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American Indian Law: Native Nations and the Federal System, Seventh Edition (2015)

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American Indian Law: Native Nations and the Federal System, now in its Seventh Edition, surveys the tribal-federal relationship. It is primarily devoted to the study of federal Indian law, i.e. the federal law developed to regulate the tribal-federal relationship. This book pursues a broad perspective, merging jurisprudence, history, comparative law, ethnology, and sociology to bring meaning to the tribal-federal relationship. The authors do not merely present the “black letter” law as is, but also provide the historical, cultural, and jurisprudential tools for a reader to critically analyze the current state of legal doctrine in federal Indian law. The book provides a wide-ranging inquiry into the role of law and legal processes, both domestic and international, in protecting or frustrating the desires for political and cultural autonomy of various racial, cultural, religious, or national subgroups within a society.

The authors have incorporated insights from an array of new intellectual developments in law and related fields, including critical race theory, the new legal realism of the law and society movement, empirical approaches to law, law and economics, indigenous methodology, legal pluralism, and neoinstitutionalism. The aim is to inform future practitioners and advocates about pragmatic, political possibilities and constraints, complementing theoretical and critical perspectives that may challenge the current state of affairs. At several points in the casebook the authors emphasize intergovernmental relations through cooperative agreements and institutional innovation. The cross-currents and inconsistencies of such legislative developments, case decisions, and intellectual ferment present formidable challenges to anyone who sets out in a casebook format to capture the depth and richness of the intellectual efforts of tribal people and others, including judges, legislators, lawyers, and academics, to build a coherent body of Indian law.

The book serves double-duty as a research sourcebook in the field of federal Indian law and can be used as a resource for students long after graduation.

Professors and adjunct professors may request complimentary examination copies of LexisNexis law school publications to consider for class adoption or recommendation. Please identify the book(s) you wish to receive, provide your institutional contact information, and submit your request here.

Table of Contents

Chapter 1 HISTORIC AND MODERN CONCEPTIONS OF THE
TRIBAL-FEDERAL RELATIONSHIP


A. HISTORIC MODELS OF TRIBAL -FEDERAL RELATIONS

1. Introduction

2. Treaty Models of the Political Relationship Between Indian Tribes and
the Federal Government

a. International Self-Determination Model

Treaty of Fort Pitt with the Delaware Nation


b. Treaty Federalism Model

Treaty of Hopewell with the Cherokee Nation

Treaty of New Echota with the Cherokee Nation


c. Colonial Federalism Model

Treaty of Fort Sumner with the Navajo Nation

Notes on Models of Tribal-Federal Relations


B. HISTORY OF TRIBAL-FEDERAL RELATIONS

1. Introductory Perspectives

Cornplanter (Seneca), Speech Delivered to President George
Washington at Fort Stanwix, 1790

Tecumseh (Shawnee), Speech Delivered at Vincennes, Indiana,
August 12, 1810


2. The Uneven History of Federal Indian Policy: Politics, Assimilation,
and Autonomy

a. The Colonial Period (1492–1776)

b. The Confederation Period (1776–1789)

c. The Trade and Intercourse Act Era (1789–1835)

d. The Removal Period (1835–1861)

e. The Reservation Policy (1861–1887)

f. The Allotment Period and Forced Assimilation (1871–1934)

g. The Indian Reorganization Act Period (1934–1940)

h. The Termination Era (1940–1962)

i. The Self-Determination Era (1962–1980)

j. Government-to-Government Relations and Decreases in Federal
Indian Program Funding (1980–present)

k. History, Federal Indian Policy, and Statutory Interpretation


C. ORIGINS OF THE MODELS: FOUNDATIONAL UNITED STATES
SUPREME COURT DECISIONS AND THE TRIBAL RESPONSE

1. Property, Sovereignty, and Claims of Conquest: The Case of
Johnson v. M’Intosh

Speech of Corn Tassel (Cherokee at Hopewell Treaty
Negotiations)


