#11471 - Determining Tribes And Indian Country - Federal Indian Law

Indian Tribe

1. Federal definition: Any tribe, band, nation, or other organized group or community which is recognized as eligible for the special programs and services provided by the US.

   1. such determinations are often ad hoc and inconsistent

      1. for example tribes that didn’t go to war with the US or Britain often do not have treaties and bc treaties often establish tribal status these tribes are unrecognized

2. Also tribes that are only recognized as states

   1. they do not get the same benefits as federal tribes

3. Some tribes are recognized for some things and not others

4. Being part of a federally recognized tribe comes with huge benefits

   1. federal assistance

      1. but can be a double edge sword bc it also means federal control

   2. ability to negotiate gaming with states

   3. generally recognized tribes are better off

   4. Whether the tribes right to self government will be protected

   5. whether they will be able to protect their territory using the federal nonintercourse act

      1. the nonintercourse act prohibits the taking of Indian land without federal approval

   6. it is also emotionally significant for a tribe

United States v. Sandoval

1. D was arrested for bringing alcohol onto Indian lands

   1. defense is that they are not a tribe so the law doesn’t apply

2. Another court case about the same tribe had determined they were not a tribe for purposes of the nonintercourse act

   1. reasons that they might not be considered a tribe:

      1. different culture than other tribes

      2. unique relationship with US – they were under Spanish and Mexicans

      3. Their land is held in common but fee simple, not trust

3. Hold: They are a tribe for the sake of regulating them under this law

   1. course of dealings: the US has treated them as a tribe

      1. they are dependent on the US

      2. US has given them protection

   2. Spanish had also treated them with guardian relationship

   3. Land is still held in common

      1. fee simple is not a barrier to being a tribe

4. Cts. Standard of Review:

   1. deference to Congress whether a tribe is a tribe

   2. not a question for the courts as long as the decision is not arbitrary or self interested

The Process of Federal Recognition

1. The federal criteria is very strict

2. The process can also pit tribes against one another

   1. if one tribe is doing well in gaming it may not want another tribe to gain recognition so that it can also join in gaming

3. The criteria are problematic

   1. they require cohesion and distinct community when so much government effort has been put into breaking up tribes

   2. cannot be terminated tribes that again want to be recognized

   3. many of the things required are more difficult to have if you already been recognized

      1. problematic recordkeeping

      2. also very expensive to get evidence and a tribe will likely not have funding without federal recognition

   4. unrealistic view that tribes are totally separate from each other and have an individual sense of cultural identity

4. Very few tribes have gotten recognition

Joint Tribal Council of the Passamaquoddy Tribe v. Morton: as long as tribe meets other factors, tribe need not be federally recognized to get lands back under non-intercourse act

1. Tribe wanted US help to sue Maine to get lands back under non-intercourse act

2. The tribe was not federally recognized

3. Issue: Whether the Sec. of Interior was correct in finding that the US had no trust relationship with the tribe and therefore should play no role in the tribe’s dispute with Maine

   1. whether the trust relationship created an affirmative duty to help the question is a separate question that the court does not address

4. Hold: They are a tribe for the purposes of the Intercourse Act

5. Reasoning:

   1. no evidence that the intercourse act was only meant for federally recognized tribes

   2. tribe has been around for a long time

   3. state treats them as a tribe (course of dealings)

      1. this is probably the most important factor

   4. US has never acted to show they were not a tribe

      1. deference also doesn’t seem as important here – seems more important when the focus is Congress, not an agency

6. Hold 2: the source of the trust relationship is in the nonintercourse act – thus the government may not decline to litigate on the sole ground that there is no trust relationship

7. Less racist language

   1. the court focuses less on culture and dependence and more on how the tribe views itself

Mashpee Tribe v. Town of Mashpee

1. Eastern tribes often have very different history than western tribes bc they were required to assimilate earlier

2. Issue: Are the Mashpee a tribe for nonintercourse purposes/was it OK for the jury to determine that they were not a tribe

3. The tribal history is a little different than most

   1. tribe created a little town that fit into US structure more than most

   2. a lot of land was sold,

   3. a lot of assimilation

   4. less cohesion

4. But there was a revival of their cultural identity

5. Hold: Enough evidence exists for jury to have determined that they are not a tribe

6. Other issues about this case:

   1. should juries be deciding whether a tribe is a tribe?

