Select Page

Indian Law
Santa Clara University School of Law
Quesenberry, Stephen V.

Federal Indian Law – Prof. Quesenberry – Spring 2006
I. INTRODUCTION.. 1
A. What is Indian Law?. 1
B. What Is An Indian Tribe?. 1
C. Who Is An Indian?. 1
D. American Indians Today: An Overview.. 1
1. Indian Tribes And Reservations. 1
2. Indian Population. 1
3. Economic Conditions. 1
4. Health Conditions. 2
5. Education. 2
6. Indian Land And Resources. 2
7. Economic Development2
8. Assimilation Of Indians. 2
E. Perspectives. 2
1. Wilkinson: American Indians, Time And The Law.. 2
2. Getches: A Philosophy Of Permanence: The Indian Legacy For The West2
3. Williams: Columbus’s Legacy. 2
II. HISTORY AND POLICY.. 3
A. The Formative Years: 1789-1871. 3
1. General Concepts. 3
2. Pre-United States. 3
3. Johnson v. McIntosh (1823)4
4. THE TRADE AND INTERCOURSE ACT:4
5. Cherokee Nation v. Georgia (1831)4
6. Worcester v. Georgia (1832)4
7. ENDURING EFFECT OF THE MARSHAL TRILOGY (McIntosh, Cherokee Nation, and Worcester)5
B. Allotments and Assimilation: 1871-1928. 5
1. General Concepts. 5
2. Cannons of Treaty Construction. 5
3. The Bureau of Indian Affairs. 5
4. United States v. Washington (1974)5
5. United States v. Winans (1905)6
6. Ex Parte Crow Dog (1883)6
7. United States v. Kagama (1886)6
8. United States v. Sandoval (1913)6
9. Lone Wolf v. Hitchcock (1903)6
C. The Period of Indian Reorganization: 1928-1945. 7
1. General Concepts. 7
2. The 1871 Act et seq. 7
3. Numerous Changes Through 1945. 7
D. The Termination Period: 1945-1961 and The Era of Self-Determination: 1961-Present7
1. Generally. 7
2. Menominee Tribe of Indians v. United States. 7
3. Morton v. Mancari (1974)8
4. Changes Under the Termination Policy:8
5. Self Determination Policy of the Nixon Administration:8

III. The Federal-Tribal Relationship.. 9
A. Indian Property Interests in Indian Lands. 9
1. History. 9
2. U.S. v. Shoshone Tribe of Indians (1980)9
3. Sioux Tribe v. U.S. (1942)9
4. Tee-Hit-Ton Indians v. U.S. (1955)9
5. County of Oneida V. Oneida Indian Nation (1985)10
6. TRIBAL RECOGNITION.. 10
B. Federal Plenary Power10
1. General Concepts. 10
2. United States v. Dion (1986)11
3. Indian Treaty Abrogation and Congressional Intent11
C. Indian Rights Under the Federal-Tribal Relationship. 12
1. The Federal Trust Responsibility. 12
2. Seminole Nation v. United States (1942)12
3. U.S. v. Navajo Nation. 12
a. The Indian mineral leasing act, which requires secretarial approval of mineral leases negotiated by the tribe, does not give rise to a fiduciary duty enforceable in damages.12
b. The act gives the secretary no duties of management beyond approval of an amount above a statutory minimum.12
4. The Cobell Litigation. 12
a. The fed has been unable to provide an accounting of trust monies from allotted lands. HUGE f’ing problem. BOI is working on this full time.12
5. Pyramid Lake Paiute Tribe of Indians v. Morton (1972)12
6. Joint Tribal Council of Passamaquoddy Tribe v. Morton (1975).13
7. Delaware Tribal Business Committee v. Weeks (1977)13
8. U.S. v. Sioux Nation of Indians (1980)14
IV. Tribal Sovereignty and the Administration of Justice in Indian Country 15
A. Tribal Governments as Independent Sovereigns. 15
1. Talton v. Mayes (1896) [Now abrogated by statute]15
2. U.S. v. Wheeler (1978)15
3. Tribal Justice Systems. 15
4. State Incursions on Tribal Government15
B. The Contemporary Scope of Tribal Sovereignty Under the Indian Civil Rights Act16
1. THE INDIAN CIVIL RIGHTS ACT. 16
2. Santa Clara Pueblo v. Martinez (1978)16
C. Tribal Sovereign Immunity. 16
1. Extent16
2. Entitlement16
3. Limitations. 17
4. Waiver17
D. Tribal Justice Systems. 17
1. Williams v. Lee (1959)17

