Indian Law

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Author:
maggieblund
ID:
163137
Filename:
Indian Law
Updated:
2012-07-19 17:01:59
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Indian Law
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Indian Law
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  1. Governing Law
    Governed by rules of civ pro (or whatever) and INdian law is governed by Art 1, Sec 8, Clause 3 of const, treaties, and Title 25 of US code, and RCW title 37
  2. Definition of Indian
    A specific amount of indian ancestry qualifying you as an indian. 
  3. Def of Indian Tribe
    Indian tribe is a political entity. Each year, there is a published list of the federally recognized tribes. In WA, there are currently 29 fed recognized tribes. 
  4. Indian country definition
    Indian country is aa term to define area in which most fed laws governing indian affairs are operable and where tribels have J to the exclusion of the states. This includes reservation land, both in trust and fee land, allotments, and dependent indian communities. 

    • Reservations are generally any land set aside by the fed government for use by indians. 
    • Dep Indian Community is land set aside by US for use. The term DIC refers to parcels of land that are neither reservation or allotments. 
    • An allotment is indian titles that have not been extinguished, including rights of way running through the same. May be held in trust for an individual (trust allotments) or held in fee simply by an indian, subject to restrictions on alienation (restricted fee allotment)
  5. Can a tribe be sued?
    Like fed/state gov, they have immunity from suit in all courts unless waived by the tribe or fed statute. Immunity applies even outside tribal territory. 
  6. Does state have J over an accident that is caused by an Indian on indian country land?
    WA has some J over indians and indian country pursuant to public law 280, a fed statute. PL 280 was later amended to only apply to pre 1968 tribes. From that date forward, tribes have to opt-in, and so far none have. 

    WA has asserted some J, both civil and crim, over 8 areas of law. Compulsory school attendance, juvenile delinquency, dependency actions, adoption, public assistance, mental health, domestic relations, and operation of motor vehicles on public streets.
  7. What issues can be raised in a 12 b motion?
    lack of SMJ, lack of PJ, improper venue, lack of process, lack of service of process, failure to plead/state a claim, and failure to join necessary parties. 

    Can be raised in answer or pre answer motion, whichever is first.
  8. PJ?
    See civ pro cards RE statutory (general and specific-long arm) and constitution (min contacts where personally avail and wont offend f n of f p and j
  9. SMJ?
    See civ pro -- superior = over 300 or real prop
  10. service of process 
    personal service as if in state for out of state. same for instate even if on indian land
  11. statute of limitations
    same, tolling rules, etc
  12. service against foreign corp doing biz in wa
    must be made on registered agent for corp, or sec of state if no agent, cashier, or corp secretaroy. When serving outside of wa, affidavit must be filed to effect that service cant be made within wa. 
  13. actions against counties
    brought by serving the county auditor or, during normal office hours, the deputy auditor
  14. permissive counterclaim
    any one is allowed regardless of nature or relief sought
  15. Sov Immunity
    like fed and state govs, indian tribes are domestic dependent nations and are immune from suit in fed or state court unless waived by the tribe or congress. A member of tribe acting in his tribal capacity can also be immune from suit. IF sued, filed a lack of SMJ 12 b motion. PL 280 doesnt apply because it gives WA courts J over indians in indian country but not over indian tribes
  16. Venue -- in case with nonresident def
    proper where long arm statute act occurred, where pltf lives, where service made. 
  17. SOL for Ks
    Oral, three years. Written, 6 years
  18. Serving non res def
    before they can be served, affidavit needs to be filed showing why in state service isnt possible
  19. non resident motor statute
    pltf may serve two copies of summons and complaint to WA sec, plus send copy by registered mail to defs last known address. 
  20. Tribal corporation
    one acting in indian country  on trust or fee land is treated as part of tribe and also has soverign immunity. 

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