STUDY GUIDE FOR AMERICAN INDIAN LAW

Major Cases
Johnson v. McIntosh (1823)
- This decision justified colonization of lands by the United States by way of inheriting the European
discovery lands. As such, the US automatically owned all the land, however Indians are entitled to
occupancy (Indian title). The federal government took all the ownership rights of Indians, and Indians have
occupancy without alienation approved by Congress.
- This case, along with Cherokee Nation v. Georgia and Worcester v. Georgia, all decided by the Marshall
court, established the foundation for the relationship between the United States government and the tribal
governments.
Cherokee Nation v. Georgia (1831)
- The majority opinion described the Cherokee Nation as a “domestic dependent nation” that necessitates a
trust relationship with the federal government.
- This case, along with Johnson v. McIntosh and Worcester v. Georgia, all decided by the Marshall court,
established the foundation for the relationship between the United States government and the tribal
governments.
Worchester v. Georgia (1832)
- The Supreme Court in Worchester v. Georgia held that states cannot interfere in tribal affairs without
expressed consent from Congress.
- This case, along with Johnson v. McIntosh and Cherokee Nation v. Georgia, all decided by the Marshall
court, established the foundation for the relationship between the United States government and the tribal
governments.
Lone Wolf v. Hitchcock (1903)
- This case established Congress’s plenary power over Indian affairs when the Allotment Act conflicted with
an existing treaty’s procedure for land distribution. The Court rejected that tribe permission was necessary
pursuant to the treaty and Congress had inherent authority to regulate the land as needed through legislation
with good faith even in derogation of a treaty.
Montana v. U.S. (1981)
- The issue in Montana was whether an Indian tribe could regulate hunting and fishing by non-Indians on
non-Indian owned land within the boundaries of the reservation. The Court established the two Montana
exceptions that the tribe must prove in order to exercise civil jurisdiction over non-members: (1) when the
non-Indians have entered into “consensual relationships” with the tribe or its members through commercial
dealings, contracts, leases, or other arrangements, or (2) when the activity of the non-Indians threatens or
directly effects the politics, economics, health or welfare of the tribe. Whether the land is trust or fee land is
but one factor of the test.
- Reaffirmed tribal authority in specific areas. Tied to tribal interests. One of the problems is ambiguity.
Oliphant v. Suquamish (1978)
- This opinion stripped tribes of criminal jurisdiction for non-Indians on Indian land even for offenses against
tribal police. The Court found that tribes do not have inherent jurisdiction over non-Indians unless granted
explicitly by Congress. The Court in Oliphant created the doctrine of implicit divestiture where the tribe’s
sovereign powers and authority can be reduced even if Congress did not expressly terminate the right.
Williams v. Lee (1959)
- The Court held that a lawsuit filed by a non-Indian against an Indian alleging a breach of contract arising
out of a reservation commercial transaction could only be heard in tribal court. This case established the
intervention test to determine whether a state can exercise its civil jurisdiction in the matter. Here,
intervention by a state court would substantially interfere with tribal sovereignty, thus the state court lacked
jurisdiction to hear the case. The action would undermine the authority of the tribal courts over reservation

