LAW 730 Federal Indian Law Outline

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In General
A. Definitions:
a. Federal Indian Law – A body of law that regulates the legal relationship between Indian
tribes and the United States.
b. Indian Laws – Traditional Indian norm and strictures, and their modern counterparts in tribal
constitutions and codes.
B. Concerns of Federal Indian Law:

a. Tribal Sovereignty & Indian Property Rights
i. Sovereignty Recognition:
1. Doctrine of Discovery
2. Treaty Making
3. Self-Government Within Indian Country
4. Doctrine of Reserved Rights
b. Federal Power & Obligations:
i. Indian Commerce Clause – “to regulate Commerce … with Indian Tribes” – federal
legislative power over Indian matters.
ii. Federal Government Programs.
iii. Trustee/Guardianship Relationship – High fiduciary standard.
c. State Jurisdiction: mostly preempted by the federal government.
C. Indian Tribes:
a. Characteristics:
i. Political entities; not a racial minority.
ii. Tribe first, Indian second.
iii. Demographics: 50% Rez; 50% Urban.
iv. Income/capita lowest of all racial groups; 31% at poverty level (1990)
v. Majority of American Indian today: “Persons born on reservation, learning from the tribal
elders, seeking to gain the best of a white education, and all of the while searching with
a quiet determination to construct a blended way of life.
b. Status:
i. Federally Recognized.
ii. Non-Federally Recognized – Federal administrators have concluded that they are not
entitled to participate in BIA-operated programs.
c. Land Holding:
i. Tribal trust land
ii. Trust allotments
iii. Federal & State Governments
iv. Non-Indian fee titles
d. Resources: Timber, Water, Minerals, Wildlife, and Fisheries.
e. Popular Federal Circuits: 8th, 9th, and 10th.
D. Federal Recognition:
a. Procedure to obtain recognition, 25 C.F.R.83 (1997): “Continental” Indian group submits
“letter of intent”  Review completes within one year  Decision published in the Federal
Register  Appeal to the Board of Indian Appeals.
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b. Political Question, left to Congress. United States v. Holiday (1865).

c. Definition of “Tribe.” “[A] body of Indians of the same or similar race united in a
community under one leadership or government, and inhabiting a particular though sometimes
ill-defined territory.” Montoya v. Unites States (1901).
d. Non-Recognition = No Effects on Treaty Rights. “Non-recognition of the tribe by the
federal government may result in the loss of statutory benefit but can have no impacts on
vested treaty rights.” United States v. Washington (9th Cir. 1975).
e. Cultural Difficulty. “According to the defendants, the Mashpee could be “self-governed”
only if the Tribe adopted political forms susceptible to documentary proof … the Mashpee
Indian culture is rooted in large measure on the passing of an oral record. Torres & Milun,
1990 Duke L.J. 625.
E. On Treaty-Making:
a. Traditional Treaty Making:
i. Treaties were sacred, not merely temporal. “In Indian diplomatic traditions,
treaties were not merely temporal agreements. They were sacred collective obligations,
to be broken only under the peril of divine displeasure.” Handbook of North American
Indians.
ii. Multicultural unity. “In North American indigenous diplomacy, treaties were sacred
texts that enabled treaty partners to fulfill a divinely mandated plan of multicultural
unity.” Prof. Roberts A. Williams, Jr.:
1. “[H]e and they should live on those Lands like Brethren, in Love and
Friendship together, whereby they became all as one People and one Nation,
joined together so strongly that nothing should ever disunite them, but that
they should continue as one People for ever.” Conestoga Speaker Civility to
Pennsylvania’s Colonial Officials in 1735.
iii. Mutual Protection. As a matter of constitutional principle, treaty partners were
bound to protect each other’s interests. Id.
iv. Change in position irrelevant. Changes in circumstance or the original bargaining
positions of the parties were irrelevant because of this constitutional obligation. Id.
v. Constitutional Renewal: Id.
1. Treaty partners were expected to meet regularly with each other in council to renew the bonds.
“Yet it would be well that they are renewed and confirmed in our days, that the
young men may be witnesses to them and transmit a knowledge of them to
their children.” Creek Speaker Stumpee to Georgia’s Colonial Official in 1757.
2. Treaty partners were expected to seek forgiveness for breaches or acts of bad faith toward a
treaty partner.
b. Common Features of Treaty at the Founding:
i. Boundary
ii. Tribes acknowledging “to be under the protection of the United States.”
iii. Divesting protection of the United States from unauthorized settlers who refuse to
move after a grace period.
iv. Provisions on major crimes between Indians and Non-Indians.
v. “United States in Congress assembled shall have the sole and exclusive right of
regulating the trade with the Indians, and managing all their affairs in such manner as
they think proper.”
i. Friendship re-established.
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Historical Background:
A. Spanish Legal Theories:

a. Papal Sovereignty over Infidels (Pope Innocent IV): “Where it is licit for pope to
command those things, if the infidels do not obey, they ought to be compelled by the secular
arm and war may be declared against them by the pope and not by anyone else.”
b. Law of Nations – Franciscus de Victoria (1532) – system of international law mutually
binding on all nations – as applied to Indians:
i. Generally: What belongs to nobody is granted to the first occupant.
ii. Exception: Transgressions of the universally binding norms of the Law of Nations by
the Indians might serve to justify a Christian nation’s conquest and colonial empire in
the Americas.
iii. Suggested Solution: Trust Doctrine - to compensate for the Indians’ lack of capacity to
understand European Law of Nations – The civilized nation would hold just title over the
property of the Indians and undertake the responsibility for administering their affairs.
B. Pre-Colonial English Common Law:

a. Abrogation of Local Law by Conquest – Calvin’s Case (1608) (Coke, C.J.) (Dicta):
i. Christian Kingdom Conquered - “[U]ntil he doth make an alteration of those law, the
ancient laws of that kingdom remain.”
ii. Infidels Kingdom Conquered – “the laws of the infidels are abrogated, for that they be not
only against Christianity, but against the law of God and of nature.”
C. Colonial:
a. Vacuum Domicilium – Puritan John Winthrop: “Natives in New England they inclose noe
land neither have any setled habitation nor any tame cattle to improve the land by, & soe have
noe other but a naturall right to those countries.” [sic]
i. Contra – The natives knew they own it - Puritan Roger Williams (1632): “I have
knowne them to make bargaine and sale amongst themselves for a small piece, or
quantity of Ground” [sic].
b. Consent to Settlement – accepted in all colonies; most land obtained via purchases – three
assumptions:
i. Both parties to the treaties were sovereign powers.
ii. Indian tribes had some form of transferable title to the land.
iii. Acquisition of Indian lands was solely a governmental matter, not to be left to
individual colonists.
c. Camden-Yorke Opinion – the title of purchases land vests directly with the purchaser – Applied to the
East India Company (but cited by American land speculators in defiant of the Proclamation
below):
i. Conquered land – owned and under the governmental control of the crown.
ii. Purchased land – land purchased by treaties directly from the “Indian Princes” or
“Moguls” vested directly in the Company subject to the Crown’s sovereignty over the
settlers.
d. Royal Proclamation of 1763 – King George III – wartime policy to appease the natives –
Territory beyond the eastern mountain ranges was off limit to settlement and reserved to the
tribes of the region.
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D. The Founding Era:

a. Articles of Confederation, Art. IX (4): “legislative right” was understood to guarantee the landed states
the right to purchase Indian lands: “The United States in Congress assembled shall also have the
sole and exclusive right and power of … regulating the trade and managing all affairs with the
Indians, not members of any of the States provided that the legislative right of any State within its own
limits be not infringed or violated.”
i. The Articles of Confederation did not preclude New York from making purchases of Indian land
prior to the ratification of the Constitution. Oneida Indian Nation (2nd Cir. 1988).
b. Northwest Ordinance of 1787 – promised “the utmost good faith … toward Indians, their lands and
property” by the United States as it purchases their lands.
c. Indian Commerce Clause (U.S. Const. Art. I, sec. 8, cl. 3) – vested Congress with unquestioned
authority over the acquisition of lands on the frontier – “The Congress shall have power … [t]o
regulate Commerce with foreign Nations, and among the several States, and with the Indian
Tribes.”
d. Trade & Intercourse Acts (1790-1802  1834):
i. Declared the purchase of land from the Indians invalid unless made by a public treaty
with the United States.
ii. Provision for the punishment of murder and other crimes committed by whites against
the Indians in the Indian Country.
e. The Removal Act (1830):
i. Divided land West of Mississippi in to a number of districts, “for the reception of such
tribes or nations of Indians as may choose to exchange the lands where they now
reside and remove there.”
ii. “Provided always, That such lands shall revert to the United States, if the Indians become
extinct, or abandon the same.
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Policy Periods
A. Allotment & Assimilation (1871-1928):

a. Allotment:
i. The Dawes Act (General Allotment Act of 1887):
1. General Provisions:
a. A land grant
b. A patent in fee to be issued to every allottee but to be held in trust by
the Government for 25 years, during which time the land could not be
alienated or encumbered.
c. 4 years to make selection of the allotment; after which the Secretary
would do it for them.
d. Conferment of citizenships to allottee and Indians who abandoned
their tribes.
ii. No state property taxation, no essential services. States were refusing to assume
any responsibilities for Indian communities and were withholding such services as the
upkeep of schools and roads.
iii. Ain’t no prime real estates. Though the emphasis of the allotment policy was
farming, large sections of the Indians’ lands were not suitable for agriculture.
b. Citizenship Issues:
i. Indians not citizen under the Fourteenth Amendment – Congress would have
removed the exclusion, just as it removed the three-fifth formula for counting slaves at
enactment had it intended that Indians be made citizens. Instead, it retained an
exclusion of “Indians not taxed” provision of apportionment of the House of
Representatives. Elk v. Wilkins (1884).
ii. Examples of Selective naturalization:
1. Presidential or court’s satisfaction of intelligence and prudence “to conduct
their affairs and interests.” Treaty with the Pottawamies (1861); 16 Stat. 335.
2. Upon acceptance of allotment or removal to reservation.
3. Abandoning tribal relation and adopt “the habits of civilized life.” 13 Stat. 541.
4. World War I veterans. 41 Stat. 350.
5. Marriage to non-Indian men. 25 U.S.C. § 182.
iii. Effect of naturalization via allotment = status quo: The legislation affecting
Indians, even naturalized Indians, “is to be construed in their interest and a purpose to
make a radical departure not lightly to be inferred.” “As, therefore, these allottees remain tribal
Indians and under national guardianship.” United States v. Nice (1916).
iv. Blanket Naturalization & Non-impairment of Rights– Citizenship Act of 1924:
1. Naturalized all “Indians born within the territorial limits of the United States.”
8 U.S.C. § 1401(a)(2).
2. “[C]itizenship shall not in any manner impair or otherwise affect the right of
any Indian to tribal or other property.”
B. Reorganization (1928-1945):
a. Indian Reorganization Act (1934) 25 U.S.C. § 461 et seq.:
i. Ended Allotment.
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ii. One time opt-out provision. Tribe has one chance to opt-in/out by majority vote, via an
election held within one year after the act’s approval. IRA applies to 14 groups of
Indian who did not hold elections to exclude themselves.
iii. Tribal Organization §16:
1. Adoption of Constitution. “Any Indian tribe, or tribes, residing on the same
reservation, shall have the right to organize for its common welfare and may
adopt an appropriate constitution and bylaws.
2. Subject to approval by the Secretary of the Interior.
3. The adopted Constitution shall vest in the tribe:
a. Choice of counsel & the fixing of legal fee, subject to approval by the
Secretary
b. To prevent the sale, disposition, lease, or encumbrance of tribal lands,
interests in lands, or other tribal assets without its consent.
c. To negotiate with other governments (federal, state, or local).
iv. Chartering of Corporation §17:
1. Corporation charter and ratification.
2. Power to manage real and personal property.
3. Power to purchase restricted Indian land and issue shares in exchange thereof.
4. 10-year limit on sales, mortgage, or lease.
5. Non-revocable except by Congress.
v. Misc. Provisions:
1. Prohibit transfer of Indian land or assets of Indian corporation other than to the tribe.
§4.
2. Land consolidation. Allowing exchange of land, with permission of the Secretary,
where it would achieve the purpose. §4.
3. Business Loan. Revolving fund to be use as loan to chartered corporations for
the purpose of economic development. §10.
4. Educational loan. §11.
b. Additional Provision on Secretary Approvals of Ordinances in the IRA Constitution not
binding. “[T]he most that can be said about this period of constitution writing is that the
[BIA] had a policy of including provisions for Secretarial approval; but that policy was not
mandated by the Congress.” Kerr-McGee Corp. v. Navajo Tribe of Indians (1985).
c. IRA Tribes may amend their Constitution to remove the requirement as to ordinances.
Id.
d. Non-IRA Tribes not subject to Secretarial approval of constitutions or codes. Id.
e. Johnson-O’Malley Act – Contracting for Services – enabled the Indian Bureau or the tribal
councils to make contracts for services with state governments or with private corporations.
C. Termination (1945-1961):
a. House Concurrent Resolution 108 (1953):
i. “That it is declared to be the sense of the Congress that … all of the following named
Indian tribes and individual members thereof, should be free from Federal supervision and
control and from all disabilities and limitations specially applicable to Indians.”
ii. Secretary of the Interior is to recommend legislation to accomplish the objective.
b. HCR 108 does not have the force of law – it’s a policy statement – 109 tribes were terminated
through specific statutes.
c. Implementation of termination statutes:
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i. Fundamental changes in land ownership patterns. For most of the smaller tribes, all
land was simply sold to the highest bidder.
ii. The trust relationship was ended.
iii. State legislative jurisdiction was imposed.
iv. State judicial authority was imposed.
v. Exemptions from state tax ended.
vi. Federal programs discontinued.
vii. Tribal sovereignty practically ended though nothing in the termination acts expressly
extinguished the governmental authority. With one exception, no terminated tribe has
continued to make laws or to maintain tribal courts to enforce any laws after
termination.
d. Other termination era actions:
i. Public Law 280 – extending civil and criminal jurisdiction into Indian country.
ii. Transfer of educational responsibilities to the state.
iii. Transfer of Indian health responsibilities from the BIA to HHS.
iv. Legislative and administrative inaction regarding reservation economic development.
v. Relocation programs.
D. Self-Determination (1961-Present):
a. Nixon’s Message to the Congress (1970)
i. New national policy: “to strengthen the Indian’s sense of autonomy without threatening
his sense of community.”
ii. Rejecting Termination.
iii. Indians’ right to control and operate Federal programs. “It should be up to the Indian tribe to
determine whether it is willing and able to assume administrative responsibility for a
service program.”
iv. Indian Education. Every Indian community wishing to do so should be able to control
its own Indian schools.
v. Economic Development Legislation.
b. Indian Self-Determination and Education Assistance Act of 1975 – 25 U.S.C. § 450f:
i. “The Secretary [Interior/HHS] is directed, upon … tribal resolution, to enter into a self-
determination contract with a tribal organization to plan, conduct and administer programs … for the
benefit of Indians.”
ii. If the Secretary declines, he shall:
1. State any objections in writing to the tribal organization
2. Provide assistance to overcome the stated objections
3. Provide the tribal organization with a hearing on the record and the
opportunity for appeal on the objections raised, under such rules and
regulations as the Secretary may promulgate.
c. Indian Self-Determination Act (ISDA) (1988): Self-Governance Demonstration Project – tribes
that have successfully managed other ISDA contracts can plan and administer virtually all
functions and activities now performed from them by the BIA or IHS. Unlike the usual ISDA
contracts, tribes are free to redesign the programs and reallocate funds among them.
d. Other sample legislations:
i. Indian Financing Act of 1974
ii. American Indian Religious Freedom Act of 1978 – largely unused and
unenforceable – provide some protection to Indian religious practices and beliefs
harmed by federal land use decisions.
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iii. Indian Child Welfare Act of 1978 (ICWA) – A comprehensive scheme for the
adjudication of child custody cases involving Indian children that defers heavily to
tribal government.
iv. Indian Mineral Development Act (1982) – providing tribes greater flexibility in
entering into agreements for mineral development rather than relying on the
Department of Interior.
v. Indian Child Protection and Family Violence Act of 1990
vi. Indian Land Consolidation Act of 1991.
vii. Indian Alcoholism and Substance Abuse Prevention Act
viii. Indian Education Act
ix. Indian Gaming Regulatory Act – tribes can establish gambling businesses on their
reservations and that states must negotiate compacts with the tribes in good faith to
specify how the gambling will be conducted.
x. Native American Graves Protection and Repatriation Act – directs federal
agencies and museums to return human remains and sacred objects to appropriate
native entities.
xi. Native American Language Act – encourages the use and teaching of indigenous
language.
xii. Tribally-Controlled Community College Assistance Act
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The Marshall Trilogy

A. Fundamental Principles of Federal Indian Law (Prof. Robert A. Williams, Jr.):
a. Doctrine of Discovery – Discovery of territory in the New World gave the discovering
European nation an exclusive right to extinguish the Indian title of occupancy, either by
purchase or conquest.
b. Congressional Plenary Power Doctrine – Congress exercises a plenary authority in Indian
affairs.
c. Diminished Tribal Sovereignty Doctrine (Reserved Rights) – Indian tribes still retain
those statute not expressly divested by treaty or statue, or implicitly divested by virtue of their
dependant status.
d. Trust Doctrine – In exercising its broad discretionary authority in Indian affairs, Congress
and the Executive are charged with the responsibilities of a guardian acting on the behalf of its
independent Indian wards
B. Discovery Doctrine – Johnson v. McIntosh (1823) (Marshall, C.J.) – “[D]iscovery gave an exclusive
right to extinguish the Indian title of occupancy, either by purchase or by conquest.” Indians, as occupants, are
incapable of transferring the absolute title to others:
a. Facts: Lands purchased from Indians by speculators were included in the lands acquired by the
United States by the Treaty of Greenville (1794) after defeating the Illinois and the Piankeshaw
nations at the Battle of Fallen Timbers. McIntosh subsequently purchases the land in question
from the United States in 1818. The sale is challenged.
b. Holding: The speculator’s title cannot be sustained.
i. Validity of Indian Title:
1. “[D]iscovery gave an exclusive right to extinguish the Indian title of occupancy,
either by purchase or by conquest.” Here, it’s conquest – the U.S. fought with
the Indians.
2. Normally, “the rights of the conquered to property should remain unimpaired”
BUT “the tribes of Indians inhabiting this country were fierce savages whose occupation was
war, and whose subsistence was drawn chiefly from the forest.”
3. Indians, as occupants, are incapable of transferring the absolute title.
ii. Indians’ action as sovereigns of sort – title extinguished by Indians: “These nations had
been at war with the United States and had an unquestionable right to annul any grant
they had made to American citizens.”
C. Domestic Dependent Nation Status – Cherokee Nation v. Georgia (1831) (Marshall, C.J.):
a. Facts: Georgia passed a law which added Cherokee lands to certain counties of Georgia.
Subsequently, it passed another law extending the laws over these lands. Cherokee sought an
injunction restraining Georgia from executing the laws.
b. Opinion of the Court (2 votes): The court has no jurisdiction because the Cherokee Nation was not a
“foreign state” within the meaning of U.S. Const. Art. III, sec. 2:
i. Power of the court extends to “controversies” “between a state or the citizen thereof,
and foreign states, citizens, or subjects.”
ii. Denominated domestic dependent nations – “They occupy a territory to which we assert a title
independent of their will, which must take effect in point of possession when their
right of possession ceases.”
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iii. In the constitution, the Indian tribes are “as clearly contradistinguished by a name
appropriate to themselves, from foreign nations, as from the several states.”
c. (Johnson, J., concurring): State of feudal dependence:
i. Not a foreign state – the language of the treaty, “on the following conditions”, “is
certainly the language of sovereigns and conquerors, and not the address of equals to
equals.”
ii. Not a state – “But this state, if it be a state, is still a grade below them all: for not to be
able to alienate without permission of the remainder-man or lord, placed them in a
state of feudal dependence.”
iii. “Indian tribes [are] nothing more than wandering hordes, held together only by ties of
blood and habit, and having neither law or government, beyond what is required in a
savage state.”
d. (Baldwin, J., concurring): No sovereignty. “There can be dependence so anti-national, or so
utterly subversive of national existence as transferring to a foreign government the regulation
of its trade, and the management of all their affairs at their pleasure.”
e. (Thompson, J., dissenting): Sovereignty; Independent State.
i. “It is sufficient [that] it must govern itself by its own authority and laws.”
ii. Reserved rights. “[A] weak state, that, in order to provide for its safety, places itself under
the protection of a more powerful one, without stripping itself of the right of
government and sovereignty, does not cease on this account to be placed among the
sovereigns who acknowledge no other powers.”
D. Constitution & Treaties are Supreme – Worcester v. Georgia (1832) (Marshall, C.J.):
a. Facts: Worcester and others were arrested and convicted for violating a Georgia law, which
required any non-Indian residents of the Cherokee territory to obtain a license from the
governor.
b. Holding: “The acts of Georgia are repugnant to the constitution, laws, and treaties of the United States”:
i. Indian Commerce Clause and Supremacy Clause. “[The laws] interfere forcibly with the
relations established between the United States and the Cherokee nation, the regulation
of which, according to the settled principles of our constitution, are committed
exclusively to the government of the union.”
ii. “A weak state, in order to provide for its safety, may place itself under the protection
of one more powerful, without stripping itself of the right of government, and ceasing
to be a state.”
c. (McLean, J., concurring): Diminishment considered.
i. “If a tribe of Indians shall become so degraded or reduced in numbers, as to lose the
power of self-government, the protection of the local law, of necessity, must be
extended over them.”
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Treaty Rights & Canons of Construction

