Federal Indian Law Outline - Boalt.org

Document Sample
Federal Indian Law Outline - Boalt.org Powered By Docstoc
					Federal Indian Law Outline
Fall 2004
Professor Frickey

Introduction .................................................................................................................................................... 1
   Marshall Trilogy ......................................................................................................................................... 1
     Doctrine of Discovery ............................................................................................................................ 1
     Domestic dependent nations ................................................................................................................... 1
     Federal Authority.................................................................................................................................... 1
   Treaty Interpretation ................................................................................................................................... 2
     Reserved-rights Doctrine ........................................................................................................................ 2
   Indians, Tribes, & Indian Country .............................................................................................................. 2
     What is a tribe? ....................................................................................................................................... 2
     Who is an Indian? ................................................................................................................................... 2
     Indian Classifications are Political not Racial ........................................................................................ 2
     Indian Country ........................................................................................................................................ 3
Federal Power & Protection ........................................................................................................................... 3
   Sources & Plenary Nature .......................................................................................................................... 3
     Trust Relationship .................................................................................................................................. 3
   Canons ........................................................................................................................................................ 4
   Limits: Takings & Breach of Trust ............................................................................................................. 4
     Sovereign Immunity ............................................................................................................................... 4
     Takings: .................................................................................................................................................. 5
     Breach of Trust Claims ........................................................................................................................... 5
   Conflicts of Interest .................................................................................................................................... 6
   Federal Power in Criminal Jurisdiction ...................................................................................................... 6
Tribal Sovereignty .......................................................................................................................................... 7
   Preventing Intrusion of Federal and State Law .......................................................................................... 7
     Inherent Sovereignty .............................................................................................................................. 7
     Domestic Dependent Nation ................................................................................................................... 7
     Treaty Cessions ...................................................................................................................................... 7
     Exercises of Congress’ Plenary Power ................................................................................................... 7
     Delegations of Federal Authority ........................................................................................................... 7
   Tribal Jurisdiction ....................................................................................................................................... 7
     Tribal Civil Jurisdiction .......................................................................................................................... 8
     Tribal Criminal Jurisdiction .................................................................................................................... 9
     Erosion of Tribal Jurisdiction ................................................................................................................. 9
   Tribal Sovereign Immunity ........................................................................................................................ 9
State Authority ..............................................................................................................................................10
   Public Law 280 ..........................................................................................................................................10
   State Taxation & Regulation .....................................................................................................................10
     Taxing non-Indian business on reservation ...........................................................................................11
     Regulating hunting, liquor & gaming ....................................................................................................11




                                                                                 a
INTRODUCTION
Legal theories undermined by treatment of Indians:
     Torts: unconsented action on your interests is s tort
     Contracts: bargain freely but bargains are enforceable
     Property: norms and values decide title to land
     Takings: just compensation for taking of property
     Indian Commerce Clause
     Indians “not taxed”

Indian law is judge-made law (case-by-case).
Congress has power over Indian affairs; Supreme Court interprets Indian affairs.

    1.   Tribes have inherent powers of self-government
    2.   Independence of tribes subject to exceptionally great powers of Congress
    3.   Power to regulate tribes is wholly federal
    4.   Fed govt has a responsibility for the protection of tribes and their properties.

MARSHALL TRILOGY

DOCTRINE OF DISCOVERY
Title of land goes to the discoverer against other Europeans.

Indians do not have title to land, they only have right of occupancy. Johnson v. M'Intosh, 21 US 543
(1823) CB 57 (holding that Indian land transfer was invalid).

DOMESTIC DEPENDENT NATIONS
Indians are self-governing, but under the protection and trade with the US.

Tribes are not a "foreign nation," within Constitution. Cherokee Nation v. Georgia, 30 US 1 (1831)
CB65 (holding that Supreme Court does not have original jurisdiction between a state and a tribe when
Georgia tried to divide up Cherokee territory).
     “Ward to his guardian” establishes that tribes are protected and dependent upon the US.

FEDERAL AUTHORITY
States are excluded from power over Indian affairs.