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 affairs and would infringe on the right of Indians to govern themselves.
- This case is the beginning of the degradation of Worchester’s prohibition on state interference in tribal
affairs by allowing state action to be presumed valid unless the infringement test is met.
Wheeler v. United States (1978)
- The issue was whether the federal government could prosecute an Indian for statutory rape after a tribal
court had convicted him of a lesser offense. The two prosecutions come from the same act and would
otherwise constitute double jeopardy. The Court recognized tribal inherent powers of criminal jurisdiction
and the double jeopardy clause does not apply between the federal and tribal court.
- This case ended up preserving tribal sovereignty, but its dicta characterized tribal governments as having
limited character subject to the federal government.
U.S. v. McBratney (1881)
- Before this case, state courts had no criminal jurisdiction on the reservation. The Court recognized that the
state may exercise criminal jurisdiction over non-Indians for crimes coming on the reservation against other
non-Indians.
- State criminal jurisdiction was later expanded by Congress with P.L. 280.
U.S. v. Kagama (1886)
- This opinion was reviewing the application of the Major Crimes Act and it was upheld by the Court. This
criminal jurisdiction became the exclusive right of the federal government and limited tribal jurisdiction.
Talton v. Mayes (1896)
- The Court held that Indian tribes are not required to conform their governments to the standards given in the
U.S. Constitution for state and federal governments. Because tribes are separate sovereigns that pre-date the
Constitution, they are unconstrained by constitutional provisions.
Washington v. Washington State Commercial Fishing Assn. (1979)
- This case the Court declared unconstitutional a Washington law that prohibited state officials from
enforcing Indian treaty fishing rights. The state must respect federal court orders that protect Indian fishing
rights.
Santa Clara Pueblo v. Martinez (1978)
- The Supreme Court held that the writ of habeas corpus is the only remedy that federal courts may grant
under ICRA. Congress did not waive tribal sovereign immunity in ICRA and a lawsuit could not be brought
against the tribal government itself. This preserves the tribal authority, but restricts the ability of an
individual from seeking damages or from challenging noncustodial ICRA violations.
Merrion v. Jicarilla Tribe (1982)
- The Court upheld a tribal tax on the value of oil and gas produced by a non-Indian company on tribal trust
land. The Court recognized that Indian tribes have the inherent right to manage their territory and the
activities occurring on it.
Squire v. Capoeman (1956)
- The Supreme Court held that Indians have a duty to pay the same federal income taxes applicable to
everyone else unless Congress has conferred an express immunity by treaty or statute. Because Indians are
citizens, they are not excluded from federal tax laws.
- This holding was contrary to the typical pattern of holding that federal laws do not apply to Indians unless
specifically included.
Moe v. Confederated Salish and Kootenai Tribes (1976)
- Here, Montana imposed a cigarette tax on sales in on-reservation Indian-owned smoke shops. The state tax
applied to both Indian and non-Indian customers. The Court held that the tax was applicable to non-Indians
and the State could require collection by the business because it posed a minimal burden on the tribe. This
looked at the burden on the individual rather than the burden on the tribal government’s sovereignty. This
allows further intervention by the state onto the reservation.
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Winters v. U.S. (1908)
- This case established extensive water rights for Indian tribes. The Winters doctrine is that tribes have an
implied reservation of water necessary to make their land livable. This includes the amount of water that
would satisfy the future as well as the present needs of the Indian reservation.
- The basic principles of the Winters doctrine are (1) Congress has the right to reserve water for federal lands,
including Indian reservations; (2) each time Congress set aside land, it reserves by implication a sufficient
quantity of water to fulfill the purpose of that reservation; (3) Indian reservations are created by Congress
with the intention of making them habitable, productive and for the present and future needs of the tribe; (4)
all Indian reservations are entitled to Winters rights; and (5) although tribal trust land is owned by the
federal government, the tribes are the beneficial owners and can sue for Winters rights.
Tee-Hit-Ton v. U.S. (1955)
- In this case, the Supreme Court decided whether the Alaska natives had recognized title to their territory and
are entitled to compensation when taken by the federal government. Here, the Court held that the Alaska
natives only have Indian title of occupancy and were not entitled to compensation. Congress passed another
fix to provide monetary compensation and give complete ownership rights over certain tracts.
California v. Cabazon Band of Mission Indians of California (1987)
- The Supreme Court considered the scope of P.L. 280 in this case. The Court looked at regulations as two
categories: “criminal/prohibitory” and “civil/regulatory.” P.L.280 conferred criminal jurisdiction onto the
state, but not civil or regulatory jurisdiction for permitted activities. Because California regulated – and not
outright prohibited – bingo games, it did not have the authority to exercise its regulatory powers on the
Indian reservation.
- This case limited the scope of state intervention by prohibiting any that is civil in nature.
Seminole Tribe of Florida v. Florida (1996)
- In this case, the tribe brought the case under the Indian Gaming Regulatory Act, which authorizes suits
against state governments to enforce good faith negotiations with tribes attempting to allow gambling on
reservations.
- Congress made clear in the Indian Gaming Regulatory Act that it intended to abrogate States’ sovereign
immunity. However, it lacks the ability to do so under its Article I powers.
- Section 5 of the Fourteenth Amendment is the only authority Congress has to authorize a private suit against
a state.
Kiowa Tribe of Oklahoma v. Manufacturing Technologies Inc. (1998)
- In 1990, the then-Chairman of the Tribe's Business Committee signed a promissory note in the Tribe's name
in order to purchase stock from Manufacturing Technologies, Inc. The note states that it was signed on tribal
lands and provides that nothing in it subjects or limits the Tribe's sovereign rights. After the Tribe defaulted,
Manufacturing Technologies sued the Tribe in state court, claiming that the note was executed and delivered
beyond tribal lands. The Tribe moved to dismiss for lack of jurisdiction. Denying the motion, the trial court
entered judgment for Manufacturing Technologies.
- The Court held that Indian tribes enjoy sovereign immunity from civil suits on contracts, whether those
contracts involve governmental or commercial activities and whether they were made on or off a
reservation. Noting that an Indian tribe is subject to suit only where Congress has authorized the suit or the
tribe has waived its immunity, Justice Kennedy deferred to Congress, which has not abrogated a tribe's
immunity from civil suits on contracts.
U.S. v. Sioux Nation (1980)
- The Court held that: 1) the enactment by Congress of a law allowing the Sioux Nation to pursue a claim
against the United States that had been previously adjudicated did not violate the doctrine of separation of
powers; and 2) the taking of property that was set aside for the use of the tribe required just compensation.
Albuquerque v. Browner (2001)
- The City of Albuquerque brought this suit against the EPA with the Isleta Pueblo Indian tribe submitting an
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 amicus brief in support of the EPA. Albuquerque challenged the EPA’s approval of the Isleta Pueblo’s
higher water standards.
- In 1987, Congress amended the Clean Water Act to authorize the Defendant EPA to treat Indian tribes as
states under certain circumstances for purposes of the Clean Water Act. Through the amendment Congress
merged two of the four critical elements necessary for tribal sovereignty-water rights and government
jurisdiction -by granting tribes jurisdiction to regulate their water resources in the same manner as
states. Congress's authorization for the EPA to treat Indian tribes as states preserves the right of tribes to
govern their water resources within the comprehensive statutory framework of the Clean Water Act.   This
case involves the first challenge to water quality standards adopted by an Indian tribe under the Clean Water
Act amendment.
Cobell v. Norton (2001)
- Class action lawsuit brought by Native American representatives against the Department of the Interior and
the Treasury Department. The plaintiffs alleged, and the court found, that the federal government had either
misplaced or converted the government use hundreds of millions of dollars owed to these trust beneficiaries.
- The Secretary of the Interior admitted during the trial that serious errors in judgment had been made and that
the Department of the Interior had not honoured its trust obligation. Received 1.4 Billion as recompense.
U.S. v. Mitchell (1983)
- If a statute delegates to a federal agency comprehensive supervision and control over the management of
tribal property, this creates an implied obligation to manage that property constituent with the government’s
trust duties, and if the agency breaches those duties, it may be held liable for damages under the Tucker Act.

Legislation

Trade and Intercourse Act (1790 and subsequent amendments)