Johnson v. M'Intosh

Notes on Johnson v. M'Intosh


2. Sovereignty Revisited: The Cherokee Cases

Cherokee Nation v. Georgia

Notes

Worcester v. Georgia

Notes

Note on the Rhetoric of Exclusion


D. PROCESSING MODELS OF TRIBAL-FEDERAL RELATIONS AS
LEGAL DOCTRINE: NINETEENTH AND EARLY TWENTIETH
CENTURY ILLUSTRATIONS

1. Treaties Between Nations

Ex parte Crow Dog

Notes


2. The Rise of Federal Plenary Power

United States v. Kagama

Notes on Kagama

United States v. Clapox

Notes

Lone Wolf v. Hitchcock

Notes on Lone Wolf

United States v. Sandoval

Notes on Sandoval


E. INTERNATIONAL HUMAN RIGHTS LAW AND INDIGENOUS
PEOPLES' RIGHTS

1. International Models of Political Self-Governance

Notes

2. The Institutional Framework for International Human Rights Law

Notes


Chapter 2 RECURRING ISSUES IN TRIBAL-FEDERAL
LEGAL RELATIONS


A. FUNDAMENTAL DEFINITIONAL QUESTIONS

1. What Is an Indian Tribe or Nation?

a. Tribal vs. Federal Definitions

b. Definitions of “Tribe” Under Federal Statutes

c. Achieving Federal Recognition


d. The Politics of Federal Recognition

Testimony of Kevin Gover, Professor of Law, Arizona State
University College of Law


2. Who Is an Indian?

a. Traditional Tribal Views of Status and Community Membership

b. Federal Definitions

P.S. Deloria & Robert Laurence, What's an Indian? A
Conversation About Law School Admissions, Indian Tribal
Sovereignty, and Affirmative Action


Notes on Defining Who Is An “Indian”


3. What Is the Extent of Tribal Territory, or Indian Country?

a. Indian Nations' Relationships to the Land

b. Defining “Indian Country”

i. Formal and Informal Reservations

United States v. John

Note


ii. Dependent Indian Communities

Alaska v. Native Village of Venetie

Notes on Venetie and “Dependent Indian Communities”

iii. Allotted Land Outside Reservations

iv. Determining the Boundaries of an Indian Reservation

Solem v. Bartlett

Notes on Determining Congressional Intent to Diminish
Boundaries


B. EQUAL PROTECTION QUESTIONS POSED BY INDIAN
LEGISLATION

1. Indian Classifications as Political Rather than Racial

Morton v. Mancari

Notes on Morton v. Mancari

United States v. Antelope

Notes on Treating Indian Classifications as Political Rather than
Racial


2. Indians as a Constitutional Racial Classification?

AFGE v. United States

Note on Indians as a Constitutional Racial Classification


3. When Might Equal Protection's “Strict Scrutiny” Invalidate Federal
Indian Legislation?

Babbitt v. Williams

Rice v. Cayetano

Notes on Treating Indians as a Suspect Racial Classification


C. CANONS OF CONSTRUCTION FOR INTERPRETING THE
TRIBAL-FEDERAL LEGAL RELATIONSHIP

Minnesota v. Mille Lacs Band of Chippewa Indians

San Manuel Indian Bingo and Casino v. N.L.R.B.

Notes on Indian Law Canons of Construction


Chapter 3 TRIBAL SOVEREIGNTY AND ITS EXERCISE

A. MODERN TRIBAL GOVERNMENTS

1. Tribal Constitutions and Courts

a. Emergence of Modern Written Tribal Constitutions

b. Types of Tribal Courts


2. Tribal Law Provisions on Jurisdiction

3. Sources of Law in Tribal Courts

Notes on Customary Law


4. Tribal Restrictions on Tribal Governments

a. Tribal Provisions for Federal Approval


B. TRIBAL GOVERNING AUTHORITY

1. Inherent Tribal Sovereignty

Talton v. Mayes

United States v. Wheeler

Notes

Merrion v. Jicarilla Apache Tribe

Notes on Nonmember Exclusion and Tribal Governing
Authority


2. Federally Supported Tribal Authority

United States v. Mazurie

Note on Varieties of Congressional Support for the Exercise of
Tribal Authority

Bugenig v. Hoopa Valley Tribe

Note on Bugenig


C. FEDERAL JUDICIAL AND LEGISLATIVE RESPONSES TO
INHERENT TRIBAL SOVEREIGNTY

1. Federal Judicial Plenary Power Purporting to Preempt Tribal
Sovereignty

Oliphant v. Suquamish Indian Tribe

Duro v. Reina

Notes

Montana v. United States

Notes

Strate v. A-1 Contractors

Notes

Nevada v. Hicks

Notes on Hicks

Plains Commerce Bank v. Long Family Land & Cattle Co., Inc.

