American Indian Law Deskbook, Fourth Edition

American Indian Law Deskbook, Fourth Edition

Chair, Editing Committee: Larry Long
Chief Editor: Clay Smith
Copyright Date: 2008
Pages: 736
https://www.jstor.org/stable/j.ctt46nv33
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  • Book Info
    American Indian Law Deskbook, Fourth Edition
    Book Description:

    A collaborative effort from attorney general offices faced daily with legal questions involving state and tribal relations, the American Indian Law Deskbook, Fourth Edition is an up-to-date, comprehensive treatise on Indian law. The Deskbook provides readers with the necessary historical and legal framework to understand the complexities faced by states, Indian tribes, and the federal government in Indian country. Included are: -The evolution of federal statutory Indian law and the judicial foundations of federal Indian policy. -An extensive compilation and analysis of federal and state court decisions. - Reservation and Indian lands ownership and property interests. -The parameters of criminal jurisdiction in Indian country. -Concepts of tribal sovereignty and jurisdiction relating to a number of specific areas, including tribal courts, hunting and fishing, environmental regulation, water rights, gaming, and child welfare. -Cooperative approaches used by the states and tribes for resolving jurisdictional disputes and promoting better relations.   Thorough, scholarly, and balanced, the American Indian Law Deskbook, Fourth Edition is an invaluable reference for a wide range of people working with Indian tribes, including attorneys, legal scholars, government officials, social workers, state and tribal jurists, and historians. This revised edition includes information from more recent court decisions, federal statutes, administrative regulations, and law reviews.

    eISBN: 978-0-87081-993-3
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-xx)
  3. Foreword to Fourth Edition
    (pp. xxi-xxii)

    Few areas of legal practice have the breadth, both substantively and procedurally, of Indian law. Although primarily the province of federal courts, Indian law questions are confronted with increasing frequency by state courts in a variety of areas, most notably child custody and criminal matters. Decisions under the Indian Child Welfare Act, for example, now constitute the largest share of reported Indian law–related cases. State courts now confront on a daily basis questions of tribal sovereign immunity or tribal jurisdiction. The last 30 years has witnessed exponential growth of controversies over the limits of tribal regulatory and adjudicatory jurisdiction...

  4. Foreword to Third Edition
    (pp. xxiii-xxiv)

    Since publication of the Second Edition of the American Indian Law Deskbook, the field of Indian law has developed significantly, most notably in the areas of tribal lands acquisitions, tribal gaming, child custody, and contested sovereignty matters. As with the First Edition, the Conference of Western Attorneys General (CWAG) has published annual supplements to keep the Second Edition current; however, the volume and significance of developments in case law, legislation, and regulation make this Third Edition timely, and perhaps imperative.

    As noted in the Forewords to the First and Second Editions, Indian law has developed as one of the most...

  5. Foreword to Second Edition
    (pp. xxv-xxvi)

    As former North Dakota Attorney General Nicholas Spaeth wrote in the Foreword to the First Edition of American Indian Law Deskbook, the objective of the Conference of Western Attorneys General has been to present a comprehensive and objective treatise in a difficult and controversial area. Since its publication in 1993, CWAG has issued annual supplements to ensure that the Deskbook remained current. This edition incorporates much of the annual supplement material but also restructures certain chapters to assist readers in identifying issues and locating relevant authority quickly and authoritatively.

    Among the changes are a significantly expanded discussion of tribal sovereign...

  6. Foreword to First Edition
    (pp. xxvii-xxxii)

    The United States’ romance with the West and its historical development has been chronicled in countless books and films. A central theme is often the relationship between white settlers and Indians and Indian tribes. This part of the romance is much more than pure nostalgia. It involves a wide variety of emotions that white culture has had toward Indians, each of which has been more or less prevalent at different times in our nation’s history. These include admiration of the “noble savage,” fear and hatred of the “marauding warriors,” paternalism, tolerance, and respect.

    The course of U.S. public policy on...