- This Act prohibited all Indian land purchases that were not approved by the federal government. Since its
original passage, the Act was amended to reflect the federal commitment to protecting Indian treaty lands
and assert federal control over any alienation of the land. All treaties without such approval were considered
“null and void” by Congress, however practically speaking, federal courts recognized such transactions
without approval as valid, for instance in Sherrill.
Indian Country Crimes Act (1834)
- This Act authorizes the federal government to extend all of its criminal laws into Indian country except for
(1) crimes committed by one Indian against the person or property of another Indian, (2) crimes that by
treaty remain under exclusive jurisdiction of the tribe, and (3) crimes for which the Indian defendant has
already been punished under tribal law. The ICCA only applies to “interracial” crimes either Indian-on-non-
Indian or non-Indian-on-Indian.
Major Crimes Act (1885)
- This law passed by Congress extended federal jurisdiction into Indian country to arrest and prosecute
Indians for committing seven major crimes, even against other Indians, including murder and rape. This was
a function of the trust relationship to protect Indians, but limited sovereignty.
General Allotment Act (1887)
- The General Allotment Act was passed by Congress pursuant to its trust relationship with the goal of
assimilating Indians into white America. The Act carved up reserved land into a checkerboard of tribal and
non-Indian parcels.
Indian Citizenship Act (1924)
- Until 1924, Native Americans were not citizens of the United States. Many Native Americans had, and still
have, separate nations within the U.S. on designated reservation land. But on June 2, 1924, Congress
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 granted citizenship to all Native Americans born in the U.S. Yet even after the Indian Citizenship Act, some
Native Americans weren't allowed to vote because the right to vote was governed by state law. Until 1957,
some states barred Native Americans from voting.
Indian Reorganization Act (1934)
- This act recognized tribes as being able to pick their own organization and federal recognition. Half of the
tribes wrote a Constitution, while others did not but were given one anyway. Congress still controlled the
budget.
PL 83-280 (1953)
- This act of Congress delegated federal criminal and civil jurisdiction to six large states, including Alaska
and California for enforcement and prosecution of Indians in state courts. It brought about increased state
role and limited tribe sovereignty.
Alaska Native Claims Settlement Act (1971)
- Congress decided to compensate Alaska Natives for all claims based upon Indian title, whether recognized
or not, but most other tribes have not been so fortunate. The ANCSA gave Alaska Natives $962.5 million in
compensation for extinguishing all of their aboriginal claims, and in addition, it gave them ownership rights
to 40 million acres of land. 22 million acres was divided among the 200 Native villages by size of
membership with each village entitled to incorporate itself under state law and then to select its homelands.
The remaining 18 acres and the subsurface estate were conveyed to 13 Native regional corporations.
Corporations were given fee title to these estates, thus allowing the corporate owners to sell their interests at
any time to anyone.
PL 93-638 Indian Self-Determination and Education Assistance Act (1975)
- Indian Self-Determination and Education Act authorized Indian tribes to contract with federal agencies for
funds to operate the same programs on Indian reservations. This law implied that the trust relationship is
here to stay (as opposed to the termination philosophy) and recognized that Indian governments should have
autonomy in administering these social programs.
Indian Civil Rights Act (1968)
- ICRA confers numerous rights on all persons subject to the jurisdiction of a tribal government. It also
authorizes federal courts to protect those rights in certain contexts. This limits the power of tribes by
conferring civil rights on all persons subject to tribal law, and gives federal courts the power to enforce
those rights.
- This act allowed the guarantees of the Bill of Rights to apply to Indian tribes. However, further case law
allowed tribes to have sovereign immunity, which increased tribal self-determination. It is an intrusion on
tribal government. The waiver is only for habeas corpus.
Indian Child Welfare Act (1978)
- This Act established the standard for placing Indian children with Indian families during foster care or
adoption to prevent the breaking up of tribes. This was in reaction to the high removal rates of Indian
children from their families by white families creating a cultural genocide for a generation of Indian tribes.
ICWA gave states and tribes concurrent jurisdiction for the placement of off-reservation Indian children, but
the tribal government had presumptive jurisdiction with high barrier for the state to assert its own
jurisdiction.
Indian Tribal Government Tax Status Act of 1982.
- This act was passed in response to a 1982 federal appellate court decision that held that Indian tribes were
not exempt from federal taxation because Congress hadn’t expressly conferred an immunity from such
taxes. This law expressly exempts tribes from having to pay most federal taxes including fuel taxes and
manufacturer excise taxes, provided that the services or products for which the tax exemption is claimed
will be used for an essential government function.
Indian Gaming Regulatory Act (1988)
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- The express purpose was to “provide a statutory basis for the operation of gaming by Indian tribes as a
means of promoting tribal economic development, self-sufficiency, and strong tribal governments” and to
shield tribes “from organized crime and other corrupting influences,” while at the same time granting the
states some authority to regulate reservation gaming activities.
- Three classes of gaming: Class I (social games), Class II (bingo and cards), and Class III (Vegas-style).
Class I gaming is not subject to any type of state or federal regulation and includes traditional forms of
gaming conducted during tribal ceremonies or celebrations. Class II may operate free of state regulation if
(1) the state already permits such gaming any place else in the state, and (2) the tribe enacts an ordinance
authorizing the gaming activity and the ordinance is approved by the National Indian Gaming Commission.
The federal government regulates, monitors, and audits Class II gaming and the state plays no regulatory
role. For Class III gaming, the tribe must satisfy both requirements for Class II gaming and must enter into a
compact with the state, in which the state consents to each Class III activity the tribe want to conduct. Once
it is signed, it must be submitted to the Secretary of the Interior for approval. The compact takes effect when
the Secretary publishes a notice of acceptance in the Federal Register.
Indian Law and Order Act (2010)
- Expands the punitive abilities of tribal courts across the nation. The law allows tribal courts operating in
Indian country to increase jail sentences handed down in criminal cases. This was a major step toward
improving enforcement and justice in Indian country.
- Before this law, tribal courts were limited in the scope of punishment they could hand down in criminal
cases, giving them the impression of a lower, less serious court. They now possess the power under the
Tribal Law and Order Act to pass increased sentences in order to incarcerate defendants longer.
- Forcing a bureaucratic centrism on the tribes by making the courts provide American-style due process. [i.e.
public defenders, adequate representation by licensed and practiced attorneys, and licensed and sufficiently
trained judges.]
Violence Against Women Act, reauthorization, (2013)
- Included a historic provision recognizing tribes' inherent power to exercise "special domestic violence
criminal jurisdiction" (SDVCJ) over certain defendants, regardless of their Indian or non-Indian status, who
commit acts of domestic violence or dating violence or violate certain protection orders in Indian country.
Subject to same American-style due process as above

Legal and Policy Concepts:

1. Indian Law is a Term of Art
- A term of art is a word that has a specialized meaning in a discipline separate from what is understood
by the public at large. The public at large has a lot of misconceptions of Indian law – for instance, in
areas of taxation – that lead to larger stereotypes about the relationship between tribes and the United
States.
- In the legal profession, Indian law refers to a growing body of Supreme Court jurisprudence and
congressional statutes that provide the foundation for an evolving relationship between the federal, state,
and tribal governments.
2. It all Depends
- The problem with pinning down Indian Law is keeping track of ambiguity and exceptions.
- As the jurisprudence now stands, various factors influence whether a tribe can assert jurisdiction: the
jurisdiction asserted (civil or criminal), the defendant (tribal member, non-member Indian, or non-
Indian), the land where the act occurred (trust land, fee land, off-reservation), the character of a
nonmember’s relationship to the tribe, and the effect of a nonmember’s activities upon the tribe. These
characteristics must also inform whether the exercise of jurisdiction is “consistent with its status” or
consistent with historical exercise of jurisdiction.
3. Indian law is by loophole
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 - Tribes seem subject to federal and state control, unless they can prove an exception to the rule. For
instance, a tribe can only avoid state civil interference by proving a Montana exception, federal
preemption, or Williams interference. On the federal level, tribes typically are not included unless
explicitly mentioned (the opposite of proving the loophole). However, Squire marked a change in policy
when the Court held that federal tax law automatically applies to tribes unless Congress provides an
exception. This pattern of automatically falling under the federal and state regulations unless exempted
severely limits the powers of tribal government to only those that lay outside the general rule.
- Unless Congress forgot to mention it.
4. Infringement
- Williams v. Lee established that a state may not infringe on the right of reservation Indians to make their
own laws and be ruled by them. This infringement test protects the inherent right of Indian tribes to be
self-governing.
- Permitting the state to regulate must plainly interfere with the powers of tribal self-government. Even
under 280, a state court must not infringe on the right of an Indian tribe to make decisions regarding
internal tribal matters.
5. Preemption
- The preemption test is used whenever a state is exerting civil regulation over tribal affairs. Federal
preemption precludes state from regulating areas of law specifically reserved, express or implied, to the
federal government. The federal government always has a significant interest in encouraging tribal self-
sufficiency and economic development.
- The balancing of interests includes (1) the extent to which the tribe or the tribal members are affected by
the state’s regulation, (2) the extent to which the federal government is already regulating the conduct
that the state is seeking to regulate, (3) the nature of the state’s interests in enforcing its law on the
reservation, and (4) the question of whether the state is providing any benefits or services in exchange
for the burdens the state is seeking to impose.
- When the exercise of state jurisdiction has little impact on federal law or tribal sovereignty and primarily
impacts non-Indians, it usually will pass the preemption test.
6. Canon of Treaty and Statute Construction
 Treaties should be construed:
1. As Indians understood them at the time written
2. Ambiguous language resolved in favor of Indian governments
3. Any doubt, construe liberally in favor of Indians

 Treaties are construed:

1. Indian interests yield to the interest of the U.S. or states
2. Not much wiggle room to challenge with the threat of termination
3. Act like an Indian, so the government is continuously aware of the need for political identity.
7. Issues of criminal and sometimes civil jurisdiction –what are the questions?
- These three questions are essential to any fact pattern, because the borders of the reservation are
permeable by state and federal jurisdiction. Depending on the facts, offenders can escape punishment or
suffer from both federal and tribal prosecution. It all depends.
- Who did it? The identity of the defendant. Tribes can prosecute tribal members and non-member Indian,
but not non-Indians unless the jurisdiction has been granted by Congress, as it did with VAWA. Even
without jurisdiction, tribal police may detain a non-Indian until the “appropriate” authority can pick the
offender up.
- To whom? The identity of the victim. The federal government has jurisdiction over both crimes against
Indians and non-Indians if the crime falls under the Major Crimes Act.
- Where was it done? The type of land. Tribal governments have presumptive jurisdiction on trust land,
but not fee land or off-reservation. However, the federal government under the Major Crimes Act or
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 state government with 280 powers can assert jurisdiction on trust land.
8. Tribal sovereign immunity
- Tribes have the inherent right of self-government. Congress has the supreme authority to limit or abolish
tribal powers, but the powers that tribes possess are not delegations of authority from the United States;
rather, tribes possess them as a consequence of their historic status as independent nations, and the
United States supports the exercise of these powers. Indian nations are distinct political communities,
having territorial boundaries, within which their authority is exclusive, and having a right to all the lands
within those boundaries, which is not only acknowledged, but guaranteed by the United States
- Indian nations had always been considered as distinct, independent political communities, retaining their
original rights, as the undisputed possessors of the soil from time immemorial.
9. Fiduciary Responsibility
- When treaties between the federal government and tribes were crafted, the federal government
specifically promised to assist and protect Indians. This trust relationship includes a fiduciary
responsibility. The federal government must remain loyal to the tribes and act in their best interest to
preserve, protect, and maintain the trust property.
- This duty is enforceable in court. In Cobell v. Salazar, the plaintiff tribal members allege that the federal
government violated its fiduciary duty by gross mismanagement of funds held in trust.
- If an agency violates their fiduciary responsibility, Congress has passed a number of laws that authorize
Indians and tribes to seek remedies from a court. Those remedies must be effective. In some cases, a
statute might create a money-mandating fiduciary duty while others create a no duty or only a “bare” or
“limited” duty that is not money-mandating.
- Determining which is type of statute applicable requires a close examination to see what tasks the
statutes requires of, and what control the statute gives to, federal officials in their administration of the
tribe’s property. Where the tribe retains most of the decision-making authority and the federal
government merely supervise an activity, a money-mandating scheme is not created. However, where
Congress has assigned detailed managerial tasks to government officials and the government
comprehensively manages the property, the beneficiary generally has a right to recover damages for
mismanagement.
10. Plenary Power
- Congress has plenary power meaning that any decision made by Congress is automatically in the best
interest of Indian tribes. This is a moral responsibility, rather than a legal one. The Supreme Court may
not order Congress to under any action on behalf of Indians or tribes, or prevent action from occurring,
including termination.
- Congress is able to strip and readmit tribal governments of their authority through statute. For instance,
Congress legislated a workaround to the limit of tribal jurisdiction in Duro v. Rena with the “Duro fix”
that restored tribal courts’ criminal jurisdiction over non-member Indians.
- On the other hand, Congress passed the Major Crimes Act because they felt that Indians should be
subject to federal prosecution for serious crimes. This act abridged tribal criminal jurisdiction over even
tribal members committing crimes against other tribal members on tribal land for crimes such as murder,
manslaughter, kidnapping, and rape.
11. Implied divestiture
- The Court in Oliphant created the doctrine of implicit divestiture where the tribe’s sovereign powers and
authority can be reduced even if Congress did not expressly terminate the right. The Court announced a
new standard for tribal authority, that tribal authority exists except (1) when expressly terminated by
Congress, or (2) if inconsistent with their status. Because tribal governments did not historically have
jurisdiction over non-Indians and the federal government protects its citizens from unwarranted
intrusions, the tribes’ exercise of jurisdiction was inconsistent and the tribe lacked inherent jurisdiction.

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Potential Questions
Explanations and reference to appropriate cases/facts/laws are good things to enhance general statements.