Notes

Water Wheel Camp Recreational Area, Inc. v. LaRance


2. Congressional Acknowledgment of Inherent Tribal Sovereignty

United States v. Lara

Notes on Lara


3. Federal Conceptions of Tribal Taxing and Regulatory Power

Kerr-McGee v. Navajo Tribe

Atkinson Trading Company, Inc. v. Shirley

Notes on Tribal Taxing Jurisdiction

Brendale v. Confederated Tribes & Bands of the Yakima Indian
Nation


Notes on Tribal Regulatory Power


D. INDIVIDUAL RIGHTS AND TRIBAL AUTHORITY

1. Federal Restrictions on Tribal Governments: The Indian Civil
Rights Act of 1968

Santa Clara Pueblo v. Martinez

Notes


2. Individual Rights in Tribal Courts

Winnebago Tribe of Nebraska v. Bigfire

Notes


3. Tribal Power to Define Membership

Poodry v. Tonawanda Band of Seneca Indians

Notes on Tribal Membership/Citizenship and Banishment


E. INTERJURISDICTIONAL RESPECT AND COOPERATION

1. Extradition, Full Faith and Credit, and Comity

Eberhard v. Eberhard

Wilson v. Marchington

Notes on Full Faith and Credit and Comity


2. Intergovernmental Agreements

a. Why Enter into Intergovernmental Agreements?

National Congress of American Indians & National Conference
of State Legislatures, Government to Government: Models
of Cooperation Between States and Tribes

Notes on Tribal-State Intergovernmental Agreements

b. Authority to Enter into Tribal-State Agreements

c. Enforcement Issues


F. TRIBAL SOVEREIGN IMMUNITY

1. In Federal and State Courts

Oklahoma Tax Commission v. Citizen Band Potawatomi Indian
Tribe of Oklahoma


Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc.

Michigan v. Bay Mills Indian Community

Notes on Tribal Sovereign Immunity in Federal and State
Courts

C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian
Tribe of Oklahoma


Notes on Waiver of Tribal Sovereign Immunity


2. Scope of Sovereign Immunity in Tribal Courts

Charbonneau v. St. Paul Insurance Company

Chapter 4 FEDERAL AND STATE AUTHORITY IN INDIAN
COUNTRY


A. THE FEDERAL GOVERNMENT'S PLENARY POWER OVER
INDIANS AND INDIAN COUNTRY

1. Sources and Scope of the Power

United States v. John

Notes

Delaware Tribal Business Committee v. Weeks

Notes on the Bill of Rights and Plenary Power

2. Non-Constitutional Limitations on Legislative Plenary Power:
Canons of Construction, Treaty Abrogation, and Political
Accountability

United States v. Dion

Notes on Treaty Abrogation


3. Criminal Jurisdiction as an Illustration of the Exercise of Federal
Power over Indian Affairs

a. Introduction

b. Federal Criminal Jurisdiction Statutes

Note on Juvenile Offenders and Federal Jurisdiction

c. Implications of Federal Criminal Jurisdiction Statutes for Tribal
Jurisdiction

Wetsit v. Stafne

Notes on Concurrent Tribal Jurisdiction over “Major”
Crimes and Double Jeopardy

Walker v. Rushing

Notes on Concurrent Tribal Criminal Jurisdiction Under Public
Law 280 and Like Statutes


d. Criminal Jurisdiction, Policing, and Extradition

e. Problems


4. Federal Civil Jurisdiction

a. Federal Jurisdiction to Tax and Regulate

Squire v. Capoeman

Lazore v. Commissioner of Internal Revenue

Notes on Federal Taxation of Tribes and Tribal Members


b. Federal Civil Adjudicative Jurisdiction

County of Oneida v. Oneida Indian Nation

National Farmers Union Insurance Cos. v. Crow Tribe

Iowa Mutual Insurance Co. v. LaPlante

Notes on Federal Civil Jurisdiction Involving Indian Country


5. Federal Executive Power and the Executive Trust Responsibility

a. The Bureau of Indian Affairs and the Administration of Federal
Indian Programs

United States v. Eberhardt

Notes on Statutory Authority for Administrative Action


b. The Trust Relationship

United States v. Mitchell

Notes on Trust Mismanagement Claims

United States v. White Mountain Apache Tribe

United States v. Navajo Nation

Note on Recent Mismanagement Claims

Cobell v. Norton

Note on Further Developments in the Cobell Litigation

Cobell v. Salazar

Note on Settlement of the Cobell Litigation


c. Conflicts of Interest Between Government Departments and the
Prospect of Equitable Relief