  7. Chapter 1 Federal Indian Law Policy: Origins and Legal Development
    (pp. 1-47)

    Article I, section 8, clause 3 of the United States Constitution empowers Congress “[t]o regulate commerce . . . with the Indian tribes.” The Indian Commerce Clause’s purpose was, and its effect has been, to make “Indian relations . . . the exclusive province of federal law.”¹ For much of the first century of the nation’s history, this lawmaking power was augmented by exercise of presidential treaty-making authority under Article II, section 2. “Indian law” has thus been said to “draw[] principally upon the treaties drawn and executed by the Executive Branch and legislation passed by Congress.”² Indian law analysis...

  8. Chapter 2 Indian, Indian Tribe, and Indian Country
    (pp. 48-78)

    Fundamental to Indian law are the terms “Indian,” “Indian tribe,” and “Indian country.” For criminal law purposes, the existence of federal, state, or tribal jurisdiction depends on the place of the crime—i.e., whether it occurred in Indian country—and the Indian or non-Indian status of the defendant or, in some instances, the victim. While civil adjudicatory or regulatory issues are not so neatly resolved, the presence of Indian, Indian tribe, or Indian country status is nonetheless an important, and sometimes controlling, jurisdictional consideration.

    The question of who is an “Indian” depends in large measure on the context in which...

  9. Chapter 3 Indian Land and Property: Title and Use
    (pp. 79-140)

    Land occupancy and ownership issues have been a central concern of Indian law since the nation’s founding. Beginning with the first Trade and Intercourse Act in 1790,¹ statutory restraints have limited the ability of tribes to alienate land. In Johnson v. McIntosh² Chief Justice Marshall established common law principles based on the discovery doctrine that paralleled the statutory restraints. Despite the relative clarity of federal law in this regard, varying historical circumstances and statutory or treaty considerations have been a fertile source of litigation for tribal land conveyances. Difficult questions have arisen from congressional and Executive Branch actions affecting reservation...

  10. Chapter 4 Criminal Law
    (pp. 141-168)

    Criminal jurisdiction in Indian country is relatively settled. As a general matter, federal statutes look to the nature of the offense, the location of the offense, and the Indian or non-Indian status of the offender and victim in allocating criminal jurisdiction among federal, state, and tribal authorities. In a number of states, the allocation scheme has been supplanted, in whole or in part, by federal statutes authorizing state assumption of jurisdiction over some or all crimes within Indian country. Outside Indian country, Indians are subject to state criminal jurisdiction to the same extent as non-Indians, but treaty provisions, particularly those...

  11. Chapter 5 General Civil Regulatory Jurisdiction
    (pp. 169-224)

    Among the most difficult and recurring issues in Indian law is the scope of federal, tribal, and state civil regulatory authority in Indian country. Since Worcester v. Georgia,¹ the Supreme Court has labored to articulate general principles to resolve these issues, but even today there remain significant differences within the Court both as to governing principles and how accepted principles should be applied. The serious doctrinal differences among members of the high court have made “[g]eneralizations on this subject . . . particularly treacherous.”² Reasoned analysis of the myriad questions arising over the permissible scope of state and tribal civil...

  12. Chapter 6 Civil Adjudicatory Jurisdiction
    (pp. 225-286)

    Courts adjudicating civil matters connected with Indian country must make the threshold decision whether subject matter jurisdiction exists or, in the case of federal courts, whether it should be exercised even when present. The core issues involve the standards of review applicable in federal court proceedings following exhaustion of tribal court remedies where the latter court’s jurisdiction is challenged; the extent of a federal court’s obligation to defer to either existing or possible tribal court proceedings when federal question or diversity jurisdiction is asserted over a dispute; and whether a tribe’s or state’s civil adjudicatory jurisdiction is measured by standards...

  13. Chapter 7 Tribal Sovereign Immunity and the Indian Civil Rights Act
    (pp. 287-330)

    Indian tribes are unique political entities, and the relation of a tribe and the United States is “perhaps unlike that of any other two people in existence.”¹ They are not foreign nations separate and apart from the United States; instead they are “domestic dependent nations”² located within United States territory that have certain retained inherent powers of self-government.³ Consistent with this quasi-sovereign status, Indian tribes are not parties to the United States Constitution and derive no power or obligations directly from it⁴ despite being mentioned twice.⁵ Tribes thus are not subject to the limitations on governmental action contained in the...