A. “Liberal” Formulations:
a. Canons of Construction – where the rights are not clearly stated in the treaty:
i. Resolve ambiguity in favor of Indians. Ambiguous expression must be resolved in
favor of the Indian parties concerned.
ii. Take point of view of Indians. Indian treaties must be interpreted as the Indians
themselves would have understood them.
iii. Liberal construction. Indian treaties must be liberally construed in favor of the
Indian.
b. Clear Expression of the Intention of Congress Required – Ex Parte Crow Dog (1883)
(Matthews, J.) *** Criminal jurisdiction matter was superseded by the Major Crimes Act ***:
Expansion of Federal power over the reservation.
i. Facts: A Bruile Sioux was convicted of murdering another tribesman in the Indian
country.
ii. Holding: “Clear expression of the intention of Congress” is required in departing from the policy
announced in statutes and treaties.”
1. “[I]t is quite clear from the context that [the provision of the Treaty of 1868] does not cover
the present case of an alleged wrong committed by one Indian upon the person of another of
the same tribe.” “The agreement is that he shall be delivered up. In case of
refusal, deduction is to be made from the annuities payable to the tribe, for
compensation to the injured person, a provision which points quite distinctly
to the conclusion that the injured person cannot himself be one of the same
tribe.”
c. Doctrine of Reserved Rights:
i. United States v. Winans (1905) (McKenna, J.):
1. Facts: Winans, a non-Indian state-licensed fish wheels operator, attempted to
exclude tribal members from the fishing sites and refused to permit them to
cross over other non-Indian fee land to reach the fishing site. United States
sought to enjoin on the tribe’s behalf.
2. Holding:
a. “[T]he treaty was not a grant of rights to the Indians, but a grant of rights from
them – a reservation of those not granted.”
i. The reservations “imposed a servitude upon every piece of land
as though described therein.” “[T]he right was intended to be
continuing against the United States and its grantees as well as
against the State and its grantees.”
b. Fishing rights not affected by the state license. “The license from the State …
gives no power to exclude the Indians, nor was it intended to give such
power. It was the permission of the State to use a particular device.
What rights the Indians had were not determined or limited.”
ii. Felix Cohen – Handbook of Federal Indian Law (1941): The whole course of
judicial decision on the nature of Indian tribal powers is marked by adherence to three
fundamental principles:
1. All powers at the beginning. An Indian tribe possesses, in the first instance, all the
powers of any sovereign state.
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2. Conquest = termination of external but not internal sovereignty. Conquest renders the
tribe subject to the legislative power of the United State and … terminates the
external power of sovereignty of the tribe … but does not by itself affect the
internal sovereignty.
3. Subject to qualification by treaties and by express legislation of Congress but, save as thus
expressly qualified, full powers of internal sovereignty are vested in the Indian
tribes.
d. Termination Period & Treaty Rights:
i. Termination does not terminate treaty rights – Menominee Tribe of Indians v.
United States (1968) (Douglas, J.):
1. Facts:
a. Treaty of Wolf River (1854) retroceded certain lands Menominee had
acquired under a prior treaty and confirmed that the Wolf River
Reservation is “to be held as Indians land are held.” Nothing was said
about hunting and fishing rights.
b. Public Law 280 (1954) extended over Wisconsin, providing that
“Nothing in this section shall deprive … any Indian tribe … any right,
privilege or immunity under Federal treaty … with respect to hunting,
trapping, or fishing.”
c. The Termination Act of 1954 provided for the “orderly termination of
Federal supervision over the property and members.” It did not come
effective until 7 years after Public Law 280.
d. The tribe brought suit in the Court of Claims against the United States
to recover just compensation for the loss of those hunting and fishing
rights.
2. Holding: “The two Acts read together mean to us that although federal supervision
of the tribe was to cease and all tribal property was to be transferred to new hands, the
hunting and fishing rights granted or preserved by the Wolf River Treaty survived the
Termination Act of 1954.”
a. “We find it difficult to believe that Congress, without explicit
statement, would subject the United States to a claim for compensation
by destroying property rights conferred by treaty, particularly when
Congress was purporting by the Termination Act to settle the
Government’s financial obligations toward the Indians.”
3. (Stewart, J., dissenting): Reservation in Public Law 280 does not apply to terminated
tribes. “It has no application to the Menominees now that their reservation is
gone. The 1854 Treaty granted the Menominees special hunting and fishing
rights. The 1954 Termination Act, by subjecting the Menominees without
exception to state law, took away those rights.”
ii. Retention of hunting and fishing rights despite the relinquishment of tribal
membership or shrinking reservation – “a Klamath Indian possessing such rights
on the former reservation at the time of its enactment retains them even though he
relinquished his tribal membership or the reservation shrinks pursuant to the Act.”
Kimball v. Callahan (9th Cir. 1974)
iii. Though state regulation may be imposed for conservation purposes, the tribe
and its treaty rights continue to exist post-termination. Termination did not
affect the sovereign authority of the tribe to regulate the exercise of tribal treaty rights,
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and that descendants of persons on the “final” 1957 tribal roll were entitled to exercise
treaty rights as tribal member. Kimball v. Callahan (1979).
iv. Failure of the government to fulfill the terms of termination render the plan
void. Pursuant to the California Rancheria Act of 1958, the Secretary was required to
install irrigation and domestic water systems before implementing the Act. The
facilities were not installed at the Robinson Rancheria. The district judge ruled that the
plan was void  judicial restoration. Duncan v. Andrus (N.D.Cal. 1977).
e. Avoiding Implicit Abrogation; Construing in favor of Indians – Minnesota v. Mille
Lacs Band of Chippewa Indians (1999) (O’Connor, J.):
i. Facts:
1. In 1837, the Chippewa entered into a Treaty, in which it ceded its land east of
Mississippi, in return for payments of money and goods. The pertinent part of
the treaty guaranteed the tribe the privilege of hunting and fishing in the
territory ceded “during the pleasure of the President of the United States.”
2. In 1850, President Taylor issued an executive order revoking the rights and
ordered the Chippewa removed to the unceded land.
3. In 1855, the Chippewa ceded additional land via Treaty. It makes no mention
of hunting and fishing rights, whether reserving/abolishing rights guaranteed
by previous treaties.
4. In 1858, Minnesota was admitted to the Union. Its admission Act is silent as
to Indian treaty rights.
ii. Holding:
1. The “Executive Order was ineffective to terminate Chippewa usufructuary
rights under the 1827 Treaty … because it was not severable from the invalid
removal order.”
a. “Because the Chippewa had not consented to the removal, the
Removal Act could not provide authority for the President’s 1850
removal order.”
b. “The State had pointed to no statutory or congressional authority for
the President’s removal order.”
2. The 1855 Treaty did not implicitly abrogate the 1837 Treaty rights in its silence.
a. “United States treaty drafters had the sophistication and experience to
use express language for the abrogation of treaty.”
b. Legislative history of the Act authorizing negotiation shows that the
treaties were to reserve to the Indians those rights.
3. “There must be clear evidence that Congress actually considered the conflict between its
intended action on the one hand and Indian treaty rights on the other, and chose to resolve
that conflict by abrogating the treaty.” (Quoting Dion (1986).)
iii. (Rehnquist, J., dissenting):
1. Presidential Power over Public Land. “Because the 1837 Treaty, in conjunction
with the Presidential power of public lands gave the president the power to
order removal in conjunction with his termination of the hunting rights, the
Court’s severability analysis is unnecessary.”
2. “Temporary and Precarious” Analysis of Hunting & Fishing Privilege. “The privilege
was only guaranteed ‘during the pleasure of the President’; the legally
enforceable annuity payments themselves were to terminate after 20 years; and
13
the Indians were on actual notice that the President might end the rights in the
future.”
f. Construction in favor of sovereignty – Harjo v. Kleppe (D.D.C. 1976) (Bryant, J.) (Self-
Determination):
i. Facts: The Removal Act of 1832 granted the right to perpetual self-government to the
Creeks. Federal jurisdiction later extended over the territory, including Indians within,
via the Appropriation Act of 1897. When the tribe refused to budge on its anti-
allotment position, the Congress enacted the Curtis Act, providing for its forced
allotment and the eventual termination of tribal tenure. Although the Five Tribes Act
(1906) put much presidential supervision over tribal government, it states that the
tribal government “continued in full force and effect.” The Department of the
Interior refused to permit the conducting of the tribal government pursuant to the Act.
The “National Council” no longer convened but instead the “Creek Convention” of
tribal leaders and members assume former role of the Council.
ii. Holding: “As this Court’s examination of the relevant statutes and history makes clear,
not only did the Congress not terminate the sovereign status of the tribe, it expressly reaffirmed that
status.”
B. “Conservative” Formulations:
a. Guardian/Wards Relationship:
i. United States v. Kagama (1886) (Miller, J.):
1. Facts: Two Indians were indicted under the Major Crimes Act for murdering
another on the Hoopa Valley Reservation in California. Challenged the Major
Crimes Act as outside of the power of Congress.
2. Holding: The Major Crimes Act was within the power of the Congress. Duty of
the Government to protect Indians accorded by the guardian-wards relationship.
a. “These Indian tribes are the wards of the nation. They are
communities dependent on the United States.”
b. “From their very weakness and helplessness, so largely due to the course of dealing of
the Federal Government with them and the treaties in which it has been promised,
there arises the duty of protection and with it the power.”
c. “The power of the General Government over these remnants of a race
one powerful, now weak and diminished in numbers is necessary to
their protection, as well as to the safety of those among whom they
dwell.”
ii. United States v. Sandoval (1913) (Vandeventer, J.) (Allotment & Assimilation):
1. Facts: The Court deals with the question whether the pueblo lands were
“Indian country” over which the legislative authority of Congress extends. The
Pueblos’ lands, unlike Indian reservations, were owned communally in fee
simple … under grants from the Spanish government, later confirmed by
Congress.
2. Holding: Under the guardian-ward relationship, the authority of Congress to prohibit the
introduction of liquor into the Indian country extends to Pueblo land.
a. “The people of pueblos, although sedentary rather than nomadic in
their inclinations, and disposed to peace and industry, are nevertheless
Indians in race, customs, and domestic government.”
b. “Congress, in pursuance of the long-established policy of the
Government, has a right to determine for itself when the guardianship
14
which has been maintained over the Indian shall cease. It is for that
body, and not for the courts, to determine when the true interests of
the Indian require his release from such condition of tutelage.”
b. Plenary Power of Congress – Lone Wolf v. Hitchcock (1903) (White, J.) (Allotment &
Assimilation):
i. Facts: The Treaty of Medicine Lodge Creek (1867) provides that any further cessions
of the Kiowas land required the signatures of ¾ of all adult male. The agreement to
sell the land was signed by the requisite ¾ and approved by Congress in 1900 as a
rider. Latter census shows that the agreement may not have had the requisite
signatures and those who signed may have been fraudulently induced. Lone Wolf and
others sough to invalidate the bill.
ii. Holding: “Plenary authority over the tribal relations of the Indians has been exercised by Congress
from the beginning, and the power has always been deemed a political one, not subject to be controlled
by the judicia[ry].”
1. “[A]s with treaties made with foreign nations … the legislative power must
pass laws in conflict with the treaties.”
2. “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 Indian
themselves, that it should do so.”
3. “We must presume that Congress acted in perfect good faith in the dealings
with the Indians of which complaint is made, and that the legislative branch of
the government exercised its best judgment in the premises.”
c. Arguments for the Lone Wolf Plenary Power – Chambers, 27 Stan. L. Rev. 1213:
i. Unfair Distribution of Resources – Strict adherence to the terms of treaties would distribute
an undue share of the nation’s wealth to Indians.
ii. Impreciseness of Treaties – Treaties are too imprecise to permit rigorous judicial
enforcement.
iii. Flexible Public Policy – The rule preserves necessary flexibility in the formulation of
public policies.
d. Doctrine of rebus sic stantibus – change of circumstance. It might be appropriate for the
court or Congress to simply void Indian treaties on the basis of international law doctrine, the
rule that treaty provisions cease to be binding when the original situation has been wholly
altered by the passage of time. Higgins, 3 Ariz. L. Rev. 74 (1961).
15
Treaty Abrogation
A. Clear evidence that the Congress intends to abrogate – United States v. Dion (1986) (Marshall,
J.):
a. Facts: Dion was convicted of shooting bald eagles on the Yankton Sioux reservation in
violation of the Endangered Species Act. The 1858 Treaty “guaranteed the Yanktons quiet
and undisturbed possession of their reserved land.” No restriction was placed on the
Yankton’s hunting rights.
b. Holding:
i. “As a general rule, Indians enjoy exclusive rights to hunt and fish on lands reserved to
them, unless such rights were clearly relinquished by treaty or have been modified by
Congress.”
ii. No per se rule in abrogation. “What is essential is clear evidence that Congress actually
considered the conflict between its intended action on the one hand and Indian treaty rights on the
other, and chose to resolve that conflict by abrogating the treaty.” Though explicit statement by
Congress is preferable.
1. Though originally the Eagle Protection Act is silent as to the hunting rights and
only covered bald eagles, the 1962 amendments to the Act are significant:
a. Extended the ban to golden eagles.
b. Secretary may exempt, by permit, taking of eagles.
c. Bald Eagles may not be taken for any purpose, unless a permit is
obtained.
2. “Congress expressly chose to set in place a regime in which the Secretary of the
Interior had control over Indian hunting, rather than one in which Indian on-
reservation hunting was unrestricted.”
3. “[W]e find respondent’s contention that the 1962 Congress did not understand
the Act to ban all Indian hunting of eagles simply irreconcilable with the statute
on its face.”
B. Dion Reaffirmed – South Dakota v. Borland (1993) (Thomas, J.):
a. Facts: Cheyenne River Sioux tribe attempts to regulate hunting and fishing by non-Indians on
lands and overlying water located within the tribe’s reservation in South Dakota. The Fort
Laramie Treaty of 1868 promised that the tribe’s reservation was to be held by the United
States for its “absolute and undisturbed use and occupation.” In 1944, Congress passed the
Flood Control Act, which authorized the construction of a dam and the taking of tribal trust
lands. The Act reserved the tribe the right to hunt and fish “subject however to regulations
governing the corresponding use by other citizens of the United States.
b. Holding: “The limitations above are “indications that Congress sought to divest the Tribe of
its right to ‘absolute and undisturbed use and occupation’ of the taken area. When Congress
reserves limited rights to a tribe or it s members, the very presence of such a limited reservation of rights suggests
that the Indians would otherwise be treated like the public at large.”
c. (Souter, J., dissenting): “Congress’ failure to address the subject of the Tribe’s regulatory authority over
hunting and fishing means that the Tribe’s authority survives and not the reverse.” “To imply an intent to
abrogate Indian rights from such congressional silence once again ignores the principles that
‘Congress’ intention to abrogate Indian treaty rights be clear and plain” … and that “statutes
are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to
their benefit.”
16
C. Arguments for the Menominee Expressed Abrogation Standard – Wilkinson & Volkman, 63
Cal. L. Rev. 601 (1975):
a. Consistent with fiduciary duty. Ensure that decisions are made in a manner consonant with
“the most exacting fiduciary standards” to which the federal government must be held in its
dealings with Indians.”
b. Easy rectification by Congress. It has been known to pass a Joint Resolution in one day
when this Court interpreted an Act in a way it did not like.
D. Congress not required? Delegation Doctrine to uphold taking. “Congress need not itself
specifically and expressly authorize by “special enactment” each particular taking of Indian land, but
can choose to delegate some of its authority to administrative offices and agencies. We see no reason
to interfere with this reasonable exercise of delegated administrative discretion as to the amount of
land required for relocation of the road.” Senaca Nation of Indians v. United States (2d. Cir. 1964)
(Upholding the Secretary of the Army’s order to condemn land to expand service road to the
reservoir on a reservation).
17
Federal Statute of General Applicability
A. “Pro-Tribe” View:
a. A federal statute of general applicability that is silent on the issue of applicability to
Indian tribes will NOT apply to them IF (Donovan v. Coeur d’Alene Tribal Farm (9th Cir.
1985)):
i. The law touches “exclusive rights of self-governance in purely intramural matters”;
ii. The application of the law to the tribe would “abrogate rights guaranteed by Indian
treaties”; OR
iii. There is proof “by legislative history or some other means that Congress intended [the
law] not to apply to Indians on their reservation.”
b. Tribal sovereign immunity as bar to action. The Eleventh Circuit found that the ADA did
apply to a restaurant and entertainment facility owned and operated by the Miccosukee Tribe.
However, that Congress did not unequivocally express an intent to abrogate tribal sovereign
immunity from private suits under the Act. Florida Paraplegic Assoc. v. Miccosukee Tribe
(11th Cir. 1999).
c. Tenth Circuit: OSHA not applicable in derogation of exclusivity of Treaty. Donovan v.
Navajo Forest Products Industries (10th Cir. 1985).
B. “Anti-Tribe” View:
a. General Acts of Congress applies unless there is a ‘clear expression to the contrary’:
Federal Power Act enables licensees of FPC to condemn lands needed for a project. The
Court held the power to apply to Tuscarora lands. Because the Tuscaroras held fee lands,
provision in the Act, preventing condemnation where it would “interfere or be inconsistent
with the purpose for which reservation was created or established,” did not protect them. The
majority found that the tribal fee land could be taken because “general Acts of Congress apply to
Indians as well as to all others in the absence of a clear expression to the contrary.” FPC v. Tuscarora
Indian Nation (1960).
b. Specific Statutory Exemption Required? The Court held that FOIA applies to
communications between a tribal government and federal agencies. Rejecting the
Government’s request to read an “Indian trust” exemption into the statute, the Court ruled
“[t]here is simply no support for the exemption in the statutory text, which we have elsewhere insisted be read
strictly in order to serve FOIA’s mandate of broad disclosure.”
c. Ninth Circuit:
i. Generalized right of exclusion is insufficient to bar the application of OSHA.
Such right may exist independent of a treaty. U.S. Dept. of Labor v. Occupational
Safety & Health Review Comm. (9th Cir. 1991).
ii. ERISA applicable to tribe; no statutory exception. The court held that none of the
exceptions prevent application of ERISA to require the Warm Springs tribal sawmill to
contribute to the Lumber Industry Pension Fund on the behalf of employees even
though the tribe had its own plan. Lumber Industry Pension Fund v. Warm Springs
Forest Products Industry (9th Cir. 1991).
18
Trust Responsibility
A. Congressional v. Executive Accountabilities – Chambers, 27 Stan. L. Rev. 1213:
a. Congressional – “while courts recognize that Congress has a trust responsibility, they
uniformly regard it as essentially a moral obligation, without justiciable standard for its
enforcement.”
b. Executive – “Reading all the cases together … Congress intends specific adherence to the trust
responsibility by executive officials unless it has expressly provided otherwise. Such a
formulation preserves the role of Congress as the ultimate umpire of the purposes of the trust
relationship while requiring strict executive compliance with the terms of the trust.”
B. Executive Accountabilities:
a. Generally:
i. Fiduciary Standard – Seminole Nation v. United States (1942) (Murphy, J.):
1. Facts: Under an 1856 treaty, the U.S. promised to establish a trust fund, annual
interest of which to be paid to the Seminole. The Government knew that the
Seminole tribal officials were misappropriating the funds.
2. Holding: “[A] third party who pays money to a fiduciary for the benefit of the beneficiary,
with knowledge that the fiduciary intends to misappropriate the money or otherwise be false to
his trust, is a participant in the breach of trust and liable therefore to the beneficiary.”
a. “Consequently, the payments at the request of the Council did not
discharge the treaty obligation if the Government, for this purpose the
officials administering Indian affairs and disbursing Indian moneys,
actually knew that the Council was defrauding the members of the
Seminole Nation.”
b. The Government “has charged itself with moral obligations of the
highest responsibility and trust. Its conduct … should therefore be judged by
the most exacting fiduciary standards.”
ii. “Control or supervision” test. “[W]here the Federal Government takes on or has
control or supervision over tribal monies or properties, the fiduciary relationship
normally exists with respect to such monies or properties (unless Congress has
provided otherwise) even though nothing is said expressly in the authorizing or
underlying statute (or other fundamental document) about a trust fund, or a trust or
fiduciary connection.” United States v. Mitchell (1983).
b. Miscellaneous:
i. Responsibility towards non-recognized tribes – Joint Tribal Council of
Passamaquoddy Tribe v. Morton (1st Cir. 1975) (Campbell, J.):
1. Facts: In 1794, Massachusetts entered into a “treaty” with the Passamaquoddy
tribe, setting aside 23,000 acres of land for the tribe. In 1819, Maine separated
from Massachusetts. Its constitution provided that Maine would “assume and
perform all the duties and obligations” of Massachusetts towards Indians
within Maine. Tribe alleged that Maine had wrongfully violated the Treaty.
There were no treaties between the U.S. and the Tribe. They brought this
action against the Secretary and the AG after they refused to initiate a lawsuit
on the behalf of the Tribe.
2. Holding:
19
a. Congress intended that the word “tribe” as appeared in the Non-intercourse Act
includes tribes in general.
i. “[W]e find an inclusive reading consonant with the policy and
purpose of the Act. That policy has been said to be to protect
the Indian tribe’s right of occupancy, even when that right is
unrecognized.”
b. Trust relationship exists between the Passamaquoddy and the Government:
i. “The purpose of the Act has been held to acknowledge and
guarantee the Indian tribes’ right of occupancy, and clearly there
can be no meaningful guarantee without a corresponding federal duty.”
c. “[A]ny withdrawal of trust obligations by Congress would have to have been ‘plain
and unambiguous’ to be effective.”
i. “Congress alone has the right to determine when its
guardianship shall cease. Neither the Passamaquoddy Tribe nor
the State of Maine, separately or together, would have the right
to make that decision and so terminate the federal
government’s responsibilities.”
ii. General Allotment Act by itself creates only limited fiduciary relationship. The
Court held that the Act contemplated that “the allottee, and not the United States, was
to manage the land.” It created only a limited trust relationship between the United
States and the allottee that does not impose any duty upon the Government to manage
timber resource. United States v. Mitchell (1980).
iii. Imposed by Statutes. Having ruled on the case’s first trip up to the Court that the
General Allotment Act only imposed a limited fiduciary duty, the agreed with the
lower court on remand that the Indian timber management statute “give the Federal
Government full responsibility to manage Indian resources and land for the benefits of
the Indian.” United States v. Mitchell (1983).
c. On Administrative Law:
i. Reviewing administrative action in light of fiduciary duty – Pyramid Lake Piute
Tribe of Indians v. Morton (D.D.C. 1972) (Gesell, J.):
1. Facts: Pyramid Lake and the surrounding area was set-aside for the Piute Tribe
in an EO (1874). The Secretary entered into a contract with an irrigation
district to provide water from a canal that flows into the lake. The tribe claim
that the regulation aiming to divert water, promulgated in reliance of only
higher allowance, is arbitrary, capricious, and an abuse of Secretary’s authority.
2. Holding: The determination of the rationality of the decision must be made in light of three
major factors: the contract, the court decrees, and the Secretary’s trust responsibilities to the
tribe.
a. “In order to fulfill his fiduciary duty, the Secretary must insure, to the
extent of his power, that all water not obliged by court decree or
contract with the District goes to Pyramid Lake.”
b. “Undertakings with the Indians are to be liberally construed to the
benefit of the Indians.”
ii. Special Consideration in Reviewing Prosecutorial Discretion. Because if the trust
duty, prosecutorial discretion is a different matter in Indian law than in administrative
law generally, where the government’s decision not to prosecute are subject to judicial
review only in the rarest of circumstances. Dunlop v. Bachowski (1975).
20
iii. Additional publication requirement? The Supreme Court found unlawful the BIA’s
departure from past practice of extending general assistance benefit to those who live
“on or near reservation.” The BIA manual indicates that only those on reservations
are eligible. Though the APA does not require the eligibility requirement to be
published, the manual itself requires its publication. The Court found this procedural
deficiency to be fetal. “The denial of benefits …under such circumstances is inconsistent with ‘the
distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and
sometimes exploited people.” Morton v. Ruiz (1974).
iv. No trust obligation with lump-sum appropriations. The Court held that the IHS
need not engage in “notice and comment rulemaking” before discontinuing services to
handicapped Indian children because it’s a general statement of policy. The court
applied typical shielding for agency’s allocation of lump-sum appropriations, noting
that circumstances calling for trust obligation does not exist in the case. Lincoln v.
Vigil (1993).
C. Congressional Accountabilities:
a. “Rationally Tied” to trust obligation standard – Delaware Tribal Business Committee
v. Weeks (1977) (Brennan, J.):
i. Facts: The Kansas Delawares are not federally recognized. They are descendants of
Delaware Indians who accepted individual parcels of land in Kansas and agreed to
“dissolve their relations with their tribe” via an 1866 treaty. They were excluded from
the Congress’ distribution of an ICC judgment in favor of the original Delawares.
They allege that this is in violation of the Due Process Clause of the Fifth
Amendment.
ii. Holding: “Congress’ omission … was ‘rationally tied to the fulfillment of Congress’ unique
obligation toward the Indians.’”
1. “The power of Congress over Indian affairs may be of a plenary nature, but it
is not absolute.”
2. “The general rule … requires the judiciary to defer to congressional determination of what
is the beat or the most efficient use for which tribal funds should be
employed.”
3. “Kansas Delawares are not a recognized tribal entity but are simply individual
Indians with no vested rights in any tribal property.”
b. Fort Berthold Test: Incompatibility of Trustee and Eminent Domain – United States
v. Sioux Nation of Indians (1980) (Blackmun, J.):
i. Facts:
1. Fort Laramie Treaty of 1868 established the Great Sioux Reservation, which
included the Black Hills. The Treaty provides that further cessation must be
executed by ¾ of adult males.
2. In the midst of the popular demand to open up the Hills for gold speculation
(January 1876), the Indians were ordered back to the Reservation or be treated
as “hostiles.” Military conflict ensued and the U.S. was the eventual victor.
3. In 1876, Congress enacted appropriation bill providing that there would be no
further appropriation until the cession of the hunting territory and the Black
Hills, and agreed to become self-supportive.
4. In 1877, Congress ratified the agreement, signed by only 10% of the
population, far short of the Treaty requirement. In effect, abrogated the
Treaty.
21
ii. PP: Previous Taking claims dismissed. After ICC, the tribe re-filed and prevailed on
both Taking and “unfair and dishonorable dealings” causes. Court of Claims struck
the Taking cause on res judicata but damage stands under the ICC cause (which simply
mean no interests because it’s a non-Taking). In 1978, Congress allows the Court of
Claims to review Taking claims without regard to res judicata or collateral estoppel.
The Court of Claims now found that there had been a taking and awarded annual
interest of 5%.
iii. Holding: Affirmed. Congress cannot simultaneously: 1) act as trustee for the benefit of the Indians
and 2) exercise its sovereign power of eminent domain.
1. Lone Wolf distinguished. “Where Congress waives the Government’s sovereign
immunity, and expressly directs the courts to resolve a taking claim on the
merits, there would appear to be far less reason to apply Lone Wolf’s principles
of deference.”
2. “[W]e … look to the objective facts as revealed by Acts of Congress,
congressional committee reports, [etc.]”
3. “[A]n essential element of inquiry under the Fort Berthold guideline is determining the
adequacy of the consideration. … That inquiry cannot be avoided by the government’s simple
assertion that it acted in good faith in dealings with the Indians.”
iv. (Rehnquist, J., dissenting): “Congress has exceeded the legislative boundaries drawn by these
cases and the Constitution and exercised judicial power in a case already decided by
effectively ordering a new trial.”
D. CASE SUMMARY
E. PROCEDURAL POSTURE: Petitioner, the federal government (government), appealed a
decision of the United States Court of Claims for respondents, Native American tribes (tribes), on
their claim for compensation for the retaking of Black Hills of South Dakota, originally part of the
Great Sioux Reservation, finding that the taking was an exercise of eminent domain requiring just
compensation under the Fifth Amendment and awarding the value of the land plus interest.
OVERVIEW: The Black Hills (hills) were granted to the tribes by treaty in 1868. In 1877, after
gold was found, Congress passed an act taking the hills back. In 1923 the tribes petitioned the
claims court for compensation, which was denied in 1942, but Congress later directed the claims
court to review the merits of the hills takings claim without regard to the defense of res judicata.
In 1978 the claims court finally found for the tribes. The Court affirmed, finding that Congress's
waiver of the defense of res judicata did not violate the doctrine of separation of powers, as
Congress had not tried to interfere with the claims court's ultimate decision on the merits. The
Court also found that the claims court had used the proper legal standard, and the record
supported the factual findings and the conclusion that the hills were appropriated in circumstances
which involved an implied undertaking by the government to make just compensation to the
tribes, and that the undertaking of an obligation to provide rations for the tribes was a quid pro
quo for depriving them of their chosen way of life and was not intended to compensate them for
the taking of the hills, and thus compensation was due.
OUTCOME: The Court concluded that the legal analysis and factual findings of the claims court
fully supported its conclusion that Congress had effected a taking of tribal property, property
which had been set aside for the exclusive occupation of the tribes, which taking implied an
obligation on the part of the government to make just compensation to the tribes, and that
obligation, including an award of interest, had to, at last, be paid.
22
Tribal Property Interests
A. Treaty Reservations:
a. Presumption of tribal ownership of lands, minerals, and timber – United States v.
Shoshone Tribe of Indians (1938) (Butler, J.):
i. Facts: The United States set apart for the Shoshone Tribe a reservation in the Treaty of
1863. The tribe ceded that land in the Treaty of 1868 and the United States agreed
that the land described in the new treaty “shall be and the same is set apart for the
absolute and undisturbed use and occupation of the Shoshone Indians.” Some time in
1878, the government put the Northern Arapahoe Indians on the reservation without
the Shoshones’ consent. In 1904, both tribes ceded to the United States land to be
held in trust, the profits from which were distributed to Indians of both tribes. The
tribe sought to recover the one-half portion taken.
ii. Holding: “Transaction between a guardian and his ward are to be construed favorable to the latter,
doubts … as to ownership of lands, minerals, or timber would be resolved in favor of the tribe.”
1. “The treaty, though made with knowledge that there were mineral deposits and
standing timber in the reservation, contains nothing to suggest that the United
States intended to retain for itself any beneficial interest in them.”
2. The creation of trust in 1904 is also inconsistent with other construction.
3. “[A]lthough the United States always had legal title to the land and power to control and
manage the affairs of the Indians, it did not have power to give to others or to appropriate to
its own use any part of the land without rendering, or assuming the obligation to pay, just
compensation to the tribe, for it would be, not the exercise of guardianship or management,
but confiscation.”
b. Limit to individual Indian action as to resources – United States could bring action of
replevin to recover possession of reservation timber cut and sold by tribal members to non-
Indian. United States v. Cook (1873).
c.
B. Executive Order Reservations:

a. Takings of Executive Order lands compensable but subject to the “no-interest” rule
because of “non-recognized” title:
i. Takings before 1946  must have filed by August 1951  Indian Claims Commission
(now dissolved, cases transferred to the Court of Claims). The Indian Claims
Commission Act of 1946.
ii. Takings after 1946  the Court of Claims. 28 U.S.C. § 1505.
b. No compensation where it’s at-will and without obligations – Sioux Tribe v. United
States (1942) (Byrnes, J.):
i. Facts: In 1875 and 1876, the President issued executive orders setting aside four
tracts of lands for the use of Sioux Tribe. In 1879 and 1884, upon recommendation by
the Commissioner of Indian Affair, the President signed executive orders returning the
lands to the public domain.
ii. Holding: Compensation is not required where “the interest which the Indians received was subject to
termination at will of either the executive or Congress and without obligation to the United States.”
1. “The answer to whether a similar delegation occurred with respect to the
power to convey a compensable interest in these lands to the Indians must be
23
found in the available evidence of what consequences were thought by the

executive and Congress to flow from the establishment of executive order
reservations.”
CASE SUMMARY
1. PROCEDURAL POSTURE: Petitioner Indian tribe sought review of the
judgment from the Court of Claims, which denied the tribe recovery of
compensation for land stated to have been taken from the tribe by defendant
United States.
OVERVIEW: Four executive orders were issued withdrawing lands from

public sale and setting them apart for the tribe's use. A stated purpose behind
the executive orders was to stifle the liquor trade in the area. Several years
later an executive order restored three of the parcels of land to the public
domain. The tribe sought compensation from the United States asserting that
a taking occurred when the land was restored to the public domain. On
appeal, the court affirmed the order denying compensation to the tribe. The
court concluded that: (1) there was no express constitutional or statutory
authorization for the conveyance of a compensable interest to the tribe; (2)
the congressional and executive understandings of such executive
conveyances did not imply that the tribe had received a compensable interest
in the property; and (3) the executive orders were effective to grant the tribe
the use of the property, but they were terminable at the will of the President
or Congress without any financial obligation on the part of the United
States.
OUTCOME: The court affirmed the judgment denying compensation to the

tribe for land that was placed back into the public domain.
b. No compensation even where the EO was issued to correct erroneous surveys affecting
the Treaty. The President issued an executive order restoring the land to the tribe that had
been excluded from the treaty reservation by an erroneous survey. To punish the Indians for
the “Meeker Massacre,” the government procured a cession “all the territory of the present
Ute reservation” and agreement to remove to other land. They were subsequently
compensated for all but the EO part. The Court rejected argument that the Congress’
ratification of the latter agreement was a confirmation of the understanding that the EO part
has always been part of the reservation. Ute Indians v. United States (1947).
c. No change to EO Reservations’ boundaries except by an act of Congress. 25 U.S.C. §
398d.
d. Arguments for property interests in EO Reservations – 69 Yale L.J. 627 (1960) – rejected
in Sekaquaptewa v. MacDonald (D.Ariz. 1978) – “Congress has not in practice discriminated between
the property interests of … treaty and Executive Order reservations”:
i. Unlike the Executive, Congress always compensates – “whenever Congress has reduced or
revoked an Executive Order reservation, it has compensated the affected tribes in the
same manner as it compensated for … treaty lands.”
ii. Other similar treatments. “Congress has treated all reservations alike for the purposes of
annual appropriations, expenditures of the [BIA], permanent capital improvements on
reservations, and termination of federal control over specific tribes.”
24
e. Failure to assert a claim in the EO tribal title in the Commission precludes any claim
from being asserted later. Navajo Tribe of Indians v. New Mexico (10th Cir. 1987).
B. Fee Land:
a. Fee land held by tribes may not be conveyed without the consent of the United States -
example:
i. Pueblos of New Mexico – its land transaction covered by Pueblo Lands Act of 1924.
Mountain States T&T v. Pueblo of Santa Ana (1985).
ii. Tuscarora of New York – its land transaction covered by Non-intercourse Act.
Oneida Indian Nation v. Oneida County (1974).
C. Aboriginal Title:
a. Definite congressional accord of legal rights required for compensation – Tee-Hit-Ton
Indians v. United States (1955) (Reed, J.):
i. Facts:
1. In 1867, Russia conveyed Alaska to the United States.
2. The Organic Act for Alaska (1884) stated that “the Indians or other persons in
said district shall not be disturbed in the possession of any lands actually in
their use or occupation or now claimed by them but the terms under which
such person may acquire title to such lands is reserved for future legislation by
Congress.
3. The Act of 1900 – provide for a civil government in Alaska – “Indians or
persons conducting schools or missions in the district shall not be disturbed in
the possession of any lands now actually in their use or occupation.”
4. Joint Resolution passed in 1947 authorized for the sale of national forest
timber located within the Tongass National Forest, receipts of which are
maintained in escrow until rights are determined. “Nothing in this resolution
shall be construed as recognizing or denying validity of any claims of
possessory rights (defined to include ‘aboriginal occupancy or title’).”
5. The Alaskan area in which petitioner claims a compensable interest is located
near and within the National Forest.
ii. Holding: “There must be definite intention by congressional action or authority to accord legal rights,
not merely permissive occupation.” There is “nothing to indicate any intention by Congress
to grant to the Indians any permanent rights in the lands of Alaska.”
1. “Indian occupation of land without government recognition of ownership
creates no rights against taking or extinction by the United States protected by
the Fifth Amendment or any other principle of law.”
iii. (Douglas, J., dissenting): Legislative history shows that the Congress intended that the Indians
keep what they had prior to the Organic Act for Alaska, that conflicting claims would be
reconciled, and that the Indian lands would be put into reservation.
b. Real & formal recognition required for compensation. The court held that Congress
recognized the pueblos by its assignment of surveyor to carryout the survey for further
proceeding. However, because the surveyor failed to carryout the mandate as to the Zuni,
there was no formal recognition of Zuni title. Zuni Indian Tribe of New Mexico v. United
States (Ct. Cl. 1989).
c. Federal common law action and no legal basis to bar claims – County of Oneida v.
Oneida Indian Nation (1985) (Powell, J.):
25
i. Facts: The first Indian Trade and Non-intercourse Act (1790) prohibited the
conveyance of Indian land except where such conveyances were entered pursuant to
the Treaty power of the United States. Ignoring the warning from the Secretary of
War, in 1795, New York bought 100,000 acres of land from the Oneidas.
ii. PP: District Court found that the 1795 conveyance did not comply with the
requirements of the Non-intercourse Act.
1. Holding:
a. Oneidas can maintain this action for violation of their possessory
rights based on federal common law.
i. Many cases suggest so:
1. Johnson v. McIntosh invalidated private purchases of
Indian land.
2. Another case held that “an action of ejectment could be
maintained on an Indian right to occupancy and use.
3. The Court has held that the Indians have a common
law right of action for an accounting of “all rents, issues
and profits.”
ii. “Indians’ right of occupancy need not be based on treaty, statute or other
formal Government action.”
b. No Preemption by Federal Statute. In determining whether a federal
statute pre-empts common-law causes of action, the relevant inquire is
whether the statute speaks directly to the question otherwise answered by federal
common law. The Non-intercourse Act of 1793 does not speak directly
to the question of remedies for unlawful conveyances of Indian land.
c. No legal basis to bar claims:
i. Statute of Limitations. In the absence of a controlling federal
limitations period, the general rule is that a state limitations
period for an analogous cause of action is borrows and applied
to the federal claim, provided that application of the state
statute would not inconsistent with the underlying federal
policies. It would be in violation of Congress’ will were we to hold that a
state statute of limitations period should be borrowed in these
circumstances.
ii. Ratification. Latter treaties by the United States in which the
Oneidas ceded additional land to New York does not constitute
ratification of the conveyance at issue. “[T]reaties should be
construed liberally in favor of the Indians.”
iii. Political Question. Though Congress has plenary power in Indian
affairs, it “does not mean that litigation involving such matters
necessarily entails nonjusticiable political question.”
2. (Stevens, J., dissenting): The action is barred by the equitable doctrine of laches.
a. “The elders of the Oneida Indian Nation received comparable notice
of their capacity to maintain the federal claim that is at issue in this
litigation. They made no attempt to asset the claim, and their
successors in interest waited 175 years before bringing the suit.”
b. “The counties and the private property owners … have erected costly
improvement on the property in reliance on the validity of their title.”
26
d. Extinguishments by historical events. The Vermont Supreme Court held that the
Abenakis’ aboriginal rights were extinguished by “a series of historical events” and that its
members were subject to fishing regulations. The court was particularly persuaded by “the
phenomenon of white settlement.” State v. Elliot (Vt. 1992).
e. Upheld by history of legislative recognition. The Massachusetts Supreme Court held that
because the town’s regulation on soft-shell clams “cannot be said unambiguously to apply to
[the Wampanoags],” they could not be prosecuted for exercising their aboriginal rights to fish
for sustenance. In particular, the court cited 200-year-old statute, which contains provision to
not disturb aboriginal rights to shellfish. Commonwealth v. Maxim (Mass. 1999).
f. When brought under Indian Claims Commission Act (Pre-1946 claims filed by 1955) –
loss of original Indian title were compensable. Otoe and Missouri Tribe v. United States
(Ct. Cl. 1955).
g. Individual aboriginal title may exist but subject to changes in public land policy. A
Western Shoshone was held to have had an individual aboriginal right to occupy one section
of land and to graze stock on others. Individual Indians’ rights were subject to changes in
public land policy. Here, the 1934 Taylor Grazing Act withdrew all unappropriated land from
settlement, it ended the possibility of late obtaining or increasing individual “aboriginal” title
through the implied consent of the government. United States v. Dann (9th Cir. 1989).
D. Indian Claims Commission Act of 1946:

a. Mission: Three-, later five-, member commission to adjudicate Indian tribal, non-individual
claims arising before the passage of the Act. So claims resulted from allotment policy obviously
won’t count.
b. Awards:
i. Monetary only.
ii. Interest Rules:
1. Recognized Title – simple interest.
2. Non-recognized Title – no interest; simple value at Taking.
iii. Off-Set: Gratuities rendered to the tribes (excluding health and educational
expenditures and federal expenses in connection with removal) only when the
Commission finds that the “entire course of dealings … in good conscience warrants
such action.”
iv. Distribution – Distribution of Judgment Funds Act (1973):
1. Distribution plan developed by tribes and approved by the Secretary.
2. At least 20% must be set aside for tribal needs, unless the circumstances
“clearly warrant otherwise.”
c. Filing Deadline: August 13, 1951.
d. Type of Claims:
i. “Claims in law or equity arising under the Constitution, laws, treaties of the United
States, and Executive Orders of the President.” § 1.
ii. “All other claims in law or equity, including those sounding in tort, with respect to
which the claimant would have been entitled to sue in [the federal court] if the United
States was subject to suit.” § 2.
iii. “Claims … on the ground of fraud, duress, unconscionable consideration, mutual or
unilateral mistake, whether of law or fact, or any other ground cognizable by a court of
equity.” § 3.
iv. “Claims arising from the taking by the United States … of lands owned or occupied by
the claimant without … compensation agreed to by the claimant.” § 4.
27
v. “Claims based upon fair and honorable dealings that are not recognized by any existing
rule of law or equity.” § 5.
e. Full Discharge Rule - A final claims award precludes a tribe from asserting that no taking has
ever occurred and that the tribe continues to own the land. 25 U.S.C. § 70v.
i. Effective even where money disbursed had not been distributed. The deposit in
the trust account amounted to “payment” and that any tribal claim to aboriginal title
had been extinguished. West Shoshone National Council v. Molini (9th Cir. 1991).
E. Submerged Land:
a. Title to the riverbed passed to the state upon its admission to the union – Montana v.
United States (1981) (Stewart, J.): Equal Footing Doctrine
i. Facts:
1. First Treaty of Fort Laramie (1851) identified Crow territory and specifically
state that the Tribe did not “surrender the privilege of hunting, fishing, or
passing over” any of the lands in dispute.
2. Second Treaty of Fort Laramie (1868) established a Crow Reservation, through
which the Big Horn River flows and stated that the reservation “shall be set
apart for the absolute and undisturbed use and occupation” and that no non-
Indian shall ever be permitted on the reservation.
3. The Crow Tribe passed a resolution prohibiting hunting and fishing within the
reservation by non-Indian. Montana continued to assert its authority over
hunting and fishing by non-Indian. United State brought the suit on behalf of
the tribe.
ii. Holding: The title to the riverbed passed to the state upon its admission into the Union.
1. Presumption: “Conveyance by the United States of land riparian to a navigable
river carries no interest in the riverbed. Rather, the ownership of land under
navigable waters is an incident of sovereignty. As a general principle, the Federal
Government holds such lands in trust for future States, to be granted to such states
when they center the union and assume sovereignty on an equal footing with
the established states.”
2. “But because control over the property underlying navigable waters is so
strongly identified with the sovereign power of government, it will not be held
that the United States has conveyed such land ‘except because of some special duty or
exigency’ … and must not infer such a conveyance ‘unless the intention was definitely declared
or otherwise made plain.’
3. “The mere fact that the bed of a navigable water lies within the boundaries
describes in the treaty does not make the riverbed part of the conveyed land,
especially when there is no express reference to the riverbed that might
overcome the presumption against its conveyance.
b. But title of riverbed passed on to the tribe if they are dependent on fisheries. “[W]here a
grant of real property to an Indian tribe includes within its boundaries a navigable water and
the grant is made to a tribe dependent on fishery resource in that water for survival, the grant
must be construed to include the submerged lands if the Government was plainly aware of the
vital importance of the submerged lands and the water resource to the tribe at the time of the
grant.” Puyallup Tribe of Indians v. Port of Tacoma (9th Cir. 1984).
c. Intent inferred from boundary line. The description of reservation included boundary line
bisecting a lake, showing intent to convey the lakebed. The tribe also relied on fishing.
Confederated Salish & Kootenai Tribes v. Namen (9th Cir. 1982).
28
d. Intent drawn from history of dealings between tribe and the government. The
negotiating history between the Tribe and Congress and subsequent events plainly evidenced
that Congress recognized the Executive Order reservation lying within the stated boundaries it
ultimately confirmed by legislation, and intended to bar passage to Idaho of title to the
submerged lands within the reservation boundaries absent “negotiated consensual transfer.”
Idaho v. United States (2001).
e. No compensation for riverbed interests damaged by federal navigation improvement
because of servitude. “[W]e cannot conclude that [the tribes] – though granted a degree of
sovereignty over tribal lands – gained an exemption from the servitude simply because it
received title to the riverbed interests. Such a waiver sovereign authority will not be implied,
but instead must be surrendered in unmistakable terms.” United States v. Cherokee Nation of
Oklahoma (1987).
F. Indian Land Consolidation Act of 1982, 25 U.S.C. § 2201-11 – Allowing tribes to adopt, with the
consent of the Secretary, plans providing for the sales and exchanges of tribal lands in order to
eliminate fractional interests and consolidate tribal holding:
a. To purchase allotments with the consent of at least 50% of the owners; and
b. To provide escheat to the tribe of individual interests that represent <2% of the tract which
failed to earn $100 in the year before death.
i. Unconstitutional Taking without just compensation. Hodel v. Irving (1987). The
amended version, which allows for the decedent to devise his interest to any other
owner of an undivided fractional interest, was also held unconstitutional on the same
ground. Babbitt v. Youpee (1997).
29
Applicability of Federal Constitution

