Federal law and RCW Title 31 govern federal Indian law in Washington.
Federal Indian Law only applies to federally recognized Indian Tribes.
Indian Tribal Status
- Tribe is a political entity with inherent sovereignty and is considered a domestic dependent nation.
- Must be federally recognized by United States on a list annually published by secretary of interior in the federal register.
- Federal recognition may occur by petition to secretary of interior to establish status on list, or by an executive order reservation from the President.
Membership in an Indian tribe is determined by the tribe based on ancestry.
Consists of Indian reservation, allotments, and dependent Indian Communities. [RAD]
Indian County: Indian Reservation
- Land set aside by treaty or executive order.
- Includes all land within exterior boundaries, consisting of trust land; restricted fee land; fee land owned by Indians and non-Indians; and state highways, and railroad right of way.
Indian Country: Termination of Indian Country Status
- Congress has power to extinguish legal status if it has made its intent clear. Tribal consent not required but ambiguities construed in favor of tribes.
- Clear intent if language consists of "cede, sell, and convey."
- Upon termination of status, reservation is diminished or disestablished and remainder goes to the US for disposal.
Tribal Power and Limitations
Congress has plenary power over Indian affairs, and tribal power continues to exist until divested by Congress.
State laws have no force or effect within Indian Country, unless Congress says otherwise. Local laws do not apply.
Indian Hiring Preference and Special Treatment
Tribe has power to enforce Indian preference for tribal hiring, but may not enforce against Non-Indian companies on or near reservation.
Federal government may have Indian hiring preference for Bureau of Indian Affairs.
State may single out tribes for special treatment due to political status only if authorized by Congress.
Tribal Sovereign Immunity
- Tribes are sovereign governments.
- State or independent actors cannot sue tribe, tribe-owned businesses, and tribal leaders acting within scope of duties, either inside or outside Indian Country without express consent.
- Suits by the United States against an Indian tribe are not barred.
Tribal Sovereign Immunity: Rule 12(b)(1)
Tribal sovereign immunity is raised as a 12(b)(1) lack of subject matter motion.
Tribal Sovereign Immunity: Waiver of Immunity
Suits by statute Congress can waive, but must clear and express.
Tribe may waive by contract (arbitration); tribal law; or by filing suit (immunity may be asserted against ??unrelated counterclaims??)
Tribal Civil Jurisidction
Tribe has adjudicatory and regulatory powers; and tribal court has absolute power over Indian members.
Tribal court gets Full Faith and Credit in WA. Tribal jurisdiction may be concurrent with federal jurisdiction.
Tribal Civil Jurisdiction
Limited Civil Jurisdiction over Non-Indians and Non-Member Indians
Tribal Civil Jurisdiction: Limited Civil Jurisdiction over Non-Indians and Non-Member Indians
Montana Test – presumption that tribes lack civil jurisdiction over non-Indians for activities within Indian country. Exceptions are narrowly construed.
Tribal Civil Jurisdiction: Montana Test Exception 1
Consensual Relationship with the tribe or its members through commercial dealing, contracts, leases, or other arrangements.
Must have nexus between consensual relationship and regulated activity.
Tribal Civil Jurisdiction: Montana Test Exception 2
Threatening Conduct by Non-Indians: conduct on fee lands within tribe’s reservation that threatens or has direct effect on the political integrity, economic security, or health or welfare of the tribe. [Hard to Meet, requires catastrophic consequences]
Tribal Civil Jurisdiction: Montana Test Exception 3
Federal Delegation by Congress to Indian tribes to exercise jurisdiction over non-members; Indian Liquor Laws and certain Environmental Laws.
Tribal Criminal Jurisdiction
Indian tribes have criminal jurisdiction over own members and non-member Indians, but not non-Indians. Tribal court gets Full Faith and Credit in WA.
Tribal Criminal Jurisdiction - Indian Civil Rights Act of 1968 (ICRA)
Similar provisions to Bill of Rights, and may be enforced in Tribal Court but sovereign immunity likely to apply.
Only habeas corpus action under ICRA are enforceable in federal court
Tribal Criminal Jurisdiction: ICRA Limitations
Sentencing is limited to 1-year jail and/or $5k fine per offense, and no right to court appointed counsel.
Tribal Criminal Jurisdiction: Concurrent Jurisdiction
Tribal jurisdiction may be concurrent with federal jurisdiction.