Articles of Confederation: The US in Congress assembled shall have the sole and exlcusive power of
regulating the lands and managing affairs with the Indians, not members of any of the states, provided that
the legislation right of any state within its own limits be not infringed or violated.

Constitution: The Congress shall have power to regulate commerce with foreign nations, and among the
several states, and with the Indian tribes.

The Cherokee did not give up their sovereignty and thus are not subject to state law. Worcester v.
Georgia, 31 US 515 (1832) CB76 (holding that Georgia cannot prosecute missionaries for living in
Cherokee land without an entry permit).
     Treaty interpreted under reserved rights doctrine. (Allotted=reserved; Hunting grounds=use)
     Interest-convergence: only when white interest aligns with the Indians will the minority interest be
         supported by the federal government. (Marshall was using Supreme Court to centralize power in
         federal govt rather than states.)




                                                       1
TREATY INTERPRETATION
A treaty shall be interpreted as the Indians would have understood it; ambiguities are construed in favor of
the Indians.

RESERVED-RIGHTS DOCTRINE
A grant of Indian rights to the federal government means that all rights not clearly granted are reserved for
the Indians.

Ambiguous treaty that seems to make Indian who commits a wrong subject to US jurisdiction is
interpreted to leave inter-tribal conflict to the tribe. Ex parte Crow Dog, 109 US 556 (1883) (holding
that murder of one Indian by another is within the sole jurisdiction of the tribe).
      Major Crimes Act later declared serious crimes to be a federal offense.

Interpret treaty as the Indians would have understood it. United States v. Winans, 198 US 371 (1905)
CB1241 (interpreting treaty to prevent Indians from ceding away their livelihood to resolve conflict
between state license for fishwheel and treaty that granted fish rights to Indians at all usual and accustomed
places).

Favorable interpretive canons extend to statutes. Menominee Tribe v. United States, 391 US 404 (1968)
CB 1222 (holding that termination statute did not mean to terminate hunting rights—state can’t regulate
hunting).
     Clever legal strategy to pursue as a takings, both sides wanted the same result—continued hunting.

INDIANS, TRIBES, & INDIAN COUNTRY
In general, we deal with federally recognized tribes and enrolled members.

WHAT IS A TRIBE?
A tribe is a group of Indians recognized as constituting (1) distinct and (2) historically continuous (3)
political entity for some governmental purpose.

Federal recognition may establish tribal status: (1) treaty, (2) statute, (3) executive order, (4) administrative
order, or (5) course of dealing with tribe.
     A tribe can lose its status through termination.

WHO IS AN INDIAN?
An Indian must (1) have some Indian blood, and (2) be regarded as an Indian by her community.
     Enrollment is commonly a prerequisite.

INDIAN CLASSIFICATIONS ARE POLITICAL NOT RACIAL
Distinction of treatment of Indians compared to non-Indians has lead to equal protection challenges.
The Supreme Court rejects Indian classification as “racial” and equal protection claims.

Federal
Indian is a political classification for special treatment of Indians. Morton v. Mancari, 417 US 535 (1974)
CB175 (upholding Indian preference in hiring by BIA under rational basis review).

Indian is a political classification, despite dependence of jurisdiction on the Indian-status of parties.
United States v. Antelope , 430 US641 (1977) CB184 (holding that Major Crimes Act is not a violation of
equal protection because an Indian is not a member of a “racial” but a “political” group).

State
Political classification is also extended to state treatment. Livingston v. Ewing, 601 F.2d 1110 (10th Cir.
1979) CB188 (upholding a state-owned museum to allow only Indians to sell hand-made goods.)



                                                        2
Hawaii case: 15th Amendment problem of using race to restrict voting. Rice v. Cayetano (2000) CB197
(invalidating state only allowing native Hawaiians to vote for land trustees by distinguishing from Mancari)

INDIAN COUNTRY
18 USC § 1151 Indian Country defined
    (a) within reservation (regardless of title including rights-of-way)
    (b) dependent Indian communities
    (c) Indian allotments

Note that under (a) even land owned by non-Indians in fee simple is still “Indian Country.”
If diminished then not Indian country.
Diminishment is where Congress, by opening the reservations to heavy settlement, intended to extinguish
part of the reservation—as public, non-Indian land.

