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Indian Law > Indian Law > Flashcards

Indian Law Flashcards

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1
Q

Venetie Test

A

Test to determine whether land is a Dependent Indian Community. Applicable in checkerboard areas.

To be classified as “Indian Country,” even if not owned by Indians or held in trust, the land:

  1. must be set aside for Indian use (by feds), AND
  2. Land must be under federal superintendence (federal regulation)
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2
Q

ICRA

A

Indian Bill of Rights; key points:

  • no establishment clause
  • Must all be contested first in tribal court, except habeas corpus
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3
Q

Tribal Sovereign Immunity

A

Applies in EVERY court, except where waived by tribe or abrogated by Congress.

Waiver must be unequivocal

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4
Q

638 Contracts

A

When tribes contract with the US for certain services previously performed by the BIA.

A tribe member, employed in a 638 contract, can only be sued as a FEDERAL EMPLOYEE under the fed. tort claims act.

Fed Dist court: Exclusive jurisdiction

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5
Q

Limitations on federal tribal power

A
  1. Statute
  2. Treaty
  3. If the action would be INCONSISTENT WITH DEPENDENT STATUS (e.g., can’t sell land)

Congress can restore inherent authority by statute

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6
Q

Canons of Construction for Treaties

A

Rule: Courts must interpret a provision as Indians, at the time of signing, would have understood it.

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7
Q

Abrogation of Treaties

A

Rule: Congress may unilaterally amend or strike out a treaty provision.

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8
Q

Test for Abrogation

A

In order to find abrogation, Congress must have CONSIDERED the conflict b/w the statute and the treaty and RESOLVED the conflict by ABROGATING THE TREATY.

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9
Q

Trust Relationship

A

Indian tribes sought protection of the US by entering into treaties.

Relationship: A ward to his guardian

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10
Q

Standard for Federal Regulation of Indians

A

Rationally related to Congress’ unique obligation toward Indians.

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11
Q

State Infringement

A

Rule: States may not exert power within Indian Country if such action would infringe on the rights of Indians to make their own laws and be ruled by them.

Also consider Preemption!

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12
Q

When does the federal government have criminal jurisdiction in Indian Country (non-major crimes)?

A

Interracial Crimes:

  1. Any NON- MAJOR crime committed by an INDIAN against a NON-Indian, AND
  2. ANY crime committed by a NON-INDIAN against an Indian.

NO JURISDICTiON:

  • Non-major crimes: Indian to Indian
  • Victimless Crimes
  • If tribe prosecutes Indian for non-major crime against non-Indian, statutory loss of jurisdiction
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13
Q

When does the federal government have criminal jurisdiction in Indian Country (major crimes)?

A

Feds have jurisdiction over all Indians committing one of 15 enumerated crimes, regardless of victim’s status.

Concurrent jurisdiction with tribes

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14
Q

Crimes of nationwide applicability

A

Feds have jurisdiction over crimes of national applicability - generally drugs and guns.

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15
Q

Tribal Prosecution of Non-Indians

A

NOT allowed- no jurisdiction.

May detain until feds get there.

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16
Q

“Duro-Fix”- Tribal Prosecution of Non-member Indians

A

Tribes can prosecute non-member Indians the same as members

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17
Q

Exclusive Tribal Criminal Jurisdiction

A

tribes have exclusive jurisdiction to prosecute non-major crimes committed by Indians against other Indians.

Major Crimes = concurrent with feds

18
Q

Tribal Sentencing Reqs- ICRA

A

Limited to 1 year and $5K PER offense, OR

3 years and $15K per offense IF:

  • Provide an indigent Defendant an attorney
  • Judge has legal training
  • Tribe has PUBLISHED criminal laws, rules of evidence and procedure, AND
  • Tribe makes a recording of the criminal trial
19
Q

State Criminal Jurisdiction

A

NO jurisdiction over Indians in Indian Country (not even hot pursuit arrest)

May execute state warrant for crime in state territory

EXCLUSIVE jurisdiction:

  • Non-Indian to Non-Indian crimes
  • Victimless crimes
20
Q

Tuscarora Rule

A

Rule: Laws of general applicability that are SILENT to applicability to Indians, apply to Indians unless an exception applies.