V. Tribal Sovereignty and Jurisdiction.. 18
A. Indian Country. 18
1. General Concepts. 18
2. Solem v. Bartlett (1984)18
3. What is Sovereignty?. 18
4. What is Jurisdiction. 19
5. Hagen v. Utah (1994)19
6. South Dakota v. Yankton Sioux Tribe (1998)19
7. DEPENDENT INDIAN COMMUNITY.. 19
B. Public Law 280. 19
1. General Concepts:19
2. Bryan v. Itasca County (1976)20
C. Judicially Imposed Limitations on Tribal Jurisdiction. 20
1. Oliphant v. Suquamish Indian Tribe (1978)20
2. General Concepts. 20
3. BACKCOUNTRY AGAINST DUMPS V. EPA (1996)21
4. U.S. v Lara. 21
a. Tribes may bring criminal actions against non-member Indians within their territorial jx. [p526]21
5. Montana v. U.S. (1981)21
VI. Division of Civil Jurisdiction.. 22
A. Present Division of Civil Jurisdiction in Indian Country. 22
B. Tribal Authority to Tax and Regulate in Indian Country. 22
1. Merrion v. Jicarilla Apache Tribe (1982)22
2. Brendale v. Tribes & Bands of Yakima (1989)22
C. State Authority to Tax and Regulate in Indian Country. 22
1. McClanahan v. AZ Tax Commission (1973)22
2. Warren Trading Post v. AZ Tax Commission (1965)22
3. Moe v. Salish & Kootenai Tribes (1976)23
4. Preemption in Indian Law.. 23
5. Washington v. Colville Indian Reservation (1980)23
6. White Mountain Apache Tribe v. Bracker (1980)23
7. Dept. of Taxation of New York v. Hilhelm (1994)23
8. Montana v. Blackfeet Tribe of Indians (1985)23

I. INTRODUCTION
A. What is Indian Law?
a. Indian law is that body of law dealing with the status of the Indian tribes and their special relationship to the federal government, with all the attendant consequences for the tribes and their members, the states and their citizens, and the federal government
i. In other words, Indian law is federal law about Indians
b. There are four major themes that have persisted and form the doctrinal bases of present Indian law:
i. First, the tribes are independent entities with inherent powers of self-government
ii. Second, the independence of the tribes is subject to exceptionally great powers of Congress to regulate and modify the status of the tribes
iii. Third, the power to deal with and regulate the tribes is wholly federal and states are excluded unless Congress delegates power to them
iv. Fourth, the federal government has a responsibility for the protection of the tribes and their properties, including protection from encroachments by the states and their citizens
B. What Is An Indian Tribe?
a. An Indian tribe is simply a group of Indians that is recognized by the federal government as constituting a distinct and historically continuous political entity for at least some governmental purposes
i. Federal recognition may arise from treaty, statute, executive or administrative order, or from a course of dealing with the tribe as a political entity
ii. The action of the federal government in recognizing or failing to recognize a tribe has traditionally been held to be a political one not subject to judicial review
b. A group seeking recognition may establish the requisite tribal identity by various types of evidence, including dealings as a tribe with federal, state or local governments or other tribes, and recognition by historical records or scholarly opinion
i. Even when a tribe clearly has been recognized, as by a treaty, Congress has the power effectively to end the recognized status by legislating a termination of the tribe’s special relationship to the federal government
C. Who Is An Indian?
a. An Indian is a person who has some Indian blood and is regarded as an Indian by his or her community
i. To have Indian blood is to have had ancestors living in America before the Europeans arrived
b. For many federal jurisdiction purposes it is not enough that the individual be regarded as an Indian by his or her community
i. The person must be considered a member of a federally recognized tribe
ii. In that context, individual status follows tribal status, and there can be no Indian without a tribe
iii. Thus where Congress has terminated a tribe’s special relationship with the federal government, the individual members of that tribe are no longer Indians for purposes of federal criminal jurisdiction
D. American Indians Today: An Overview
1. Indian Tribes And Reservations
a. Tribalism remains a driving force in both Indian culture and law
b. American Indians typically think of themselves as members of a particular tribe first and as Indians second
c. There are 557 federally recognized tribes; 226 of them are village groups in Alaska
d. Altogether, there are 314 reservations, 278 of which are administered as federal Indian reservations
2. Indian Population
a. At the 1990 census, close to 2 million persons reported themselves as Native Americans
b. Today, approximately half of the Indian population lives on or adjacent to a reservation
3. Economic Conditions
a. American Indians are the most impoverished minority in the United States
b. The 1990 census reports that 31 percent of all Indians live below the poverty level
c. Per capita income for Native Americans was slightly more than $8,300, the lowest of all racial groups in the United States
d. Despite the discouraging statistics, economic conditions among Indians are slowly improving
4. Health Conditions
a. The formal health care system for Native Americans is less than 50 years old
b. Over the past four decades, the general health of Native Americans improved but much of the Indian population remains in poor health relative to the rest of the country
5. Education
a. As major legislation passed in the mid-1970’s has been implemented, the Indian education system has begun to improve
b. At the 1990 census, there were more than half a million Indian children in preschool, elementary or high school
c. A long road remains to be walked before it can be said that Indian children in elementary and secondary schools are receiving quality educations
d. According to the 1990 census, less than 9 percent of all Native Americans ove

