Wa Bar Indian Law

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Areas of Possible Testing

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A. Federal Law – Tribal sovereignty/sovereign immunity, civil and criminal J, Indian Child Welfare Act
B. State Law – Criminal and Civil J (RCW title 37), Recognition of judgments
C. Cross Over Questions – Civil Procedure, Family Law, Criminal law, torts, contracts

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Identify the Issues as follows

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a. Who is doing the regulating or adjudicating
b. What – is it civil or criminal
c. Where – is it within Indian Country
d. Against whom – who is the object of the action

Front 3

Definitions: Indian

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Membership in an Indian tribe is determined by the tribe based on ancestry. A person who meets this criteria is an enrolled member of that tribe

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Definitions: Indian Tribe

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a political entity made up of a group of Indians. To be considered a tribe under federal law, must be federally recognized by US on a list published by sec. of interior. Federal Indian Law only applies to federally recognized Indian tribes.

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Land Ownership: list the three types of Indian Country

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Indian Reservations (which include trust land, fee land, and reservations), Dependent Indian Communities, Allotments

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Land Ownership: Indian Reservation

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Area of land set aside by US for use by Indian Tribe. An Indian reservation will be all land within the exterior boundaries of an Indian reservation, including Trust and Fee Land
i. Trust land – Tribal or Indian land, where US has legal title, but is held in trust for the use and benefit of the tribe or individual (can be on or off the reservation)
ii. Fee land – All other land not held in trust or restricted status. Includes land owned by non-Indians, state highways, and RR right of ways
iii. Reservations – can be created by treaty or executive order of the Pres.

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Land Ownership: Dependent Indian Communities

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Land set aside by US for Indians under federal superintendants. Probably won’t get a question on this – applies to pueblos in the SW

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Land Ownership: Allotments

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Parcels of land that is provided to tribes or individual Indians by US w/ restrictions on alienation by operation of fed law. Remember- just cause its owned by non-indians now does not mean it is not on Indian Territory

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Termination of Indian Country status

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can do if congress makes intent absolutely clear.
i. Look for stat that divides reservation land among tribal members and returns remainder to the public domain or US for disposal under federal public land laws.
1. Magic Language – “cede, sell, and convey”
ii. Consent of tribe – Not Required
iii. Congressional Extinguishment – reservation can be diminished (made smaller) or Disestablished (eliminated)

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Tribal Sovereignty: Nature of Tribal Governance Power

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Indian Tribes are sovereign governments
a. Indian Tribes possess inherent sovereignty
b. Tribes considered “domestic Dependent Nations”
c. Congress has “plenary power” over Indian affairs
d. State laws have no force or effect within Indian country unless congress says otherwise

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Tribal Sovereignty: Sovereign Immunity

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Jurisdictional question, raised as a 12(b)(1) lack of SMJ motion
a. Tribal Immunity – May not be sued without their express consent
b. Waiver of Immunity – 2 ways, by tribe or by congress
i. By Tribe – by K (no need to contain sov. Immunity waiver), by tribal law (sue and be sued clause), by filing a suit (but may still have immunity from counterclaims)
ii. By Congress – Waiver must be clear and express

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Scope of Sovereign Immunity

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i. applies both on and off reservation
ii. applies to tribally owned businesses and tribal leaders acting w/in scope of official duties
iii. No sov. Immunity for tribal members
iv. May be asserted as a defense in any federal, state, or tribal court
v. Suits by US against Indian tribe are not barred from tribal sov. Immunity

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Tribal Civil Jurisdiction over Indians

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i. Indians – Tribes have absolute civil J over their own tribal members. Tribes not subject to the bill of rights, but congress has made many provisions apply to tribes through Indian Civil Rights Act. However, actions brought to enforce the statute are not enforceable in federal court except for Habius Corpus action

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Tribal Civil Jurisdiction over non-members

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ii. Non-members
i. Two types- adjudicatory (power of tribal court to hear an action) and regulatory (the power of the tribe to enforce – like tax or zoning). The analysis for both is the same
ii. The Rule – The Montana test
1. General rule – Presumed that tribes lack civil J over non-Indians for activities taking place on all types of land in Indian Country
2. Unless – one of these two exceptions apply
a. Consensual relationship – like a K between tribe and non-Indian, or lease. A nexus to regulate activity is required
b. Conduct that threatens or has a direct effect on the tribal political integrity, economic security, or tribal health and welfare – has never been a violation like this – would have to be something catastrophic

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Tribal Criminal Jurisdiction over non-Indians

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No criminal J. But may excise J when tribal police stop and detain, or criminal contempt of court action

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Tribal Criminal Jurisdiction for Non-Member Indians

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tribes have criminal J to same extent as they have over their own members

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Tribal Criminal Jurisdiction over Tribal Members

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– limited J to 1 year in jail of 5K fine per offenses by the Indian Civ. Rights Act. ICRA provides similar BoR protections except right to council
iv. Concurrent J – tribes may exercise J with fed or state over crimes committed by Indians within Indian Country. Because tribes are separate sovereigns, not barred by double jeopardy