A. Power of Self-Government Predates the Constitution; 5th Amendment Inapplicable – Talton
v. Mayes (1896) (White, J.):
a. Facts: Appellant and victim are both Cherokee Indians. The murder occurred on Cherokee
Territory. The treaties of 1835 and 1868 provided that the tribal lands would never be
included within any territory. The act establishing the Territory of Oklahoma provided that
Indian would retain exclusive jurisdiction over crimes committed by members. The crime was
not a federal offense. Appellant asserts that the five-person grand jury was not a grand jury under
the Fifth Amendment.
b. Question: Does the 5th Amendment apply to the local legislation of the Cherokee nation?
c. Holding: “[A]s the powers of local self government enjoyed by the Cherokee nation existed prior to the
Constitution, they are not operated upon by the Fifth Amendment.”
i. “[T]he existence of the right in Congress to regulate the manner in which the local
powers of the Cherokee nation shall be exercised does not render such local powers
Federal powers arising from and created by the Constitution.”
B. 1st Amendment inapplicable to Indian nations.
a. Peyote Regulation. The court found that by its terms the First Amendment was made
applicable only to Congress and, through the Fourteenth Amendment to the State: “No
provision in the Constitution makes the First Amendment applicable to Indian nations nor is
there any law of Congress doing so.” Native American Church v. Navajo Tribal Council (10th
Cir. 1959) (Native American Church challenging tribal ordinance banning peyote).
b. Religious Activities. The court upheld the action of the pueblo in refusing to admit
Protestant missionaries and not allowing them to build churches. Toledo v. Pueblo De Jemez
(D.N.M. 1954).
C. Double Jeopardy Clause does not bar prosecution by separate sovereigns – United States v.
Wheeler (1978) (Stewart, J.):
a. Facts: Defendant pled guilty in Navajo Tribal Court to disorderly conduct and to contributing
to the delinquency of minor. A year later, he was indicted in federal court for rape arising
from the same incident (via Major Crimes Act). He challenged the Government’s action under
Double Jeopardy Clause.
b. Holding: “Since tribal and federal prosecutions are brought by separate sovereigns, they are not ‘for the same
offence,’ and the Double Jeopardy Clause thus does not bar one when the other has occurred.”
i. “In sum, the power to punish offenses against tribal law committed by Tribe members,
which was part of the Navajo’s primeval sovereignty, has never been taken away from
them, either explicitly or implicitly, and is attributable in no way to any delegation to
them of federal authority.”
ii. “In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by
treaty or statute, or by implication as necessary result of their dependent status.”
30
Sovereign Immunity
A. In General:
a. Runs to the tribe, not to the tribal land. Immunity may apply even though an incident such
as an alleged tort or contract breach, occurs off-reservation: “To date, our cases have sustained
tribal immunity from suit without drawing a distinction based on where the tribal activities
occurred.” Kiowa Tribe v. Manufacturing Technologies, Inc. (1998).
b. Disclosure Requirement in Major Contracts. The Indian Tribal Economic Development
and Contracts Encouragement Act (1999) requires disclosure of Indian tribal sovereign
immunity in contractual situations covered under the major Indians contracting statute.
c. Criticism of tribal sovereign immunity:
i. Unfair to non-members living within or doing business on Indian reservations.
1. Narrow Exception – where the case involves the alleged deprivation of a non-Indian’s
real property interests in the absence of an adequate tribal remedy: “[T]here has to be a
forum where the dispute can be settled. … [T]o hold that they have access to
no court is to hold they have constitutional rights which have no remedy. Dry
Creek Lodge, Inc. v. Arapaho and Shoshone Tribes (10th Cir. 1980) (BIA
allowed a non-Indian to build a guesthouse, then Indians blocked access road).
ii. Hamper reservation economic development efforts – Businesses may be deterred by
the lack of remedies for contractual breach or torts.
1. Solutions:
a. Contractual agreement.
b. Creation of subordinate entitles whose assets not immune from suits.
Determinative factors (Arizona Supreme Court):
i. Separation from tribal government.
ii. Exposure of tribal assets to liabilities.
iii. Governmental function.
iv. Legally formed corporation.
v. Federal policies (protecting tribal assets, cultural autonomy,
self-determination, promoting business relations.)
B. Scope of Immunity:
a. Immunity not extended over tribal officials. “[A] suit to enjoin violations of state law by
individual tribal members is permissible.” Puyallup Tribe v. Dep’t of Game (1977).
b. Not shielded against suit by the United States:
i. Tribal sovereign immunity defense are not a shield against suit by the United States.
United States v. Yakima Tribal Court of the Yakima Indian Nation (9th Cir. 1986).
ii. “[J]ust as a state may not assert sovereign immunity as against the federal government,
neither may an Indian tribe, as a dependent nation do so.” United States v. Red Lake
Band of Chippewa Indians (8th Cir. 1987) (The tribe attempting to distinguish Yakima
by asserting that the Yakimas waived their immunity by filing a suit against the United
States).
c. Eleventh Amendment Implications:
i. Tribes cannot sue the States directly. Such suit is barred by the Eleventh
Amendment sovereign immunity. Blatchford v. Village of Noatak (1991). The tribes
31
must rely on the United States, who is not barred by the Eleventh Amendment, to
bring suits on their behalf.
ii. Tribes cannot sue the State officials. The Court found the injunction sought by the
tribe to be “close to the functional equivalent of quiet title” because it would
effectively extinguish the state’s control over the land. Idaho v. Coeur d’Alene (1997).
C. Waivers:
a. Congressional authorization/tribal consent required for waivers. “As a matter of federal
law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe
has waived its immunity.” Kiowa Tribe v. Manufacturing Technologies, Inc. (1998).
b. Waiver – Congressional approval probably not required:
i. IRA Tribes – The grant of power under the IRA “is broad enough to encompass
express waiver of sovereign immunity to suit when the ordinance, as here, has been
approved by the Secretary of the Interior.” Merrion v. Jicarilla (10th Cir. 1980).
ii. Non-IRA – Tribes may consent without express congressional authority. Big Spring v.
BIA (9th Cir. 1985).
c. Filing suits does not waive the immunity. The Court has held that a tribe did not expose
itself to a counterclaim by the states when it sued to enjoin application of a state sales tax to
on-reservation cigarette sales. Oklahoma Tax Comm’n v. Citizen Band of Potawatomi Indian
Tribe (1991).
d. Insurance Policy Immaterial – Tribal sovereignty was not waived by Indian Self-
Determination Act provision vesting Secretary with power to require tribes to carry insurance.
Evans v. McKay (9th Cir. 1989).
e. Arbitration Clause = A Waiver: Indian tribe waived its immunity from suit in Oklahoma
state court when it expressly agreed to an arbitration clause in a tribal contract with a non-
Indian contractor. The arbitration clause “has a real world objective; it is not designed for
regulation of a game lacking practical consequences.” C&L Enterprises, Inc. v. Citizen Band
Potawatomi Indian Tribe of Oklahoma (2001).
32
Diminishment & “Indian Country”

A. Indian Country:
a. Definition – 18 U.S.C. § 1151 (1948):
i. “[A]ll land within the limits of any Indian reservation under the jurisdiction of the
United States government, notwithstanding the issuance of any patent, and, including
rights-of-way running through the reservation.”
1. Includes EO Reservation. The Court held that land set aside from the public
domain by Executive order for use as an Indian reservation was Indian
country. Donnelly v. United States.
ii. “[A]ll dependent Indian communities within the borders of the United States whether
within the original or subsequently acquired territory thereof, and whether within or
without the limits of a state.”
iii. “[A]ll Indian allotments, the Indian titles to which have not been extinguished,
including rights-of-way running through the same.”
1. As long as Indians hold titles. Allotted land within the Colville reservation,
which had been terminated and placed in the public domain, was nevertheless
Indian country, so long as an Indian held title to the allotted parcel. United
States v. Pelican (1914).
b. 18 U.S.C. § 1151 applicable as well to civil jurisdiction. DeCoteau v. District County Court
(1975).
B. Diminishment:
a. Expressed language w/ sum certain, surrounding circumstance of passage, or
subsequent events (de facto/de jure) – Solem v. Bartlett (1984) (Marshall, J.):
i. Facts: Respondent, a Cheyenne River Sioux, pleaded guilty to attempted rape under
South Dakota law. The crime occurred on the portion of Cheyenne River Sioux
Reservation (established by Congress in 1889) that was opened for settlement in 1908.
Respondent now contends that the State lacks jurisdiction.
ii. Holding: “Diminishment … will not be lightly inferred.” “It is impossible to say that
the … Reservation have lost their Indian character.”
1. “Our analysis of surplus land acts requires that Congress clearly evince an ‘intent … to
change … boundaries” before diminishment will be found.” “When such language … is
buttressed by an unconditional commitment from Congress to compensate the
Indian … there is an almost insurmountable presumption that Congress meant
for the tribe’s reservation to be diminished.”
a. “Rather than reciting an Indian agreement to ‘cede, sell, relinquish and
convey’ the opened land, the … Act simply authorizes the Secretary to
‘sell and dispose.’”
2. “We have been willing to infer that Congress shared the understanding that its action would
diminish the reservation, notwithstanding the presence of statutory language that would
otherwise suggest reservation boundaries remained unchanged.”
a. “The circumstances surrounding the passage of the … Act also fail to
establish a clear congressional purpose to diminish the reservation.”
3. “To a lesser extent, we have also looked to events that occurred after the passage of a surplus
land act to decipher Congress’ intentions.”
33
a. De Jure: Treatments of the Reservation by different branches and

sovereign assertion are unclear.
b. De Facto: Tribal authorities and BIA took primary responsibilities in
the area. 2/3 of the tribe still lives in the opened area.
b. Solem Reaffirmed – South Dakota v. Yankton Sioux Tribe (1998) (O’Connor, J.):
i. Facts:
1. The 1858 treaty, in exchange for the ceded land, the U.S. pledged to protect
the Yankton Tribe in their “quiet and peaceable possession” of this reservation
and agreed that “no white person,” with narrow exceptions, would “be
permitted to reside or make any settlement upon any part.” The reservation
was later allotted. In 1894, the Congress ratified the agreement for the cession
of the surplus land. The agreement states “all provisions of the [1858] treaty
… shall be in full force and effect, the same as though this agreement had not
been made. A majority of the land was later conveyed to non-Indians.
2. The Southern Missouri Recycling and Waste Management District acquired the
site for the landfill from a non-Indian. The land is within the 1858 boundaries.
ii. PP: The Waste District sought permit for the landfill. Tribe intervened on
environmental grounds, that the facility is inadequate. Permit was granted because
South Dakota did not require the liner that the tribe had requested. U.S. Appeals and
District courts agreed that the reservation had not been diminished and the federal
regulations apply.
iii. Holding: The 1894 Act intended to diminished the Yankton Reservation.
1. The “cession” and “sum certain” language is precisely suited to terminating
reservation status.
2. Circumstances surrounding the negotiation: “Given the Tribe’s evident
concern with reaffirmance of the Government’s obligations under the 1858
Treaty, and the Commissioners’ tendency to wield the payments as an
inducement … we conclude that the saving clause pertains to the continuance
of annuities, not the 1858 border.”
a. “The principle according to which ambiguities are resolved to the benefit of Indian
tribes is not, however, “a license to disregard clear expression of tribal and
congressional intent.”
3. “Today, fewer than ten percent of the 1858 reservation lands are in Indian
hands, non-Indians constitute over two-thirds of the population within the
1858 boundaries.” Despite the growing Indian population, “the area remains
‘predominantly populated by non-Indians with only a few surviving pockets of Indian
allotments,’ and those demographics signify a diminished reservation.”
c. Expressed or clear Congressional determination to terminate. “[T]he Court requires that
the “congressional determination to terminate … be expressed on the face of the Act or be
clear from the surrounding circumstances and legislative history.” DeCoteau v. District
County Court (1975) (“The negotiations leading to the 1889 agreement show plainly that the
Indians were willing to convey to the Government, for a sum certain, all of their interest in all
of their unallotted lands”).
d. Allotment provision does not mean termination. “The presence of allotment provision in
the 1892 Act cannot be interpreted to mean that the reservation was to be terminated.” “Clear
termination language was not employed in the 1892 Act. This being so, we declined to infer
an intent to terminate the reservation.” Mattz v. Arnett (1973).
34
e. Policy of avoiding checkerboard jurisdiction favored. The place of the crime was
transferred from tribe to non-Indian when the reservation was opened for settlement in 1906.
After analyzing the legislative history, the Court concluded that the parcel in question
remained Indian country. 18 U.S.C. § 1151 was intended to avoid “an impracticable of checkerboard
jurisdiction” that would require “law enforcement officers … to search tract books.” Seymour v.
Superintendent (1962).
35
Indian Preference Statutes
A. IRA Indian Preference Statute (IRA § 12):

a. IRA Preferential treatment of Indians in BIA upheld – Morton v. Mancari (1974)
(Blackmun, J.):
i. Facts: Section 12 of the IRA directs the Secretary to implement a program to fill
vacancies in the BIA with preference given to Indians. As implemented, the
preferential treatment also extends to current employees competing for promotions.
Non-Indian employees brought a class action claiming that the subsequent Equal
Employment Opportunity Act (1972) repealed the Act and that the Act was in
violation of the Fifth Amendment.
ii. Holding:
1. Congress did not intend to repeal the Indian preference:
a. Congressional actions, prior and subsequent to the EEOA “indicate
Congress’ recognition of the longstanding federal policy of providing a
unique legal status to Indians in matters concerning tribal or ‘on or
near’ reservation employment.”
b. “[C]ardinal rule … that repeals by implication are not favored.”
2. The Act is not contrary to constitutional due process because “the preference is reasonable and
rationally designed to further Indian self government.
a. Footnote 24: “The preference is not directed towards a “racial” group
consisting of “Indians”; instead, it applies only to members of federally
recognized tribes. This operates to exclude many individuals who are
racially to be classified as “Indians.” In this sense, the preference is political
rather than racial in nature.”
b. Limits of Mancari? The interpretation of the Reindeer Industry Act, which allows for the
buyout of non-Indian reindeer business, to include prohibition of entry by Indian was NOT
unreasonable under the standard of review of administrative decisions. However, Judge
Kozinski noted that only “legislation that relates to Indian land, tribal status, self-government or culture passes
rational relation test.” This would not include economic development legislations. Williams v. Babbitt (9th
Cir. 1997).
c. Hiring preference also applies IHS. Preston v. Heckler (9th Cir. 1984).
d. The preference does not apply to workforce reduction – there are no “vacancies” being
filled. Mescalero Apache Tribe v. Hickel (10th Cir. 1970).
B. State Preference Laws:

a. State’s compelling cultural interest – Livingston v. Ewing (10th Cir. 1979):
i. Facts: Santa Fe, NM, adopted a policy forbidding sales of arts and crafts on the grounds
of the state museum and the Palace of the governors by non-Indians. Such places are
located 8 miles away from the nearest pueblo.
ii. Holding:
1. Covered by EEOA’s “on or near reservation” exception and “employment
practice” includes the exclusive concession.
2. Not a reverse discrimination:
a. No facial, stigmatized discrimination against non-Indians; the state effort
was to extend to Indians privileges that they were peculiarly able to utilize in the
36
promotion of educational and cultural objectives in which the state had a compelling
interest.
b. The educational, cultural, and artistic interests that the state was
fostering far outweighed the right claimed by non-Indian artists.
C. Tribal Practices:
a. Title VII does NOT permit discrimination among tribes. “Such preference is not
consistent with the objectives of the Indian Preference exemption.” Dawavendewa v. Salt
River Agricultural Improvement and Power District (9th Cir. 1999) (A Hopi Indian challenging
the Navajo member hiring preference under the Civil Rights Act of 1964, as contractually
stipulated between the Navajo Nation and Salt River).
b. Tribe themselves may adopt tribal preference policy. Title VIII expressly exempts them
from liability under the Act.
37
Religion & First Amendment
A. Land Use:
a. No coercion, no compelling justification required – Lyng v. Northwest Indian
Cemetery Protective Assoc (1988) (O’Connor, J.):
i. Facts: The Forest Service planned to build a six-mile paved road through the Chimney
Rock section of the Six River National Forest. A study commissioned by the service
found that constructing a road “would cause serious and irreparable damage to the
sacred areas which are an integral and necessary part of the belief systems and lifeway
of … Indian peoples.” The Service did not adopt this finding and further rejected
proposed alternative route because issues with private lands and soil instability, in
additional to Indian rights. The Service also adopted a management plan allowing for
harvesting of timber, with a one-half mile protective zone for religious sites identified
in connection with road building.
ii. PP: District Court issued permanent injunction. Court of Appeals affirmed with
respect to the road and reversed on timber issue to allow logging in portions not
covered by the California Wilderness Act.
iii. Holding: The Free Exercise Clause “does not and cannot imply that incidental effects
of government programs, which may make it more difficult to practice certain religions
but which have no tendency to coerce individuals into acting contrary to their religious beliefs,
require government to bring forward a compelling justification for its otherwise lawful
actions.”
1. “[G]overnment simply could not operate if it were required to satisfy every
citizen’s religious needs and desires.”
2. “Whatever rights the Indians may have to the use of the area, however, those
rights do not divest the Government of its right to use what is, after all, its
land.”
3. Although the American Religious Freedom Act (AIRFA) required a
consultation with native religious leader in federal policies and procedures,
“[n]owhere in the law is there so much as a hint of any intent to create a cause
of action or any judicially enforceable individual rights.”
iv. (Brennan, J., dissenting): The use of land here is not merely incidental. “Where dogma lies at
the heart of Western religion, Native American faith is inextricably bound to the use of land.”
“Rituals are performed in prescribed locations not merely as a matter of traditional
orthodoxy, but because land, like all other living things is unique, and specific sites
possess different spiritual property and significance.”
b. Showing of the lands as “central” or “indispensable” to the religion. The court held that
the Cherokee Indians failed to prove that the flooding by Tellico Dam on the Little Tennessee
River infringed upon their rights under the First Amendment: “they have fallen short of
demonstrating that worship at the particular geographic location in question is inseparable from the way of life,
the cornerstone of religious observance, or play a central role in their religious ceremonies and practices.”
Sequoyah v. TVA (6th Cir. 1980).
c. Conflicting First Amendment Claims. The ban on rock climbing licensing in June at Devils
Tower National Monument, when most of the Indian religious ceremonies occur, appeared to
favor one group over another for religious purposes, in violation of the First Amendment’s Establishment
Clause. Bear Lodge Multiple Use Ass’n v. Babbitt (D.Wyo. 1996).
38
d. Accommodation Upheld. The court held that the voluntary climbing ban at the historic
religious site sought to remove barriers to religious worship occasioned by public ownership of
the tower, and therefore did not violate the Constitution. Bear Lodge Multiple Use Ass’n v.
Babbitt (D.Wyo. 1998)
e. Alternative protection: National Historic Preservation Act. An Act required removal of
Navajos from land in question. However, because the defendants failed to consult with the state
historic preservation officer, pursuant to § 106 of the National Historic Preservation Act, the court
enjoined the construction. Attakai v. United States (D.Ariz. 1990).
f. Suggestion: Trust Doctrines. Falk, 16 Ecology L.Q. 515 (1989).
B. Religious Conducts (drug, hairstyle, etc.):

a. Law may interfere with religious practice but not religious belief – Oregon v. Smith
(1990) (Scalia, J.):
i. Facts: Oregon law prohibits the knowing or intentional possession of peyote.
Respondents, members of the Native American Church, were fired from their jobs
with a private drug rehabilitation organization because they ingested peyote for
sacrament purposes. Consequently, their claims for unemployment compensation
were denied on the basis that they were “ineligible for benefits because they had been
discharged for work-related ‘misconduct.’”
ii. Holding: “Laws, are made for the government actions, and while they cannot interfere with
mere religious belief and opinions, they may with practices.”
1. “To permit this would be to make the professed doctrines of religious belief superior to the law
of the land, and in effect to permit every citizen to become a law unto himself.”
2. Not limitable by the practice’s “centrality” to the religion.
3. Leave it to the Political Process. “It may fairly be said that leaving accommodation
to the political process will place at a relative disadvantage those religious
practices that are not widely engaged in; but that unavoidable consequence of
democratic government must be preferred to a system in which each conscience is a law unto
itself or in which judges weigh the social importance of all laws against the centrality of all
religious beliefs.”
4. “The only decisions in which we have held that the First Amendment bars
application of a neutral, generally applicable law to religiously motivated action
have involved … the Free Exercise Clause in conjunction with other
constitutional protections, such as freedom of speech and of the press.”
iii. (O’Connor, J., concurring in the judgment): The “compelling interest” test should apply.
1. “The compelling interest test effectuates the First Amendment’s command that
it occupies preferred position, and that the Court will not permit encroachments upon
this liberty, whether direct or indirect, unless required by clear and compelling governmental
interests ‘of the highest order.’”
2. In the past, “we rejected the particular constitutional claims before us only
after carefully weighing the competing interests.”
3. “[T]he First Amendment was enacted precisely to protect the rights of those whose religious
practices are not shared by the majority and may be viewed with hostility.”
iv. (Blackmun, J., dissenting): No compelling state interest in refusing religious use exception:
1. “It is not the State’s broad interest in fighting the critical ‘war on drugs’ that
must be weighed against respondents’ claim, but the State’s narrow interest in
refusing to make an exception for the religious, ceremonial use of peyote.”
39
2. “Oregon has never sought to prosecute respondents, and does not claim to
that it has made significant enforcement efforts against other religious users of
peyote. The State’s asserted interest thus amounts only to the symbolic preservation of an
unenforced prohibition.”
b. Smith abdicates a traditionally perceived purpose of judicial review: to protect minority
rights from majoritarian tyranny. Choper, 70 Neb. L. Rev. 652 (1991).
c. Pre-Smith special consideration for native religions – People v. Woody (Cal. 1964):
i. “[T]he statutory prohibition of the use of peyote results in a virtual inhibition of the practice of
defendant’s religion. To forbid the use of peyote is to remove the theological heart of
Peyotism.”
ii. Compelling interest test favors religion: “We preserve a greater value than an ancient tradition
when we protect the rights of the Indians who honestly practiced an old religion in
using peyote.”
d. Possible argument: “inextricable link with lifestyle”: After examining the Amish religion
and its inextricable link with lifestyle, the Court found that attendance in public high schools
might prevent parents from rearing their children in the traditional manner, thus threatening to
destroy Amish society. Wisconsin v. Yoder (1972).
e. Hairstyle:
i. Hairstyle not protected free expression. The court struck down Pawnee’s challenge
to hair length regulation that prevents male students from wearing braids. Holding: the
record did not establish that the hair length regulation impinged on the free exercise of religion and,
following an earlier precedent, that hairstyle was not a form of constitutionally protected free expression.
New Rider v. Bd. of Education (10th Cir. 1973).
ii. Is it a religious thing? “Their present contention of religious oppression rises no
higher this record than a desire to express pride in their heritage through wearing long
braided hair. Their desire so to do is understandable but not a constitutionally
protected right.” Id. (Lewis, J., concurring).
iii. Expression of pride is constitutionally guaranteed. The announcement of racial
and cultural pride inherent in wearing long hair constituted expression protected by the
First Amendment’s guarantee of free speech. New Rider v. Bd. of Education (1973)
(Douglas, J., dissenting from denial of certiorari).
C. American Indian Religious Freedom Act (AIRFA):

a. Joint Resolution – Sense of Congress: “It shall be the policies of the United States to protect
and preserve for American Indians their inherent right of freedom to believe, express, and
exercise the traditional religions of the American Indian … including but not limited to, access
to sites, use and possession of sacred objects, and the freedom to worship through ceremonies and traditional
rights.”
b. Largely ineffectual. None of the recommended legislative actions, following the joint
resolution has been adopted.
c. Small procedural requirements on agencies:
i. Familiarity with Indian Religions. AIRFA only directs federal officials to
familiarize themselves with Native American religious values to help prevent
unwarranted and unintended interference with traditional practices. Deer v. Carlson
(9th Cir. 1987).
ii. Discussion of the issue is sufficient. Including Indian religious concerns in the
National Environmental Policy Act (NEPA) evaluation and a discussion of the issue in
40
the final environmental impact statement for a federal project satisfy AIRFA. Wilson
v. Block (D.C. Cir. 1983).
d. Clinton’s “Indian Sacred Sites” Executive Order:
i. Directs agencies to:
1. Accommodate access to and ceremonial use of Indian sacred sited by Indian religious
practitioners on federal land.
2. Providing notice of proposed activities that may impact sacred sites identified by an Indian
tribe or individual authorized to represent and Indian religion.
3. Report to the President on the implementation of the order.
4. Develop procedures to facilitate consultation with tribes and religious leaders and to
resolve disputes relating to agency actions on federal lands expeditiously.
41
Tribal Justice Systems