Exception Approaches:

  • Coeur D’Alene Rule
  • Pueblo of San Juan Rule
21
Q

Coeur D’Alene Approach Exceptions to Tuscarora Rule

A

Laws of general applicability apply to Indians UNLESS:

  • The law touches exclusive rights of self-governance in purely intramural matters (e.g., membership);
  • Application of law would abrogate rights guaranteed by treaties; OR
  • Congress intended law NOT to apply to Indians
22
Q

Pueblo of San Juan Rule

A

Tuscarora principle should apply only when tribe is acting in a PROPRIETARY (commercial) capacity.

If the tribe is acting in a GOVERNMENTAL capacity, then statute must specifically include Indians.

23
Q

Canons of statutory construction

A

Rule: If an AMBIGUITY exists, resolve in FAVOR of Indians.

24
Q

Who has authority to probate a trust estate?

A

Feds have EXCLUSIVE authority to probate portion of Indian estate that is held in trust by the US.

25
Q

Rule of Tribal Exhaustion and Exceptions

A

Rule: Even if a federal court has jurisdiction over a case, a litigant may still have to EXHAUST remedies in tribal court, UNLESS:

  1. Tribal jurisdiction is motivated by a desire to harass (RARE);
  2. The present action is patently violative of express jurisdictional prohibitions; OR
  3. Exhaustion would be FUTILE for a lack of an opportunity to challenge jurisdiction (plainly lacking)
26
Q

Tribal Authority over Non-Indians: Montana Test

A

A tribe has civil jurisdiction over non-Indians only if there is EITHER:

  1. A CONSENSUAL RELATIONSHIP between the non-Indian and the tribe (generally a commercial contract or lease) and there is a NEXUS b/w the relationship and the authority exerted by the tribe.

OR

  1. The conduct threatens or has some direct effect on the political integrity, economic security, or health or welfare of the tribe. (SUPER NARROW- conduct must be catastrophic)
27
Q

When does Montana test apply?

A

Fee land held by non-Indians and rights of way- apply regardless.

28
Q

Does the Montana test apply to non-member Indians?

A

Unclear- apply test.

29
Q

Does a tribe have jurisdiction of a tort claim by a non-Indian AGAINST a tribal member?

A

Yes. Must bring action in tribal court rather than in state court.

30
Q

When does the Indian Child Welfare Act (ICWA) apply?

A
  1. Foster care placement (also guardianship)
  2. pre-adoption
  3. termination of parental rights
  4. Adoption
31
Q

Who is an “Indian child” under ICWA?

A
  1. Member of a tribe/eligible for membership AND

2. biological child of a member

32
Q

ICWA Jurisdiction

A

Tribal Court has EXCLUSIVE jurisdiction if:
- Child resides or is domiciled in indian country

If state court has jurisdiction, there may be a transfer if a parent requests, back to tribal court, UNLESS:

  • good cause, OR
  • one parent objects
33
Q

Tribal Jurisdiction over probate

A

Tribes may probate the NON-TRUST portion of a member’s estate.

34
Q

Repossession of Collateral on Tribal Land

A

Repossession must comply with TRIBAL LAW (some have outlawed self-help repossession)

35
Q

Infringement Test: a limit on STATE civil authority in Indian Country

A

Rule: A state may not exert authority over an activity in Indian Country if the action would infringe on the Indians’ right to make laws and be governed by them.

Chino test factors:

  • Whether parties are Indian or Non-Indian
  • Where the cause of action arose
  • The INTERESTS to be protected
36
Q

State Authority and Federal Preemption

A

Rule: State authority will be preempted if it interferes with or is incompatible with federal and tribal interests reflected in federal law, UNLESS the state interests are sufficient to support authority.

Balancing Test: Federal vs. Tribal vs. State interests balancing

37
Q

Does a state court have jurisdiction over an action by an Indian against a non-Indian?

A

Yes.

38
Q

Does NM state court have jurisdiction over an action by a non-member indian against a member Indian?

A

Yes.

39
Q

State Taxation of Tribal Members on Indian Land

A

Rule: The state may NOT tax tribal members within Indian country unless Congress approves.

Possible Exception: On fee land owned by tribes or members that may be FREELY SOLD.

40
Q

State Taxation of Non-Indians on Indian Land

A

Apply general rules

May NOT issue gross receipts tax on business selling to Indians in Indian Country (PREEMPTED)

May “double tax” with tribal tax

Indian Law (1 decks)

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