Congress has unilateral authority to abrogate an Indian reservation. But only if it is extremely clear that the
reservation is reduced or extinguished. Solem v. Bartlett, 465 US 463 (1984) CB153 (finding that statutory
language providing for sale of land did not diminish—importantly relatively few non-Indians had settled
there.)
Factors:
      Statutory language (most important)
      Compensation (also important)
      Manner transaction was arranged
      Subsequent treatment of the area
      Later demographic consequences of the opening

Words in statute that direct surplus lands to be restored to the public domain signals diminishment. Hagen
v. Utah, 510 US 399 (1994).

Section (b) applies only outside the reservation context.
Codifies the idea that dependent Indian communities are Indian country whether or not they are located
within a recognized reservation. United States v. Sandoval, 231 US 28 (1913) (finding Pueblo lands were
Indian country despite that they were held in fee simple under Spanish grants and not designated as
reservations because the Pueblos were wards dependent on federal govt.)

But, there’s no Indian country in Alaska (except Annette Islands) because they are incorporated. Alaska v.
Venetie, 522 US 520 (1999) (finding Alaskan Natives not dependent—not set aside land).
     Dependent if land set aside for use of Indians and under superintendence of federal govt.

Section (c) means any allotment that is either still in trust or is owned in fee by an Indian with restriction
on alienation is part of Indian country whether or not they are located within a reservation.

FEDERAL POWER & PROTECTION

SOURCES & PLENARY NATURE
Constitution has enumerated powers with Indians: (1) war, Art. I; (2) treaty, Art. II; (3) Indian Commerce
Clause, Art. III.
NARROW: these are only federal powers BROAD: it gives federal power (not state) over Indian affairs.

TRUST RELATIONSHIP
Trust Relationship gives Congress power to unilaterally legislate over tribes (i.e. Major Crimes Act)
United States v. Kagama,, 118 US 375 (1886) (upholding the Major Crimes Act because of the domestic
dependent nation status justifies oversight of Indian affairs.)




                                                       3
Trust relationship allows allotment, in conflict, with treaty because US can unilaterally abrogate a treaty.
Lone Wolf v. Hitchcock, 187 US 553 (1903) (upholding a statute allotting land without ¾ tribal consent as
required by treaty because Congress can unilaterally abrogate the treaty with its plenary power.)
     Presumption is against abrogation, Congress’ intent to abrogate a treaty must be clear.
         United States v. Dion, 476 US 734 (1986) (finding that the Eagle Protection Act did abrogate the
         treaty because Congress contemplated the conflict.).

Dependent status of Indian tribe determines Congress’ power to legislate. United States v. Sandoval, 231
US 28 (1913) (Allowing Congress to prohibit liquor on Indian lands for the Pueblo because they are a
dependent Indian community—even though they hold their land in fee simple.)

Congress’ action is permissible if tied rationally to the fulfillment of Congress’ unique obligation to the
Indians. Delaware Tribal Business Committee v. Weeks, 430 US 73 (1977) (holding that denial of
compensation for land of Kansas Delawares, who were similarly situated to Cherokee who received
compensation, was tied rationally because the tribe was not recognized.)

CANONS
        a "treaty is not a grant of rights to the Indians, but a grant of rights from them - a reservation of
         those not granted.” United States v. Winans, 198 U.S. 371 (1905)
        an Indian treaty should be construed as the tribe itself would have understood it. Worcester
        any ambiguities in treaty language or the historical situation surrounding a treaty negotiation must
         be resolved in favor of the tribe. Worcester.
         treaties in general are to be liberally construed in favor of tribes to accomplish their protective
         purpose because the treaties were allegedly for the benefit of the tribes. Carpenter v. Shaw, 280
         U.S. 363, 367 (1930)

Canons not only apply to treaties, but also statutes. Menominee Tribe v. United States, 391 US 404 (1968)
(finding that a tribes termination under the Termination Act did not abrogate the treaty hunting and fishing
rights.)

