Indian Law Project
What Does the NLS Indian Law Project Do?
Historically, the Indian Law Project has represented Tribes in Nevada and not individual Tribal members. NLS assists Tribes in many different areas, such as drafting law and order codes; representing the Tribe or the Tribe’s interests in State Court or Federal Court cases; reviewing or drafting contracts; representing the Tribe in issues before the BIA.
NLS represents individual Tribal members only when their case involves Indian status issues (issues pertaining to the sovereignty of Tribes or their rights as Native Americans). For example: NLS has represented individuals in State Court cases involving custody of children when the Indian Child Welfare Act should be applied, but the State is ignoring the provisions of the Act; NLS has represented individuals when Indian Health Services or Indian Housing Authorities have denied or terminated services; NLS has represented individuals when their treaty rights to hunt or gather have been denied.
Recently, however, NLS has received funding from the Department of Justice, Bureau of Judicial Administration specifically for representation of individual Tribal members. The funding is for civil and criminal cases in Tribal Courts. The priorities under this funding include domestic violence cases and family law cases in Tribal Court and juvenile delinquency cases in Tribal Court.
Starting Sources for Research on Indian Law:
Cohen’s Handbook of Federal Indian Law (Nell Jessup Newton ed., 2005) is considered the Bible of Federal Indian Law.
Introduction to Tribal Legal Studies and Tribal Criminal Law and Procedure (both Walnut Creek, CA: Altamira Press, 2004) are also excellent sources.
American Indian Law in a Nutshell (William C. Canby, 5th ed. 2009)
For on-line research on Indian Law, the National Indian Law Library is one of the best resources. The NILL includes Tribal Codes from across the United States; Tribal Court and Tribal Appellate Court decisions from across the United States; Treatises on Indian Law; and the Indian Law Reporter.
NOTE: THE INFORMATION CONTAINED ON THIS PAGE IS FOR GENERAL BACKGROUND INFORMATION ONLY. FEDERAL INDIAN LAW IS AN EXTREMELY COMPLEX AREA OF LAW AND CANNOT POSSIBLY BE COVERED ON THIS WEBSITE. IF YOU HAVE A LEGAL QUESTION, IT IS BEST TO CONSULT WITH AN ATTORNEY.
Topics in Indian Law
The congressional power over Indians is often described as “plenary,” the literal meaning of which is “absolute” or “total.” Congress has this special authority over Indian affairs pursuant to the Indian Commerce Clause of the US Constitution, which allows the national legislature “[t]o regulate commerce with foreign nations, and among the several states, and with Indian Tribes.” (art. I, §8, cl. 3). Today, the Indian Commerce Clause, along with the power to make treaties, is seen as the principal basis for broad federal power over Indians. The concept of Congress’ plenary power over Indian affairs is a basic premise of Indian law and policy.
Under the federal preemption doctrine, federal law may supersede state law in two situations. The first is when Congress intends to legislate exclusively in an area of law, thus occupying the entire field. The second situation arises when enforcing the state law would frustrate the purpose behind the federal legislation. With respect to Indian law, Congress has plenary power over Indian affairs. Congress has clearly indicated an intent to occupy the field, and any state legislation that purports to cover Indian affairs may be preempted by federal law.
Historically, the European nations and the US federal government recognized the sovereign status of Indian tribes. First, the European governments used it as the basis of making treaties with the tribes, who were treated as independent nations. Then, after the Revolutionary War, the newly-created federal government continued to make treaties with the tribes. But it wasn’t long after the federal government was established that tribal sovereignty began to be eroded. The Supreme Court took the first step in diminishing tribal sovereignty in Johnson v. McIntosh. In this case, the Court held that America had been “discovered” and the Tribes “conquered,” leaving Indians with the right to occupy but not possess the land. Next, in Cherokee Nation v. Georgia, the Supreme Court held that the tribes were neither states nor foreign nations, but rther they were “domestic dependent nations.” In spite of these rulings, the Court consistently acknowledged the tribes’ inherent sovereignty. In Worcester v. Georgia, the Court stated that the “Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights” and that the use of the word “nations” with reference to the tribes confirmed their status as separate sovereigns. Thus, this decision held that state laws could not be enforced within reservation boundaries. Later, in Talton v. Mayes, the Court confirmed that the tribes’ sovereign powers pre-dated the Constitution.
