Mid Term Flashcards
Define “Indian Country”
The term Indian country is defined in 18 U.S.C. § 1151 and 40 C.F.R. § 171.3 as:
a. all 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;
b. all 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; and
c. all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
Consistent with the statutory definition of Indian country, as well as federal case law interpreting this statutory language, lands held by the federal government in trust for Indian tribes that exist outside of formal reservations are informal reservations and, thus, are Indian country.
Aboriginal Title
Aboriginal title refers to the inherent Aboriginal right to land or a territory.
1955 court case pertaining to “aboriginal title”
Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955)
The religious metaphors in the U.S. Justice Department’s legal brief—including citations to Genesis and Psalms in the Old Testament of the Bible—tell us that the United States government was arguing on the basis of the Christian religion that the Tlingit Indians should not be paid for a taking of their timber.
The Trust Doctrine
The trust doctrine is a source of federal responsibility to Indians requiring the federal government to support tribal self-government and economic prosperity, duties that stem from the government’s treaty guarantees to protect Indian tribes and respect their sovereignty. Cherokee Nation v. Georgia 1831
Wilkins on “plenary power”
The notion that Congress possesses unlimited power over Indian nations is inconsistent with the Constitution, past Supreme Court decisions, and international law. Courts should reject this expansive and unjustifiable assertion of congressional authority over Indian and Alaska Native nations.
Court case regarding ground water
Arizona v. Navajo Nation / Decided June 22, 2023
Boldt Decision
Article 5. The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands. Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens.
Culvert Decision
Washington v. United States (the “culvert case”). This long-running case, filed in 2001, involved fish passage-blocking culverts under roads owned by the State of Washington (or “the State”). The United States and a group of Indian Tribes filed suit seeking an injunction requiring the State to repair culverts under its control to restore access of fish, including salmon and steelhead, to more than 1,000 miles of upstream habitat. 21 tribes sued the state to fix its road culverts and all the lower courts that heard the case ruled in favor of the tribes.
Winter Rights Doctrine affected which tribes?
In that case, Winters v. US, the court found that when the federal government created the Fort Belknap reservation it implicitly reserved the rights to use a sufficient amount of the river’s water to fulfill the purposes of the reservation as a homeland for the Gros Ventre and Assiniboine people.
Scope of Winters Rights
Under the Winters doctrine, the priority and extent of Indian reserved water rights is affected by the purposes of the Indian reservation, the date when the Indian reservation was created, the quantification of water sufficient to accomplish those purposes, and the sources of water that may be used to fulfill the particular water rights.
Winter Rights Doctrine Canon 1
First, that they are defined by the federal government and federal law controls them.
Winter Rights Doctrine Canon 2
Second, that when an American Indian reservation was established by either a treaty, statute, or executive order, and water rights were not specifically mentioned, a reservation of water rights was implied. These water rights apply to water sources that are either within the reservation or bordering it.
Winter Rights Doctrine Canon 3
Third, then states that the water rights are reserved as soon as the portion of the reservation cases where competing users of the water source have prior appropriation dates of said water source, they will take precedence over the American Indian rights. Only those with prior appropriation dates take precedence, those with later dates are subordinate to the American Indian reservation in question. In most cases, it is found that American Indian tribes do in general have senior priority dates for quantities of surface water than competing settlements.
Elaborate concretely on the Reserved Rights Doctrine.
any rights that are not specifically addressed in a treaty are reserved to the tribe.
3 canons of construction of the Reserved Rights Doctrine.
The Supreme Court has long recognized the Canons as the foundational principles of
federal Indian law. In short, these Canons require that
(1) treaties be interpreted as the Indians
would have understood them;
(2) treaties are liberally construed in favor of the Indians with all
ambiguities resolved in their favor; and
(3) abrogation of tribal sovereignty or property rights be expressed by Congress clearly and unambiguously.