A. History of Tribal Justice – Pommersheim, 18 New Mex. L. Rev. 49 (1998):
a. Courts of Indian Offenses (1883):
i. Not statutorily established; based on Secretary’s authorization.
ii. Judges: non-polygamist Agents & his delegates.
iii. Authority: modeled after that of local justice of the peace.
b. Indian Reorganization Act (1934): BIA-drafted constitutions, comprised most of IRA
constitutions: no separation of power; no court systems.
c. Today: Combination of unique tribal law and adapted state and federal law principles.
B. Varying Judicial Forums – U.S. Commission on Civil Rights:
a. Trial:
i. Regular Court Forum w/ written substantive law and procedure – Navajo.
ii. Special Courts: Children’s; Peacemaker (ADR) – Navajo.
iii. Governor as tribal judge w/ customary law only – Pueblo.
b. Appeals:
i. Regular Appellate Forum – Navajo.
ii. No appellate forum – Chickasaw, Choctaw, etc.
iii. Tribal council as appellate forum – Seneca.
iv. Final appeals by religious leader – Pueblo.
v. Circuit-riding court system – Northwest Intertribal Court System.
C. Customs superior to tribal code? - In re: Validation of Marriage of Francisco (Navajo 1989):
a. Facts: Francisco and Chaca combined their assets, acquired personal property and
accumulated debt jointly, and held themselves out as husband and wife. They did not obtain a
license or participate in a traditional Navajo ceremony. Chaco died. Francisco cannot collect
unless the marriage is validated.
b. PP: Applying 9 Nav. T. C. § 2, which states that “marriages between Navajos and Non-
Navajos may be validly contracted only in compliance with applicable state or foreign law”, the
district court held that the marriage is not valid because AZ does not recognize common law
marriage.
c. Holding: Affirmed. Refusing to apply the code, the court held “Navajo tradition and custom do
not recognize common-law marriage; therefore, this court overrules all prior rulings that Navajo courts can
validate unlicensed marriages in which no Navajo traditional ceremony occurred.”
i. “Under traditional Navajo thought, unmarried couples who live together act immorally
because they are said to steal each other. Thus, in traditional Navajo society the
Navajo people did not approve of or recognize common-law marriages.”
ii. “The concept of justice, what it means for any group of people, cannot be separated
from the total beliefs, ideas, and customs of that group of people.”
D. Customs as common law – Davis v. Means (Navajo 1994):
a. Facts: Means, a Navajo, conceived a child at the time when she’s separated from Davis, her
non-Indian husband. He filed for visitation and joint custody on the presumption of
fatherhood.
b. PP: After a trip to Navajo Supreme Court on trial court error, Davis prevailed on remand.
Means failed to comply with the required home study and continued to deny access. On
failure to show cause, Means continued to resist and was found in contempt and admonished.
The Family Court ordered that visitation be delayed till the child is 12, when psychological
42
evaluation would then take place. Davis appealed on the ground that the order denied him
fundamental parental rights.
c. Holding: Res judicata but under the rule of procedure, this courts found “other reason
justifying relief”, the making of a more precise determination of paternity. No-compliance of
DNA testing  reinstatement of prior order.
i. “Navajo children are ‘born for’ their father’s clan.” “Under Navajo common law, this
gamily cannot achieve stability, and thus harmony, until the court determines with
reasonable certainty which of the two men is the father of the child.”
43
Indian Civil Rights Act – 1968 (ICRA)
A. Indian Civil Rights Act of 1968 (ICRA):

a. Definitions (§ 1301) – for the purpose of ICRA:
i. “Indian tribe” – “any tribe, band, or other group of Indians subject to the jurisdiction
of the United States and recognized as possessing powers of self-government.”
ii. “Powers of self-government”:
1. “All governmental powers possessed by an Indian tribe, executive, legislative,
and judicial, and all offices, bodies and tribunals by and through which they are
executed, including courts of Indian offenses.”
2. “The inherent power of Indian tribes, hereby recognized and affirmed, to
exercise criminal jurisdiction over all Indians.”
iii. “Indian court” – “any Indian tribal court or court of Indian offense.”
b. Constitutional Rights (§ 1302):
i. Free Exercise
ii. Search & Seizure
iii. Double Jeopardy
iv. Self-Incrimination
v. Substantive Due Process
vi. Procedural Due Process in criminal proceeding
1. In forma pauperis must be provided – A Yakima filed such a motion under the tribal
procedure. The judge did not act on her motion and dismissed the appeal.
The Court of Appeals found that she had been denied procedural due process.
Randall v. Yakima Nation Tribal Court (9th Cir. 1988).
vii. 8th Amendment w/ limitation on penalty to 1 year jail & $5000 fine
viii. Equal Protection
ix. Bill of Attainder & Ex Post Facto laws.
x. Jury trial in criminal proceeding
c. Habeas Corpus (§ 1303): “The privilege of the writ of habeas corpus shall be available to
any person, in a court of the United States, to test the legality of his detention by order of an
Indian tribe.”
i. Tribal remedies must usually be exhausted. Wetsit v. Stafne (9th Cir. 1995).
ii. Except where there’s no formal habeas procedure. Necklace v. Tribal Court of Three
Affiliated Tribes (8th Cir. 1977).
iii. Writ may be had without actual detention. The court held that tribe’s summary and
permanent banishment of petitioners from the tribe and the reservation imposed a
sufficient restraint on the petitioners’ liberty to satisfy the requisites of the ICRA’s
habeas corpus provisions. Poodry v. Tonawanda Band of Seneca Indians (2d Cir.
1996).
d. Notable Absences:
i. Establishment of religion clause
ii. Republican Form of Government
iii. Privileges & Immunities Clauses
iv. Right to vote
v. Right to free counsel
vi. Jury trial in civil cases.
44
e. No implied declaratory/injunctive relief in federal court – Santa Clara Pueblo v.

Martinez (1978) (Marshall, J.):
i. Facts: The pueblo, by tribal ordinance, refused to extend membership to children of
female members who marry outside the tribe, while extending it to children of male
members. They were raised on the reservation. But they would have no right to
remain there in the event of their mother’s death and to inherit the possessory interests
in the communal land. Respondents mother and daughter claimed violation of ICRA’s
Equal Protection provision.
ii. PP: District Court found for the tribe for patriarchy is still significant in tribal right.
Court of Appeals reversed, “because the classification was one based upon sex it was
presumptively invidious and could be sustained only if justified by a compelling tribal
interest.”
iii. QP: Whether the IRCA may be interpreted to authorize the bringing of civil actions
against a TRIBE or its TRIBAL officers for declaratory or injunctive relief to enforce
its substantive provisions? NO.
iv. Holding: ICRA “§ 1302 does not implied authorize actions for declaratory or injunctive relief
against either the tribe or its officers.”
1. “Nothing on the face of Title I of the ICRA purports to subject tribes to
the jurisdiction of the federal courts in civil actions for injunctive or
declaratory relief.”
2. No waiver of sovereign immunity:
a. “It is settled that a waiver of sovereign immunity cannot be implied but
must be unequivocally expressed.”
b. “Moreover, since the respondent in the habeas corpus action is the
individual custodian of prisoner … the provision of § 1303 can hardly
be read as a general waiver.”
3. “Although Congress clearly has power to authorize civil actions against tribal
officers … a proper respect both for tribal sovereignty and for the plenary
authority of Congress in this area cautions that we tread lightly in the absence
of clear indications of legislative intent.”
4. NEED CLEAR CONGRESS INTENT FOR THEIR CLAIMS.
a. “[G]iven Congress’ desire not to intrude needlessly on tribal self-
government, it is not surprising that [it] chose … to provide for federal
review only in habeas corpus proceedings.”
i. Habeas corpus would protect the individuals while avoid
unnecessary intrusion on tribal governments.
b. Tribal courts are recognized as the appropriate forums for the exclusive
adjudication of both Indians and non-Indians.
e. Inapplicability of Federal Jurisdiction in ICRA – 28 U.S.C. § 1343(4) – gives the district
courts “jurisdiction of any civil action authorized by law to be commenced by any person … to
secure equitable or other relief under any Act of Congress providing for the protection of civil
rights.”
f. Other provisions:
i. PL-280 amended to allow retrocession of jurisdiction by states and to require tribal
consent before a new state can assume jurisdiction in Indian country.
ii. Prepare a model code for tribal courts established under the CFR.
iii. Revision of Cohen’s Handbook.
45
46
Criminal Jurisdiction – Starting Point

A. Miscellaneous:
a. Reasons for federal jurisdiction in Indian Country – Clinton, 18 Ariz. L. Rev. 503 (1976):
i. Broader cross section of population for federal jury. Jury in communities immediately
adjacent to the Reservation is likely to be more hostile.
ii. The course of dealings with the Indian tribes is to the exercise of complete state
control over their lands.
iii. State control violates the spirit of most of the treaties and breaches the express
provision of some of them.
b. Minor statutes – vesting United States with jurisdiction over crimes by/against Indian:
i. Liquor violations
ii. Non-Indian entry on Indian land to take fish or game without permission
iii. Destruction of boundary or warning signs on a reservation
iv. Land transactions with Indians without federal authority
v. Possession of gambling devices
vi. Theft/Embezzlement from Tribes
vii. Counterfeiting government trademarks for or misrepresenting crafts or goods to be
Indian products.
c. A Dicta: The Limit of Indian Commerce Clause: “But we think it would be a very
strained construction of this clause, that a system of criminal laws for Indian living peaceably
in their reservations … without any reference to their relation to any kind of commerce, was
authorized by the grant of power to regulate commerce with the Indian tribes.” United States
v. Kagama (1886) (Dicta).
B. Analytical Steps:
a. Location: Indian Country?
i. No  State jurisdiction, exclusive.
ii. Yes  Go to b
b. Public Law 280?
i. Yes  State jurisdiction, exclusive.
1. Original:
a. Full: CA, NE, and WI.
b. AK, except Metlakatla Indian Community
c. MN, except Red Lake Reservation
d. OR, except Warm Springs Reservation
2. Optional States – Cohen’s Handbook:
a. Full: FL
b. SD, on highways; full if federal government would pay.
c. Flathead Reservation (MT)
3. Anywhere where tribe consents.
ii. No  Go to c
c. Specific Jurisdictional Statute?
i. Yes  State jurisdiction
1. KS, NY, and ME
2. Agua Caliente (CA)
3. Devil’s Lake (ND)
47
4. Sac & Fox (IA)

ii. No  Go to d
d. Who’s “Indian”?
i. Indian – “whether the person in question has some demonstrable biological
identification as an Indian AND has been socially or legally recognized as an Indian.”
Clinton, 18 Ariz. L. Rev. 503. Page 476.
ii. Pick a Category Below.
48
Criminal Jurisdiction – Indian Defendants
A. In General:
a. Major Crimes Act does not violate Equal Protection – United States v. Antelope (1977)
(Burger, C.J.):
i. Facts: Indians broke into the home of a non-Indian on the Coeur d’Alene Indian
Reservation and robbed and killed her. The defendants were subject to federal
jurisdiction under the Major Crimes Act. They challenge the statute on the ground of
equal protection.
ii. PP: Circuit Court concluded that the defendants were “put at a serious racially-based
disadvantage” since the Government was not required to establish premeditation and
deliberation, as the State prosecutor would otherwise.
iii. Holding:
1. No impermissible racial classification in the Major Crime Act:
a. “[C]lassification expressly singling out Indian tribes as subjects of
legislation are expressly provided for in the Constitution.”
b. “Indeed, respondents were not subjected to federal criminal
jurisdiction because they are of the Indian race but because they are
enrolled member of the Coeur d’Alene Tribe.”
2. The statute itself does not violate equal protection:
a. “Indians indicted under the Major Crimes Act enjoy the same
procedural benefits and privileges as all other persons within federal
jurisdiction.”
b. “Since Congress has undoubted constitutional power to prescribe a
criminal code applicable in Indian country … it is of no consequence
that the federal scheme differs from a state criminal code.”
c. “Under our federal system, the National Government does not violate
equal protection when its own body of law is evenhanded, regardless of
States with respect to the same subject matter.”
b. Major Crimes Act: where federal penalty is higher: possible Equal Protection problem.
“The sole distinction between the defendants who are subjected to state law and those to
whom federal law applies is the race of the defendant. No federal or state interest justifying
the distinction has been suggested … and we can supply none.” United States v. Cleveland
(9th Cir. 1974) (Upholding the dismissal of an indictment for assault by an Indian against a
non-Indian).
c. Duro-Fix: Tribes may exercise criminal jurisdiction over all “Indians,” using the same
definition as that in the Major Crimes Act. 25 U.S.C. § 1301(4).
i. Possible Double Jeopardy Issue. A Court of Appeals panel held that federal and tribal
courts draw their authority from the same source, precluding the application of the dual
sovereignty exception to the double jeopardy principles. This was reversed en banc by a 4-4
vote. United States v. Weaselhead (8th Cir. 1999) (Blackfeet Indian Tribe convicted in
the Winnebago Tribal Court).
ii. Ex Post Facto Issue. “Thus while the conduct in question here might have been a crime, it was
not a crime as to Means at the time it was allegedly committed. Imposing jurisdiction
retroactively [is] exactly what is forbidden by the Ex Post Facto Clause.” Means v.
Northern Cheyenne Tribal Court (9th Cir. 1998).
49
iii. Equal Protection Issue (not decided on Duro-Fix) – Means v. The District
Court of the Chinle Judicial District (Navajo 1999) (Yazzie, C.J.):
1. Facts: Defendant Means is a member of the Oglala Sioux Nation who resided
within the Navajo Nation from 1987 to 1997. He’s married to a Navajo. Here,
he’s charged with: 1) threatening and battering a member of the Omaha tribe;
and 2) battering his Navajo father-in-law.
2. Holding:
a. Though the Oliphant & Duro courts held that Indian nations have no
inherent criminal jurisdiction over non-Indians and non-member
Indians, criminal jurisdiction over non-members here rests upon the
Navajo Nation Treaty of 1868.
b. On Jurisdiction: “There are two foundations for criminal jurisdiction
in the Treaty of 1868, the history of the negotiation, and its application:
those who assume relations with Navajos with the consent of the Navajo Nation,
subject to its laws, and Non-Navajos Indians who enter and commit offenses are
subject to punishment.”
c. On Equal Protection: Classification of “nonmember Indian” is not a racial
classification and therefore does not subject to the strict scrutiny standard. Navajo’s
“rules of criminal procedure and … Navajo Nation Bill of Rights make
no distinction as to race, ethnicity or membership in the Navajo
Nation.” The Court of the Navajo Nation keep no records on the race,
ethnicity of any litigant.”
d. Possible application of general federal statutes. The court found that its holding does not
infringe upon tribal self-government and, in light of the low penalties permissible in tribal
courts under ICRA, “Congress must have assumed that Indians on reservations would
generally be subject, as all other citizens are, to federal criminal sanctions which apply to all
persons.” United States v. Blue (8th Cir. 1983) (upholding the applicability of federal drug law).
B. United States v. Lara
a. Congress is authorized to permit tribes, as an exercise of their inherent tribal authority,
to prosecute nonmember Indians.
b. The tribes authority in this position does not come from federal power but is
sovereign. Thus the double jeopardy clause does not prohibit the federal government from
proceeding to prosecute the defendant as well.
C. Indian Victims:
a. Federal Jurisdiction:
i. Major Crimes – Major Crimes Act – 18 U.S.C. § 1153:
1. Crimes Covered – § 1153(a): Murder, manslaughter, kidnapping, maiming,
rape & related offenses, incest, assault with intent to commit murder, assault
with a dangerous weapon, assault resulting in serious bodily injury, assault of
minor (<16), arson, burglary, robbery, and a felony under 18 U.S.C. § 661.
2. Where crimes covered not punished by federal law – § 1153(b): Laws of
the State in which such offense was committed as are in force at the time of
such offense.
a. Sentencing – United States v. Norquay (8th Cir. 1990):
i. Range – State Guideline
ii. Calculation – Federal Guideline – citing the goal of the federal
sentencing act of promoting uniform sentencing.
50
3. Inapplicable where defendant is a member of terminated tribe. The Act

was held inapplicable to a member of the terminated Klamath Tribe because
her unique federal status no longer existed. United States v. Heath (9th Cir.
1974).
4. Tribal enrollment is not required. Ex parte Pero (7th Cir. 1938).
5. Non Major Crime LIO instruction entitled. A defendant may be entitled to
a jury instruction on LIO even though it is not enumerated in the Major
Crimes Act. Keeble v. United States (1973).
6. Juvenile Justice and Delinquency Prevention Act applies. Adjudication of
“juvenile delinquent” instead of a criminal conviction in required. United
States v. Juvenile Male (9th Cir. 1988).
b. Tribal Jurisdiction:
i. Major Crimes:
1. Possible concurrent jurisdiction:
a. Competent to try. The Ninth Circuit noted that a tribal court is
competent to try a tribal member for a Major Crime, in compliance
with ICRA, and upheld a dismissal of habeas action for failure to
exhaust tribal remedy. Wetsit v. Stafne (9th Cir. 1995) (A member
acquitted in federal court but later convicted in tribal court).
b. Construction. Legislative history of the act, coupled with the lack of any
express statutory language divesting tribal jurisdiction, indicates that
tribal courts would retain their inherent jurisdiction concurrently with
the federal government. Clinton, 18 Ariz. L. Rev. 503 (1976).
ii. All non-Major Crimes.
D. Non-Indian Victims:
i. Federal Enclave Crimes - Indian Country Crimes Act – 18 U.S.C. § 1152: Extend
Federal Enclave Statutes. Extension of criminal statutes covering “sole and exclusive
jurisdiction of the United States” except D.C. to Indian Country.
1. Exception:
a. Where the defendant has been punished by the tribe.
b. Any crime where by treaty stipulations, the exclusive jurisdiction over
such offenses is or may be secured to the Indian tribes respectively.
ii. Assimilated Crimes – The Assimilated Crimes Act – 18 U.S.C § 13.
1. Crimes Covered: The statute permits federal prosecutions by assimilating
state substantive law.
2. Applicable via Indian Country Crimes Act. Williams v. United States
(1946).
3. Sentencing: federal sentencing guideline within state sentencing range. United
States v. Garcia (10th Cir. 1989).
iii. Major Crimes – Major Crimes Act – 18 U.S.C. § 1153:
1. Crimes Covered – § 1153(a): Murder, manslaughter, kidnapping, maiming,
rape & related offenses, incest, assault with intent to commit murder, assault
with a dangerous weapon, assault resulting in serious bodily injury, assault of
minor (<16), arson, burglary, robbery, and a felony under 18 U.S.C. § 661.
2. Grants no state jurisdiction.
3. Only applies when the criminal defendant is an Indian.
51
4. Where crimes covered not punished by federal law – § 1153(b): Laws of

