Wa Bar Indian Law July 2011`

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Governing Law

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Indian Law in Washington is governed by Federal Law (Indian Commerce Clause, Treaties, Title 25 USC) and RCW Title 37

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Indian

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membership determined by the tribe based on ancestry to be an “enrolled member” of that tribe

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Indian Tribe

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A political group made up of a group of Indians. Must be federally recognized by the U.S. on the list published by the Secretary of the Interior. 29 tribes federally recognized in WA

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Indian Country

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• Indian Reservation (trust or fee)
o An area of land set aside by the US for use by Indian tribe. Includes all land within exterior boundary including trust land (Legal title held by US for use and benefit of tribe) and fee land (all other land not held in trust or restricted statues, owned by non-Indians and state highways and railway right of ways)
• Dependent Indian communities
o Land set aside by the US for Indians under federal superintendents (think Pueblos)
• Allotments
o Parcels of land that provided to tribes or individual Indian by the US with a restriction on alienation by operation of Fed Law. Some now owned by non-Indians

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Termination of Indian Country Status

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Must be done by congress and its intent absolutely clear.
• Statute that divides land among tribal members and returns remainder to public domain or US. Magic language: “Cede, Sell and Convey”
• Consent of tribe not required
• Effect is that reservation has been diminished or disestablished.

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Tribal Soveriegnty

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Indian tribes possess inherent sovereignty and are considered domestic dependent nations. Sovereignty exists until divested by congress under it plenary power over Indian affairs. State laws have no force or effect within Indian country unless Congress says otherwise.

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Tribal Immunity

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Tribal Immunity (May not be sued without consent)
• Can be waived by the tribe, by contract, by tribal law “sue and be sued clause,” by filing suit (but immunity on counterclaims).
• Can be waived by Congress (clear and express)
Scope of immunity
• Applies both on and off reservation, and applies to tribally owned businesses, and tribal leaders acting within the scope of official duty.
• Does not apply to tribal members
• May be asserted as a jurisdictional (SMJ) defense in Federal, State & Tribal Court. But suits by US are not barred by tribal immunity.

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Tribal Civil Jurisdiction

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Indians
Tribes have absolute civil jurisdiction over their own Tribal member. Not subject to the Bill of Rights, however, there is the Indian Civil Rights Act, but actions brought to enforce are not enforceable in federal court except Habeas Corpus.
Non-Indians + non-members
Tribal adjudicatory jurisdiction cannot exceed its regulatory jurisdiction.
• Montana Test: Presumed tribes lack civil jurisidiction over non-Indians for activities taking place on non-Indian fee land (all types of land) within Indian Country, Unless
o Consensual relationship (also must be nexus to regulated activity)
o Conduct that threatens or has direct effect on tribal political integrity, economic security, or tribal health and welfare.
• Federal Delegation to tribe (liquor + Environmental law)
• Concurrent Jurisdiction with State/Feds

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Tribal Criminal Jurisdiction

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Non-Indians
DO NOT have criminal jurisdiction to prosecute, but tribal police can stop and detain or for criminal contempt of court.
Tribal + Non-Member Indians
Absolute criminal jurisdiction over their own tribal member and nonmembers.
• Limited on Tribal Sentencing authority (1 year in jail or 5K per offence, changed now to 3 years in jail and 15K per offense, but only if tribe adopts Fed Rules of Criminal Procedure and afford ∆ counsel if needed)
• No right to appointed counsel
• Exercise concurrent jurisdiction with Fed/State, no Double Jeopardy.

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Federal Civil Jurisdiction

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Source of law (Indian Commerce Clause, Treatise, Title 25 of USC)
Constitutionality (Fed action not considered race based, subject to RBR)
Law of general applicability (silent as to Indians will Apply UNLESS, treaty rights affected, internal tribal governance effected, Congress indicates doesn’t apply.
Personal Jurisdiction (Indians are citizens of state where domiciled, but tribes are not, for diversity purposes)
Subject Matter jurisdiction (Fed court may hear challenges by non-members to tribal regulatory or adjudicator jurisdiction based on claims that fed law divested tribe’s authority. Challenges must first be heard in tribal court unless futile).
Trust relationship (US a fiduciary as it has trust responsibility with Indians)

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Federal Criminal Jurisdiction

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(1) Must be in indian country, (2) Must have Indian Defendant/Perpetrator, AND Victim is:
Indian Victim (Jurisdiction only if the crime is Major)
• MAMBATRICK: Murder, Assault w/deadly weapon, Manslaughter, Burglary, Assault w/intent to murder, Theft, Robbery, Incest, Child abuse, Kidnapping.
Non-Indian Victim (jurisdiction regardless of nature of the crime)
Victimless crime (No jurisdiction unless perpetrated by Indians in Indian country).

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State Criminal and Civil Jurisdiction

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Tribal Court judgments are entitled to full faith and credit in WA
States have no jurisdiction over Indians within Indian Country unless expressly authorized by congress. PL 280 (applies to all pre-1968 reservations, otherwise need consent)
• Full civil and criminal jurisdiction over non-Indians on land within Indian Country
• Some criminal, and some civil. Full for Off-Reservation trust land and Fee lands, but only Partial only for following eight (MADDCOP J)
- Mental Illness, Adoption proceedings, Domestic Relationship, Dependant Children, Compulsory school attendance, operation of motor vehicle on public roads, streets, alleys and highways, Public Assistance, Juvenile Delinquency

• General Scope Outside Indian Country

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Limitations on State Civil Jurisdiction

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Limited Scope Within Indian Country (forum for dispute resolution, but does not include Indians within Indian country hunting and fishing, taxing, zoning, gaming, most driving infractions, and any regulation of trust property including probate

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Limitations on State Criminal Jurisdiction

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State Criminal Jurisdiction (must violate state public policy, not merely have criminal penalty; state-law only, does not make local laws applicable)

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ICWA applies to?

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Foster Care Placement, Adoption, Termination of parental rights, but not Placement arising out of divorce

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Indian Child

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under 18 not married, and an enrolled member of fed recognized tribe, or eligible for enrollment and biological parent is a member of an Indian tribe

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ICWA Exclusive Jurisdiction

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• Residing on Reservation where a member
• Domiciled (where parents are domiciled) on Reservation where member
• Ward of the Tribal Court

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Jurisdiction for off reservation kids

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• Must transfer upon request unless good cause not to, or either parent objects.
• Tribes have the right to intervene and receive notice of pending involuntary proceedings in state court.

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State Jurisdiction

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• PL 280 gives concurrent jurisdiction

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Placement Preferences

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• Member of child’s extended family,
• Other member of tribe of child,
• All other Indian families

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Indian Hunting and Fishing Rights

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On-Reservation Hunting and Fishing Rights
• Right to hunt, fish and gather free from state regulation, subject to tribal regulation
Off-Reservation rights
• Treaty Rights: 20+ tribes retain right to fish (harvest 50%) at usual and accustomed areas off reservation and to hunt on open and unclaimed land free of state regulation.
• State Regulations: only when necessary for conservation and only if its nondiscriminatory.

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Indian Water Rights

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• Implied Reservation: Implied reservation of enough water to fulfill purposes of the reservation, most reservations this includes agricultural purposes.