Indian Tribe
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.
such determinations are often ad hoc and inconsistent
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
Also tribes that are only recognized as states
they do not get the same benefits as federal tribes
Some tribes are recognized for some things and not others
Being part of a federally recognized tribe comes with huge benefits
federal assistance
but can be a double edge sword bc it also means federal control
ability to negotiate gaming with states
generally recognized tribes are better off
Whether the tribes right to self government will be protected
whether they will be able to protect their territory using the federal nonintercourse act
the nonintercourse act prohibits the taking of Indian land without federal approval
it is also emotionally significant for a tribe
United States v. Sandoval
D was arrested for bringing alcohol onto Indian lands
defense is that they are not a tribe so the law doesn’t apply
Another court case about the same tribe had determined they were not a tribe for purposes of the nonintercourse act
reasons that they might not be considered a tribe:
different culture than other tribes
unique relationship with US – they were under Spanish and Mexicans
Their land is held in common but fee simple, not trust
Hold: They are a tribe for the sake of regulating them under this law
course of dealings: the US has treated them as a tribe
they are dependent on the US
US has given them protection
Spanish had also treated them with guardian relationship
Land is still held in common
fee simple is not a barrier to being a tribe
Cts. Standard of Review:
deference to Congress whether a tribe is a tribe
not a question for the courts as long as the decision is not arbitrary or self interested
The Process of Federal Recognition
The federal criteria is very strict
The process can also pit tribes against one another
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
The criteria are problematic
they require cohesion and distinct community when so much government effort has been put into breaking up tribes
cannot be terminated tribes that again want to be recognized
many of the things required are more difficult to have if you already been recognized
problematic recordkeeping
also very expensive to get evidence and a tribe will likely not have funding without federal recognition
unrealistic view that tribes are totally separate from each other and have an individual sense of cultural identity
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
Tribe wanted US help to sue Maine to get lands back under non-intercourse act
The tribe was not federally recognized
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
whether the trust relationship created an affirmative duty to help the question is a separate question that the court does not address
Hold: They are a tribe for the purposes of the Intercourse Act
Reasoning:
no evidence that the intercourse act was only meant for federally recognized tribes
tribe has been around for a long time
state treats them as a tribe (course of dealings)
this is probably the most important factor
US has never acted to show they were not a tribe
deference also doesn’t seem as important here – seems more important when the focus is Congress, not an agency
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
Less racist language
the court focuses less on culture and dependence and more on how the tribe views itself
Mashpee Tribe v. Town of Mashpee
Eastern tribes often have very different history than western tribes bc they were required to assimilate earlier
Issue: Are the Mashpee a tribe for nonintercourse purposes/was it OK for the jury to determine that they were not a tribe
The tribal history is a little different than most
tribe created a little town that fit into US structure more than most
a lot of land was sold,
a lot of assimilation
less cohesion
But there was a revival of their cultural identity
Hold: Enough evidence exists for jury to have determined that they are not a tribe
Other issues about this case:
should juries be deciding whether a tribe is a tribe?
it’s a question of law
may look to stereotypes rather than the law
the jury was probably made of Mass. citizens – they are probably bias – don’t want tribe to repossess what is now Mass. land
is it paternalistic to have jury decide whether a tribe is a tribe? Even more so than Congress?
demeaning? 12 people decide whether a nation exists?
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
historically African Americans were integrated into the Cherokee tribes through treaties
but were often not given full rights of membership – historically sometimes were even slaves
There was a faction of Cherokee that wanted to limit citizenship to those that had at least some Cherokee blood
Ct said that due to treaty promises made they had to include AAs
Then eventually ct says they can keep the AAs out
Obama administration puts pressure on Cherokee they ultimately allows AAs to stay
Tribal Sovereign Immunity
Kiowa Tribe of Oklahoma v. Manufacturing Technologies
Tribe breaches contract with manufacturer, manuf. sues
Tribe claims they cannot be sued bc they have tribal immunity
Hold: Tribe does have sovereign immunity – thus the P cannot sue the tribe
Where does the tribe’s sovereign immunity come from?
its inherent
we recognize tribes as sovereigns and we recognize immunity in some form with all sovereigns
contemporary justifications:
provides tribes with bargaining chips with states
protects tribes treasure (for example if there was a slip and fall at a casino)
But are there/should there be limits to sovereign immunity?
some argue there should be limits for off reservation and commercial activity
court declines this says Congress can make changes to sovereign immunity if it wants
at the time Congress was working on such limits and court probably thought they would be successful (they were not)
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
but might make more sense to waive in tort law
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
Federal government can sue the tribe without a waiver from the tribe
Tribal Sovereign Institutions
How to get at economic development in Indian country (article in book)
needs real de facto sovereignty
as long as decisionmakers don’t have to pay for their decisions there is no incentive to make better decisions
Institutions – capable institutions of self-government
including commercial codes to independent judicial systems
requires a separation of business and politics
requires separation of government powers
requires effective bureaucracy
admin procedures, record keeping etc
Cultural match
governing institutions need to match with the culture and values of the people they govern
Tribal Judicial Systems
Indian people have always had dispute resolution mechanisms
After European contact western style systems started to appear
In the 20th Century tribes began taking more control of their courts – developing common law and tribal codes which reflected their traditions and needs
Today there are about 275 functioning tribal courts
About 22 courts still rely on the Courts of Indian offenses
Sandra Day O’Connor article
the courts must provide a forum that commands the respect of the tribal community as well as the non tribal community
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
some seek restorative justice
Indian Country was established by 28 U.S.C. § 1151 (see 274)
It is defined as:
(a) land within reservation limits
(b) dependent Indian communities
allotment with Indian title
Generally, primary jurisdiction over land that is Indian country rests with the federal government and the tribe
S. Ct. uses this definition of Indian Country for civil and criminal cases
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
Indian land is often very mixed with different kinds of ownership and this brings a variety of different problems
The relationship to tribal sovereignty and space is different than...