the State in which such offense was committed as are in force at the time of
such offense.
a. Sentencing – United States v. Norquay (8th Cir. 1990):
i. Range – State Guideline
ii. Calculation – Federal Guideline – citing the goal of the federal
sentencing act of promoting uniform sentencing.
5. Inapplicable where defendant is a member of terminated tribe. The Act
was held inapplicable to a member of the terminated Klamath Tribe because
her unique federal status no longer existed. United States v. Heath (9th Cir.
1974).
6. Tribal enrollment is not required. Ex parte Pero (7th Cir. 1938).
7. Non Major Crime LIO instruction entitled. A defendant may be entitled to
a jury instruction on LIO even though it is not enumerated in the Major
Crimes Act. Keeble v. United States (1973).
8. Juvenile Justice and Delinquency Prevention Act applies. Adjudication of
“juvenile delinquent” instead of a criminal conviction in required. United
States v. Juvenile Male (9th Cir. 1988).
b. Tribal Jurisdiction:
i. Federal Enclave Crimes – Indian Country Crimes Act – The statute reference to
punishment by the tribe allows for concurrent jurisdiction.
ii. Assimilated Crimes – inference can be drawn through its application through the
Indian Country Crimes Act.
iii. Major Crimes – Possible concurrent jurisdiction:
1. Competent to try. The Ninth Circuit noted that a tribal court is competent to try
a tribal member for a Major Crime, in compliance with ICRA, and upheld a
dismissal of habeas action for failure to exhaust tribal remedy. Wetsit v. Stafne
(9th Cir. 1995) (A member acquitted in federal court but later convicted in tribal
court).
2. Construction. Legislative history of the act, coupled with the lack of any express
statutory language divesting tribal jurisdiction, indicates that tribal courts would
retain their inherent jurisdiction concurrently with the federal government.
Clinton, 18 Ariz. L. Rev. 503 (1976).
E. Consensual Crimes:
a. Tribal Jurisdiction.
b. Possible Federal Jurisdiction:
i. Interracial criminal enterprise. The court held that though the Indian co-
defendants could not have violated the state law, the non-Indian co-defendants did,
making the act an unlawful gambling activity, prohibited by federal law. United States
v. Farris (9th Cir. 1981).
ii. General federal criminal law. The court found that its holding does not infringe
upon tribal self-government and, in light of the low penalties permissible in tribal
courts under ICRA, “Congress must have assumed that Indians on reservations would
generally be subject, as all other citizens are, to federal criminal sanctions which apply
to all persons.” United States v. Blue (8th Cir. 1983) (upholding the applicability of
federal drug law).
52
c. Argument: Leave moral judgment to the tribe? “Victimless or consensual statutes enacted
by the states generally involve legislation of morals in one sense or another. To allow the states,
through the Act, to make moral judgments for the tribe, undermines the purpose of continuing reservation
policy.” Clinton, 18 Ariz. L. Rev. 503.
53
Criminal Jurisdiction – Non-Indian Defendant
A. In General:
a. Tribal court has no inherent jurisdiction – Oliphant v. Suquamish Indian Tribe (1978)
(Rehnquist, J.):
i. Facts: Two non-Indians arrested separately on separate charges of assaulting a tribal
officer, reckless endangerment, and injuring tribal property.
ii. Holding: Indian tribal courts do not have an inherent criminal jurisdiction over non-Indians.
1. “[T]heir exercise of separate power is constrained so as not to conflict with the
interests of this overriding sovereignty.”
2. “By submitting to the overriding sovereignty of the United States, Indian tribes therefore
necessarily give up their power to try non-Indian citizens except in a manner acceptable to
Congress.”
a. According to the Treaty of Point Elliot, which is silent on the issue of
criminal jurisdiction over non-Indians, an inference can be made that
“the Suquamish were in all probability recognizing that the United
States would arrest and try non-Indian intruder.”
b. In interpreting Indian treaties and statutes, doubtful expression are to
be resolved in favor of the Indians. However, treaty that is not clear on
their face may be “clear from the surrounding circumstance and legislative history.”
3. It is unfair to try a different race, according to the law of a social state of which
they have an imperfect conception.
iii. (Marshall, J., dissenting): Reserved Rights. “In absence of affirmative withdrawal by
treaty or statute … Indian tribes enjoy as a necessary aspect of their retained
sovereignty the right to try and punish all persons who commit offenses against tribal
law within the reservation.”
B. Indian Victim:
i. Federal Enclave Crimes - Indian Country Crimes Act – 18 U.S.C. § 1152: Extend
Federal Enclave Statutes. Extension of criminal statutes covering “sole and exclusive
jurisdiction of the United States” except D.C. to Indian Country.
1. Exception: Any crime where by treaty stipulations, the exclusive jurisdiction
over such offenses is or may be secured to the Indian tribes respectively.
ii. Assimilated Crimes – The Assimilated Crimes Act – 18 U.S.C § 13.
state substantive law.
2. Applicable via Indian Country Crimes Act. Williams v. United States
(1946).
C. Non-Indian Victim:
a. State Jurisdiction:
54
i. Equal Footing Doctrine. Colorado is admitted to the Union with a status equal to
the original states. Not having disclaimed jurisdiction over Indian lands, the Colorado court has
jurisdiction. United States v. McBratney (1881).
ii. Disclaimer Not Withstanding. The Supreme Court held that a murder of one non-
Indian by another on the Crow Reservation in Montana, a disclaimed state, was subject
to state jurisdiction. Draper v. United States (1896).
iii. Indian Property exception? “The entire emphasis in treaties and Congressional
enactments dealing with Indian affairs has always been focused upon the treatment of the
Indians themselves and their property.” New York ex. Rel. Ray v. Martin (1946) (upholding
conviction of white-on-white murder on the Allegheny Reservation).
D. Consensual Crimes:
i. Assimilated Crimes – The Assimilated Crimes Act – 18 U.S.C § 13.
state substantive law. There is no state jurisdiction involved.
2. DWI Cases: Limitation on right/privilege to operate motor vehicles apply
only to special maritime and territorial jurisdiction.
4. Prohibitory/Regulatory distinction – United States v. Marcyes (9th Cir.
1977) (Anderson, J.):
a. Facts: Defendants operated fireworks stands within the Puyallup Indian
Reservation. During service of restraining order and injunction, and
the execution of the search warrant, the U.S. Marshals were assaulted.
They contend that the Assimilative Crimes Act cannot be utilized to
enforce state regulatory laws.
b. Holding: ACA applies; the statute is prohibitory rather than regulatory.
i. “The purpose of the fireworks laws is not to generate income,
but rather to prohibit their general use and possession in a
legitimate effort to promote the safety and health of all
citizens.”
ii. “[T]he Supreme Court has struck down attempts to impose
state tax and license fees on Indians on reservation.”
5. Tribal License Immaterial. The Seventh Circuit allowed a Wisconsin anti-
gambling statute to be applied in Indian country to tribally licensed slot
machine operator. United States v. Sosseur (7th Cir. 1950).
b. Argument: Leave moral judgment to the tribe? “Victimless or consensual statutes enacted
by the states generally involve legislation of morals in one sense or another. To allow the states,
through the Act, to make moral judgments for the tribe, undermines the purpose of continuing reservation
policy.” Clinton, 18 Ariz. L. Rev. 503.
c. State Jurisdiction asserted:
i. States do try minor crimes. State courts routinely try non-Indians for traffic and
other minor offenses on the reservation though there’s no judicial or statutory
approval.
ii. Argument: Equivalent of non-Indian on non-Indian crimes?
55
Regulatory/Civil Jurisdiction
A. On Indian Land:
a. Exhaustion is a matter of comity; does not stand apart from Montana’s Instruction.
“Recognizing that our precedent has been variously interpreted, we reiterate that National
Farmers and Iowa Mutual enunciate only an exhaustion requirement, a “prudential rule,”
based on comity. These decisions do not expand or stand apart from Montana’s instruction
on “the inherent sovereign powers of an Indian tribe.” Strate v. A-1 Contractors (1997).
b. Indian v. Indian; Exhaustion in tribal court required; federal review allowed afterward
– National Farmers Union Insurance Co. v. Crow Tribe of Indians (1985) (Stevens, J.):
i. Facts: A Crow minor was struck by a motorcycle in an elementary school parking lot,
located on the Crow Indian Reservation. His guardians initiated a suit on his behalf.
The process was served on the Chairman of the school board who failed to notify
anyone. Default judgment was entered, a copy of which was served on the school
Principal, who then forwarded it to National Farmers.
ii. PP: National Farmers and the School District sought and obtained injunction from a
U.S. District Court against any execution of the judgment. The Court of Appeals
reversed.
iii. Holding:
1. “§ 1331 encompasses the federal question whether a tribal court has exceeded the
lawful limits of its jurisdiction.”
a. “More particularly, when they invoke the jurisdiction of a federal court
under § 1331, they must contend that federal law has curtailed the powers of the
Tribe, and thus afforded them the basis for the relief they seek in a
federal forum.”
2. Exhaustion is required before such a claim may be entertained by a federal court.”
a. “[T]he existence and extent of a tribal court’s jurisdiction will require a careful
examination of tribal sovereignty, the extent to which that sovereignty has been
altered, divested, or diminished.”
b. Self-determination “favors a rule that will provide the forum whose
jurisdiction is being challenged the first opportunity to evaluate the
factual and legal bases for the challenge.”
c. “Moreover, the orderly administration of justice in the federal court will be
served by allowing a full record to be developed in the Tribal court.”
d. “Exhaustion of tribal court remedies … will encourage tribal courts to
explain to the parties the precise basis for accepting jurisdiction, and
will also provide other courts with the benefit of their expertise in such
matters in the event of further judicial review.”
c. Indian v. Non-Indian: exhaustion doctrine extended to diversity suits. “Regardless of
the basis for jurisdiction, the federal policy supporting tribal self-government directs a federal
court to stay its hand in order to give the Tribal Court a ‘full opportunity to determine its own
jurisdiction.’ In diversity, as well as federal question cases, unconditional access to the federal forum would
place it in direct competition with the tribal courts, thereby impairing the latter’s authority over reservation
affairs.” Iowa Mutual Insurance Co. v. LaPlante (1987) (Insurance company suing the injured
and the insured in the federal court after having unsuccessfully challenged the tribal court on
jurisdictional matters).
56
d. Indian v. Non-Indian; State official’s performance of duties exception; non-exhaustion

rule – Nevada v. Hicks (2001) (Scalia, J.):
i. Facts: Hicks came under suspicion of having killed a California bighorn sheep, a gross
misdemeanor under NV law. The state game warden obtained both state and tribal
warrants and executed the searches twice, approximately a year a part. The searches
did not turn up any evidence. Hicks, claiming that his sheep-heads have been
damaged, filed a civil action in the Fallon Paiute-Shoshone tribal court.
ii. PP: The Tribal Court held that it had jurisdiction over the claims. The Tribal Appeals
Court affirmed. NV filed an action in federal district court seeking declaratory
judgment on jurisdictional issues. District Court granted summary judgment to Hick
on the issue, and held that state officials would have to exhaust qualified immunity.
Ninth Circuit affirmed.
iii. Holding: Limited to the question of tribal court jurisdiction over state officers
enforcing state law.
1. “Because the … Tribes lacked legislative authority to restrict, condition, or otherwise regulate
the ability of state officials to investigate off-reservation violations of state law, they also lacked
adjudicative authority” on related tribal law violation.
a. “Our cases make clear that the Indian’s right to make their own laws
and be governed by then does not exclude all state regulatory authority
on the reservation.” “It was long ago that the Court departed from …
Marshall’s view that ‘the laws of [a State] can have no force’ within the
reservation.”
b. “[T]he principle that Indians have the right to make their own laws and
be governed by them requires “an accommodation between the
interests of the Tribes and the Federal Government, on the one hand,
and those of the State, on the other.”
c. “[T]ribal authority to regulate state officers in executing process related to the
violation, off reservation, of state laws is not essential to tribal self-government or
internal relations to ‘the right to make laws and be ruled by them.’”
2. “Since it is clear … that tribal courts lack jurisdiction over state officials for
causes of action relating to their performance of official duties, adherence to
tribal exhaustion requirement in such cases would serve no purpose other than
delay, and is therefore unnecessary.”
iv. (Souter, J., concurring):
1. Extending Montana – “[L]and status within a reservation is not a primary
jurisdictional fact, but it is relevant only in so far as it bears on as it bears on
the application of one of Montana’s exceptions to a particular case”:
a. “[A] presumption against tribal-court civil jurisdiction squares with one
of the principal policy considerations underlying Oliphant, namely, an
overriding concern that citizens who are not tribal members be
‘protected … from unwarranted intrusions on their personal liberty.”
b. “[T]ribal courts is a complex mix of tribal codes and federal, state, and
traditional law … difficult for an outsider to sort out.”
c. “[N]o effective review mechanism … The result is a substantial
disuniformity in the interpretation of state and federal law.”
v. (O’Connor, J., concurring):
1. Status of Land is Relevant – “[L]and status … has always figured prominently in
our analysis of tribal jurisdiction.”
57
2. Qualified Immunity – “I would hold that Montana governs a tribe’s civil

jurisdiction over nonmembers, and that in order to protect government
officials, immunity claims should be considered in reviewing tribal court
jurisdiction.”
3. Consensual Relationship & Per Se Rule – “State governments may enter into
consensual relationships with tribes, such as contracts for services or shared
authority over public resources. Depending upon the nature of the agreement, such
relationships could provide official consent to tribal regulatory jurisdiction.”
4. Failure of Per Se Rule – “[A] per se rule … fails to consider adequately the
Tribes’ inherent sovereign interests in activities on their land, not would I give
non members freedom to act with impunity … based on their status.”
e. Law enforcement agreement as right-of-way? – County of Lewis v. Allen (9th Cir. 1998).
The court found that the law enforcement agreement between the Nez Perce and the county
police “was tantamount to alienation of the land to non-Indians for this limited purpose.”
Therefore, via Strate, Montana applies:
i. First Exception: Consensual relationships with tribe did not apply to an
intergovernmental law enforcement agreement.
ii. Second Exception: Subjecting county law enforcement officers to tribal court
jurisdiction was not necessary to protect tribal interests because tribal members could
file suit in state or federal court.
f. The Infringement test; validity of state assertion of jurisdiction – Williams v. Lee (1959)
(Black, J.):
1. Facts: Non-Indian general store owner brought an action in Arizona court to
collect for goods sold to Indian customers on credit at the store in the Navajo
Nation.
2. PP: Trial court denied motion to dismiss on jurisdictional ground. Ariz.
affirmed on the ground that no Act of Congress forbids Arizona Courts from
exercising its jurisdiction over civil suits by non-Indians against Indians
through the action arises on an Indian reservation.
3. Holding: Reversed. “[T]he exercise of state jurisdiction here would undermine the
authority of the tribal courts over Reservation affairs and hence would infringe on the right of
Indian to govern themselves.”
a. “Essentially, absent governing Acts of Congress, the question has always been
whether the state action infringed on the right of reservation Indians on a
reservation.”
b. “Congress did express its willingness to have any state assume
jurisdiction over reservation Indians [but] Arizona has not accepted
jurisdiction” (which must be done by the state legislature or the
people).
c. “It is immaterial that respondent is not an Indian.”
g. Federal Pre-Emption; Sovereignty as Backdrop – McClanahan v. Arizona State Tax
Commission (1973) (Marshall, J.):
i. Facts: $16.20 was withheld from a Navajo for state income tax liability. All income
derived solely from within the Reservation. She filed a protest and a claim for refund.
When no action was taker, she brought this class action lawsuit for money withheld
and judicial declaration.
58
ii. PP: Trial court dismissed for failure to state a claim. Arizona Court of Appeals
affirmed, holding that state income tax does not infringe upon tribal sovereignty.
Arizona Supreme Court denied review.
iii. Holding: “The Indian sovereignty doctrine is relevant … not because it provides a definite resolution
of the issue in this suit, but because it provides a backdrop against which the applicable treaties and
federal statutes must be read.”
iv. The question has always been whether the state action infringed on the right of
reservation Indians to make their own laws and be ruled by them (William v. lee test,
usually applied to non-indians). Here, they were violated when the state collected a tax
where it had no jurisdiction.
1. The backdrop. “They were, and always have been regarded as having a semi-
independent position when they preserved their tribal relations … as a separate
people, with the power of regulating their internal and social relations, and thus
far not brought under the laws of the Union or the State within whose limits
they resided.”
2. “When the relevant treaty and statutes are read with this tradition in mind, we
think it clear that Arizona has exceeded its lawful authority by attempting to
tax appellant.”
3. Since appellant is an Indian and her income is derived from the reservation, her
activity is totally within the sphere which the relevant treaty and statutes leave
for the federal government and Indians.
v.
B. On Non-Indian Fee Land:

a. With important exceptions, no authority on non-Indian fee lands – Montana v. United
States (1981) (Stewart, J.):
i. Facts: The case involved tribal regulation of duck hunting and trout fishing by non-
Indians on their own fee lands within the boundaries of the Crow Reservation.
ii. Holding: “The exercise of tribal power beyond what is necessary to protect tribal self-government or to
control international relations is inconsistent with the dependent status of the tribes, and so cannot
survive without express Congressional delegation.”
1. Important Exceptions:
a. Consensual Relationship. “A tribe may regulate, through taxation,
licensing, or other means, the activities of nonmembers who enter
consensual relationships with the tribe or its member, through
commercial dealing, contracts, leases, or other arrangements.”
b. Political, Economic, and Public Welfare. “A tribe may also retain
inherent power to exercise civil authority over the conduct of non-
Indians on fee lands within its reservation when that conduct threatens
or has some direct effect on the political integrity, the economic
security, or the health or welfare of the tribe.”
2. “Since regulation of hunting and fishing by non-members of a tribe on lands
no longer owned by the Tribe bears no clear relationship to tribal self-
government or internal relation, the general principles of retained inherent
sovereignty did not authorize the Crow tribe to adopt” the regulation.
C. On Right-of-Ways:
59
a. With Montana exceptions, no authority on right-of-way or similar others – Strate v. A-1

Contractors (1997) (Ginsburg, J.):
i. Facts: Fredericks, a widow of a deceased tribal member, got into a traffic accident with
Stockert, who was driving truck owned by A-1 Contractors, a non-Indian company
under a subcontract with a tribal corporation. The accident occurred on a ND state highway,
which is maintained under the right-of-way granted by the United States. The land was held in
trust by the United States for the Three Affiliated Tribes.
ii. PP: Tribal court denied the motion to dismiss, challenging personal and subject matter
jurisdictions. Northern Plains Intertribal Court of Appeals affirmed. A-1 Contractors
then sought declaratory judgment and an injunction in the District Court. The District
Court determined that the Tribal Court has jurisdiction. Eight circuit panel affirmed.
En banc reversed.
iii. Holding: Affirmed. Montana controls – the right of way granted is an equivalent of alienated
non-Indian land.
1. “Subject to the controlling provisions in treaties and statutes, and the two
exceptions identified in Montana, the civil authority of Indian tribes and their
courts with respect to non-Indian fee lands generally does not extend to the
activities of nonmembers of the tribe.”
2. National Farmers and Iowa Mutual enunciate only an exhaustion requirement,
a prudential rule, based on comity. These decisions do not expand or stand
apart from Montana’s instruction on the inherent sovereign powers of an
Indian tribe.
3. “The Tribes have consented to, and received payment for, the State’s use of
the 6.59-mile stretch for a public highway. They have retained no gate keeping
right. So long as the stretch is maintained as part of the State’s highway, the
Tribes cannot assert a landowner’s right to occupy and exclude.”
4. Application of Montana:
a. First Exception: The plaintiff “was not a party to the subcontract, and
the Tribes were strangers to the accident.” This dispute is distinctly
non-tribal in nature, arose between two non-Indians.
b. Second Exception: Though careless driving jeopardizes the safety of tribal
members, the proper application of this exception must be viewed in
light of the main Montana rule – inherent power does not go beyond
that is necessary to protect self-government. “Neither regulatory nor
adjudicatory authority over the state highway accident at issued is
needed to preserve the right of reservation Indians to make their own
laws and be ruled by them.”
5. No Exhaustion Requirement. “When … it is plain that no federal grant provides
for tribal governance of nonmembers’ conduct on land covered by Montana’s
main rule, it will be equally evident that tribal courts lack adjudicatory authority
over disputers arising from such conduct.” “Therefore, when tribal-court jurisdiction
over an action such as this one is challenged in federal court, the otherwise applicable
exhaustion requirement must give way, for it would serve no purpose other than delay.”
b. Applicable to railroad right-of-way. Burlington Northern R.R. v. Red Wolf (9th Cir. 1999).
c. Judgment of tribal court was not entitled to recognition in federal courts. Wilson v.
Marchington (9th Cir. 1997) (Tribal member suing non-Indian for damages sustained in a
traffic accident on a state highway within the reservation).
60
D. On Federal Claims:
a. Generally, tribal courts have no authority over federal claims – Nevada v. Hicks (2001)
(Scalia, J.):
i. Facts: Hicks came under suspicion of having killed a California bighorn sheep, a gross
misdemeanor under NV law. The state game warden obtained both state and tribal
warrants and executed the searches twice, approximately a year a part. The searches
did not turn up any evidence. Hicks, claiming that his sheep-heads have been
damaged, filed a civil action in the Fallon Paiute-Shoshone tribal court. Hicks’ causes
of action include federal civil rights claims under 42 U.S.C. § 1983.
ii. Holding: No authority to adjudicate the federal claim:
1. “Tribal courts … cannot be courts of general jurisdiction … for a tribe’s
inherent adjudicative jurisdiction over nonmembers is at most only as broad as
its legislative jurisdiction.”
2. “It is true that some statutes proclaim tribal-court jurisdiction over certain
questions of federal law … [b]ut no provision in federal law provides for tribal-
court jurisdiction over [this] action.”
3. General removal statute involves state-federal courts. “Defendants would
inexplicably lack the right … to seek a federal forum.”
iii. (Stevens, J., concurring): Reserved Rights. Tribal court may entertain [federal] claim
unless enjoined from doing so by a federal court.
b. Statutory preference for federal jurisdiction trumps tribal court’s jurisdiction. “Tribal
courts lack jurisdiction over Price-Anderson claims because Congress, in the Court’s view,
expressed an unmistakable preference for a federal forum … both for litigating a Price-
Anderson claim on the merits and for determining whether a claim falls under Price-Anderson
when removal is contested.” El Paso Natural Gas v. Neztsosie (1999).
E. Miscellaneous:
a. Standard of Review (Post-Exhaustion) – Duncan Energy Co. v. Three Affiliated Tribes of
the Fort Berthold Reservation (8th Cir. 1994):
i. Tribal Law – accorded deference
ii. Factual Question – clearly erroneous standard
iii. Federal Question – de novo
b. Argument: Indian forum unfair to non-Indian. “Given the small size and insular nature of
many reservations, the risk of local bias is particularly acute … In many cases it may be
virtually impossible to impanel a jury that does not include friends or relatives of the plaintiff.”
Brief of Amici Curiae, American Trucking Association, Strate v. A-1 Contractors.
61
Zoning
A. Closed Area: Power to Zone in “closed area”; Allotment immaterial; Tribe’s interest in
management – Brendale v. Confederated Tribes & Bands of Yakima (1989):
a. Facts:
i. Brendale, non-member part Indian, owns a 160-acre tract of land near the center of the
member/permit holder-only “closed area.” He submitted an application to divide one
of his parcels to be sold as summer cabin sites.
ii. The Yakima nation filed separate actions in the District Court seeking:
1. Declaratory judgment that the Yakima Nation had exclusive authority to zone
the properties at issue; and
2. An injunction barring any action on the land inconsistent with the land-use
regulation in the Yakima Nation.
b. Plurality Opinion - Tribe has inherent authority to zone; Allotment immaterial; Loss of land management
= threat to tribes (Blackmun, J., joined by 2 other justices):
i. “[T]he tribe has the inherent authority to zone non-Indian fee lands.”
ii. Montana:
1. “[E]xplicitly recognizes that tribes ‘retain inherent sovereign power to exercise
some forms of civil jurisdiction over non-Indians on their reservations, even
on non-Indian fee lands.’”
2. Under Montana, “once the tribe’s valid regulatory interest is established, the nature of land
ownership does not diminish the tribe’s inherent power to regulate in the area.”
iii. “[T]his Court should direct its attention not to the intent of the Congress that passed the Dawes Act,
but rather to the intent of the Congress that repudiated [it].” “This 1934 Congress, as
definitively interpreted by the Executive Branch at the time, intended that tribal civil
jurisdiction extend over “all of the lands of the reservation, whether owned by the
tribe, by members thereof, or by outsiders.”
iv. “The threat to the tribe … stems from the loss of general and longer term advantages
of comprehensive land management.” There’s a big difference between zoning and case-by-case
nuisance litigation proposed by White’s opinion.
c. Concurrence – Allotment immaterial; tribal interest in land management (Stevens, J., joined by
O’Connor):
i. “The Dawes Act did not itself transfer any regulatory power from the Tribe to any state or local
government authority.” Nonetheless, by providing for the allotment and ultimate
alienation of reservation land, the Act in some respects diminished tribal authority.”
ii. “Congress … could not have intended that tribes would lose control over the
character of their reservation upon the sale of a few, relatively small parcel of land.”
iii. “Although … pre-emption analysis provides some assurance that the Reservation will
not be overrun by various uses inconsistent with important tribal interests, it does not
provide a means by which the Tribe can continue to define the character of the
restricted area.”
d. Dissenting Opinion (White, J., joined by C.J. and 2 other justices): Exhaustion Problem. The
zoning proceedings should have been allowed to conclude and it may be that those proceeding would
adequately recognize tribal interests and make unnecessary further action in the District Court.
B. Open Area:
62
a. No Power to Zone in “open area”: no direct effect on tribe; no tribal interest in land
management – Brendale v. Confederated Tribes & Bands of Yakima (1989):
i. Facts:
1. Wilkinson, non-Indian, owns a 40-acre tract in the “open area.” He applied to
subdivide his land into 20 lots for the purpose of building single-family home
on each of the subdivided land.
2. The Yakima nation filed separate actions in the District Court seeking:
a. Declaratory judgment that the Yakima Nation had exclusive authority
to zone the properties at issue; and
b. An injunction barring any action on the land inconsistent with the land-
use regulation in the Yakima Nation.
ii. Plurality Opinion – Treaty rights extinguished by alienation; applying Montana (White, J.,
joined by C.J. and 2 other justices):
1. Treaty rights with respect to reservation land must be read in light of the subsequent
alienation. Here, the lands at issue had been alienated under the Allotment Act.
2. Montana:
a. No contention that Congress has expressly delegated to the Yakima
Nation the power to zone fee lands of nonmembers of the Tribe.
b. The Exceptions:
i. No consensual relationship simply by the virtue of their land
ownerships.
ii. The District Court found that Yakima County’s exercise of
zoning power over the Wilkinson property would have no direct effect
on the Tribe and would not threaten its political integrity, economic,
security, or health and welfare.
iii. Concurrence – Diminishment; no substantial interest in governing land use (Stevens, J., joined
by O’Connor):
1. “[T]he ‘subsequent alienation’ of about half of the property in the open area
has produced an integrated community that is not economically or culturally
delimited by reservation boundaries.”
2. “Unlike the closed area, the Tribe makes no attempt to control access to the
open area.”
3. “Because the open area no longer maintains the character of a unique tribal asset and because
the Tribe accordingly lacks a substantial interest in governing land use, the power to zone has
‘become outmoded.’”
iv. Dissenting Opinion – Tribe has inherent authority to zone; Allotment immaterial; Loss of land
management = threat to tribes (Blackmun, J., joined by 2 other justices):
1. “[T]he tribe has the inherent authority to zone non-Indian fee lands.”
2. Montana:
a. “[E]xplicitly recognizes that tribes ‘retain inherent sovereign power to
exercise some forms of civil jurisdiction over non-Indians on their
reservations, even on non-Indian fee lands.’”
b. Under Montana, “once the tribe’s valid regulatory interest is established, the
nature of land ownership does not diminish the tribe’s inherent power to regulate in
the area.”
3. “[T]his Court should direct its attention not to the intent of the Congress that passed the
Dawes Act, but rather to the intent of the Congress that repudiated [it].” “This 1934
Congress, as definitively interpreted by the Executive Branch at the time,
63
intended that tribal civil jurisdiction extend over “all of the lands of the
reservation, whether owned by the tribe, by members thereof, or by outsiders.”
4. “The threat to the tribe … stems from the loss of general and longer term
advantages of comprehensive land management.” There’s a big difference between
zoning and case-by-case nuisance litigation proposed by White’s opinion.
b. No purchase/allotment necessary: when Congress broadly opened up land to non-
Indian, the effect: destruction of pre-existing rights. “Thus, regardless of whether land is
conveyed pursuant to an Act of Congress for homesteading or for flood control purposes, when Congress has
broadly opened up such land to non-Indians, the effects of the transfer is the destruction of pre-existing
Indian rights to regulatory control. Although Montana involved lands conveyed in fee to non-
Indians … [its] framework … is applicable to federal takings in this case.” South Dakota v.
Bourland (1993) (A tribe had been required by federal law to relinquish lands for the
construction of a federal reservoir and later sought to regulate non-Indian fishing thereupon).
64
Taxation/State Assertion – Non-Indians