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Federal Civil Jurisdiction

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3 sources (art 1, sec. 8, clause 3 of const = Indian Commerce clause, Treaties between US and tribes, and Title 25 of US code
a. Constitutionality of special laws – not considered race based legislation, only subject to RB review
b. Laws of General Applicability – apply to tribes and tribe members unless TIC
i. Treaty right affected
ii. Internal tribal governance affected, OR
iii. Congress expressly indicates it does not apply
c. Jurisdiction – For PJ Indians Considered citizens of state where domiciled for diversity purposes, tribes are not citizens for diversity purposes. For SMJ – fed cts may hear challenges by non-members to tribal regulatory or adjudicative J based on claims that fed law divested the tribe’s authority. Must first exhaust tribal remedies unless futile to do so
d. Trust Relationship – congress has trust relationship with tribes. US acts as a fiduciary

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Federal Criminal Jurisdiction

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– must be in Indian Country, AND Indian D, AND victim. If victim is non-Indian then fed. Gov. has J regardless, but if Indian, the crime must be major. Fed gov does not have J to prosecute victimless crimes – like fireworks offenses. Major crimes for Indian victim listed below
a. MAMBA TRICK (not comprehensive) – Murder, assault with a deadly weapon, manslaughter, burglary, assault with intent to kill, theft, robbery, incest, child abuse (felony), kidnapping

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State Jurisdiction: Tribal Court Judgments

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Given full faith and credit in WA. Most other states give comity

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State Jurisdiction: General Rule

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states have no J over Indians within Indian Country, Unless expressly authorized by congress

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State Criminal Jurisdiction

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- PL 280 – applies only to state laws, not local laws, and must actually be a criminal offense
a. Non-Indians – WA has full civil and full criminal J over non-Indians on all land w/in Indian Country
b. Indians – WA has assumed some civil J and some criminal J over Indians w/in Indian Country
i. Off-reservation trust land – full civil and crim J over Indians
ii. On-Reservation “non-trust” lands w/in reservation (e.g. fee lands) full criminal J and civil J over Indians
iii. Anywhere on Reservation (i.e. trust and allotted lands) w/respect to these 8 subject matters – partial J
1. Compulsory School attendance
2. Public Assistance
3. Domestic Relations
4. Mental Illness
5. Juvenile Delinquency
6. Adoption proceedings
7. Dependent children, and
8. operation of motor vehicles upon the public streets, alleys, roads, and highways – most likely to be tested

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State Jurisdiction: General Statement

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States generally lack J over Indians within Indian Country unless delegated by Congress. WA has assumed partial J over Indians and Indian Country pursuant to the Federal Statute PL 280

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State Civil Jurisdiction

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– PL 280 applies to all pre-1968 reservations. If fact scenario is post 1968, PL 280 will not apply. After 1968 consent is required by tribe. No tribe has given consent.
a. Within Indian Country – under PL 280 – allows states to adjudicate to settle disputes, not regulate. Does not give state J over Indian activities within Indian country, including hunting and fishing, taxation, zoning, gaming (except Indian Gaming regulator act) most driving infractions (like traffic tickets or parking violations, and any regulation of trust property.
b. Outside Indian Country – state has the same J over Indians as non Indians

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Indian Child Welfare Act: Basic Definition

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a federal statute that regulates state court child custody proceedings involving Indian children

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ICWA: Child Custody Definition

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(FAT) foster care placement, adoption, termination of parental rights. Does not include placements arising out of divorce

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ICWA: Indian Child Definition

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Unmarried, under 18, enrolled member of fed. Recognized tribe, or eligible for enrollment and has a biological parent who is a member of the tribe.

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ICWA: Indian Child Living On Reservation

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exclusive tribal J if child is residing on reservation where it is a member, or domiciled on a reservation where a member (domicile of child is domicile of parents) OR child is a ward of the ct.

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ICWA: Indian Child living off reservation

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i. Transfer from state ct. to tribal ct – must do upon request of tribe or Indian Custodian, UNLESS
1. Good cause not to transfer
2. Objections made by either party
ii. Rights of tribes under ICWA – can intervene in state court actions covered by ICWA, and tribes entitled to notice of pending involuntary proceedings in state court.
iii. State ct. J –
1. PL 280 in theory gives WA concurrent J over child custody proceedings.
2. Placement preference – when state cts have J to make foster care placement, they must follow ICWA placement preferences – should go to a member of Indian child’s extended family, if none then other members of that members Indian tribe, if none than other Indian family, if none then whoever.

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Indian Treaty Rights to Hunt, Fish, Gather: How Created

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Reserved by tribes through treaty both on and off-reservation, or executive order from president, or aboriginal use (may be exercised off-reservation on aboriginal lands – land used and occupied by tribes title to which has not been extinguished by congress)

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Indian Treaty Rights to Hunt, Fish, Gather: On Reservation

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tribal members generally have right to hunt, fish, gather free from state reg.

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Indian Treaty Rights to Hunt, Fish, Gather: Off-Reservation

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i. Treaty rights – over 20 tribes in WA retain right to fish at usually and accustomed areas or open and unclaimed land free from state reg. fishing right allows tribes to harvest 50% of the fish in their area

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Indian Treaty Rights to Hunt, Fish, Gather: State regulation

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state may regulate only or off reservation only when necessary for conservation, and only if it is non-discriminatory against Indian fishing or hunting

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Water Rights

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implied reservation – the creation of an Indian reservation carries with it an implied reservation of enough water to fulfill the purposes of the reservation. For most reservations this includes water for agricultural purposes.