Determining Tribes And Indian Country Outline

1. 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

2. 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

3. 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

4. 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

5. 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

1. 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...

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