Cases

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...

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