the English justified and viewed that they have the right to govern the Indians and to take their lands if needed.
· The Europeans had religious right and freedom as sovereigns to conquer any unoccupied land they wanted to as their own. If the land was considered to be occupied by non-human infidels, than the land was unoccupied and subject to discovery.
· However, if the land was occupied by the human infidels, the land was occupied but was taken by the name of king. The English as conquering sovereigns viewed the discovered territories as theirs, including the legal title of the territories. When they gave the land to others, there were strings attached to it and the land could be taken back.
· Since the English considered the native Indians as human infidels, the Indians did not loose all interest in their lands. While the absolute title went to the English, the English gave the Indians possessory interest or the right of occupancy until it is extinguished.
· In general, possession of land is property right, but not in the case of Indians. Since the Indians had no possessory property right, they could be moved and removed without any legal requirements of compensation.
· The cultural side of the doctrine of discovery, as far as the natives were concerned, is that title gave property ownership and individual could hold title and thus property interest. Indians, however, were alien to the notion of title and the land belonged to the tribe and not individuals.
3. Johnson v. McIntosh (1823)
a. Facts:
i. One individual acquired land title directly from Indians and the other individual acquired title in the same land from the United States subsequently. The question was whose title prevailed.
b. Held:
i. The Indians have the right of occupancy in the land (‘Indian Title’) but not legal title. Legal title of Indian occupied land belongs to the United States as sovereign conqueror.
ii. Therefore, the individual who acquired the title from the United States had legal title. The other, who had obtained the Indian Title, was subject to divestment by the Indian tribe at any time, and the US could divest the land by extinguishing the Indian Title.
c. The McIntosh case stands for the institutionalization of the doctrine of discovery. All of the titles to the land in the United States come from discovery.
4. THE TRADE AND INTERCOURSE ACT:
a. When the colonial population increased and the boundary line became congested, the Indian right of occupancy was terminated by treaties and the Indians were pushed further west.
b. The primary purpose of the trade and intercourse act was to regulate trade and other interaction with the tribes and vest that power in the federal government. It was for the purpose to police non-Indians interaction with the tribes. The boundary lines were not working and the hostility and violence was getting out of control.
c. The act was adopted and rationalized under the constitutional authority that gave the congress the power to regulate and conduct trade with Indians under the interstate commerce clause. Since the constitution treats the Indians tribes distinct from the states and foreign nations, it raises a question as to what types of distinct entities are these Indian tribes.
5. Cherokee Nation v. Georgia (1831)
a. The state of Georgia enacted laws that abolished Indian right to sovereignty, self government, and land. The federal government took no action on behalf of Cherokee and the Cherokees filed a claim in the Supreme Court.
b. The primary question was whether the Supreme Court had jurisdiction over the case. Chief justice Marshal held that the Supreme Court has original jurisdiction over disputes between the states, and disputes between the United States and a foreign state. The court had to determine whether an Indian tribe is a state or foreign nation or some other entity.
The court held that an Indian tribe is ne