1. Describe the powers of tribal governments and indicate how court decisions have limited or described
each of the powers. One or two illustrative cases for each will be sufficient.
The powers of tribal governments include (1) the right to form a government, (2) the right to determine
tribal membership, (3) the right to regulate tribal land, (4) the right to regulate individually owned land, (5) the
right to exercise criminal jurisdiction, (6) the right to exercise civil jurisdiction, (7) the right to regulate
domestic relationships, and (8) the right to engage in and regulate commerce and trade.
o Right to Form a Government: This right includes the right to establish the qualifications for tribal office,
to determine how tribal officials are chosen, and to define their powers. Each tribe has the power to
determine who may vote in the tribal elections. Worchester v. Georgia recognized the ability of a tribe
to have a government sovereign from state intervention.
o Right to Determine Tribal Membership: This right includes the power to take away membership and to
adopt persons into the tribe and determine which benefits of membership they’ll have. Santa Clara
Pueblo v. Martinez reaffirmed the tribe’s right to determine tribal membership, even if it excludes the
children of female members who married outside the tribe. The Court decided that the federal
government played no role in such discrimination claims.
o Right to Regulate Tribal Land: The Court limited this right to regulate in City of Sherrill v. Oneida
Indian Nation barred the Oneida Nation from unilaterally asserting full sovereignty over its purchased
lands and assert immunity against state taxation. But in Merrion v. Jicarilla Apache Tribe, the Court
confirmed that Indian tribes have the right to regulate tribal land unless they are divested of it federal
law or by necessary implication of their dependent status.
o Right to Regulate Individually Owned Land: Indian tribes retain the inherent right to place restrictions
on the use of private property within its borders unless Congress has limited the right or tribes have lost
it by implication. Under Montana, tribes retain the sovereign right to prohibit activities on privately
owned land that imperil the political integrity, economic security, heath and welfare of the tribe.
o Right to Exercise Criminal Jurisdiction: Tribes have the inherent right to maintain law and order,
including the power to create a police force, establish courts and jails, and punish tribal members who
violate tribal law. Oliphant v. Susquamish Indian Tribe prohibited tribal courts from asserting criminal
jurisdiction over non-Indians who violate tribal law. Duro v. Rena, similarly, provided immunity for
nonmember Indian offenders in tribal court. However, Congress passed a law to explicitly overrule this
decision and allow tribal courts to prosecute nonmember Indians.
o Right to Exercise Civil Jurisdiction: 6) Tribes have the inherent right to exercise civil jurisdiction
over tribal members on the reservation and non-members under the Montana exceptions. In Merrion v.
Jicarilla Tribe, the Court upheld a tribal tax on the value of oil and gas produced by a non-Indian
company on tribal trust land. The Court recognized that Indian tribes have the inherent right to manage
their territory and the activities occurring on it. However, Atkinson Trading Co. v. Shirley prohibited
taxation, an exercise of civil authority, over nonmembers on fee land.
o Right to Regulate Domestic Relationships: Unless limited by a treaty or statute, tribes have the right to
regulate domestic relations among tribal members, including home and family relationships. Fisher v.
District Court held that the tribe’s authority over an adoption proceeding was exclusive when the child,
the mother, and the foster parents were all reservation Indians. The Court held that tribal governments
have an inherent and exclusive right to regulate their own domestic relations.