United States v. Jicarilla Apache Nation

Nevada v. United States

Notes on Injunctive Enforcement of the Trust


6. Federal Power in the Era of Self-Determination

Salazar v. Ramah Navajo Chapter

Note on Federal Programs and Administrative Authority of
Federal Agencies for Tribal Services


B. STATE AUTHORITY IN INDIAN COUNTRY

1. Tribal Expectations

Cherokee Council, 1830

George W. Harkins (Choctaw), Farewell Letter to the American
People, 1832


Treaty with the Creek and Seminole Tribes

Note on Tribal Expectations Regarding State Authority


2. Early Approaches to Inherent State Power in Indian Country

Notes

3. Congressionally Authorized State Power in Indian Country


4. The Modern Era

a. State Adjudicative Jurisdiction

Williams v. Lee

Notes

Joe v. Marcum

Note on Enforcement of Judgments in Indian Country

Teague v. Bad River Band of Lake Superior Tribe of
Chippewa Indians


Notes


b. State Taxing and Regulatory

McClanahan v. Arizona State Tax Commission

Washington v. Confederated Tribes of the Colville
Reservation


Notes

White Mountain Apache Tribe v. Bracker

Cotton Petroleum Corp. v. New Mexico

Notes on State Taxing Jurisdiction

New Mexico v. Mescalero Apache Tribe

California v. Cabazon Band of Mission Indians

Notes on State Jurisdiction to Regulate


5. State Jurisdiction over Indians and Indian Property Outside Indian
Country

Mescalero Apache Tribe v. Jones

Notes

Oklahoma Tax Commission v. Chickasaw Nation

Note


Chapter 5 JURISDICTION UNDER SPECIAL STATUTES

A. PUBLIC LAW 280 AND RELATED STATUTES

1. Text and History

Carole E. Goldberg, Public Law 280: The Limits of State
Jurisdiction over Reservation Indians



2. Acquiring and Exercising State Jurisdiction Under Public Law 280

Bryan v. Itasca County

Notes


3. Concurrent Tribal and State Jurisdiction Under Public Law 280

Notes


4. Practical Effects and the Future of Public Law 280

Note on the Future of Public Law 280


B. UNIQUE TRIBAL-FEDERAL RELATIONSHIPS

1. Alaska

a. The Alaska Native Claims Settlement Act of 1971 (ANCSA)

Notes on the Alaska Native Claims Settlement Act

b. Indian Country and Tribal Government Jurisdiction

Note


2. Hawai'i

a. The Hawaiian Homes Commission Act of 1921

b. The Hawai'i State Constitution and the 1982 Amendments

c. Ceded Lands Controversy

Hawaii v. Office of Hawaiian Affairs

d. Native Hawaiian Political Status and Legal Rights

Notes on Native Hawaiian Sovereignty


C. INDIAN CHILD WELFARE ACT

1. Introduction

2. Jurisdiction and “Domicile” Under ICWA

Mississippi Band of Choctaw Indians v. Holyfield

Notes


3. “Indian Child” Under ICWA

In re A.J.S.

Notes


4. When Does ICWA Protect an Indian Parent?

Adoptive Couple v. Baby Girl

Notes


5. “Good Cause” and Transfer of ICWA Cases from State to Tribal
Court

Bureau of Indian Affairs Guidelines for State Court Indian
Child Custody Proceedings

Notes on Transfer of Cases from State to Tribal Court


6. ICWA and the Adoption and Safe Families Act


D. INDIAN GAMING REGULATORY ACT

1. The Jurisdictional Regime for Tribal Gaming

Kevin K. Washburn, Recurring Problems in Indian Gaming

Alex Tallchief Skibine, The Indian Gaming Regulatory Act at
25: Successes, Shortcomings, and Dilemmas

