#11475 - Attack Outline - Federal Indian Law

Attack Outline
Federal Indian Law

1. Interpretation Rules

   1. Cohen's Handbook

      1. Canons

         1. Treaties, agreements, and executive orders must be liberally construed in favor of the Indians

         2. All ambiguities are to be resolved in their favor

         3. Treaties and agreements are to be construed as the Indians would have understood them

         4. Tribal property rights and sovereignty are preserved unless Congress’ intent to the contrary is clear and unambiguous

      2. Principles of Sovereignty

         1. All Indian tribes possess in the first instance all the powers of any sovereign state

         2. Conquest renders the tribe subject to the legislative power of the US and in substance terminates the external powers of sovereignty of the tribe

         3. These powers are subject to qualification by treaties and express legislation by Congress but save as thus expressly qualified full powers of internal sovereignty are vested in the Indian tribe

   2. Statutes, Treaties

      1. Subsequent law does not change previous treaty unless it is explicit. Ex Parte Crow Dog.

      2. Treaty should be read as “unlettered” people (those that agreed to the treaties) understood it. United States v. Winans

      3. To determine whether Congress intended a statute to abrogate treaty rights, there must be a clear statement. (Court ignores clear intent of Congress). Menominee Tribe v. US.

      4. Instead of a clear statement, Court can find that Congress abrogated treaty right by finding indication that Congress considered the conflict, and resolved the conflict in favor of abrogation. (But court still claims to be relying on clear statement). US v. Dion.

         1. Specified exceptions raise inference that they are the only exceptions.

      5. Repeals by implication are not favored. Must be clear evidence that Congress wanted to repeal. Morton v. Mancari.

   3. Plenary Power

      1. Established by Lone Wolf v. Hitchcock. Court cannot inquire into Congress’ decision to abrogate.

      2. Morton v. Mancari – plenary power limited to rational review.

      3. US v. Sioux Nation – Court can look at Congressional motivations to determine whether abrogation was lawful (needs to be a bargain for land sales to not be a taking)

   4. Statutes of General Applicability

      1. General Act not to be construed to repeal a previous particular act, unless there is express reference to previous legislation on the subject, or necessary inconsistency. Ex Parte Crow Dog.

      2. Case dictum: unless Congress specially says otherwise, general acts of Congress apply to Indians.

      3. Reich v. Great Lakes Indian Fish and Wildlife Comm’n: Generally, general applicability laws apply to Indians unless they conflict with treaty rights or self-governance.

2. Land Claims

   1. Sue Federal Gov for failure to uphold trust responsibility

      1. Need:

         1. To be an Indian Tribe

         2. Cause of Action (separate from statute waiving sovereign immunity). APA is a source for this, but only allows injunctive relief (no $$$). Court has at times recognized the federal trust relationship, under federal common law, as a cause of action. 9th circuit cast doubt on this in Gros Ventre Tribe. Non Intercourse Act can also be a source for trust relationship (Passamaquoddy)

         3. Statute waiving sovereign immunity (separate from COA). Tucker Act.

      2. Mitchell I: There is only jurisdiction under Tucker Act if claimant has substantive COA founded in other law

      3. Mitchell II: Specific Timber Act allowed for COA Tucker Act waived sovereign immunity. If gov has control or supervision over tribal money or property, a fiduciary relationship normally exists.

         1. Legal grey area: it’s possible that once you have a statute for a COA, you may be able to use common law to broaden it – i.e. you may be able to add duties

      4. Cobell v. Norton: Court seems to find COA from common law trust relationship. Court must consider decision of agency under APA, but need not defer to it.

      5. Joint Tribal council of Passamaquoddy Tribe v. Morton: even though tribe is not federally recognized, tribe can still get lands back under non-intercourse act, as long as other factors of tribal identity are met.

   2. Sue landowners

      1. Count of Oneida v. Oneida Indian Nation: court recognizes common law right to sue for aboriginal title. Uses federal common law SOL. Laches usually doesn’t apply to action for damages. Plus, tribe asked for so little. Tribe got 1 year of rent from county.

   3. Alternative: Repurchase Land

      1. City of Sherrill v. Oneida Indian...