In addition to the broad inherent sovereignty rights retained by the tribes, more specific rights can be set out in treaties or statutes. For example, a treaty might specify that tribal members have rights to hunt or fish in certain off-reservation areas and to enforce the laws with respect to tribal members when they are engaged in those off-reservation activities. The treaty might also specify that the state’s laws cannot be enforced against the tribal members in that situation. Another example is the Indian Child Welfare Act, which specifically grants tribes exclusive jurisdiction over custody matters when the Indian children live on the reservation.
But, Congress and the federal courts have paced several restraints upon the criminal jurisdiction of tribal governments over the past two hundred years. Federal statues have limited the types of crimes over which the tribes may assert or exercise criminal jurisdiction. At the same time, the US Supreme Court has limited the criminal jurisdiction of tribal courts to matters involving only tribal members. Although Congress affirmed inherent tribal sovereignty over criminal matters involving non-member Indians, there has been at least one challenge in lower courts of the constitutionality of such congressional actions.
In contrast, the civil jurisdiction of tribes has been comparatively free from federal intrusions. Tribal governments have traditionally exercised extensive authority over civil disputes that occur on-reservation. But several recent Supreme Court decisions have severely limited tribes from exercising full civil jurisdiction over the past two decades.
A special relationship between the federal government and Indian tribes exists as a result of the unique legal status of the tribes. Although they are neither states nor foreign countries, the tribes have elements of both. Because the Constitution never defined the legal statues of the tribes, Congress and the US Supreme Court have been left to do so. In one of its earliest decisions involving Indian affairs, the Supreme Court held that the federal government has a duty to protect the interests of the tribes. This duty, initially described as resembling the relationship of a guardian to a ward, has become known as the trust relationship between the federal government and the Indian Tribes. Pursuant to this responsibility, the government owes a fiduciary duty to the tribes to protect their interests.
Based in part on a concern for the protection of the rights of criminal defendants in Indian country and in part on the shock of the non-Indian public that the US Constitution had no direct application in Indian country, Congress passed the Indian Civil Rights Act of 1968 (“ICRA”). The ICRA reaffirmed tribal powers of self-government, including the authority to establish courts.
The “Indian Bill of Rights” in the ICRA requires that criminal defendants in Tribal courts be afforded many of the due process rights afforded to criminal defendants in state and federal courts pursuant to the US Constitution. The rights enumerated in the ICRA take into consideration the unique conditions of tribal courts, including the lack of funding of tribal courts and the impoverished communities that many serve. For example, the ICRA does not require court appointed attorneys for indigent defendants. Such a requirement would effectively drain tribal court resources. The requirements of the ICRA raise the question of whether tribal courts can remain unique institutions or whether they must be modeled after Anglo courts and Anglo concepts of justice. The ICRA also subjects tribal court and tribal council decisions to federal review by way of writs of habeas corpus.
Generally, the jurisdiction of a tribal court is the power of the court to hear particular cases. For that authority to exist, the tribal court must demonstrate the three vital elements of jurisdiction.
First, the court must possess personal jurisdiction, which is power over the parties to the case. Usually, this authority is set forth in the law and order code of each tribe. Without the authority to demand the presence of a party, the court would be without the ability to effectively decide the case.
Secondly, there must be a specific territory in which the court is authorized to assert its power to hear particular cases: territorial jurisdiction. That geographical area is usually referred to as Indian Country and is defined at 18 USC § 1151. The definition includes (1) all lands within the exterior boundaries of a reservation including patented lands and including rights-of-way (roads, highways); (2) all dependent Indian communities (may include lands off-reservation); and (3) all Indian-owned allotments outside the reservation, including rights-of-way running through them.
The third element is subject matter jurisdiction, which is the authority of the court to hear particular types of cases. This authority is set forth in the tribe’s law and order code. Some courts exercise broad subject matter jurisdiction; others are very narrow. For example, Court A may hear disputes involving contracts, family law, and torts, while Court B may be limited to only fishing controversies.