  14. Chapter 8 Indian Reserved Water Rights
    (pp. 331-383)

    Most treaties and executive orders that set aside land for Indian reservations do not have express provisions addressing water rights. Nevertheless, courts, with few exceptions, have found that there is an implied federal water right sufficient to fulfill the purposes of each reservation.¹ These implied rights are called federal reserved rights, or “Winters rights,” after the United States Supreme Court case.² Reserved rights differ from state-based prior appropriation rights because their priority is the reservation’s creation date,³ and they are not subject to forfeiture or abandonment for non-use.⁴ Many Indian tribes’ reserved rights are currently being adjudicated as part of...

  15. Chapter 9 Fish and Wildlife Regulation
    (pp. 384-426)

    Indian hunting and fishing issues arise in a wide variety of contexts. Individual tribal members take fish and wildlife inside and outside Indian reservation boundaries, often raising questions of whether state, tribal, and federal laws apply to their actions. Nonmembers also take fish and wildlife in a variety of locations, raising similar questions. Frequently, the several governments serve different constituencies with equally different interests—a fact that may lead to inconsistent policies concerning conservation and harvest management.

    Organizing the mix of constitutional, treaty, statutory, and common law considerations that attend resolution of fish and wildlife issues in an Indian law...

  16. Chapter 10 Environmental Regulation
    (pp. 427-463)

    Beginning with the Clean Air Act (CAA)¹ in 1963, Congress enacted a series of comprehensive statutes designed to clean up and protect the environment. Environmental statutes administered by the United States Environmental Protection Agency (EPA) include the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act (CWA),² the Safe Drinking Water Act (SDWA),³ the Resource Conservation and Recovery Act (RCRA),⁴ the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA),⁵ and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).⁶ The Hazardous Materials Transportation Act (HMTA)⁷ is administered by the Department of Transportation, and the Surface Mining Control...

  17. Chapter 11 Taxation in Indian Country
    (pp. 464-509)

    Taxation has been a frequent source of controversy between states and Indian tribes. Freedom of a sovereign government from taxation by another sovereign has been recognized as an important aspect of our federal system,¹ and this concept has been extended to activities of Indian tribes and members within their reservations. Indian reservations continue to be parts of the states in which they are located, however, so state sovereignty over the same geographic areas exists. State authority in this respect is particularly relevant when taxation of nonmembers for activities or transactions within Indian country is involved. The tension that exists when...

  18. Chapter 12 Indian Lands Gaming
    (pp. 510-570)

    No other economic activity undertaken by Indian tribes has been as far-reaching and important as tribal gaming, starting in the late 1970s¹ and expanding in earnest since the early 1990s. Unsurprisingly, this gaming explosion has spawned a significant level of litigation and regulatory controversy as the result of tribes engaging in what otherwise has been a disfavored industry in all but a few states until quite recently.

    Most importantly, in one of the few instances where Congress has acted to encourage intersovereign cooperation, it adopted a comprehensive scheme in the Indian Gaming Regulatory Act of 1988 (IGRA)² to permit and...

  19. Chapter 13 Indian Child Welfare Act
    (pp. 571-619)

    The Indian Child Welfare Act of 1978 (ICWA)¹ was enacted in response to what was characterized as “[t]he wholesale separation of Indian children from their families” through various methods of state court voluntary or involuntary termination of parental rights or other removal of Indian children from their families.² Statistics further indicated that such separations occurred at a substantially higher rate for Indian than non-Indian families.³ This higher rate of separation was attributed to the insensitivity of “many social workers [to] . . . Indian cultural values and social norms,” which led to misevaluation of parenting skills and to unequal application...

  20. Chapter 14 State-Tribal Cooperative Agreements
    (pp. 620-660)

    States and tribes share adjacent lands, resources, and citizens, while jurisdictional rules are often not clearly established under federal law. This situation has historically created conflict and uncertainty, often leading to expensive and lengthy litigation. Meanwhile, as tribes acquire land and engage in economic development initiatives, the potential for these jurisdictional tensions may increase. Often the litigation mode has not proven the best means to resolve the core uncertainties and distrust between states and tribes. Rather than spend resources and goodwill in litigation, it can be more fruitful to attempt to find a cooperative way to solve the underlying problem....

  21. Table of Cases
    (pp. 661-718)
  22. Table of Statutes and Codes
    (pp. 719-727)
  23. Bibliography
    (pp. 728-754)
  24. Index
    (pp. 755-790)