A. In General:
a. Presumption of civil jurisdiction in favor of tribes. “Civil jurisdiction over [nonmember]
activities presumptively lies in the tribal courts unless affirmatively limited by a specific treaty
provision or federal statute.” Iowa Mutual Insurance Co. v. LaPlante (1987).
b. More weight to the state on non-Indian fee lands. State regulation may not be pre-empted
even though the tribe has a comprehensive regulatory scheme, at least on parts of the
reservation where there is heavy non-Indian land ownership and activity. See Brendale v.
Confederated Tribes of the Yakima Indian Reservation (1989).
c. Tribal immunity from liability of uncollected tax. The Court held that although the
doctrine of tribal sovereign immunity does not excuse a tribe from all obligations to assist in
the collection of validly imposed state sales tax under Colville, the sovereign immunity of the
tribe prevents it from being liable for the collection of the state taxes. Oklahoma Tax
Comm’n v. Citizens Band of Potawatomi Indian Tribe of Oklahoma (1991).
B. Doing Business in Indian Country:

a. Unless federally pre-empted, tribal severance tax does not preclude state’s. “[U]nless
Congress has expressly or impliedly preempted state taxation, a non-Indian lessee producing
oil and gas on Indian land was subject to a non-discriminatory state severance tax as well as
the tribal tax.” Cotton Petroleum Corp. v. New Mexico (1989).
i. State severance tax can’t be too large or w/o legitimate interest though. The
Ninth Circuit pointed out that the state’s 30% tax was so large that it could not be
applied to tribal leases without interfering with tribal economic development. The
court also held that, the tax interfered with tribal self-government because it was not
narrowly tailored to the state’s legitimate interests. Crow Tribe of Indians v. Montana
(9th Cir. 1987) (challenging the application of Montana’s severance tax on non-Indian
lessees of tribal coal interests underlying a “ceded strip” of land).
b. Federal Pre-Emption; Pervasiveness of the Indian Traders Statute:
i. The whole field of Indian trading preempted? Warren Trading Post v. Arizona
Tax Commission (1965) (Black, J.):
1. Facts: Arizona levied a 2% sales/income tax on Warren Trading Post, which
does retail business with Indians on the Navajo Reservation under a federal
license.
2. Holding:
a. “[T]he assessment and collection of this tax would to a substantial extent frustrate
the evident congressional purpose of ensuring that no burden shall be
imposed upon Indian traders for trading with Indians on reservations
except as authorized by Acts of Congress or by valid regulations
promulgated under those Acts.”
b. “These apparently all-inclusive regulations and the statutes authorizing
them would seem in themselves sufficient to show that Congress has
taken the business of Indian trading on reservations so fully in hand
that no room remains for state laws imposing additional burdens upon
traders.”
ii. Sovereignty as backdrop? White Mountain Apache Tribe v. Bracker (1980)
(Marshall, J.):
65
1. Facts: FATCO, a tribal timber enterprise, subcontracted some of its work out
to six logging companies. State sought to impose on Pinetop, a non-Indian
subcontractor, a motor carrier license tax or an excise or use fuel tax. There’re
state highways within the reservation.
2. Holding: “Federal regulation scheme is so pervasive as to preclude additional burden sought
to be imposed in this case.”
a. A backdrop considered. “[T]radition of Indian sovereignty … must
inform the determination whether the exercise of state authority has
been pre-empted by operation of federal law.”
b. “[P]articularized inquiry into the nature of the state, Federal, and tribal
interests at stake … to determine whether the exercise of state
authority would violate federal law.”
i. No legitimate interest. Though they are state highways, they were
built, maintained, and policed exclusively by the Federal
Government, the Tribe, and its contractors.
iii. Pre-empted: Delivery of goods on reservation by off-reservation business. “The
contract of sale involved in the present case was executed on the … Reservation, and
delivery and payment were effected there. Under the Indian trader statutes … this
transaction is plainly subject to federal regulation. It is irrelevant that appellant is not a
licensed Indian trader. It is the existence of the Indian trader statutes, then, and not their
administration, that pre-empts the field of transactions with Indian occurring on the reservation.
Central Machinery Co. v. Arizona Tax Comm. (1980) (striking down Arizona
transaction privilege tax against the off-reservation seller).
iv. Pre-emption by direction and supervision. The Court held that the direction and
supervision by federal government in the construction of Indian schools left no room
for additional burden sought to be imposed by New Mexico gross receipts tax on non-
Indian construction company operating under Navajo’s contract with BIA for school
construction. The court cited many statutes and policy to support the holding. Ramah
Navajo School Board v. Bureau of Revenue (1982).
1. Contra. Immunity greater than United States? Citing a case holding that
similar tax may be imposed on party contracting with federal government,
Rehnquist criticized the holding for according tribe “whose sovereignty exists only at
the sufferance of Congress and is subject to complete defeasance, greater immunity from state
taxes than is enjoyed by … the United States.” Id. (Rehnquist, J., dissenting).
c. The Infringement Test (Absent Governing Federal Statutes):
i. Nexus: protection of state interest; primarily cases involving non-Indian only.
“It must be remembered that cases applying the Williams test have dealt principally
with situations involving non-Indians … [It] was designed to resolve this conflict by
providing that the State could protect its interest up to the point where tribal self-
government would be affected.” McClanahan v. Arizona State Tax Commission
(1973).
ii. The Infringement test; validity of state assertion of jurisdiction – Williams v.
Lee (1959) (Black, J.):
1. Facts: Non-Indian general store owner brought an action in Arizona court to
collect for goods sold to Indian customers on credit at the store in the Navajo
Nation.
2. PP: Trial court denied motion to dismiss on jurisdictional ground. Ariz.
affirmed on the ground that no Act of Congress forbids Arizona Courts from
66
exercising its jurisdiction over civil suits by non-Indians against Indians

through the action arises on an Indian reservation.
3. Holding: Reversed. “[T]he exercise of state jurisdiction here would undermine the
authority of the tribal courts over Reservation affairs and hence would infringe on the right of
Indian to govern themselves.”
a. “Essentially, absent governing Acts of Congress, the question has always been
whether the state action infringed on the right of reservation Indians on a
reservation.”
b. “Congress did express its willingness to have any state assume
jurisdiction over reservation Indians [but] Arizona has not accepted
jurisdiction” (which must be done by the state legislature or the
people).
c. “It is immaterial that respondent is not an Indian.”
C. Tax Incident on Consumers:

a. Exception from Indian Trade Pre-emption – Where tax incident is passed on to non-
Indian consumers – Dept. of Taxation and Finance of N.Y. v Milhelm Attea & Bros.,
Inc. (1994) (Stevens, J.):
i. Facts: NY collects cigarette through stamps, ultimate liability of which falls on
consumers. The Department may withhold approval of deliveries to tribes/retailers
who are/have been violating the regulation. Record-keeping requirements are also
imposed.
ii. Holding:
1. No pre-emption on the tax. New York’s regulations do not, no their face,
violate the Indian Trader Statutes.
a. Distinction. Tax not imposed directly on Indian traders, tribes, or
“value-generated on reservation.”
2. Record-keeping requirement okay. “Indian traders are not wholly immune
from state regulation that’s reasonable necessary to the assessment or
collection of lawful state taxes.”
a. “By imposing quota … New York has not sought to dictate the kind and quantity
of goods and the prices at which such goods shall be sold to the Indians.”
b. The regulation is comparable to Colville.
b. State may tax non-Indian on Reservation – Combined analysis; “value generated on
the reservation consideration” – Washington v. Confederated Tribes of the Colville
Indian Reservation (1980) (White, J.):
i. Holding: “We do not believe that principles of federal Indian law, whether stated in terms of
preemption, tribal self-government, or otherwise” preempts state taxes.
1. Pre-Emption:
a. Federal statues evidence concern with economic development but none
goes so far as to grant an artificial competitive advantage.
b. Washington Enabling Act only bars state tax on reservation land and
income thereof. Here’s it’s a tax on non-member.
c. No delegation of federal power to tribes in self-government.
2. Infringement:
a. No infringement where there’s only a mere loss of revenue.
b. Value generated on the reservation. “While the Tribes, do have an interest
in raising the revenues for essential government programs, that interest
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is strongest when the revenues are derived from value generated on the
reservation by activities involving the Tribes are when the tax payer is
the recipient of tribal services.”
3. Indian Commerce Clause: The Clause prevents undue discrimination against, or burdens
on Indian commerce. “The taxes under consideration do not burden commerce
that would exist on the reservation without respect to exemption.”
c. “Value generated on reservation” – how proximate? In the Gila River litigation, state
sought to levy a tax on sale of tickets concessionary items to non-Indians in connection with
sporting and cultural events at a tribal facility on the Reservation.
i. Strong Interest. “A tribe plays an active rule in generating activities of value on its
reservation gives it a strong interest in maintaining those activities free from state
interference.” Gila River Indian Community v. Waddell (9th Cir. 1992) (held that the
tribe stated a claim).
ii. Limited Interest. The Tribe’s “assertions regarding its active role … are unsupported
by the record. … The Tribe’s rule is limited to providing clean and safe facility.” Gila
River Indian Community v. Waddell (9th Cir. 1996) (affirmed summary judgment
against the tribe).
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Taxation/State Assertion – Indians
A. On Indian Country:
a. Strong presumption against the validity of state regulations in Indian country. “The
Court consistently has held that it will find the Indians’ exemption from state taxes lifted only
when Congress has made its intention unmistakably clear.” Montana v. Blackfeet Indian Tribe
(1985).
b. Categorical Rule: state tax incident on tribe or its member impermissible. “When
Congress does not instruct otherwise, a State’s excise tax is unenforceable if its legal incidence
falls on a Tribe or its members for sales made within Indian country.” Oklahoma Tax Comm.
v. Chickasaw Nation (1995).
c. Early Pre-emption Stance on Taxes. “As long as the United States recognized their
national character they are under the protection of treaties and the laws of Congress, and their
property is withdrawn from the operation of State laws.” The Kansas Indians (1867) (State
attempting to tax tribal land and treaty allotments held by individual Indians).
d. Federal Pre-Emption; Sovereignty as Backdrop – McClanahan v. Arizona State Tax
Commission (1973) (Marshall, J.):
i. Facts: $16.20 was withheld from a Navajo for state income tax liability. All income
derived solely from within the Reservation. She filed a protest and a claim for refund.
When no action was taker, she brought this class action lawsuit for money withheld
and judicial declaration.
ii. PP: Trial court dismissed for failure to state a claim. Arizona Court of Appeals
affirmed, holding that state income tax does not infringe upon tribal sovereignty.
Arizona Supreme Court denied review.
iii. Holding: “The Indian sovereignty doctrine is relevant … not because it provides a definite resolution
of the issue in this suit, but because it provides a backdrop against which the applicable treaties and
federal statutes must be read.”
iv. The question has always been whether the state action infringed on the right of
reservation Indians to make their own laws and be ruled by them (William v. lee test,
usually applied to non-indians). Here, they were violated when the state collected a tax
where it had no jurisdiction.
1. The backdrop. “They were, and always have been regarded as having a semi-
independent position when they preserved their tribal relations … as a separate
people, with the power of regulating their internal and social relations, and thus
far not brought under the laws of the Union or the State within whose limits
they resided.”
2. “When the relevant treaty and statutes are read with this tradition in mind, we
think it clear that Arizona has exceeded its lawful authority by attempting to
tax appellant.”
3. Since appellant is an Indian and her income is derived from the reservation, her
activity is totally within the sphere which the relevant treaty and statutes leave
for the federal government and Indians.
e. PL-280 and Taxation, Bryan v. Itasca
i. Is PL 280 a congressional grant of power to states to tax reservation Indians?
ii. No, it is not. Clear legislative history of PL-280 and Congressional Statutes say
otherwise.
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iii. PL was designed to redress the lack adequate Indian forums for resolving private legal
disputes between reservation Indians and between Indians and other citizens. (private
civil litigation matters).
iv. PL was designed for criminal and state law proceedings, not to help the states with
economic and environmental development in Indian country.
v. PL 280 is not total assimilation. Nothing in Congress intent mean that the act would
be extended to the full panoply of state powers including taxation.
f. State may tax non-members residents; state may seize the cigarettes off-reservation; no
camper taxes on members/tribe for use on reservation – Washington v. Confederated
Tribes of the Colville Indian Reservation (1980) (White, J.):
i. Facts: Washington levied $1.60/carton cigarette tax. Indians may possess unstamped
tax for the purpose of reselling to other members.
1. Colville, Lummi, and Makah Tribes use tribal funds to purchase cigarettes from
out-of-state dealers, distribute them to outlets, and collect $0.40-0.50 +
wholesale price. Cigarettes remain tribal property until sales. Tax is passed on
to consumers.
2. Yakima purchases cigarettes from out of state and sells them to licensed
retailers. Tribe gets the markup plus $0.225/carton. No requirement that this
tax be added to the selling price.
ii. Holding:
1. State may tax non-member Indian residents:
a. Pre-emption: “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 [non-member] Indians.”
b. Infringement: No self-government issue – they are not part of the
governing tribe.
2. State may seize the cigarettes off-reservation: Infringement: “By seizing
cigarettes en route to the reservation, the State polices against wholesale
evasion of its own valid taxes without unnecessarily intruding on core tribal
interests.”
3. No camper taxes for reservation use:
a. Relying on Moe, the court held “personal property tax could not validly
be applied to motor vehicles owned by the Tribe or its members.”
b. Washington may however levy taxes for use outside the reservation.
iii. (Brennan, J., concurring in part and dissenting in part): Economics & Sovereign are
related.
1. Pre-emption: The state tax “should be invalidated both because it undermines
the Tribes; sovereign authority to regulate and tax the distribution of cigarettes
on trust lands and because it conflicts with tribal activities and functions that
have been expressly approved by the Federal Government.”
2. Infringement: “Tribes are put to an unsatisfactory choice.” “Commercial
growth, in short, can be had only at the expense of tax dollars. And having to
make that choice seriously intrudes on the Indians’ right “to make their own
laws and be ruled by them.”
iv. (Stewart, J., concurring in part and dissenting in part): Tax Credits.
1. Indian Commerce Clause: “[C]ongressional policy conjoined with the Indian
Commerce Clause requires the State to credit against its own tax the amount of
the Tribe’s tax.”
70
a. Satisfying state goals without putting the tribes at competitive

advantage.
b. Tax credit necessary only where the incident is on the consumer.
v. (Rehnquist, J., concurring in part and dissenting in part): Pure backdrop test.
1. The Indian’s sovereign immunity did not operate to curtail state authority to
impose tax.
2. “If Indians are to function as quasi-sovereigns with the States, they, like the
States, must adjust to the economic realities of that status as every other
sovereign competing for tax revenues, absent express intervention by
Congress.
g. Infringement test – Possible treatment as presumption in favor of state. The Montana
Supreme Court held that because the tribe has not adopted formal extradition procedure, the
sheriff’s action of entering the reservation to make an arrest of a homicide suspect did not
improperly infringe on tribal self-government. State ex. Rel. Old Elk v. District Court (Mt.
1976). *** Note: see McClanahan above. ***
h. Pragmatic Concern. The court reasoned that the state, if not afforded jurisdiction, would
become “helpless when an offense is committed off the reservation by an Indian who escaped
to the reservation before he is apprehended.” Fournier v. Roed (N.D. 1968).
i. Indian company working on other reservations. A unanimous opinion held that Arizona’s
transaction privilege tax may be assessed against Blaze, a Blackfeet (MT) Indian-owned
tribally-incorporated corporation, for contract proceeds from the BIA for work done on other
reservations. Arizona Dep’t of Revenue v. Blaze Construction Co. (1999).
B. Outside Indian Country:

a. Indians subject to non-discriminatory state law:
i. “[T]ribal activities conducted outside the reservation present different considerations.
… Absent express federal law to the contrary, Indians going beyond reservation boundaries have
generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the
state.” Mescalero Apache Tribe v. Jones (1973) (holding that tribally owned ski resort
on National Forest land was within the reach of a state tax).
ii. Even when exercising fishing rights. State boat registration law applies to tribal members
exercising off-reservation fishing rights. Wisconsin v. Big John (Wis. 1988).
b. Indian non-resident of a Reservation subject to state income tax. The “well-established
principle of interstate and international taxation – namely, that a jurisdiction, such as Oklahoma,
may tax all the income of its residents, even income earned outside the taxing jurisdiction.” Oklahoma Tax
Comm. v. Chickasaw Nation (1995).
i. Pre-emption problem? The dissent would hold to the contrary. The applicable
treaty states no “State shall ever have a right to pass laws for the government of the
[Nation] and their descendants … but the U.S. shall forever secure the said [Nation]
from, and against, all laws.” Id. (Breyer, J., dissenting).
71
Tribal Taxation
A. Power to tax, fundamental attribute of sovereignty – Washington v. Confederated Tribes of
the Colville Indian Reservation (1980):
a. “The power to tax … is a fundamental attribute of sovereignty which the tribes retain unless divested of it by
federal law or necessary implication of their dependent status.” Here, there’s been no divestiture; no
federal interests frustrated.
b. “It must be remembered that tribal sovereignty is dependent on and subordinate to only
Federal Government, not the States.”
c. Principles of federal Indian law, whether stated in terms of preemption, tribal self-government,
or otherwise, authorize Indians tribes thus to market an exemption from state taxation to
persons who would normally do business otherwise. (tribes didn’t want the state tax on the
cigarettes).
i. IRA and Indian Financing Act encourage tribal economic development but not to that
extent.
ii. These are not state taxes against members but against non-members whose
transactions have no substantial connection to reservation land.
iii. No Congressional approval that delegated authority to pre-empt valid state sales.
iv. State has legitimate interest in raising revenues, need to strike balance between
tribes/fed/state.
v. Indian commerce clause no longer bars all state taxation.
vi. No conflict of sovereigns, both tribe and state can impose taxes.
d. Non-member Indians (living on the reservation) cannot be taxed.
B. Tribe may tax even in contrary to contracts in force; no violation of Interstate Commerce
Clause – Merrion v. Jicarilla Apache Tribe (1982) (Marshall, J.):
a. Facts: Tribal land was established by an EO for their use and occupation, with exception for
bona fide settlers, and held in trust. The tribe in organized under IRA § 17. The tribe entered
into mineral leases with 21 lessees, with approval of the BIA commissioner. The tribe
reserved the right to collect royalties and usage of gas. The lessees are subject to state tax,
imposed via a Congressional Act. Later on, pursuant to the tribal constitution, the tribal
council adopted an ordinance imposing a severance tax on oil and gas production on tribal
land. The lessees challenged this ordinance.
b. Holding:
i. “The power to tax transactions occurring on trust lands and significantly involving a tribe or its
members is a fundamental attribute of sovereignty which the tribes retain unless divested of it by federal
law or necessary implication of their dependent status.”
1. Distinction between the lease & the tax:
a. “The royalty payments from the mineral leases are paid to the Tribe in its
role as partner in [the] commercial venture.”
b. “The severance tax … is petitioner’s contribution “to the general cost of
providing governmental services.”
ii. You can’t confuse the Tribe’s role as a business partner as a sovereign. The tribe can
lease the minerals but it did not abandon its sovereign powers in doing so.
1. Interest in tribal taxation “is strongest when the revenues are derived from the
value generated on the reservation by activities involving the Tribes and when
the tax payer is the recipient of tribal services.”
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iii. “[T]he severance tax imposed by the Tribe cannot be invalidated on the ground that it violates the
“negative implications” of the Commerce Clause.”
1. “Here, Congress has affirmatively acted by providing a series of federal check-
points that must be cleared before a tribal tax can take effect.”
2. The tax is not discriminatory. Its exception does not extend to individual
members of the tribe but to avoid the administrative stuff if the Tribe were to
tax itself.
c. (Stevens, J., dissenting):
i. No power to exclude  the tax is invalid. “[T]he … ordinance was not enacted
until many years after all lessees has been granted an unlimited right to extract. The
lease prohibits change of consideration without written notice. “The Tribe now seeks
to change retroactively the condition of that authority.”
C. Presumption: no power to tax on non-Indian fee land within the reservation. The unanimous
Court held that the Navajo Nation’s authority to tax nonmembers “reaches no further than tribal
land,” unless the Navajo Nation can prove one of the Montana exceptions, which were not met in the case.
Atkinson Trading Company v. Shirley (2001) (Navajo imposed a hotel occupancy tax, with incident
on the guests, effective within the boundaries of the Reservation).
D. Non-IRA Tribe’s tax ordinance  No Secretary approval required. “Indeed, the terms of the
IRA do not govern tribes … which declined to accept its provision.” “Nor do we agree that
Congress intended to recognize as legitimate only those tribal tax authorized by the constitutions
written under the IRA.” Kerr-McGee Corp. v. Navajo Tribe (1985) (unanimously upholding Navajo
taxes on both Indian and Non-Indian businesses). Navajo did not have an explicit Constitution (thus
nothing for the secretary to approve).
E. Tribal taxation on right-of-way. The Court of Appeals upheld a tribal utility tax on a railroad right
of way on reservation land noting that the railroad was “the recipient of tribal services,” including
police and fire protection. Burlington N. R.R. Co. v. Blackfeet Tribe (9th Cir. 1991).
73
Indian Child Welfare Act
A. General Provisions:
a. Congressional Findings § 1901:
i. Plenary power of Congress over Indian affairs.
ii. Congressional responsibility for the protection of Indian tribes and resources.
iii. United States’ interest, as trustee, in protecting Indian children who are members or are
eligible for membership.
iv. Acknowledge high percentage of removal, “often unwarranted.”
v. “States … have often failed to recognize the essential tribal relations of Indian people
and the cultural and social standards prevailing in Indian communities and families.”
b. Congressional Declaration of Policy § 1902:
i. Best interests of Indian children.
ii. Promote the stability and security of Indian tribes and families.
iii. Minimum Federal standards for removal and placement – in homes, “which will reflect
the unique value of Indian culture.
iv. Assistance to Indian tribes in the operation of child and family service programs.
c. Definition § 1903:
i. “Child Custody Proceeding” includes: § 1903(1)
1. Foster care placement
2. Termination of parental rights
3. Pre-adoptive placement
4. Adoptive placement
ii. “Extended Family Member”: § 1903(2)
1. Defined by the law or custom of the child’s tribe; OR
2. In its absence, 18+ & grandparent, aunt/uncle, brother/sister, brother-in-law,
sister-in-law, niece/nephew, second cousin, or stepparent.
iii. “Indian”: § 1903(3)
1. Any person who is a member of an Indian tribe; OR
2. Alaskan Native AND a member of a Regional Corporation in 43 U.S.C. §
1606.
iv. “Indian Child”: § 1903(4) – Unmarried person <18 AND
1. A member of an Indian tribe; OR
2. Eligible for membership AND is the biological child of a member of an Indian
tribe.
B. Tribal Jurisdiction § 1911:

a. Exclusive Jurisdiction § 1911(a): Any child custody proceeding involving:
i. Any Indian child who resides or is domiciled within the reservation.
1. “Domicile” not a state law definition – Mississippi Band of Choctaw
Indians v. Holyfield (1989) (Brennan, J.):
a. Facts: Choctaw mother gave birth to twin babies out of wedlock (the
father is also a Choctaw) 200 miles away from the reservation. There
was an immediate arrangement for adoption. Both parents signed
consent-to-adoption form. Adoption decree was issued by a state
74
court to appellees Orrey and Vivian Holyfield. Two month later the
Tribe moved to vacate.
b. PP: Motion Overruled. Miss. Affirmed.
c. Holding:
i. Congress did not intend to rely on state law for the definition of “domicile.”
“Indeed, the congressional findings … demonstrate that the
Congress perceived the States and their courts as partly
responsible for the problem it intended to correct.”
ii. “The congressional objectives make clear that a rule of domicile
that would permit individual Indian parents to defeat the
ICWA’s jurisdictional scheme is inconsistent with what
Congress intended.”
iii. ICWA places the custody decision in the hand of the Choctaw tribal
courts.
d. (Stevens, J., dissenting) – Parental Choice – ICWA “gives the Indian
patents a veto to prevent the transfer of a state court action to tribal
court. The majority “forces parents of Indian children who desire to
invoke state court jurisdiction to establish a domicile off reservation.”
ii. Ward of tribal court, notwithstanding the residence or domicile.
iii. Exception: Jurisdiction vested in the State by existing Federal law.
b. Transfer of Proceedings – foster care placement and termination of parental rights § 1911(b):
i. Indian child not domiciled or residing within the reservation of the Indian child’s tribe.
ii. Petition by parent, Indian custodian, or Indian child’s tribe.
iii. Without objection by either parent
iv. No good cause to not transfer – 44 Fed. Reg. 67584:
1. Good cause exists – no tribal court
2. Good cause may exist:
a. Proceeding at advanced stage & petitioner did not act promptly after
notice.
b. The child is >12yr and objects.
c. Evidence cannot present in tribal court without undue hardship to the
parties/witnesses.
d. Parents of child >5yr not available and the child has little/no contact
with tribe or its member.
3. May not be taken into account: socio-economic conditions; perceived adequacy
if tribal/BIA social services or judicial systems.
4. Burden: the party opposing the transfer.
v. Subject to declination by the tribal court.
c. Intervention – foster care placement and termination of parental rights § 1911(c): The Indian
custodian and the child’s tribe have the right to intervene at any point.
d. Full Faith and Credit – Feds, States, and Indian tribes shall give full faith and credit to the
public acts, records, and judicial proceedings of any Indian tribe to the same extent given to any
other entity.
C. Pending Court Proceedings § 1912:

a. Notice & Commencement: § 1912(a)
i. Involuntary foster care placement and termination of parental rights.
75
ii. Notification by seeking party to the parent or Indian custodian and the child’s tribe, by
registered mail w/ returned receipt.
iii. If location of parent/custodian/tribe cannot be determined:
1. Notify the Secretary
2. Secretary has 15 days to provide the requisite notice.
iv. Commencement – at least 10 days after receipt of notice by parent, Indian custodian
and the tribe, or the Secretary.
v. 20 days extra upon request by parent, Indian custodian, or the tribe.
b. Foster care placement orders – evidentiary burden § 1912(e) – no placement absent
determination, by clear and convincing evidence that the continued custody is likely to result in
serious emotional or physical damages to the child.
c. Parental rights termination orders - evidentiary burden § 1912(f) – no placement absent
determination, by beyond a reasonable doubt that the continued custody is likely to result in serious
emotional or physical damages to the child.
D. Placement of Indian Children § 1915:

a. Preference in Adoptive Placement § 1915(a) – absence of good cause to the contrary:
i. A member of the child’s extended family.
ii. Other members of the Indian child’s tribe.
iii. Other Indian families.
b. Preference in Foster Care/Pre-adoptive Placement § 1915(b):
i. Least restrictive setting which most approximates a family and in which his special
needs may be met.
ii. Reasonable proximity to his home.
iii. Preference – absence good cause to the contrary:
1. A member of the child’s extended family.
2. Foster home licensed/approved/specified by the child’s tribe.
3. Indian foster home licensed/approved by authorized non-Indian licensing
authority.
4. An institution for children approved by an Indian tribe or operated by an
Indian organization, which has a program suitable to meet a child’s needs.
c. Social and Cultural standards applicable § 1915(d):
i. The standard of the Indian community in which the parent or extended family resides
OR
ii. With which the parent or extended family members maintain social and cultural ties.
d. Return of Custody § 1916(a):
i. Notwithstanding State law to the contrary.
ii. Whenever a decree of adoption vacated/set aside OR adoptive parents voluntarily
terminate.
iii. Biological parent or prior Indian custodian may petition for return of custody
iv. Shall be granted UNLESS there’s a showing according to § 1912, that it’s not in the
best interest of the child.
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Fishing & Hunting Rights
A. On-Reservation:
a. Regulation over members & nonmembers; tribal regulation pre-empts state regulation
– New Mexico v. Mescalero Apache Tribe (1983) (Marshall, J.):
i. Facts: EO Reservation. The tribe has constructed a resort complex financed
principally by federal funds, and has undertaken a substantial development of the
reservation resources. The Tribe and the Fed jointly conduct a comprehensive fish
and game management program. Tribal Council adopts hunting and fishing ordinance,
with the help and approval of the Fed every year. The provisions often conflict with
the State’s. State licenses are not required for on-reservation activities. New Mexico
has enforced its regulations by arresting non-Indian hunters for illegal possession of
game killed.
ii. Holding:
1. “The sovereignty retained by the Tribe under the Treaty of 1852 includes its rights to regulate
the use of its resources by members as well as non-members.”
2. “State’s hunting and fishing laws to the reservation is pre-empted:”
a. “Concurrent jurisdiction would empower New Mexico wholly to
supplant tribal regulations.”
b. “The exercise of concurrent State jurisdiction in this case would
completely ‘disturb and disarrange’ the comprehensive scheme of
federal and tribal management established pursuant to federal law.”
c. “The assertion … would threaten Congress’ overriding objective of
encouraging tribal self-government and economic development.”
3. “State seeking to impose a tax on a transaction between a Tribe and non-members must
point to more than its general interest in raising revenues. A State’s regulatory interest will
be particularly substantial if the State can point to off-reservation effects that necessitate State
intervention.”
a. “New Mexico does not contribute in any significant respect to the
maintenance of these resources, and can point to no other
‘governmental functions it provides,’ in connection with hunting and
fishing … by non-members.”
b. “The State concedes that the Tribe’s management has “not had an
adverse impact on fish and wildlife outside the reservation.”
b. Control over Members: Actual land ownership pattern not determinative.
i. No state jurisdiction over Indian inside “Indian country.” The Court held that
areas of the Klamath River Reservation that had been opened for unrestricted
homestead entry were Indian Country, thus excluding state jurisdiction over Indian
fishing. There must be clear purpose to disestablish to reservation. Mattz v. Arnett (1973).
ii. Extinguished Indian Title; Non-extinguished rights:
1. The court held that the tribe possessed exclusive jurisdiction to regulate
members hunting and fishing on reservation lands along the Missouri River
acquired by the United States for reservoir project. Lower Brule Sioux Tribe v.
South Dakota (8th Cir. 1983).
2. Nelson Act, which provided for “a complete extinguishments of the Indian
title” to the lands of the reservation, did not abrogate the treaty fishing and
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hunting rights.” Leech Lake Band if Chippewa Indians v. Herbst (D.Minn.

1971).
c. Control over Non-Members:
i. Open-up to public use, regulatory control abrogated. The Supreme Court applied
the Montana rule to abrogate tribal treaty rights to regulate non-Indian fishing and
hunting on a large area of land within the Cheyenne River Reservation taken from the
tribe for reservoir project. The court held “when Congress has broadly opened such land to
non-Indians, the effect of the transfer is the destruction of pre-existing Indian rights to regulatory
control.” South Dakota v. Bourland (1993).
ii. Federal Trespass Statute. It is unlawful to without lawful authority or permission to
go upon any land that belong to any Indian or Indian tribe and held by the U.S. for the
purpose of hunting, trapping, or fishing. 18 U.S.C. § 1165.
1. Construed as an acknowledgement of some regulatory power. A few
courts have construed this as an acknowledgement of tribal authority to grant,
withhold, or condition non-Indian entry as a means of controlling reservation
hunting and fishing. Confederated Tribes of the Colville Indian Reservation v.
Washington (E.D.Wash. 1976).
iii. The Lacey Act. The statute makes it unlawful “to import, export, transport, sell,
receive, acquire or purchase” any fish or wildlife in violation of a tribal or federal law.
B. Off-Reservation:
a. Rights:
i. Reserved rights by Indian; not affected by state licensing of non-Indian –
United States v. Winans (1905) (McKenna, J.):
1. Facts: Winans, a non-Indian state-licensed fish wheels operator, attempted to
exclude tribal members from the fishing sites and refused to permit them to
cross over other non-Indian fee land to reach the fishing site. United States
sought to enjoin on the tribe’s behalf.
2. Holding:
a. “[T]he treaty was not a grant of rights to the Indians, but a grant of rights from
them – a reservation of those not granted.”
i. The reservations “imposed a servitude upon every piece of land
as though described therein.” “[T]he right was intended to be
continuing against the United States and its grantees as well as
against the State and its grantees.”
b. Fishing rights not affected by the state license. “The license from the State …
gives no power to exclude the Indians, nor was it intended to give such
power. It was the permission of the State to use a particular device.
What rights the Indians had were not determined or limited.”
ii. Hunt anywhere regardless of ownership? The Seventh Circuit held that the tribe
may exercise its usufructuary right on all public lands in Wisconsin, regardless of past
ownership. LCO II (7th Cir. 1985) (Treaty with Chippewa reserved “the privilege of
hunting, fishing, and gathering the wild rice, upon the lands, the rivers, and the lakes
included in the territory ceded.”)
iii. Tribal self-regulation allowed. The court held that the tribe could regulate
themselves with regard to sport fishing as long as the regulations incorporate biological
78
conditions that would preserve species in each lake in which they occur and provide a sufficient margin
of safety. LCO V (W.D.Wis. 1989).
b. Possible Limitations:
i. Limited duration treaty right; textual argument. The Tenth Circuit found an
extinguishment of off-reservation rights. The treaty states the Indians “shall have the
right to hunt on the unoccupied lands of the United States so long as game may be
found thereon, and as long as peace subsists.” Defendant was arrested for hunting
without a license on a National Forest. Crow Tribes v. Repsis (10th Cir. 1995).
1. Limited duration – the nature of rights “shows that the burden imposed on
the Territory was essentially perishable and intended to be of limited duration.”
2. Textual argument – National Forest is occupied because it is “no longer
available for settlement. No longer could anyone timber, mine, graze cattle, or
homestead on these lands without federal permission.”
ii. Incident of Indian title? The court found that aboriginal hunting and fishing rights
are an incident of Indian title and remain in effect until it’s extinguished. In re Wilson
(Cal. 1981).
iii. Limited rights to collect resources. The tribes’ right to collect resources was
limited to the amount needed to provide a “modest” standard of living. LCO IV
(W.D.Wis. 1987).
iv. State could impose restriction for reasons.
1. Conservation of resources. LCO III (W.D.Wis. 1987).
2. Health & Safety reasons. LCO IV (W.D.Wis. 1987).
v. Allocation of Games with the State: Held: harvest should be shared equally among the
tribe and the state, as the bargain between the parties under the treaties, “included
competition for the harvest. But this allocation could be lowered if moderate living needs decline.
LCO VI (W.D.Wis. 1990).
vi. No right to log timber but may gather forest products. Tribe had not logged at the
time of the treaties. LCO VII (W.D. Wis. 1991).
vii. Suggestion to State: find other way than exacting license fee on Indians. The
State’s “regulatory purpose could be accomplished otherwise, that the imposition of
license fees is not indispensable to the effectiveness of a state conservation program.”
Tulee v. Washington (1942) (dicta).
79
Gaming
A. California v. Cabazon Band of Mission Indian (1987) (White, J.):

a. Facts: The Cabazon and Morongo Bands of Mission Indians conduct bingo operations on
their reservations, pursuant to an approved ordinance. The operations are sole sources of
income for the tribes and major sources of employment. California sought to impose the
requirement in its statute allowing bingo parlors: prizes not exceed $250 and money kept in
special account and used only for charitable purposes.
b. Holding:
i. The statute is regulatory rather than prohibitory; PL280’s conferring of civil jurisdiction only includes
private litigation.
1. “The shorthand test is whether the conduct at issue violates the State’s public
policy.”
a. California does not prohibit all forms of gambling.
ii. State jurisdiction is pre-empted:
1. Various executive/legislative action supports tribal gaming enterprise.
2. Secretary approved tribal ordinances establishing and regulating the gaming
activities involved.
3. “Self-determination and economic development are not within reach if the
Tribes cannot raise revenues and provide employments for their members.”
4. Tribes are not merely “marketing exemption from state gambling laws.”
iii. State interests at stake are not sufficient to justify the assertion of state authority:
c. (Stevens, dissenting)
i. Congress had not acted, Secretary cannot pre-empt state law. “Congress has not pre-empted
California’s prohibition against high-stakes bingo games and the Secretary of the
Interior plainly has no authority to do so.”
ii. What’s the difference from Colville?
iii. State’s interest is both economic and protective. Loss of revenue from lottery.
B. Indian Gaming Regulatory Act (IGRA):

a. Tribal Jurisdiction and Limitations. “Indian tribes have the exclusive right to regulate
gaming activity on Indian lands if the faming activity is not specifically prohibited by Federal
law and is conducted within a State which does not, as a matter of criminal law and public
policy, prohibit such gaming activity.” 25 U.S.C. § 2701(5).
b. Classes:
i. Class I – social games w/ nominal prizes – exclusive tribal jurisdiction.
ii. Class II:
1. Bingo & bingo-like games, card games not played against the house – subject
to state restriction on hours/wagers.
2. Tribe may conduct/regulate: “in a State that permits such gaming for any
purpose by any person.”
iii. Class III:
1. All other gambling.
2. Tribe may conduct/regulate: “in a State that permits such gaming,”” subject to
an allocation of regulatory authority between state and tribe set forth in a
tribal-state compact.
80
a. State does not have to negotiate if it does not permit identical form of gambling:
i. “IGRA does not require a state to negotiate over one form of a
gaming activity simply because it has legalized another, albeit
similar form of gaming.” Rumsey Indian Rancheria v. Wilson
(9th Cir. 1994).
ii. State need not to negotiate over traditional keno or casino-type
gaming when the state only allowed video keno and charity
bingo and raffles. Cheyenne River Sioux Tribe v. South Dakota
(8th Cir. 1993).
b. Contra. If the state allows any Class III gaming, “such gaming” applies. “The
structure of IGRA makes clear that Congress was dealing categorically,
and that a state’s duty to bargain is not to be determined game-by-
game. The time to argue over particular games is during the
negotiation process.” Rumsey Indian Rancheria v. Wilson (9th Cir.
1994) (Canby, J., dissenting from denial of en banc).
c. National Indian Gaming Commission:
i. Broad regulatory and investigative authority to assure that Indian gaming is not subject
to the influences of organized crimes.
ii. Funded by <5% gross revenues of Class II in excess of $1.5 Million.
d. Class III compact procedure:
i. Tribe request negotiation under the Act.
ii. 180 days period to reach an agreement.
iii. No agreement  tribe may file in District Court to determine whether the state
negotiated in “good-faith” w/ burden of proving so on the state.
1. States must first consent in order to be sued by tribes. The Court held that neither the
Interstate Commerce Clause nor the Indian Commerce Clause grant Congress
the power to abrogate state sovereign immunity. Seminole Tribe of Florida v.
Florida (1996).
2. When state interposes immunity:
a. Mediation follows & the Secretary is permitted to establish Class III gaming
procedures, consistent with State law and IGRA. 25 C.F.R. § 291.
b. No enforcement of IGRA provisions requiring tribe to generate Class III gambling
only in accordance with the compact. United States v. Spokane Tribes of
Indians (9th Cir. 1998).
iv. If state loses  mediator is appointed  “last offer” drawn up; state may
accept/reject.
v. If rejected  the Secretary of the Interior is empowered unilaterally to determine and
impose the terms of the compact upon consultation with only the Indian tribe.
e. Invalidation of compact by non-compliance with state law. The court held that the
Secretary’s approval could not serve to validate otherwise invalid compacts and since the
governor’s execution of the compacts was invalid under state law without legislative approval,
the compacts were invalid under the IGRA. Pueblo of Santa Ana v. Kelly (10th Cir. 1997).
f. Federal tax liability. The Tenth Circuit held that the Chickasaw Nation was subject to the
federal wagering and occupational excise taxes because neither IGRA nor the treaty’s self-
government guarantee precludes such imposition. Chickasaw Nation v. United States (10th
Cir. 2000) (note: certiorari granted by the Supreme Court, 2001).
81
Criminal
Crimes by an Indian against an Indian.
1) State courts cannot have jurisdiction.

2) If the crime is one of the listed major crimes, federal courts have jurisdiction under the Major Crimes act.
3) Indian Country Crimes Act (which applies federal enclave crimes to Indian country) is inapplicable
because it expressly prohibits crimes involving Indians v. Indians.
4) Tribal courts have jurisdiction for those crimes other than the Major crimes act but may have concurrent
jurisdiction over major crimes.
82
Crimes by an Indian Against a Non-Indian

2) Indian Country Crimes Act
3) Major Crimes Act.
4) When no major crime or federal enclave crime is involved in a crime by an Indian against a non-indian,
state law can be applied by federal prosecutors under the assimilative crimes act. Tribes retain concurrent
jurisdiction over such crimes.
5) Where tribes have concurrent criminal jurisdiction, it extends to non-member Indians.
Crimes by a Non-Indian Against an Indian

2) Indian country Crimes Act.
3) If no federal enclave crime, state law is incorporate through Assimilative.
4) Tribal courts may not prosecute under the rule in Oliphant (tribal courts do not have criminal jurisdiction
over non-indians.
Crimes by a non-Indian v. non-indian
1) McBratney rule holds that crimes by non-indian against a non-indian in Indian country go to state court.
Federal and tribal courts have no jurisdiction.
Victimless and Consensual Crimes by an Indian
2) Tribal courts should have exclusive jurisdiction.
What are tribal trust lands?
The title to tribal lands is held by the federal government in a trust status for the benefit of current and
future generations of tribal members. Most often this land is within the boundaries of a reservation. Trust
status means that the land falls under tribal government authority and is generally not subject to state laws.
Trust status also creates limitations on the use of the land and requires federal approval for most actions.
PL-280
3) Among the matters in dispute were whether states assuming jurisdiction under PL-280 acquired the power
to tax and zone on reservations.
4) PL-280 was an attempt at compromise between abandoning the Indians to the states and maintaining
them as federally protected wards, subject only to federal or tribal jurisdiction.
5) The question is whether criminal or regulatory.
6) Goldberg
a) PL 280 did not divest Indian tribes of their sovereign power to punish their own tribal members for
violation of tribal law. Nothing in the wording of PL 280 or its legislative history precludes
concurrent tribal authority. Limitations on an Indian Tribe’s power to punish its own members must
be clearly set forth by Congress.
83
Who Am I?
-Sandoval
-Morton v. Mancari
-US v. Antelope
-Article pg.245
-Rice v. Cayteano (Hawaiians) pg.235
84

LAW 730 Federal Indian Law Outline

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B. Concerns of Federal Indian Law:

b. Political Question, left to Congress. United States v. Holiday (1865).

A. Spanish Legal Theories:

B. Pre-Colonial English Common Law:

D. The Founding Era:

A. Allotment & Assimilation (1871-1928):

The Marshall Trilogy

Treaty Rights & Canons of Construction

Federal Statute of General Applicability

Tribal Property Interests

B. Executive Order Reservations:

found in the available evidence of what consequences were thought by the

OVERVIEW: Four executive orders were issued withdrawing lands from

OUTCOME: The court affirmed the judgment denying compensation to the

D. Indian Claims Commission Act of 1946:

Applicability of Federal Constitution

Diminishment & “Indian Country”

a. De Jure: Treatments of the Reservation by different branches and

Indian Preference Statutes

A. IRA Indian Preference Statute (IRA § 12):

B. State Preference Laws:

Religion & First Amendment

B. Religious Conducts (drug, hairstyle, etc.):

C. American Indian Religious Freedom Act (AIRFA):

Tribal Justice Systems

Indian Civil Rights Act – 1968 (ICRA)

A. Indian Civil Rights Act of 1968 (ICRA):

e. No implied declaratory/injunctive relief in federal court – Santa Clara Pueblo v.

Criminal Jurisdiction – Starting Point

4. Sac & Fox (IA)

Criminal Jurisdiction – Indian Defendants

3. Inapplicable where defendant is a member of terminated tribe. The Act

4. Where crimes covered not punished by federal law – § 1153(b): Laws of

Criminal Jurisdiction – Non-Indian Defendant

d. Indian v. Non-Indian; State official’s performance of duties exception; non-exhaustion

2. Qualified Immunity – “I would hold that Montana governs a tribe’s civil

B. On Non-Indian Fee Land:

a. With Montana exceptions, no authority on right-of-way or similar others – Strate v. A-1

Taxation/State Assertion – Non-Indians

B. Doing Business in Indian Country:

exercising its jurisdiction over civil suits by non-Indians against Indians

C. Tax Incident on Consumers:

Taxation/State Assertion – Indians

a. Satisfying state goals without putting the tribes at competitive

B. Outside Indian Country:

Indian Child Welfare Act

B. Tribal Jurisdiction § 1911:

C. Pending Court Proceedings § 1912:

D. Placement of Indian Children § 1915:

Fishing & Hunting Rights

hunting rights.” Leech Lake Band if Chippewa Indians v. Herbst (D.Minn.

A. California v. Cabazon Band of Mission Indian (1987) (White, J.):

B. Indian Gaming Regulatory Act (IGRA):

Crimes by an Indian against an Indian.

1) State courts cannot have jurisdiction.

Crimes by an Indian Against a Non-Indian

1) State courts cannot have jurisdiction.

Crimes by a Non-Indian Against an Indian

1) State courts cannot have jurisdiction.

Crimes by a non-Indian v. non-indian

Victimless and Consensual Crimes by an Indian

2) Tribal courts should have exclusive jurisdiction.