LIMITS: TAKINGS & BREACH OF TRUST

SOVEREIGN IMMUNITY
One cannot get damages from the federal or state government unless sovereign immunity is waived.

Prior to 1946—no waiver of sovereign immunity is assumed, had to get waiver for each case (private bill)
Indian Claims Commission Act (1946)—broad waiver of sovereign immunity for “historical” claims
         •       treaties, contracts, agreements
         •       taking of lands owned or occupied without payment
         •       claims based on fair dealings that are not recognized by existing rule of law or equity
     no interest unless constitutional.
     Broader waiver than for “new” claims.
Tucker Act—waiver for “new” Indian claims
         §1505 applies to tribal claims that fall under
         •       constitution
         •       statutes
         •       treaty
         •       executive order
         §1491 applies to individual Indian claims and applies to claims under the categories above and:
         •       regulations
         •       express or implied contract
         •       liquidated or unliquidated damages

Make sure there is waiver of sovereign immunity



                                                      4
TAKINGS:
Recovery for Loss of Aboriginal Title
Original Indian title is not 5th Amendment property, takings does not apply. Tee-Hit-Ton Indians v.
United States, 348 US 272 (1955) CB1023 (denying compensation for timber cut from Alaskan aboriginal
land—no land title in a treaty—so the timber sale is not compensable.)
     1947 incident so it was a “new” claim falling under § 1505 that didn’t include aboriginal title
         because it was not under constitution, law, treaty, EO…
     Court feared floodgates of claims under original Indian title.

Recovery for Loss of Recognized Title
Takings claims are more likely to succeed for title recognized by treaty, statute or agreement.

Recognized title is a property right recognized by 5 th Amendment, taking gives rise to right of
compensation. United States v. Sioux Nation (requiring just compensation for taking of Black Hills
because title was recognized in a treaty—food was not fair so govt was not acting as a trustee.)
     Sioux Nation won $17 mi, but has not been claimed because they want the land back.

Title by Executive Order
Lands given or taken by executive order are not “recognized” title. Sioux Tribe v. United States, 316 US
317 (1942) CB1085 (denying compensation for lands set aside by executive order because only Congress
has the power to dispose of or regulate USA property).
      Federal government may take land set aside by executive order away without compensation
      Federal government may also subsequently recognize such land by statute.

BREACH OF TRUST CLAIMS
In cases where recovery has been permitted, the federal government was acting in its most narrow and
specific role as trustee—manager of assets held by the US for the benefit of the Indians.
     (1) Find waiver of sovereign immunity
     (2) Fulfill elements of cause of action

Old cases fell under a special jurisdictional statute that required use of trust law.
     Government to “be judged by the most exacting fiduciary standards. Seminole Nation v. United
        States

Federal government has a trust duty for money held for tribes. Cheyenne-Arapaho Tribes v. United
States (1975) (requiring government to maximize interest for Tribe’s money held by federal government as
a trustee—simple interest not enough)
      No clear waiver of sovereign immunity here—no statute overtly breached—perhaps the canons

No trust duty for managing resources. United States v. Mitchell, 445 US 535 (1980) (holding that the
General Allotment Act, created only by a limited trust relationship, does not impose any duty upon the
government to manage timber resources.)
     Mitchell II (held that a trust duty did arise from several statutes and regulations that unlike the
        Allotment Act, expressly authorized the government to manage forests on Indian lands).

Fiduciary duty to maintain and preserve Fort Apache. White Mountain Apache Tribe, 123 S. Ct. 1126
(2003) CB512 (finding that the United States could be held liable for letting the fort fall into decay because
the statute expressly provided that the facility was to be held in trust.)
      Law of private trusts applied.

No fiduciary duty if only federal role is to approve. United States v. Navajo Nation, 537 US 488 (2003)
(denying any trust duty under the Indian Mineral Leasing Act, that required approval of secretary for
mining leases negotiated by the tribe).
     No duties of management beyond approval and no express declaration of trust duty.
     Distinguish from Mitchell because administrative law, rather than resource management case.