      1. it’s a question of law

      2. may look to stereotypes rather than the law

      3. the jury was probably made of Mass. citizens – they are probably bias – don’t want tribe to repossess what is now Mass. land

      4. is it paternalistic to have jury decide whether a tribe is a tribe? Even more so than Congress?

      5. demeaning? 12 people decide whether a nation exists?

   2. Also problematic bc we want tribes to be successful and survive which means they might need to change and be flexible but if they are successful at that we say they are not a tribe anymore

Suits Challenging Freedman Citizens

1. historically African Americans were integrated into the Cherokee tribes through treaties

2. but were often not given full rights of membership – historically sometimes were even slaves

3. There was a faction of Cherokee that wanted to limit citizenship to those that had at least some Cherokee blood

   1. Ct said that due to treaty promises made they had to include AAs

   2. Then eventually ct says they can keep the AAs out

   3. Obama administration puts pressure on Cherokee they ultimately allows AAs to stay

Tribal Sovereign Immunity

1. Kiowa Tribe of Oklahoma v. Manufacturing Technologies

   1. Tribe breaches contract with manufacturer, manuf. sues

   2. Tribe claims they cannot be sued bc they have tribal immunity

   3. Hold: Tribe does have sovereign immunity – thus the P cannot sue the tribe

   4. Where does the tribe’s sovereign immunity come from?

      1. its inherent

         1. we recognize tribes as sovereigns and we recognize immunity in some form with all sovereigns

      2. contemporary justifications:

         1. provides tribes with bargaining chips with states

         2. protects tribes treasure (for example if there was a slip and fall at a casino)

   5. But are there/should there be limits to sovereign immunity?

      1. some argue there should be limits for off reservation and commercial activity

         1. court declines this says Congress can make changes to sovereign immunity if it wants

            1. at the time Congress was working on such limits and court probably thought they would be successful (they were not)

   6. This is probably not actually such a huge problem: no one is going to enter into a contract with tribe if they will have no remedy

      1. but might make more sense to waive in tort law

2. In order for a tribe to enter into a contract with a waiver, the waiver must be clear and the person who entered should have the power to do that on behalf of the tribe

3. Federal government can sue the tribe without a waiver from the tribe

Tribal Sovereign Institutions

1. How to get at economic development in Indian country (article in book)

   1. needs real de facto sovereignty

      1. as long as decisionmakers don’t have to pay for their decisions there is no incentive to make better decisions

   2. Institutions – capable institutions of self-government

      1. including commercial codes to independent judicial systems

      2. requires a separation of business and politics

      3. requires separation of government powers

      4. requires effective bureaucracy

         1. admin procedures, record keeping etc

   3. Cultural match

      1. governing institutions need to match with the culture and values of the people they govern

Tribal Judicial Systems

1. Indian people have always had dispute resolution mechanisms

2. After European contact western style systems started to appear

3. In the 20^th Century tribes began taking more control of their courts – developing common law and tribal codes which reflected their traditions and needs

4. Today there are about 275 functioning tribal courts

   1. About 22 courts still rely on the Courts of Indian offenses

5. Sandra Day O’Connor article

   1. the courts must provide a forum that commands the respect of the tribal community as well as the non tribal community

   2. Some courts function almost exactly like a non tribal court but then add in cultural elements like having everyone sit in a circle to get rid of the hierarchy

      1. some seek restorative justice

Indian Country was established by 28 U.S.C. § 1151 (see 274)

1. It is defined as:

   1. (a) land within reservation limits

   2. (b) dependent Indian communities

   3. allotment with Indian title

2. Generally, primary jurisdiction over land that is Indian country rests with the federal government and the tribe

3. S. Ct. uses this definition of Indian Country for civil and criminal cases

   1. it also says that Congress intended a liberal interpretation of Indian country so the term applies to all lands set aside by whatever means for the residence of tribal Indians under federal protection

4. Indian land is often very mixed with different kinds of ownership and this brings a variety of different problems

5. The relationship to tribal sovereignty and space is different than...