In addition to the three key elements of jurisdiction (personal, territorial, and subject matter), there are three basic types of judicial proceedings: administrative, criminal, and civil. When a case is brought before a hearing officer or review board of a government agency, it is called an administrative proceeding. These proceedings are not as formal as court proceedings; however, basic due process protections are required. There must be sufficient notice of the hearing, and it must be conducted fairly.
A criminal proceeding is one in which the government prosecutes an individual or company for an act or omission which the community, through its government, has deemed to be unlawful. A conviction in a criminal proceeding carries with it the possibility of imprisonment and/or fine. In tribal court, the maximum imprisonment is one year and the maximum fine is $5,000. The Tribal Law and Order Act of 2010 raised the maximum imprisonment to three years, but each Tribe must decide to adopt the requirements of the Tribal Law and Order Act for the new maximum to take effect in their tribal court.
Usually, any legal action initiated by a private party to enforce a private right or to seek compensation for a civil wrong is heard in a civil proceeding. Judgments in civil proceedings are not limited by the ICRA; any limitations on the scope of a civil proceeding will be described in the tribe’s law and order code.
In order for a civil case to be adjudicated in tribal court, complete civil jurisdiction must exist, and the authority must be provided for in the tribal code. Additionally, the basic framework for civil proceedings must be enumerated in the tribal code. In a sense, civil jurisdiction follows the principles of criminal jurisdiction. Like criminal jurisdiction, civil jurisdiction starts from a presumption that tribes have power over their internal affairs. Congress and the federal courts have not intruded upon tribal civil jurisdiction as much as they have in criminal matters, so the scope of tribal civil jurisdiction remains broad. State jurisdiction in both areas is confined to matters not involving Indians and not affecting Indian interests, although this line is not always clear and is sometimes crossed.
In 1978, the US Supreme Court held in Oliphant v Suquamish Indian Tribe that Indian tribes lacked authority to assert criminal jurisdiction over non-Indians. In response, to the Oliphant decision, several tribes decriminalized certain tribal statutes in order to fill the void created by that decision. As a result of this response, the distinction between criminal and civil is often blurred in tribal jurisdictions.
Oliphant was decided against a backdrop of 150 years of federal criminal legislation that assumed an absence of tribal governmental authority to punish non-Indians who violated tribal laws. In contrast, no such pattern of federal legislation exists in the civil area. Instead, the federal government has made little attempt to undertake the adjudication of private civil disputes in Indian country.
The US Supreme Court in National Farmers Union Ins. v. Crow Tribe of Indians held that the Oliphant criminal jurisdictional presumption (tribes did not have authority over non-Indians) did not apply to civil disputes arising in Indian country and involving non-Indians. However, more recently in Strate v. A-1 Contractors, the US Supreme Court held that there is no inherent tribal authority to adjudicate civil disputes involving non-tribal members absent express Congressional authority to the contrary. While the Court reiterated certain exceptions to that presumption in the Montana v. United Stated States case, the decision in A-1 potentially limits tribal court civil jurisdiction and adds to the tension between tribal and state courts.
Indian Civil Rights Act – 25 USC § 1301 et seq.
Guarantees the rights of criminal defendants in tribal courts. Contains the Indian Bill of Rights.
Indian Child Welfare Act – 25 USC § 1201 et seq.
Applicable only to cases in state courts. Protects the rights of Indian custodians and/or guardians of Indian children. Provides for culturally appropriate placement of Indian children in foster care or adoptions. Protects the rights of tribes to protect their children and their future.
Major Crimes Act – 18 USC § 1153
States that federal courts have exclusive jurisdiction over certain named crimes that take place in Indian country, even if the victim and the perpetrator are both tribal members. The named crimes include: murder, manslaughter, kidnapping, maiming, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in a serious bodily injury, assault against a minor, arson, burglary, and robbery.
Public Law 83-280
Gives the state courts of Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin exclusive jurisdiction over criminal matters in Indian Country and limited civil jurisdiction.