                                                      5
Pending: Was there a breach of fiduciary duty in mismanaging accounts. Cobell v. Norton, 240 F.3d 1081
(D.C. Cir. 2001) CB518 (US mismanaged Individual Indian money trust accounts—seeking an
accounting).
     Waiver of sovereign immunity: APA waives sovereign immunity for equitable relief.
     Trust responsibility most readily invoked with regard to active management of Indian assets.

Trust responsibility invoked for protecting water rights of tribes. Pyramid Lake Paiute Tribe v. Morton.
Attempts to broaden trust responsibility lack success.
Indian trust relationship is not pure—Congress can change the relationship under its plenary power.

CONFLICTS OF INTEREST

When US litigates on behalf of tribes, the govt cannot follow the fastidious standards of a private
fiduciary with regard to potential conflicts of interest.
Nevada v. US, 463 US 10 (1983) CB526 (relaxing trust responsibility for United States when representing
tribes and farmers over water rights reclamation project).

United states must merely prove that water allocations are not arbitrary and capricious. Pyramid Lake
Paiute Tribe v. Morton, 354 F. Supp. 252 (D. D.C 1972).

Sometimes settlement is the best solution, like public law that came of Nevada.

FEDERAL POWER IN CRIMINAL JURISDICTION
Assuming that crime occurs in Indian Country in a non-PL280 state.

State
There is a presumption against state criminal jurisdiction. Worcester.
     Unless both parties are non-Indians. McBratney.

Federal
Major Crimes Act 18 USC §1153: Federal jurisdiction for an Indian in Indian country who commits one
of the enumerated crimes (e.g. murder, manslaughter, kidnapping).
General Crimes Act 18 USC §1152: Federal jurisdiction for Indians and non-Indians for crimes
committed in Indian country, except against another Indian or if Indian has already been punished by tribe.
Assimilative Crimes Act 18 USC §13: Borrows state criminal law and incorporates it into the General
Crimes Act.

Tribal
Tribal jurisdiction if the defendant is an Indian, may be concurrent with Federal jurisdiction. Crow Dog

                      CRIMINAL JURISDICTION              Federal       State   Tribal
                      Non-Indian Defendant
                           Indian victim                GCA           No      No
                           Non-Indian victim            GCA           Yes     No
                      Indian Defendant
                           Indian victim                MCA           No      Yes
                           Non-Indian victim            GCA/MCA       No      Yes




                                                     6
TRIBAL SOVEREIGNTY

PREVENTING INTRUSION OF FEDERAL AND STATE LAW

INHERENT SOVEREIGNTY
Tribal sovereignty is inherent. Talton v. Mayes (1896) (tribal jurisdiction because both parties members,
defendant not entitled to full constitutional jury because the Constitution doesn’t apply to the tribe
because they retained their sovereign authority).
     Can be tried by both federal and tribal and no double jeopardy problem. Wheeler.
     Congress passed the Indian Civil Right Act in response to Talton.

DOMESTIC DEPENDENT NATION
Tribal sovereignty is cut back by the effects of discovery. McIntosh
     No Land Title
     No Treaties with Foreign Countries

TREATY CESSIONS
Tribal sovereignty is cut back by treaty cessions, but these are limited by applying the canons.
     Read treaties as Indians would have understood. Worcester
     Reservation of rights not a grant of rights. Winters

EXERCISES OF CONGRESS’ PLENARY POWER
Tribal sovereignty is cut back by Congress legislating over Indians.
     Major Crimes Act Kagama
     Limit by applying the canons.

No federal jurisdiction of the Indian Civil Rights Act. Santa Clara Pueblo v. Martinez (denying federal
jurisdiction for claim that mixed-Indian children cannot enroll because ICRA didn’t abolish tribal sovereign
immunity)
      No injunctive or damages relief, but habeas mentioned so it might be available.
      ICRA enforcement left to tribal courts.

DELEGATIONS OF FEDERAL AUTHORITY
Extinguished tribal power can be reinstated by a federal delegation of authority.