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 o Right to Engage in and Regulate Commerce and Trade: Tribes have the inherent right to engage in
business activities in the tribe’s own name and to create and license corporations distinct from the tribe.
Although it used to be presumed that Indian tribes have the inherent right to regulate all commercial
activities on the reservation that impacted the tribe, the Supreme Court has undercut this presumption in
cases like Atkinson and Hicks. The Court in Nevada v. Hicks held that tribal court lacked authority to
subject non-Indians to tribal court process for actions on trust land. Considering this case and Atkinson,
tribes may not be able to regulate commercial activities of non-Indians unless the activity falls under a
Montana exception.
2. Describe the major obstacles to effective American Indian Law and Tribal Government.
There are external and internal tribal court issues. Some external factors include federal court trends,
Congress’ plenary power, the BIA, checkerboard jurisdictions created by the Allotment Act, encroachment by
states, and general ignorance about what tribal sovereignty actually is. Some internal factors include legitimacy,
cultural maintenance, and infrastructure.
Perhaps the foremost obstacle to effective American Indian Law and tribal government is that although
inherent tribal sovereignty exists, it is drastically diminished by Congress’ plenary power. If it desired,
Congress could abolish all tribal governments and all Indian reservations. There are two types of limits on tribal
powers: express and implied. Congress has expressly prohibited tribes from exercising certain powers, such as
selling tribal land without the federal government’s permission. Additionally, tribes have also impliedly lost
some of their rights of self government due to their dependent status, by virtue of their incorporation into the
US. They are viewed as “conquered nations” under the control of the federal government. Further, although
tribal powers of self-government are not limited by the U.S. Constitution, they have been limited by many
cases.
As mentioned above, the notion that tribes have an inherent right to govern themselves, subject to Congress’
plenary power, is well-recognized. However, because of the trust responsibility owed by the United States to
tribes and their status as “wards to a nation,” most Indian land is held in trust by the United States, and because
federal law still regulates the political and economic rights of tribal governments, tribal jurisdiction over
persons and things within tribal borders are often at issue. Further, as noted in another section, tribes faced a
major curtailment of their right to self-governance due to the Supreme Court’s ruling in Oliphant, which held
that tribes did not have a right to criminally prosecute non-Indians for committing crimes on reservations. This
decision effectively crippled tribal governments and their courts from wielding a major aspect of their
sovereignty which they arguably possessed prior to this Supreme Court decision. Further, the Oliphant Court
crafted the doctrine of implicit divestiture, which allows Congress to reduce tribal sovereignty even without
express Congressional action. The Court tacked a new standard on to Congress’ plenary power to curtail tribal
sovereignty by adding that tribes have sovereignty unless it is inconsistent with their status.
Another issue that tribal governments face is that tribal members may not recognize the legitimacy or
potency of their own tribal government and may instead turn to the BIA to accomplish things. Further, along
with massive federal encroachment upon tribal sovereignty, many states also seek to control tribes.
Additionally, because of the Allotment Act, checkerboard jurisdictions have been created such that it may to
difficult to ascertain whether the federal government, state, or tribe has jurisdiction over a particular dispute.
 Another major obstacle to effective American Indian law is the recent judicial trend of attacking tribal
sovereignty. As the professor noted, since the Rehnquist Court, the Supreme Court is not supportive and
appears to be antagonistic to tribal sovereignty. In contrast, the Executive Branch is pursuing policies of
expansion. Thus, the state of American Indian Law is really in constant flux, depending upon the current
administration and judicial branch in power and whether they are inclined towards protecting tribal sovereignty
or not. Because the branches are often at odds with regards to how they view tribal sovereignty, it is difficult to
pin down a clear doctrine when analyzing issues of tribal sovereignty.
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 3. Explain how the consistent conflation of race/ethnicity/culture with Indian political status is an
impediment to effective government. Use examples of cases, laws, and material from lectures and
reading to buttress your explanation.
Stephen Pevar’s book describes the problems with defining the term “Indian.” Indians are a distinct race of
people. However, some Indians are given specific legal status under tribal, state and federal governments
depending on the circumstances. Governments have put forth specific criteria for determining whether a person
is “Indian” based on blood quantum, federal recognition or historical status. Tribal governments can use any
criteria for enrollment eligibility. However, the federal government does not automatically use tribal
enrollment; rather, blood quantum – identifiable evidence of Indian ancestry – is used to qualify Indians for
federal purposes.
As you can see, blood, ancestry, and race are tied together with identification for legal status and benefits of
the federal government. This both hinders and helps effective governance. In order to maintain sovereignty,
Indians have had to showcase their cultural tradition and lean in to their separate racial identity. Americans,
upon seeing “assimilated” Indians, would assume that separate sovereign nations are unnecessary and may
reexamine the benefits of termination to make a cohesive United States. This belief is not held only with
uneducated Americans, but even educated citizens who value efficiency above self-determination. Until this
misguided assumption no long poses a threat to tribal sovereignty, the conflation of culture, ethnicity, and legal
status strengths the argument in favor of separate sovereign nations. While the Supreme Court in Tee-Hit-Ton
refused to recognize Alaska Native title to their land for just compensation, Congress passed the Alaska Native
Claims Settlement Act allowing for compensation for the taken land and ownership rights for large portions of
land. Today, many Alaska Natives still live in traditional lifestyles. Surely, this fact plus the remote locations of
the tribes contributed to Congress’s seemingly change of heart when it comes to compensation for taken native
lands.
On the other hand, tying culture to political status leads to a stunted political status based off of racial
stereotypes. For instance, in Johnson v. McIntosh, the cultural stereotype of Indians as roamers who did not
utilize their land helped bolster the argument for “Indian title,” a lesser bundle of property rights than full title.
Again in Rice v. Rehner, the Court assumed that tribal governments did not historically engage in trade of liquor
(or trade broadly) and allowed for state authority to extend into the tribe so that regulation would be sufficient.
This pattern of paternal subjugation is directly fed by racial stereotypes and a misunderstanding of history.
Further, emphasizing legal status over race does not allow Indians to take advantage of strict scrutiny
judicial review. In Constitutional Law, any state or federal action may be challenged as a violation of the 14th
or 5th Amendment and, if race is implicated as a factor in such action, strict scrutiny will be used to determine
whether the action is absolutely necessary by the least restrictive means to further an important government
interest. This is a high bar where the government does not benefit from deference, but must prove an important
interest in tribal subjugation. While such scrutiny may not turn out in favor of the tribe (see Employment
Division v. Smith), it has rarely been tested because of the ideological separation between race and legal status.
4. Explain the current federal Indian policy and how it is implemented. (see PL 93-638)
The Indian Self-Determination and Education Assistance Act of 1975 (Public Law 93-638) authorized the
Secretary of the Interior, the Secretary of Health, Education, and Welfare, and some other government agencies
to enter into contracts with, and make grants directly to, federally recognized Indian tribes. The tribes would
have authority for how they administered the funds, which gave them greater control over their welfare.
Implementation of PL 93-638 created a process known as self-determination contracting, under which "the
