Indian Law Flashcards
Venetie Test
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:
- must be set aside for Indian use (by feds), AND
- Land must be under federal superintendence (federal regulation)
ICRA
Indian Bill of Rights; key points:
- no establishment clause
- Must all be contested first in tribal court, except habeas corpus
Tribal Sovereign Immunity
Applies in EVERY court, except where waived by tribe or abrogated by Congress.
Waiver must be unequivocal
638 Contracts
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
Limitations on federal tribal power
- Statute
- Treaty
- If the action would be INCONSISTENT WITH DEPENDENT STATUS (e.g., can’t sell land)
Congress can restore inherent authority by statute
Canons of Construction for Treaties
Rule: Courts must interpret a provision as Indians, at the time of signing, would have understood it.
Abrogation of Treaties
Rule: Congress may unilaterally amend or strike out a treaty provision.
Test for Abrogation
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.
Trust Relationship
Indian tribes sought protection of the US by entering into treaties.
Relationship: A ward to his guardian
Standard for Federal Regulation of Indians
Rationally related to Congress’ unique obligation toward Indians.
State Infringement
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!
When does the federal government have criminal jurisdiction in Indian Country (non-major crimes)?
Interracial Crimes:
- Any NON- MAJOR crime committed by an INDIAN against a NON-Indian, AND
- 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
When does the federal government have criminal jurisdiction in Indian Country (major crimes)?
Feds have jurisdiction over all Indians committing one of 15 enumerated crimes, regardless of victim’s status.
Concurrent jurisdiction with tribes
Crimes of nationwide applicability
Feds have jurisdiction over crimes of national applicability - generally drugs and guns.
Tribal Prosecution of Non-Indians
NOT allowed- no jurisdiction.
May detain until feds get there.
“Duro-Fix”- Tribal Prosecution of Non-member Indians
Tribes can prosecute non-member Indians the same as members
Exclusive Tribal Criminal Jurisdiction
tribes have exclusive jurisdiction to prosecute non-major crimes committed by Indians against other Indians.
Major Crimes = concurrent with feds
Tribal Sentencing Reqs- ICRA
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
State Criminal Jurisdiction
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
Tuscarora Rule
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
Coeur D’Alene Approach Exceptions to Tuscarora Rule
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
Pueblo of San Juan Rule
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.
Canons of statutory construction
Rule: If an AMBIGUITY exists, resolve in FAVOR of Indians.
Who has authority to probate a trust estate?
Feds have EXCLUSIVE authority to probate portion of Indian estate that is held in trust by the US.