Congress may delegate regulatory authority to a tribe. United Sates v. Mazurie (1975) cB230 (upholding
tribes authority to regulate liquor licenses because Congress had extinguished tribal power to regulate
alcohol and then delegated the authority back to the tribes)
      Tribe is acting under Congressional authority and is subject to the Constitution.
      Indian Reorganization Act requires federal approval of tribal ordinances—courts split if this a
          delegation.

This could also be argued as a removal of preemption that would reinstate tribal sovereignty in the area.

TRIBAL JURISDICTION
Two part inquiry to determine if state has jurisdiction:
   (1) Is there a governing act of congress or a treaty?
   (2) Would it infringe on the rights of Indians to make their own laws?




                                                      7
TRIBAL CIVIL JURISDICTION
No state jurisdiction over non-Indian plaintiff against Indian defendant for store in Indian Country.
Williams v. Lee, 358 US 217 (1959) CB601 (holding that tribal courts have exclusive jurisdiction over a
suit by any person against an Indian for a claim arising in Indian country.)
      Operating store on reservation is consent
      Does it infringe on the rights of Indians to govern themselves?

Regulatory Authority
Generally, no civil regulation jurisdiction over non-Indians on fee land in reservation.

Presumption against tribal regulation outside Indian lands. Montana (finding the tribe lacks inherent power
to regulate hunting and fishing by non-Indians on non-Indian fee land within the reservation).
      Exceptions:
              (1) regulate non-Indians in commercial dealings
              (2) regulate conduct of non-Indians that threatens the welfare of the tribe.

Tribe may zone non-Indian fee land. Brendale v. Yakima, 492 US 408 (1989) CB720 (upholding tribe’s
power to zone land in “closed” portion of reservation, but not on the “open” portion.)

Consent may give rise to ability to regulate:
Power of Indians to tax is essential for sovereign self-management. Merrion v. Jicarilla Apache Tribe, 455
US 130 (1982) (upholding tribal tax on non-Indian oil & gas leases); Washington v. Confederated Tribes of
Colville Indian Reservation, 447 US 134 (1980) (upholding tribal cigarette tax on non-Indian purchasers).
     But, tribe has no power to tax hotel occupancy by non-Indians on fee land within reservation.
         Atkinson Trading Co v. Shirley, 532 US 645 (2001).

Adjudicative Authority
Presumption of tribal court jurisdiction in civil suits when defendant is a non-Indian. Must exhaust tribal
court remedies unless: (1) motivation is to harass or bad faith; (2) patently violates jurisdiction prohibitions;
or (3) exhaustion would be futile. Nat’l Farmers.

Tribal courts have exclusive jurisdiction over a suit by any person against an Indian for a claim arising in
Indian country. Williams v. Lee, 358 US217 (1959).

First, allow the tribal court to determine if it has jurisdiction. National Farmers Union Ins. Cos. V. Crow
Tribe, 471 US 845 (1985) (refusing to let a federal court enjoin a tribal court for a non-Indian defendant on
jurisdiction grounds until the defendant exhausted tribal court remedies.)
      Refusing to extend Oliphant no tribal jurisdiction over non-Indians for reservation-based claims to
           civil cases.

Must exhaust appellate tribal court remedies. Iowa Mutual Ins. Co. v. LaPlante , 480 US 9 (1987)
    If reviewed by a federal court the question is limited to whether the tribal court erred in finding
        that tit had jurisdiction.

These may cut back exhaustion requirement:

Strate (holding that a tribal court had no jurisdiction over a dispute between non-members arising out of a
vehicle accident on a state right-of-way within the reservation.

Hicks (holding that the tribe had no power to regulate a search by state officers investigating off-
reservation crime even though search was of an Indian owned residence on tribal trust land).
      Tribe had no legislative jurisdiction over state officers
      No tribal jurisdiction over general federal civil claims (e.g. § 1983).




