22

State laws can classify Indians if....

Back 22

They further a federal scheme. Generally not successful without support of a federal statute

Front 23

Rice v. Cayetano

Back 23

Allowing only Native Hawaiians to vote in election for OHA trustees-->15th amendment violation. Mancari doesn't apply, and even if it did, can't interfere with voting rights like this

Front 24

Waivers of US sovereign immunity (3)

Back 24

Indian Claims Commission Act--immunity waived for historical claims

Tucker Act: Individual Indian claims

Indian Tucker Act: tribal claims

Front 25

Tee-Hit-Ton Indians v. United States

Back 25

Aboriginal title is not compensible under the Fifth Amendment takings clause unless it is recognized by Congress through treaty, act

Front 26

Are executive order reservations "recognized title"?

Back 26

no, unless Congress confirmed the EO res after the EO

Front 27

United States v. Sioux Nation (2)

Back 27

Test for whether US is acting as trustee or sovereign at a given time, for purpose of determining whether there is a taking of Indian property: did the government make a good faith effort to give Indians the full value of their land?

Throws out Lone Wolf presumption of good faith

Front 28

US v. White Mountain Apache

Back 28

A statute waives sovereign immunity only if it can be interpreted as mandating compensation by the federal government for the damage sustained

Front 29

US v. Jicarilla Apache Nation

Back 29

Trustee relationship between federal government and tribes is not the same as a private trustee relationship; doesn't assume all fiduciary rights

Front 30

US v. Tahono-Odhum

Back 30

Can get equitable accounting in district court, but if there's any action pending in another court over the same matter, damages case in the Court of Federal Claims must be dismissed

Front 31

United States v. Sandoval

Back 31

Congress can't arbitrarily call any people a tribe, but within the class of Indians can recognize tribes to whatever extent and at whatever time they choose. Pueblos are a tribe

Front 32

Mashpee Tribe v. Town of Mashpee

Back 32

Can still be protected by treaty rights/considered a tribe for other purposes even if not federally recognized

Front 33

Indian country means

Back 33

1. all land within the limits of a reservation

2. all dependent Indian communities in US territory

3. all indian allotments

Front 34

Solem v. Bartlett

Back 34

When land is opened to homesteading, does it constitute diminishment of the reservation? Clear statement rule. Look at language, consideration, legislative history, surrounding circumstances, demographics

Front 35

Alaska v. Native Village of Venetie

Back 35

Dependent Indian community is (a) set aside by federal government for use of Indians and (b) under federal superintendence.

Front 36

Carcieri v. Salazar

Back 36

In order for Secretary to take land in trust for a tribe, the tribe must have been federally recognized in 1934 (at the time the law was passed)

Front 37

How can government's title to land taken in trust be challenged?

Back 37

NOT through Quiet Title Act, but under Administrative Procedure Act (Pottawatomi v. Patchak, 2012)

Front 38

Oliphant

Back 38

No tribal criminal j/d over non-Indians (except under VAWA)

Front 39

Indian Country Crimes Act and its exceptions

Back 39

Extends general laws of US over Indian Country

Exceptions: Indian-on-Indian crime; already punished under tribal law

Front 40

Jurisdiction over non-Indians committing victimless crimes on Indian Country

Back 40

state jurisdiction

Front 41

Jurisdiction over Indians committing victimless crimes on Indian Country

Back 41

No federal j/d under Quiver (SCOTUS), although some lower courts have limited this to laws re: domestic relations

Front 42

Major Crimes Act

Back 42

Federal jurisdiction for major crimes by Indians (doesn't prevent concurrent trival j/d), regardless of victim

Front 43

Duro fix

Back 43

Power of tribes to exercise criminal j/d within their reservations over all Indians, including non-members

Front 44

Lara

Back 44

Upheld Duro fix legislation

Front 45

Tribal Law and Order Act

Back 45

Basic due process protections for defendants in tribal court

Limits tribal punishments to 3 years imprisonment/$15k fine

Front 46

VAWA

Back 46

Inherent power of tribe to exercise special domestic violence criminal j/d over all persons

