#11473 - Cases - Federal Indian Law

TIMELINE OF FEDERAL INDIAN LAW ERAS & CASES

Civil Regulatory Jx

Civil Adjudicatory Jx

Criminal Jx

Gaming

Statutory Interpretation/Congressional Power

Indian Country (Dependent Comm’s, Diminishment)/Tribe Recognition

Takings, Land Claims

Black = not a big enough category to deserve a color…

1. Trade and Intercourse: 1790 – 1820 (Nonintercourse Act)

2. Removal: 1820s – 1840s

   • Johnson v. M’Intosh (1823) – doctrine of discovery

   • Cherokee Cases

     1. Cherokee Nation v. Georgia (1831) – domestic dependent nations

     2. Worcester v. Georgia (1832) – fed gov, not states, have authority over Indian affairs

3. Reservation: 1840s – 1880s (Major Crimes Act)

   • US v. McBratney (1881) – states have jx to punish crimes of non Indian D against non Indian V in Indian country. No fed jx through ICCA. True even if crime is victimless.

   • Ex Parte Crow Dog (1883) - fed courts have no authority over Indian crime against Indian; sole jx of tribe. Treaty/statute interpretation.

   • US v. Kagama (1886) –Fed gov is land owner, and therefore has power of MCA. Tribes as wards of nation. Trust obligation to supply law and resources. Sovereignty stripping.

4. Allotment, Assimilation: 1880s – 1920s (Tucker Act)

   • Talton v. Mayes (1896): sovereignty does not come from Constitution. Existed before Constitution. Not bound by Constitution. Fed gov only alters sovereignty. See US v. Wheeler (1978)

   • Lonewolf v. Hitchcock (1903): establishes federal plenary power. Court cannot examine the ‘good faith’ of Congress in treaty creation/abrogation. Can unilaterally abrogate treaties.

   • US v. Winans (1905): treaty must be interpreted as the Indians who signed it would have understood it. Equal footing doctrine. “Reservation of rights.” (state fishing wheel case)

   • US v. Sandoval (1913): tribal determination depends primarily on Congressional determination (as long as it’s not arbitrary), but also on: 1) course of dealings with US; 2) separateness from mainstream culture; 3) dependency; 4) history; 5) land status (although fee land not barrier to being a tribe, but land held in common indicates tribal status); 6)

5. Indian New Deal/Reorganization: 1920s-1940s (Meriam Report, Cohen handbook)

6. Termination: 1940s-1960s (PL 280, National Congress of American Indians)

   • Tee-Hit_Ton Indians v. US (1955): claim against federal gov for taking timber from tribal lands; but no recognized title. M’Intosh: tribe only has right of occupancy. Sovereign grants and protects that right against intrusion, but that right may be terminated and lands may be fully disposed of w/o any legally enforceable obligation to compensate.

   • Williams v. Lee (1959): State has no civil jx over transactions arising on Rez where D is Indian. Infringement test: whether state action infringes on right of Rez Indians to make their own laws and be ruled by them.

   • Menominee Tribe v. US (1968): treaty/statute interpretation. Tribes retain treaty rights (to hunt and fish) because those rights were not specifically abrogated by termination act. Must be clear statement by Congress to abrogate treaty rights (despite obvious intention). But see US v Dion (1986).

7. Self-Determination: 1960s-present (Indian Civil Rights Act, ICWA)

   • Warran Trading Post v. Arizona State Tax Comm’n (1965): state cannot implement tax on (non Indian) business located on Rez that does business with Indians. Preemption test, where if fed regulations exist then there can’t be state regulations. (field, but with lower threshold).

   • McClanahan v. Arizona State Tax Comm’n (1973): state cannot implement tax against income earned on Reservation by Indian. Preemption test of Warran Trading Post.

   • Morton v. Mancari (1974): plenary power limited by rational basis test. Statute interpretation (Equal Employment Opportunity vs BIA policy). Repeals by implication are not favored; clear statement from congress required. Preference is not racial, but political. Congress/states can treat tribes differently – special relationship - as long as treatment is tied rationally to fed goals of Indian Law (if tied to state goals, strict scrutiny).

   • County of Oneida v. Oneida Indian Nation (1974): land conveyed to NY w/o going through fed gov, sued county for 1 year’s worth of fair rent. Sues under common law of unlawful possession, although court says tribe could’ve sued for aboriginal title. No laches issue for actions for damages. Uses federal SOL. Tribe wins.