employees and administrative control of an otherwise federal program are transferred to the tribal government
via a "638 contract". Under these contracts, tribes agree to set up a particular program (in areas such as resource
management, law enforcement, education, childcare, and environmental protection) while meeting federal
requirements and guidelines in order to receive funding and support. The duties entailed in contracts between
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the federal government and the tribes were handed to implementing agencies, one of which was the Bureau of
Indian Affairs, BIA.
The BIA at first resisted this change. The process was strictly for approval of funds for tribal use. Continued
efforts by tribal leaders to obtain the grant money and pressure from Congressional representatives helped bring
about a new way of doing business. The influence of the BIA over tribal affairs slowly lessened. In addition, the
United States Supreme Court in Cherokee Nation of Oklahoma v. Leavitt found that the Federal government
was liable for payments under a 638 contract.
5. Explain the major problems facing tribal courts and the application of tribal law.
The major problems facing tribal courts in their application of law result from the impact of federal and state
intervention and their internal circumstances. Legitimacy proves to be a problem when asserting authority on a
small reservation. Particularly when corruption and politics loom large over the reservation, people have a hard
time accepting the courts as a fair and just system independent from the influence of politicians. Additionally,
the tribal governments do not have the benefit of consistency and stability because they have only been around
for a couple generations. Tribal governments may also have issues with infrastructure. It is hard to maintain all
the necessary parts of a criminal justice system with the dysfunctions of poverty.
Further, the federal and state governments have intruded into tribal land through the Allotment Act, Major
Crimes Act, and P.L. 280 delegation to name a few. The “checkerboard” of land parcels and jurisdictions allows
for criminals to take advantage of gaps in the law and, for instance, aggravate the drug epidemic. State
governments have a reputation of not extending full faith and comity which hinders tribal enforcement of
protection orders issued by the tribe. The Montana exceptions further reduced the ability of tribal courts to
assert jurisdiction over non-Indians. Accidents, such as the case in Montana, can completely escape application
of tribal law if a Montana exception cannot be proven by the tribal government.
6. Explain how courts have weakened the Worcester v. Georgia prohibition of state intrusion into Indian
Country.
The Supreme Court in Worchester v. Georgia held that states cannot interfere in tribal affairs without
expressed consent from Congress. The dilution of the Worchester holding has occurred mainly in the area of
state regulation over non-Indians in the reservation. It is still true that the state cannot enact civil regulations
inside the reservation over Indians and tribal governments. Congress gave states express jurisdiction with P.L.
280. The Court in Cabazon allowed P.L. 280 states full authority for criminal jurisdiction over activity that
occurs on a reservation. The Allotment Act allowed states to regulate activities of non-Indians on non-trust land
inside the reservation, unless the tribe can prove one of the Montana exceptions.
However, later cases have degraded the Worchester rule by allowing for state regulation even without
express congressional consent. Instead, the Supreme Court has replaced the Worchester rule with a two-part test
to determine whether states can regulate Indian Country without express congressional consent: federal
preemption test and the infringement test. The preemption test is used whenever a state is exerting civil
regulation over tribal affairs. Federal preemption precludes state from regulating areas of law specifically
reserved, express or implied, to the federal government. The federal government always has a significant
interest in encouraging tribal self-sufficiency and economic development. When the exercise of state
jurisdiction has little impact on federal law or tribal sovereignty and primarily impacts non-Indians, it usually
will pass the preemption test. Williams v. Lee established that a state may not infringe on the right of reservation
Indians to make their own laws and be ruled by them. This infringement test protects the inherent right of Indian
tribes to be self-governing. Permitting the state to regulate must plainly interfere with the powers of tribal self-
government.
These two tests are a serious weakening of the absolute bar to state intervention with Congress’ consent of
Worchester v. Georgia. It is no longer true that state law has no force in Indian Country. The tribe must prove
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these two tests to avoid state regulation. If the regulation involves non-Indians, then these tests are hard to
prove.
7. How do tribal courts differ in their operations from state or federal courts?
Tribal courts are concerned with returning the community to balance. Punishment, if used, is not used as a
deterrence and is determined through discussions to find family solutions. The tribal court is more concerned
with keeping the community whole and prospering as opposed to the specific individual. We saw this at the
Chitimacha Court where the social workers would create a plan for each person to stay in the community and
work on their problems. These plans were then presented to the judge who reviewed the case and asked the
parties involved to confirm their commitments. Tribal courts have a more casual approach to the criminal
justice system which is reflected in their lack of American-style due process. Lay advocates typically replace
public defenders and judges may not be trained in the law. However, these “deficiencies” are not necessary
when the justice system is collaborative rather than adversarial.
The state and federal courts are based off of a European view of strict moral standards with punishment as a
deterrence for others and retribution for victims. Judges decide outcomes seldom on the individual
circumstances, but on laws that are applicable to all people equally. Individuals have civil rights that cannot be
violated and place every person on an equal footing. Equity is the guiding principle behind the criminal justice
system and the adversarial system pits opposing advocates to an impartial judge. The interest of the state is
inherently and absolutely against the interest of the individual in this system.
8. I described idealistic approaches to expansion of tribal exercise of sovereignty. Use existing cases
and/or laws to indicate possible avenues allowing tribal law/government to expand their sovereignty. (I
might just select one of these)
a. Correcting the Montana Test/Exceptions and Oliphant v. Suquamish
Oliphant and Montana established that tribe’s sovereign powers and authority can be reduced in favor of
state jurisdiction. This trend has seemingly come to a grinding halt in Williams v. Lee where the Supreme Court
established that a state may not infringe on the right of reservation Indians to make their own laws and be ruled
by them. While the infringement test seems to prohibit state jurisdiction, this test is much looser than the
absolute bar from Worchester. While Wheeler ended up preserving tribal sovereignty, its dicta characterized
tribal governments as having limited character subject to the federal government.
The trend of reducing tribal authority in favor of state and federal governments must be stopped, but the
ultimate effect of permeable tests and harmful language of the majority opinions of the Supreme Court cannot
be overlooked. Additionally, state interests should not be weighed as more important or legitimate than tribal
interests, as the infringement and Montana exceptions allow. Preferably, these tests should be eliminated for
absolute bars, like Wheeler and Worchester, but without the offensive language.
b. Expanding Indian title to mean ownership of land just in the same way that state public domain
belongs to a state.
Johnson v. McIntosh must be revised to reflect complete ownership of land, not merely “Indian title.” The
idea is for tribal governments to own land like states own the land within their boundaries. All land within tribal
boundaries would be subject to tribal imminent domain and regulation. This also preserves the main concern of
Johnson that Indians would sell their land to other countries. If the tribe has the same powers as states, then this
is impossible because states cannot alienate land to diminish their boundaries or alienate land outside of the
dominion of the United States. However, the tribe, like a state, would maintain control of its interior through
tribal regulation.
If this idea is not realized, tribal land should have greater protections separate from being held in trust. For