Front 47

Public Law 280

Back 47

Mandated state civil and criminal j/d in six states so that MCA and ICCA no longer apply; other states have option to assume j/d in whole or in part. Amended in 1968 such that tribes must consent to future state choices to exercise j/d

Front 48

2 part test for determining whether someone is Indian for purposes of criminal jurisdiction

Back 48

Some Indian blood AND

Recognized as an Indian by the tribe or federal government

Front 49

Talton v. Mayes

Back 49

Tribal powers are not federal powers; existed before US. Constitution doesn't apply to tribal exercises of inherent retained authority

Front 50

United States v. Wheeler

Back 50

Can be prosecuted both by tribe and by fed without violating double jeopardy clause--dual sovereignty exception

Front 51

Indian Civil Rights Act

Back 51

Federally enforceable quasi-constitutional rights against Indian tribes

Front 52

Santa Clara Pueblo v. Martinez

Back 52

Tribes have sovereign immunity that can only be waived by the tribe or Congress.

ICRA provides access to federal court through habeas petitions; NO OTHER WAY

Front 53

Off-reservation jurisdiction + exceptions

Back 53

A tribe and its members are subject to state j/d off-reservation.

Exceptions

1. treaty rights

2. ICWA

3. sovereign immunity follows a tribe off-res

Front 54

Williams v. Lee

Back 54

No jurisdiction in state court over civil suits by non-Indians where the action arises on a reservation.

Front 55

Warren Trading Post v. Arizona State Tax Commission

Back 55

State tax on non-Indian company on reservation preempted by a comprehensive federal scheme

Front 56

McClanahan v. State Tax Commission of Arizona

Back 56

State income tax on tribal member within a reservation is preempted by tribe's inherent sovereignty

Front 57

Montana v. Blackfeet

Back 57

States cannot tax tribes or individual members without clear Congressional statement

Front 58

Bryan v. Itasca County

Back 58

PL280 authorizes state adjudicatory jurisdiction, but not state civil regulatory control

Front 59

California v. Cabazon Band

Back 59

If state law prohibits conduct entirely-->prohibitory/criminal and state can exercise control under PL280. If not, it's civil/regulatory and state doesn't have control

Value generated on-reservation

Front 60

Washington v. Colville

Back 60

Tribal tax on non-Indians on the reservation is permissible

State can impose tax on non-Indians on reservation because value is not created on reservation and non-member isn't receiving tribal services; state interests>tribal interests

Front 61

White Mountain Apache Tribe v. Bracker

Back 61

When on-res conduct involves only Indian conduct, state law is inapplicable. But when a state asserts authority over conduct of non-Indians on the reservation, make a particularized inquiry into treaty and statute language and interests of tribe/state/fed

Front 62

States can avoid categorical prohibition on taxation by...

Back 62

placing legal incidence of tax on non-members

Front 63

New Mexico v. Mescalero

Back 63

State can't restrict tribe's regulation of hunting and fishing on-reservation; preempted because state hasn't contributed. Value generated on-res

Front 64

Cotton Petroleum v. New Mexico (4)

Back 64

Congressional intent to maximize tribal revenues not enough to preempt taxation of non-Indian lessee; immunity from state taxation expressly waived for these lessees; some state services/regs on-res; regulations not extensive enough to preempt state taxation

Front 65

ICWA jurisdictional rules

Back 65

Indian child resides/is domiciled on-res: tribal j/d

If not--parent/custodian/tribe can make state ct transfer unless good cause/objection by either parent

Front 66

ICWA requirements imposed on state court proceedings

Back 66

must be satisfied that programs to prevent breakup of the Indian family have been unsuccessful

foster care placement-->C+C evidence of likely damage to child

termination-->evidence beyond a reasonable doubt of likely damage to child

Front 67

Montana v. US

Back 67

Re: tribal j/d over non-members on fee land

Exercise of tribal power beyond what is necessary to protect tribal self-governance or to control internal relationship is inconsistent with the dependent status of tribes

