Federal Indian Law Outline

INDIAN LAW OUTLINE
 
SOURCES OF FEDERAL CONTROL OVER TRIBES
COMMERCE CLAUSE—Art. 1, §8, Cl. 3—Congress has power to “regulate Commerce” with the Indian TribesàIndian Commerce Clause
TREATY POWER—Art. II, §2, Cl. 2—President has power to make treaties, including with tribes, with consent of Senate
Constitution grants Congress broad general powers to legislate in respect to Indian tribes, àPLENARY powers (Lara)
o      can legislate to both RESTRICT and RELAX the restrictions on tribal SI (Lara)
 
STATUTES PERTAINING TO INDIAN TRIBES
§       TRADE & INTERCOURSE ACTS (1790)—“To regulate trade and intercourse with Indian Tribes”
o      PURPOSE:
§       provide framework for trade
§       responded to complaints that treaties weren’t being enforced
§       directed at lawless whites
PROVISIONS:
provided for licensing of traders
established penalties for trading w/o license
provision for punishment of murder and other crimes committed by whites a/g Indians in Indian country
o      Non-Indians prohibited from acquiring Indian lands by purchase or treaty (other than by treaty entered pursuant to Const.), from settling on those lands or entering them for hunting & grazing—Land Purchase Invalid Unless Made by Public Treaty with US.
o      Trading w/ Indians subject to federal regulation—licensing system for traders & no trading without a license
o      Depredations by non-Indians a/g Indians were made a federal crime—federal compensation provided to victims of depredation by either group
§       Results of Non-Intercourse Actà1970s Tribes began bringing suit to enforce the rule of the NonIntercourse Acts and Johnson v. McIntosh that the tribal right of possession continues b/c the old transactions with the state were illegal
·       Oneida County v. Oneida Nation: Oneida Nation’s claims stemming from land transaction with the county that occurred in 1795 are not barred by expired SOL or laches. The land transfer violated NIA b/c it wasn’t approved. Indians have federal common law right to enforce aboriginal land rights. State SOL doesn’t apply in federal Indian land issues.
·       Oneida I: Tribe can sue in federal court b/c Indian real property matters are “inherently federal”—so it satisfies well-pled complaint rule and gets them into fed court. [which oneida is which?] ·         County of Oneida v. Oneida Indian Nation (Oneida II) (1985) – application of NIA
After aiding US in war, 3 treaties w/ US (1784, 1789, 1794) affirmed that the Oneidas would be secure “in the possession of the lands on which they are settled”
In 1795, NY entered into another treaty to buy remainder of Oneidas land.
Non-intercourse Act passed in 1790 providing for US treaty as exclusive means of obtaining Indian land
Args:
Cause of action? Yes. Federal common law cause of action.
Oneida I –
Made Oneida II easier because it federalized tribal land rights, thus making it easier to have causes of action (ex: trespass or quiet title).
Preemption? No.  
The NIA does not specify remedies for unlawful conveyances of Indian land, and therefore does not pre-empt tribal right to sue.
Was action was time-barred? No.
There is no SOL governing fed common law actions by Indians to enforce property rights.
Had the US had ratified the conveyance? No.
Subsequent treaties do not qualify as ratification of prior conveyance.
Treaties should be construed liberally in favor of the Indians.
Was the action non-justiciable? No.
Congress’ plenary power over Indian affairs in constitution does not mean that litigation involving such matters necessarily entails nonjusticiable pqs.
Note: 
Decree of quiet title cannot be enforced, so settlement must be reached.
Defenses based on laches, estoppel, ap, and sol have typically been struck as inconsistent w/ the fed trust responsibility manifested in the NIA.
Oneida Indian Nation v. NY (2nd 1988) – land xfer to state from Indians was valid as it was made under Articles of Confed which allowed states to deal with tribes. 
 
TREATIES
canons of construction—
ambiguous expressions resolved in favor of indian parties
indian treaties must be interpreted as indians themselves would have udnerstood them
indian treaties must be liberally construed in favor of indians
CASES
Menominee—“To be held as Indian Lands Are Held” in a treaty reserved hunting & fishing rights.
US v. Washington (1976): TO DETERMINE THE MEANING OF A TREATY, THE COURT MUST DETERMINE HOW THE PARTIES THEMSELVES UNDERSTOOD THE TERMS & PROVISIONS OF THE TREATY
Re: off-reservation fishing rights. Treaty granted the “right of taking fish, at all usual and accustomed grounds…is secured to said Indians, in common with all citizens of the territory.” Indians weren’t told that their existing fishing rights were being restricted by the treaty, “in common with” means sharing equally, so treaty & non-treaty fishermen should each get 50% of the fish.
NOTE—Off-reservation rights are not implied.
US v. Winans (1905)—RESERVED RIGHTS DOCTRINE
Rights not specifically ceded in a treaty or agreement are considered to be reserved
So long as sovereign tribal rights are not voluntarily ceded by the tribes in treaties or in other negotiations approved by congress, or they are not extinguished by congress, they continue in existence
When cessions are made or rights are extinguished they are to be construed narrowly as affecting only matters specifically mentioned
A treaty silent on whether the Indians retained hunting and fishing rights should be read as implying the continued existence of such rights.
Re: The treaty was not a grant of rights to the Indians, but a grant of rights from them—a reservation of those not granted. Art. III of Treaty said tribe would have off-reservation fishing rights “at all usual and accustomed places, in common with citizens of the territory.”
§         State v. Tinno—(1972) “Right to hunt” in treaty includes right to fish. Good example of Rules of Construction Favoring Treaties. Court reads treaty as tribe would have understood it.
§         Winters—(1908)—Reserved Rights Case—1874 agreement establishing Ft. Belknap reservation. Implicit in Indian treaties is the reservation of sufficient waters, from streams on and bordering reservations, to fulfill the purposes of establishing the res (irrigation). Also establishes Indian rights as senior.
§         NOTE—Reservations created by statute, agreement or EO normally carry with them the same implicit H/F rights as those created by treaty.
TREATY ABROGATION
Lone Wolf v. Hitchcock—(1903)Congress can abrogate treaty or its provisions if it’s justified or if it’s in the best interest of the country or the Indians. Cherokee v. Hitchcock held that full administrative power was possessed by Congress over Indian tribal property—this was an exercise of that power.
Congress has the power to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so.
EFFECTàEffect of this has softened—now treaty land cannot be taken without just compensation.
Court withheld JD on 2 grounds—
·         Political Question
o       These matters were solel