                                                       8
TRIBAL CRIMINAL JURISDICTION
Criminal jurisdiction is presumptively not tribal.

Generally tribes have jurisdiction over Indians in Indian country. Ex parte Crow Dog, 109 US 556 (1883).
    Limited by statutes (e.g. GCA & MCA)

Tribes have no general criminal jurisdiction over non-Indians. Oliphant v. Suquamish Indian Tribe, 435
US 191 (1978) (denying tribal criminal jurisdiction over non-Indian who lived on reservation for assaulting
a tribal cop on the reservation because inconsistent with domestic dependent nation status).
      Allotted land

Tribal courts do not have criminal jurisdiction over non-member Indians. Duro v. Reina, 495 US 676
(1990)

Tribal jurisdiction over non-member Indians. Duro Fix 25 USC § 1301(2): "the inherent power of Indian
tribes, hereby recognized and affirmed, to exercise criminal jurisdiction over all Indians" (enacted to fix
gap in jurisdiction).

No double jeopardy for tribal and federal court proceedings. United States v. Lara (2004) (upholding Duro
Fix by permitting tribal criminal jurisdiction over non-member who disobeyed an order excluding him from
reservation and permitting also a federal prosecution for assault on a federal officer that arose out of the
incident.)

EROSION OF TRIBAL JURISDICTION
Strate, Hicks, & Atkinson cut against tribal jurisdiction for reservation-based claims against non-members.

No tribal jurisdiction over civil cases between non-members on state right-of-way. Strate v. A-1
Contractors, 520 US 438 (1997) (no tribal jurisdiction over defendant non-member for tort on state right-
of-way).
     But Iowa Mutual was also a car accident and it said exhaust tribal remedies.
     It means no non-member/non-Indian jurisdiction on fee lands.
     McDonald tribal jurisdiction against non-member on tribal road.

No tribal jurisdiction over state officers executing process relating to off-reservation crime. Nevada v.
Hicks, 533 US 353 (2001) (state game warden and tribal police collaborate to search Hicks’ on reservation
property for off-reservation hunting violation, Hicks sues for damages but denied tribal court jurisdiction.)

No power to tax non-Indians at hotel on fee land within reservation. Atkinson

TRIBAL SOVEREIGN IMMUNITY
Tribes have sovereign immunity. It applies to activities of the tribe on or off reservation, governmental or
commercial activities. It extends to agencies of the tribes. It extends to declaratory, injunctive, and damage
relief.

Congress can waive a tribe’s immunity from suit, but the waiver must be clearly expressed. Kiowa Tribe of
Oklahoma v. Manufacturing Technologies, 523 US 751 (1998) (reversing state court’s exercise of
jurisdiction over tribe’s off-reservation commercial activity because only Congress or the tribe can waive
tribe’s sovereign immunity.

Tribes are not immune from suits by the United States, but the US is immune from suits by the tribe.
Ex parte Young applies—you can sue a tribal officer in official capacity for injunctive relief.




                                                       9
STATE AUTHORITY
Generally, there is no state authority over tribes. Worcester
The state can’t infringe on right of tribes to govern themselves. Williams v Lee

But this principle has been cut away. Plenary power gives Congress authority to change division of
jurisdiction among federal, tribal and state. There are some state specific acts and PL280.

PUBLIC LAW 280
Public Law 280 gives criminal and some civil jurisdiction to states in Indian country:
     Alaska (except Annette Islands)
     California
     Minnesota (except Red Lake Reservation)
     Nebraska
     Oregon (except Warm Springs Reservation)
     Wisconsin
Other states can opt-in.

States were upset because no power to tax to fund the extended jurisdiction and tribes upset because done
without their consent (amendments changed consent and allowed states to retrocede jurisdiction).

§1162(a) gives states the same power to enforce their regular criminal laws inside Indian country (they
         already had jurisdiction over non-Indian crimes in Indian country).
§ 1162 (c) GCA & MCA no longer applied (still applies in opt-in states)
§1360(a) conferred on states jurisdiction over civil causes of action involving Indians in Indian country.
§1360 (b) nothing shall authorize alienation, encumbrance or taxation of trust lands.

        Silent on tribal criminal jurisdiction—could be concurrent or exclusive state.
        Civil is concurrent.
        Expressly declines to authorize states to interfere with hunting and fishing rights
        And does not authorize certain actions affecting Indian trust lands.
        Local laws are probably not applicable. (9th Cir.)

