Indian Law

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Indian Law
2011-07-13 02:39:29
Washington Bar Exam Indian Law

Indian Law
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  1. Governing Law for Indian Matters
    Indian Commerce Clause, Title 25 USC, RCW 37. Federal Indian Law applies only to federally recognized tribes.
  2. Indian
    Membership in tribe determined by tribe based on ancestry. Person meeting criteria is an "enrolled member" of tribe.
  3. Indian Tribe
    Political entity made up of group of Indians. To be considered a tribe under federal law, group must be federally recognized by US on list of Sec. of Interior. 29 tribes in WA.
  4. Indian Country
    Reservations, dependent indian communities, allotments
  5. Reservation
    Area of land set aside by US for use by tribe. Includes all land w/i exterior boundaries of rez including trust and fee land. Created by treaty or executive order.
  6. Termination
    Congress has power to extinguish with absolutely clear intent, using language "cede, sell, and convey." Tribal consent not required. Statute will divide land among tribal members and return remainder to public domain for disposal under federal public land law.
  7. Tribal Sovereignty
    Tribe possesses inherent sovereignty, considered domestic depedent nations. Continues until divested by congress, who has plenary powers over Indian affairs. State laws have no effect.
  8. Sovereign Immunity
    • Cannot be sued w/o express consent (waiver by tribe/congress).
    • Applies to tribe, owned businesses and tribal leaders acting w/i scope of official duties.
  9. Tribal Civil Jurisdiction over Indians
    Absolute j over tribal members. Tribes not subject to Bill of Rights (but see Indian Civil Rights Act)
  10. Tribal Civil Jurisdiction over Non-Indians
    Montana Rule: presumed that tribes lack civil J over non-Indians for activities happening in Indian country (unless consentual relationship or conduct that threatens Indian political integrity)

    Federal jurisdiction: congress can delegate (liquor, gambling). If delegation, no Montana test
  11. Tribal Criminal Jurisdiction over Indians
    • Absolute over own members.
    • Sentencing authority limited per ICRA (3 years/$15,000 limit if using FRCP, 1 year/$5,000 otherwise).
    • No right to appointed counsel
  12. Tribal Criminal Jurisdiction over Non-Indians
    None, save for tribal police stop and detain or criminal contempt of court
  13. Federal Civil Jurisdiction
    • General laws silent on Indians apply unless Congressional intent otherwise.
    • PJ for Indians (not tribes)
    • SMJ challenges by non-members may be heard on tribal regulatory or adjudicative J based on claims that fed law divested tribal authority
  14. Federal Criminal Jurisdiction
    • Must be on Indian Country.
    • Indian victim: Fed J only if major crime (MAMBA TRICK) murder, assault w/deadly weapon, mansalughter, burglary, assault w/ intent to murder, theft, robbery, incest, child abuse, kidnapping
    • Non-indian victim: Fed may exercise J regardless of nature of crime under MCA and Indian Country Crimes Act (interracial crime only)
    • Victimless Crime: no fed J.
  15. State Civil Jurisdiction (Public Law 280)
    • States do not have J over Indians unles expressly authorized by Congress.
    • WA assumes full crim/civ J over all non-Indians w/i Indian Country.
    • Full J over Indians on Indian Country: off rez lands, on rez fee lands
    • Partial J over Indians: school attendance, public assistance, domestic relations, mental illness, juv delinquency, motor vehicles.

    "Opens the door to the courthouse" to settle private disputes on Indian land
  16. State Criminal J
    Law must be prohibitory.
  17. Indian Child Welfare Act
    Federal Statute regulates state court child custody proceedings for Indian children. Includes foster care placement, adoption, termination of parental rights, but not placements from divorce.
  18. Indian Child
    unmarried person under 18 who is enrolled member of federally recognized tribe or is eligible and has biological parent member.
  19. ICWA Authority on Off-rez vs. On
    • Tribal Domiciled: tribe has exclusive J over kid residing on rez where member, domiciled were parent is member, or where ward of court.
    • Off Rez: state courts must transfer proceedings to tribal courts upon request of tribe or Indian custodian unless good cause or objection from parent.
  20. Tribe Rights under ICWA
    intervene and receive notice of pending proceedings.
  21. Scope of Hunting/Fishing Rights
    Reserved by treaty or executive order
  22. On Rez H/F rights
    free from state regulation on Indian Country by subject to tribal regs
  23. Off-Rez H/F
    • treaty rights: over 20 tribes have right to fish at usual and accustomed areas of rez and to hunt unclaimed land. Allowed to harvest 50% of fish
    • state regs: allowed for conservation, only if not discriminatory
  24. Water Rights
    Implied reservation of enough to fulfill purposes of rez, including for agricultural purposes