Cases

Question 1

Johnson v. Mcintosh

Answer 1

Inherent sovereignty of tribes –Doctrine of discovery “ gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise”

Question 2

Cherokee Nation

Answer 2

Tribes are not foreign nations but they are domestic dependent nations.

Question 3

Worcester

Answer 3

Supremacy clause gives the power to the federal governmernt to deal with tribes. Displaced states.

Question 4

US v. Washington

Answer 4

Canons of construction – interpret treaties as the tribes would have understood them, ambiguities are resolved in favor of the tribes, and construe libearlly in favor of tribes

Question 5

Winans

Answer 5

Reserved rights doctrine: Indians have more rights than those that are written in treaty. Also, equal footing doctrine doesn’t abrogate treaty.

Question 6

Kagama

Answer 6

As long as a congressional act is within the scope of protecting tribes, they have plenary power to do so.

Question 7

Lonewolf

Answer 7

Congress can unilaterally change the terms of a treaty with a tribe.

Question 8

Menominee Tribe

Answer 8

Termination acts didn’t extinguish treaty rights. Treaty rights endure unless Congress explicitly extinguishes those treaty rights.

Question 9

Morton v. Mancari

Answer 9

Indian preference laws are constitutional. Preference is not racial – it is political. Indians are a politcal group.

Question 10

Rice v. Cayetano

Answer 10

Hawaiins are a racial group not a political group. State doesn’t have plenary power. Thus, they run afoul of constitution if try to apply Mancari to Hawaiins.

Question 11

Shoshone

Answer 11

Government has trust responsibility to Indians who live on trust lands. So, they need to compensat them for taking the resources that are on their land, including minderals and timber.

Question 12

Tee Hit Ton

Answer 12

Alaskan natives have mere aboriginal title which is not compensable. No treaty, no executive order means Alaska tribes don’t have compensable claims.

Question 13

Sioux Tribe

Answer 13

Executive granted reservations only give Indian tribes tenancy at will and no permanent rights on the land.

Question 14

Montana

Answer 14

Because of the Equal Footing Doctrine, the US transferred the rights to the riverbed to Montana. So Indian tribe didn’t have the right to stop Non-INdian fee owners from fishing.

Question 15

Oneida

Answer 15

Land repurchased by tribe in fee does not retain its special status. It would have to be retaken in trust to get the benefit of treaty obligations like tax exemption.

Question 16

Dion

Answer 16

Congressional iontent to abrogate INdian treaty must be clear and plain. Look for express declaration or legislative history, surrounding circumstances, and face of the Act.

Question 17

Mitchell

Answer 17

General trust relationship is not sufficient – tribe must point to a clear source of duty.

Question 18

Williams v Lee

Answer 18

State court is disabled from jurisdictiion in cases over parties when it infringes on the rights of INdians to make their own laws and be ruled by them. Infringement test. Think of this case when state is reaching in to regulate/ajudicate affairs on reservation

Question 19

McClanahan

Answer 19

Federal tribal scheme has preempted the states ability to impose any tax. Infringement/preemption tests.

Question 20

Talton

Answer 20

Does a tribe have to comply with the Constitution? Tribal courts are not constrained by the Constition in how they handle criminal adjudications. Tribal sovereignty predates the Constititon.

Question 21

Wheeler

Answer 21

No double jeopardy for federal and tribe to bring cases against a person. Two separate sovereigns.

Question 22

Santa Clara

Answer 22

ICRA does not provide a remey that would allow the tribe to be sued in federal court. Congress waived tribal sovereign immunity for habeas corpus byt they did not do it explicitly for anything else.

Question 23

Kiowa

Answer 23

Tribes have sovereign immunity in commerical context. Only Congress can waive tribal sovering immunity.

Question 24

Michigan

Answer 24

Tribal soverign immunity can only be extinguished by express action by Congress or waiver from the tribe itself.

Question 25

Solem

Answer 25

Only Congress can divest a reservation of its land and diminish its boundaries. Look at statute to see if Congress acted explicitly. Look at events around the passage of the age.

Question 26

Nebraska v. Parker

Answer 26

Congress did not diminish the reservation and the disputed land is within the reservation's boundaries, so the tribe can tax town.

Question 27

McGirt

Answer 27

Silence on behalf of Congress does not equal diminisment by implication. Treaty says what it meant -- land would last forever.

Question 28

Antelope

Answer 28

Indian broke into home and killed woman while robbing her. Indian argued that felony murder charge was more stringent than state law, and that he was being disciminated against. Court held that Indian's are a political, not racial, identity.

Question 29

Bryant

Answer 29

Federal statutes must be liberally construed in favor of Indian rights and Indian sovereignty. Public Law 280 was encated primarily to deal with the sudden increase in crimes on reservations. Nothing in law suggested this included power to tax.

Question 30

Oliphant

Answer 30

Tribal courts do not have inherent soverign authority over non-Indian residnets who commit crimes on reservations. Implicit divestiture.

Question 31

Duro

Answer 31

a tribe doesn't have inherent criminal jurisdiction over a non-member Indian who commits a crime on their reservation. Congress changd this.

Question 32

Lara

Answer 32

Duro fix is constitutional. Tribal court has jurisdiction to prosecute. Congress has power to enact this law becuase of their plenary power.

Question 33

Montana

Answer 33

Tribes have been divested of the authority to regulate the activities of non-Indians on non-Indian land within the reservation unless health and safety or consensual relationship

Question 34

Merrion

Answer 34

Tribe can impose severance tax on non-Indian activities on trust land. That is within their soverign power. Tribe has power to levy taxes and control economic activity on reservation trust land.

Question 35

Atkinson

Answer 35

Tribe doesn't have the powe to tax outside of its trust lands. Can't tax tribal fee land.

Question 36

National Farmers

Answer 36

Tribal court exhaustion rule -- tribal court has the first pass as to whether they have jurisdiction. Federal courts aren't going to take away jurisdiction until the tribal courts have played out their jurisdictions.

Question 37

Strate

Answer 37

State right of way treated like fee land not just tribal trust land. Neither montana rule exception is satisfied here. Tribal court doesn't have jurisdiction over this dispute.

Question 38

Hicks

Answer 38

Tribal sovereignty doessn't exclude all state regulatory authority on the reservation.

Question 39

DG

Answer 39

Not decided but Montana would probably have applied.

Question 40

Cooley

Answer 40

Tribes have the power to detain non Indians on INdian reservation for criminal behavior. Health and safety of the tribe.

Question 41

Holyfield

Answer 41

Domicil of the child folllows the domicile of the parents for purposes of ICWA. Don't use state definition.

Question 42

Adoptive Couple

Answer 42

ICWA does not protect the rights of parents who have never had custody of the child.

Question 43

Brackeen

Answer 43

ICWA defining Indian child in reference to a child's enrollment in an Indian tribe does not violate the Equal Protection Clause.

Question 44

Lyng

Answer 44

To have a claim under free exercise clause, government must be substantially burdening tribe. Two tests that create substantial burden: coerced to violate religious belief, or penalized for following religious beliefs.

Question 45

Employment Division v. Smith

Answer 45

Can't use religion to bypass a law that applies to everyone generally. The criminal law is not directed at their religious practice fenerally but applies to everyone.