Rumsey Indian Rancheria of Wintun Indians v. Wilson

Seminole Tribe of Florida v. Florida

Pueblo of Santa Ana v. Kelly

Notes


2. Business Disputes Related to Gaming

Bruce H. Lien Company v. Three Affiliated Tribes

Notes on Tribal Gaming Disputes


E. FEDERAL INDIAN LIQUOR CONTROL STATUTES

Rice v. Rehner

Notes on Federal Indian Liquor Control Laws


F. FEDERAL ENVIRONMENTAL LAWS

1. Introduction: Tribal Perspectives on Economic Development and
the Environment

John Echohawk, We Are Sovereign Peoples


2. The Basic Framework of Federal Environmental Law and Policy

a. EPA's Indian Policy

EPA POLICY FOR THE ADMINISTRATION OF ENVIRONMENTAL
PROGRAMS ON INDIAN RESERVATIONS

b. Implications for Application of State Environmental Laws

Washington Department of Ecology v. EPA

Notes


3. Federal Laws Regulating Tribal Activities

a. Environmental Review Requirements

Davis v. Morton

Notes on Federal Environmental Review Requirements


b. The Endangered Species Act in Indian Country

Secretarial Order #3206

Notes on Tribes and the Endangered Species Act


4. Federal Protection for Tribal Environments and Economic Activities
from Non-Indian Economic Development

Wisconsin v. Environmental Protection Agency

Notes on Tribal Environmental Controls Affecting
Off-Reservation Development


Chapter 6 TRIBAL RIGHTS TO LAND AND CULTURAL
RESOURCES


A. TRIBAL PROPERTY INTERESTS

1. Aboriginal Title

United States ex rel. Hualpai Indians v. Santa Fe Pacific
Railroad Co


Notes on Aboriginal Title

Tee-Hit-Ton Indians v. United States

Nell Jessup Newton, At the Whim of the Sovereign: Aboriginal
Title Reconsidered


Notes


2. Recognized Title

United States v. Shoshone Tribe of Indians

United States v. Sioux Nation

Notes on Recognized Title


3. Executive Order Reservations

Sioux Tribe v. United States

Notes


4. Placing Indian Land in Trust

Carcieri v. Salazar

Notes on Land-into-Trust and Carcieri

Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians v. Patchak


Notes


5. Land Claims

a. The Indian Claims Commission

United States v. Dann

Notes on the Dann Case and the Indian Claims
Commission

b. Claims Under the Nonintercourse Act

County of Oneida v. Oneida Indian Nation

City of Sherrill, N.Y. v. Oneida Indian Nation of New York

Notes on the Oneida Litigation and the Nonintercourse Act


6. Allotted Lands

Northern Cheyenne Tribe v. Hollowbreast

Black Hills Institute of Geological Research v. South Dakota
School of Mines and Technology


Notes on Allotted Lands

Hodel v. Irving

Babbitt v. Youpee

Notes on Fractionated Allotments


B. CULTURAL RESOURCES

1. Sacred Sites and Religious Freedom

Lyng v. Northwest Indian Cemetery Protective Association

Note on Lyng

Employment Division, Department of Human Resources of
Oregon v. Smith


Notes


2. Cultural Property

a. Tangible Cultural Property

Chilkat Indian Village v. Johnson

Chilkat Indian Village, IRA v. Johnson

United States v. Corrow

Notes on Tangible Cultural Property


b. Intangible Cultural Property

Rebecca Tsosie, Reclaiming Native Stories: An Essay on
Cultural Appropriation and Cultural Rights


Notes


3. Protections for Native American Human Remains

a. Exhumation of Human Remains

Charrier v. Bell

Notes


b. “Repatriation” and “Ownership” of Human Remains Under
NAGPRA

Bonnichsen v. United States

Notes


Chapter 7 THE OPERATION OF THE RESERVED RIGHTS
DOCTRINE: HUNTING, FISHING, AND
WATER RIGHTS


A. HUNTING, FISHING, AND FOOD-GATHERING RIGHTS

Aleck Paul (Chippewa), Our Stock of Food & Clothes

1. On-Reservation Rights

Menominee Tribe v. United States

Notes on On-Reservation Hunting and Fishing Rights


2. Off-Reservation Food-Gathering Rights

United States v. Winans

Notes on Winans and its Aftermath

Washington v. Washington State Commercial Passenger Fishing
Vessel Association


Notes on Off-Reservation Food Gathering Rights


B. COMPETITION FOR CONTROL OF WATER

1. Source, Quantity, and Use of Indian Water Rights

Winters v. United States

Arizona v. California

Notes on Winters Rights

In Re General Adjudication of All Rights to Use Water in Gila
River System and Source


Notes on Winters Rights Quantification


2. Adjudicating and Regulating Indian Water Rights

Arizona v. San Carlos Apache Tribe

Notes on State Adjudication of Indian Water Rights


3. Water Rights of Allottees and Their Successors

4. Water Rights Settlements as Alternatives to Litigation

Robert T. Anderson, Indian Water Rights: Litigation and
Settlements


Notes on Indian Water Settlements


Table of Cases

Index