Public Law 280 jurisdiction is limited to adjudicatory jurisdiction only.
States lack general powers of taxation and regulation in Indian country. Bryan v. Itasca County, 426 US
373 (1976). (denying obligation of tribe member on Indian trust land to pay Minnesota property tax).
      Maintaining tribal legislative and regulatory authority.

STATE TAXATION & REGULATION
Approach:
   1. Is there a statute authorizing state action?
            a. PL-280 allows prohibitory but not regulatory state laws.
   2. Would the state action infringe on Indian self-government?
   3. Is the state action justified?
            a. Marketing an exception to nonmembers?
            b. Value added on reservation?
            c. Spillover effects on state?
   4. Is it preempted by federal law?
            a. Statute, treaty, or occupation of field of regulation
            b. Apply the canons assuming preemption and balance federal, state, and tribal interests.

Indian immunities from taxation arise from federal preemption—not sovereignty.
     Must look at the applicable treaties and statutes.
     Preemption analysis relaxed for this inquiry.
     Requires a case-by-case analysis.


                                                      10
States are preempted by federal law and policy from income tax of member working and living on
reservation. McClanahan v. Arizona State Tax Comm'n, 411 US 164 (1973) (State of AZ cannot apply its
income tax to member on reservation who earns income on reservation. It doesn't infringe because multiple
tax is common.)
      Unless member Indian lives off-reservation and income is from reservation, then the state can tax.
         Okl. Tax v. Chicksaw Indian Nation, 515 US 450 (1995).

States can tax non-members on reservation. Washington V. Confederated Tribes of Colville Indian
Reservation , 447 US 134 (1980) (permitting cigarette sales tax on the reservation as applied to non-Indians
and non-member Indians, but not tribal members).
      TEST:
              o Marketing an exemption from state law to non-members
              o No value added on reservation
              o Spillover effects on state (i.e. law enforcement, health)

TAXING NON-INDIAN BUSINESS ON RESERVATION
State may not tax non-Indian business transaction with tribe on reservation. Central Machinery v.
Arizona State Tax Comm’n, 448 US 160 (1980) (striking down state tax on tribe’s purchase of tractors
from non-Indian made on reservation because federal statutes regulating Indian trading preempted.)
      Warren Trading Post (holding state could not tax non-Indian trading post on reservation because
        they were subject to strict federal registration and regulation)

State may not tax non-Indian contractor working for tribe on reservation. White Mountain Apache Tribe
v. Bracker, 448 US 136 (1980) (striking down state motor-carrier taxes on non-Indians cutting timber on
reservation and delivering to tribal sawmill because preempted by extensive federal regulations applied to
timber operations in Indian country.)

State may impose a severance tax on non-Indian corporation producing oil and gas on reservation, even
though tribe also imposes tax. Cotton Petroleum v. New Mexico, 490 US 163 (1989) (Distinguished from
Bracker because there is not as a pronounced federal policy--and earlier statutes had allowed states to tax.
Alternative reading is more favorable to states.)

REGULATING HUNTING, LIQUOR & GAMING
State may not regulate hunting and fishing of non-members on reservation. New Mexico v. Mescalero
Apache. (hunting and fishing resort on reservation is not subject to state regulation—looks like Colville)
      If Congress authorized, then state may regulate. Rice v. Rehner, 463 US 713 (1983) (upholding
        state licensing requirement as applied to a tribal Indian who sold liquor pursuant to a license from
        the tribe because federal statute authorized the state to regulate).

States may not regulate gaming in Indian Country for non-Indians because preempted. California v.
Cabazon Band, 480 US 202 (1987) (invalidating state regulation of gaming because they were regulatory
rules not allowed by PL280, applied a balancing test of interests and weighted heavily on encouragement of
gaming by federal authorities and called this preemption).
      PL280: What civil state laws were meant to be included in PL280? If all state laws with criminal
          penalty apply in Indian country then it is a big problem--it would be like a termination statute.
          Applied canons to the law. Distinguish between prohibitory and regulatory civil laws. PL280
          incorporates only state prohibitory civil laws. But almost impossible to tell which category it falls
          into.




                                                      11

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:5
posted:11/27/2012
language:English
pages:12