Law Outlines Federal Indian Law Outlines
Federal Indian Law outline explains statutory, common, and treatise law that impacts the limits to tribal self governance. Outline topics include: Constitutional and Canonical limits of interpretation, determining tribal and individual status, jurisdictional issues, federal takings, inherent sovereignty, land claims, and ICWA. Outline includes charts on jurisdiction to make navigating through the many tricky issues of criminal and civil jurisdiction easy. Also includes an attack outline and case ...
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Attack Outline
Federal Indian Law
Interpretation Rules
Cohen's Handbook
Canons
Treaties, agreements, and executive orders must be liberally construed in favor of the Indians
All ambiguities are to be resolved in their favor
Treaties and agreements are to be construed as the Indians would have understood them
Tribal property rights and sovereignty are preserved unless Congress’ intent to the contrary is clear and unambiguous
Principles of Sovereignty
All Indian tribes possess in the first instance all the powers of any sovereign state
Conquest renders the tribe subject to the legislative power of the US and in substance terminates the external powers of sovereignty of the tribe
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
Statutes, Treaties
Subsequent law does not change previous treaty unless it is explicit. Ex Parte Crow Dog.
Treaty should be read as “unlettered” people (those that agreed to the treaties) understood it. United States v. Winans
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.
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.
Specified exceptions raise inference that they are the only exceptions.
Repeals by implication are not favored. Must be clear evidence that Congress wanted to repeal. Morton v. Mancari.
Plenary Power
Established by Lone Wolf v. Hitchcock. Court cannot inquire into Congress’ decision to abrogate.
Morton v. Mancari – plenary power limited to rational review.
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)
Statutes of General Applicability
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.
Case dictum: unless Congress specially says otherwise, general acts of Congress apply to Indians.
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.
Land Claims
Sue Federal Gov for failure to uphold trust responsibility
Need:
To be an Indian Tribe
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...
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Federal Indian Law outline explains statutory, common, and treatise law that impacts the limits to tribal self governance. Outline topics include: Constitutional and Canonical limits of interpretation, determining tribal and individual status, jurisdictional issues, federal takings, inherent sovereignty, land claims, and ICWA. Outline includes charts on jurisdiction to make navigating through the many tricky issues of criminal and civil jurisdiction easy. Also includes an attack outline and case ...
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