   • Joint Tribal Council of the Passamaquoddy Tribe v. Morton (1975): tribe seeks US help in suing Maine, because US failed to enforce alienation laws. Fed Nonintercourse Act not only meant for federally recognized tribes. Passamaquoddy = tribe: long history, state treatment, US never acted in way that shows they’re not a tribe. Source of trust rlshp = Nonintercourse Act.

   • US v. Mazurie (1975): tribes are more than private associations (so Congress can delegate different powers); meaningful sovereigns. Tribes have some power to exercise jx over people, regardless of explicit consent through membership. Tribe could refuse permit to non Indian liquor store because tribes already possessed some independent regulatory authority over the subject matter.

   • Bryan v. Itasca County (1976): state cannot tax property on land held in trust (by Indian), even in PL 280 states. PL 280 allows jx for private civil disputes, but not to inflict state regulatory schemes, like taxes, on Rez.

   • Mashpee Tribe v. Town of Mashpee (1978): upholds jury finding that Mashpee not a tribe for purposes of Nonintercourse Act. Tribe created town that fit into US structure, sold a lot of land, a lot of assimilation, less cohesion, but also cultural revival.

   • Oliphant v. Suquamish Indian Tribe (1978): tribes cannot exercise criminal jx over non-Indians. Court relies on shaky historical arguments. Analysis does not fit within Cohen framework.

   • US v. Wheeler (1978): Tribes’ existing sovereign powers allow both tribe and fed gov to prosecute without violating double jeopardy of 5th amendment. No implicit loss of sovereignty by virtue of dependent status. Although there are laws that limit tribes’ ability to punish, those laws did not create tribe’s power to govern/punish. Tribal sovereignty is inherent retained sovereignty, not product of Constitution or fed gov.

   • Santa Clara Pueblo v. Martinez (1978): Equal protection of ICRA, women’s membership. Suit fails because of sovereign immunity, which ICRA does not waive. No cause of action to sue officer, because ICRA only provides for habeas review in federal court.

   • US v. Sioux Nation (1980): Black hills case. All but overrules Lonewolf. Congress must make good faith effort to give Indians full value of land. Exchange for food rations = taking. Must be bargained for.

   • White Mountain Apache v. Bracker (1980): state cannot tax vehicles/fuel of non Indian contractor in K w/ tribal company. Preemption, and balancing. Williams as barrier b/c state law application on tribal lands would infringe on right of Rez Indians to make and be ruled by their own laws. Value Generated test. General interest in raising revenues is not enough to justify state taxation on Reservation activity.

   • Montana v. US (1981): tribe does not have regulatory jx over non members on fee land. Important to court that tribe had accepted pre existing state regulation in this area. Flip of value added: state has added game to reservation. Flip of ‘clear statement’ rule: if treaty didn’t give power, then tribe doesn’t have power. Marshall’s “loss of external powers” now also applies to anything non tribal, including members, on Rez. Consensual relations exception, threat to welfare/security exception.

   • Merrion v. Jicarilla Apache Tribe (1982): tribe has power to tax oil company on tribal land, regardless of longstanding deal that oil company would only be subjected to state tax. Tribe has power to tax under 1) power to exclude, and 2) inherent sovereignty.

   • New Mexico v. Mescalero Apache Tribe (1983): state may not tax tribal (federally funded) fishing/hunting resort. Balancing test, where one of the federal interests is in protecting tribal interests. Value generated = input, energy. State regulations conflicted with tribal regulations.

   • Solem v. Bartlett (1984): Diminishment. Only Congress can divest reservation of land. Will not be lightly inferred. Factors: 1) explicit reference to cession; 2) lump sum compensation; 3) Congress’ intent; 4) current demographics

   • US v. Mitchell I (1980): Statute interp. Jx is only granted under Tucker Act if claimant had substantive claim of action founded in other law. Fed gov does not have fiduciary duty over lands allotted but still held in trust. Limited trust relationship – only to prevent alienation and keep allottees immune from state taxation. Events surrounding Act = gov didn’t even have authority to manage timber resources. (But see Mitchell II 1983).

   • US v. Mitchell II (1983): Statute interpretation. Tucker Act functions as waiver of sovereign immunity. Finds Timber Act specific enough to establish full trust responsibility. Fed gov must compensate monetarily. (Might be able to use this to turn cause of action statute into full fiduciary relationship).

   • Rice v. Rehner (1983): state regulation in Indian country, including license requirement, allowed in alcohol sales. No backdrop of tribal sovereignty, as alcohol has been federally regulated since 1832 in Indian country.

   • National Farmers Union Insurance Companies v. Crow Tribe of Indians (1985): Generally, power to adjudicate is much greater than power to regulate. (But Strate). Must exhaust all tribal remedies before taking case to federal court (unless tribal court acting in bad...