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instance, in the areas of inheritance, land should not be bound to federal procedures, or, if not in compliance,
bound to state procedures. Instead, land should follow tribal regulations for inheritance.

c. Defining reservation boundaries and recognizing tribal exclusive jurisdiction within the boundaries.
(subject to federal preemption of course).
This idea would allow tribes to purchase land straight into trust without approval by the state governor or
Interior Department. Formal boundaries with exclusive jurisdiction would solve the problem of the Allotment
Act “checkerboards” and create cohesion within the reservation. This idea would also allow tribes to assert
complete authority over non-Indians on tribal land. This will allow tribal governments to efficiently address the
drug epidemic.
d. Correcting Lone Wolf v. Hitchcock (1903)-Plenary power.
Lone Wolf gave the federal government the freedom to break treaties and exercise absolute plenary power.
Congress should not have absolute power, rather their power should be subject to challenges from tribes like
executive actions. For an example of such a challenge, Cobell v. Salazar allowed tribal members to sue for the
mishandling of trust funds. The executive branch does not have an absolute presumption that its actions are in
the best interest for the tribe. U.S. v. Mitchell established
e. Abandoning the presumption that state interests trump tribal interests.
Nevada v. Hicks held that tribal court lacked authority to hear civil rights violations of its members on tribal
land if filed against non-Indian defendants. Courts have construed the Montana exceptions as requiring a high
standard of proof. Instead, this standard should be deferential to tribes. If the tribe asserts that an action will
significantly threatens the politics, economics, health or welfare of the tribe, then the court should defer to the
tribe’s findings. This type of deference is routinely given to states during challenges that require rational basis
scrutiny and to executive agencies who interpret statutes. In Constitutional Law, states can survive rational basis
scrutiny if it asserts that the state has a legitimate interest in its regulation or action. The Supreme Court uses
great deference to the interest asserted by the state and rarely challenges its legitimacy.
9. Describe the current principles of Indian Law and Tribal powers.
The current principles of Indian law have moved away from subjugation and imperialism. Increasingly,
tribes are asserting their treaty and statutory rights and lobbying to stop harmful bills in their tracks. The federal
government has presented ideals of tribal self-determination, self-government, and economic stability. While
this is certainly an achievable goal, the federal courts have not caught up to these principles and continue to
limit the powers of tribal governments. Since about 1980, there has been a pattern of reducing tribal sovereignty
and making sure they do not apply to non-Indians which is characteristic of Rehnquist’s and today’s court.
Oliphant and Montana established that tribe’s sovereign powers and authority can be reduced in favor of
state jurisdiction. Sherrill denied tribal sovereign immunity over newly purchased land (historically part of the
tribe’s original land), because in part of the impact on the state and its citizens. A-1 Contractors penetrated the
jurisdictional boundary of the reservation by applying the Montana exceptions to a tort that occurred inside the
reservation. Hicks held that tribal court lacked authority to hear civil rights violations of its members on tribal
land if filed against non-Indian defendants. Increasingly, tribal courts have very little authority over the non-
Indians even if their economy, sovereignty, and individual citizens are greatly affected. Courts have construed
the Montana exceptions as requiring a high standard of proof.
Other cases indicate that tribal sovereignty is protected. Wheeler held that the double jeopardy clause does
not apply between federal and tribal courts, thus recognizing tribes’ inherent powers for criminal jurisdiction.
Unfortunately, the majority opinion, while recognizing sovereignty, added dicta that characterized tribal
governments as having limited character subject to the federal government. Lara affirmed the Duro fix to
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restore tribal criminal jurisdiction over non-member Indians for acts that happen inside the reservation borders.
Santa Clara Pueblo affirmed tribal sovereign immunity from Indian Civil Rights Act claims. Congress has
passed legislation that has restored tribal jurisdiction and authority, such as the Violence Against Women’s Act
and Indian Child Welfare Act. The VAWA restored tribal authority over non-Indian domestic abusers on tribal
land. The ICWA gives tribes priority over states for handling child custody cases where the child is an Indian.
These are steps forward, but the language of these acts and majority opinions must reflect the shift in principles
guiding the relationship between tribal, state and federal governments.
10. Describe the unique status within the United States of federally recognized tribes and their citizens.
Certain Native American groups have a unique status under federal law, including tribes in Connecticut, the
Pueblos of New Mexico, Alaska Natives, Oklahoma Indians, New York Indians, and the non-recognized tribes.
Connecticut has officially recognized 5 indigenous tribes: Mashantucket Pequot, Mohegan, Paucatuck
Eastern Pequot, Schaghticoke, and Golden Hill Paugussett. Each tribe has a reservation assigned by the sate for
its use. There were no federally recognized tribes in Connecticut until the 1980s, and 11 other tribes within
Connecticut are currently seeking federal recognition.
There are 19 tribes, also known as Pueblos, located within New Mexico. These Pueblos were present prior
to the invasion of the Spanish Conquistadors in the 17th Century. These Pueblos are extremely diverse, and
possess their own cultures, governments, and languages. The Spanish issued land grants to the Pueblos and the
Mexican government reaffirmed these grants and gave Mexican citizenship to the Pueblo Indians. After the US
acquired the territory of New Mexico in the Treaty of Guadalupe Hidalgo, the US promised to preserve the land
that had been granted to the Pueblos by the Spanish and reaffirmed by the Mexicans. Also, the US government
bestowed US citizenship upon the Pueblo Indians.
In 1913, the Supreme Court held that Pueblos are Indian tribes for purposes of federal protection. Further,
Congress passed the Pueblo Lands Act, which established a board to review all land claims raised by the
Pueblos. As a result, Pueblos recovered some of the land that was stolen from them and received compensation
for the rest. The Act was amended in 2005 to say that the Pueblo has jurisdiction if the offense is committed by
a member of the Pueblo or by another Indian, the US has jurisdiction if the offense is a crime under federal law
and is committed by or against an Indian, and the state has jurisdiction if the crime is committed by a non-
Indian and the crime isn’t subject to federal jurisdiction.
The Pueblos have a unique relationship with the US because no other group of Indians has been as free of
federal interference as they have. For example, no Pueblo was every compelled to sign a treaty with the US and
none of their lands were removed under the GAA. Pueblos are different because they actually own their own
land, as opposed to it being held in trust by the US. However, Pueblos do benefit from the trust relationship
with the US, and get the same services as other federally recognized tribes.
Alaska Natives, the Eskimos and Aluets, have lived in Alaska prior to the US acquisition of Alaska from
Russia in 1867. They make up 1/5 of the population of Alaska and are the most impoverished group in the
state. The Alaska Natives were expressly included in the Citizenship Act of 1924, along with the rest of the
tribes. Further, in the infamous Tee-Hit-Ton case, the Court held that the Alaska natives did not have recognized
title to land and so were not entitled to just compensation for the taking of it.
Alaska Natives have a unique relationship with the US because although the Court held that they were not
entitled to just compensation for the taking of their lands, the Alaska Native Claims Settlement Act made it so
that the tribes could get some compensation. Additionally, the US conveyed fee simple title in large amounts of
land, around 40 million acres, to them. Additionally, Alaska Natives with ¼ or more Native blood were enrolled
in a regional corporation and issued shares of its stock.
What is now the state of Oklahoma was used for the forcible relocation of many eastern and western tribes.
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Now, there are over 30 federally recognized tribes within the state, with only a handful of them being
indigenous to the area. The Indians living in Oklahoma have a unique relationship with the US because
Congress has created a set of law dealing exclusively with these tribes. These laws limit tribal powers over
tribal property. For example, state law, rather than tribal or federal law, governs the alienation, partition, and
inheritance of Indian law. However, the Indian tribes within Oklahoma do have an inherent right to tribal self-
government.
Similarly, Congress has passed laws dealing exclusively with tribes in New York. For example, like Public
Law 83-280, criminal jurisdiction has been conferred to the state of New York, with the exception of the
regulation of any hunting or fishing rights guaranteed to the Indians under federal law. In contrast to New
York’s sweeping criminal jurisdiction, it has limited civil jurisdiction over Indian affairs. For example, the state
may not tax the sale of goods to Indians on Indian reservations.

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