Exceptions
1) consensual relations

2) direct effect on political integrity, economic security, health/welfare

Front 68

Brendale

Back 68

re: tribal j/d over nonmembers on fee land (tribal zoning of non-Indian fee land)

Montana said tribe "may" exercise j/d--doesn't mean authority extends to all conduct that has direct effects on health/welfare/etc

Front 69

Strate v. A-1 Contractors

Back 69

re: tribal j/d over nonmembers on fee land (accident on state highway)

Tribe's adjudicative j/d can't exceed its regulatory j/d

Front 70

Atkinson Trading co. v. Shirley

Back 70

re: tribal j/d over nonmembers on fee land (tribal tax on hotel on fee land)

something must "endanger nation's political integrity" to fall into MT exceptions

Front 71

Nevada v. Hicks

Back 71

Tribal member suing state officers for conduct on reservation trust land

MT applies regardless of trust land or fee land--just a factor to consider

Front 72

Plains Commerce Bank v. Long Family

Back 72

re: tribal j/d over nonmembers on fee land

Tribe has no j/d to nullify sale of land from non-Indian to non-Indian; not "conduct or activity" under MT exceptions

Front 73

Elliott v. White Mountain

Back 73

re: tribal j/d over nonmembers on fee land

If tribal j/d is colorable or plausible, exception does not apply and exhaustion of tribal court remedies is required

Front 74

Can a tribe tax non-Indian fee land on-res?

Back 74

Yes (Merrion, Kerr-McGee)

Front 75

Albuquerque v. Browner

Back 75

Clean Water Act

Tribe had inherent authority

Front 76

Arizona Public Service Company v. EPA

Back 76

Clean Air Act

Delegation of power to tribe

Front 77

2-part test for abrogation of equal footing doctrine

Back 77

Was reservation of an area intended to include submerged lands (necessary for some purpose germane to res)?

Did Congress intent to include submerged lands?

(Montana, Idaho)

Front 78

Washington v. Washington State Commercial Passenger Fishing (2)

Back 78

"in common with"--canons

Moderate std of living

Front 79

Minnesota v. Mille Lacs Band

Back 79

Looking for explicit abrogation of usufrutuary rights; canons

Front 80

Winters v. United States (2)

Back 80

Federal gov't can reserve waters and excempt them from appropriation under state law

Treaty to create agricultural reservation-->assumed water is included

Front 81

Arizona v. California (2)

Back 81

Equitable apportionment doesn't work for adjudicating tribal water claims because the tribe isn't a state

PIA standard

Front 82

United States v. Adair (2)

Back 82

Primary purpose test--can be dual primary purpose (ag + hunt/fish/gather)

Time immemorial

Front 83

In Re Big Horn

Back 83

Narrow interpretation of primary purpose--agriculture

Front 84

In re Gila River

Back 84

Homeland theory--6 factors + feasibility analysis

Front 85

McCarran Amendment

Back 85

Can join US as defendant in any suit for adjudication of water rights

Front 86

Colorado River Water Conservation District v. United States

Back 86

McCarran amendment does not by its terms indicate any repeal of federal j/d, but may require dismissal of federal suit where there are concurrent proceedings at state and federal level

Front 87

Arizona v. San Carlos Apache

Back 87

Some states admitted to Union subject to federal legislation reserving absolute j/d and control over Indian Country, but these limitations were removed by the McCarran Amendment

Front 88

ANCSA

Back 88

Broad extinguishment of aboriginal title, hunting/fishing rights, etc.

Front 89

John v. Baker

Back 89

ANCSA did not deprive Alaskan natives of sovereignty

Tribal j/d over members' custody proceeding not exclusive, but state should have dismissed under comity doctrine

Front 90

ANILCA

Back 90

priority for rural subsistence uses of natural resources in AK

Front 91

Bobby v. Alaska

Back 91

State can't impose bag limits/seasons for natives' subsistence uses under ANILCA

Front 92

John v. United States

Back 92

Definition of public land under ANILCA includes navigable waters in which US has an interest by virtue of the reserved water rights doctrine