Crimes committed by Indians within Indian County prosecuted in state or federal court are not barred by double jeopardy.
3 sources of federal law over Indians: Constitution, Treaties, and Statutes.
Federal action affecting Indians is not considered race-based, thus it is subject to rational basis review; challenges to federal law only aimed at Indians would be made on equal protection grounds.
Federal Civil Jurisdiction
Congress has plenary power over Indian affairs.
Federal Civil Jurisdiction: General Federal Laws
- [TIC] Laws of general applicability apply to Indian tribes and member
- law affects internal government;
- application of law would interfere with treaty right;
- or Congress clearly intended law not apply.
Federal Civil Jurisdiction: Federal Trust Responsibility
Federal government has obligation to protect property and act as fiduciary for tribes.
Federal Civil Jurisdiction: Federal Court Jurisdiction
Personal jurisdiction: Indians are considered citizens of state where domiciled for diversity purposes. Tribe is not a citizen of any state for diversity.
Subject Matter Jurisdiction: federal court may hear a challenge by a non-member to tribal jurisdiction if based on claim that federal law divested tribe’s authority. Requires exhaustion, challenge must be heard in tribal court first, unless futile.
Federal Criminal Jurisdiction
Must be in Indian Country and defendant must be Indian.
Federal Criminal Jurisdiction: Major Crimes Act
Applies if both defendant and victime are Indian, and if an enumerated offense is committed within Indian Country.
[MAMBATRICK] murder, assault with deadly weapon, manslaughter, burglary, assault with intent to kill, theft, robbery, incest, child abuse, kidnapping.
Federal Criminal Jurisdiction: Indian Country Crimes Act
Applies to interracial crimes committed in Indian Country.
Federal Criminal Jurisdiction: Victimless Crime
Federal government does not have jurisdiction to prosecute Indian for victimless crime committed in Indian Country (i.e. selling fireworks).
Federal Criminal Jurisdiction: Concurrent Jurisdiction
Tribes have concurrent jurisdiction with the federal government over crimes committed by Indians that fall under the Major Crimes Act and the Indian Country Crimes Act.
States generally lack jurisdiction over Indians in Indian Country, unless delegated by Congress. WA has assumed partial civil and criminal jurisdiction over Indians within Indians Country. Has same jurisdiction over Indians as Non-Indians outside Indian Country.
State Jurisdiction: Recognition of Tribal Court Judgments
Tribal Court judgments have full faith and credit in WA.
State Jurisdiction: Public Law 280 - General
Only applies to all pre-1968 reservations. Only concerns state law, not local law. WA has full jurisdiction over Non-Indians within Indian Country.
State Court: PL 280 - Indians
- WA has full civil and criminal jurisdiction over Indians on off-reservation trust land or on-reservation non-trust lands; and anywhere for 8 subject matters:
- compulsory school attendance,
- public assistance,
- domestic relations,
- mental illness,
- juvenile delinquency,
- adoption proceedings,
- dependent children,
- AND operation of motor vehicles upon public roads and highways.
State Jurisdiction: Public Law 280 - State Court adjudication
State court may adjudicate tort claims, contract disputes, and other private causes of actions involving Indians on reservation subject to PL 280.
State Jurisdiction: Public Law 280 - Disclaimer
State lacks jurisdiction over the following: hunting, fishing, gaming, taxing, zoning, regulation of trust land, and minor traffic infractions.
State Criminal Jurisdiction
Law enforced must be prohibitory such that conduct violates State’s public policy.
State law will not apply as criminal simply due to criminal penalties such as jail time.
Indian Child Welfare Act
Federal statute that regulates state court child custody proceedings involving Indian children. Child custody proceeding covers foster care placement; adoption; and termination of parental rights. [Not placements from divorce]
Indian Child Welfare Act: Indian Child
Unmarried, under 18, who is member of tribe or eligible for enrollment, and has one biological parent who is a member of an Indian tribe.
Indian Child Welfare Act: Exclusive Tribal Jurisdiction Under ICWA
If child resides or domiciled on-reservation, or is a ward of the tribal court.
Indian Child Welfare Act: Off-Reservation Jurisdiction
State must transfer case from state court to tribal court for foster care placement or termination of parental rights upon request by tribe or Indian custodian, unless good cause or parent objects.
Indian Child Welfare Act: Rights of Tribes Under ICWA
Right to intervene in state court actions under ICWA.
Right to notice of pending involuntary proceedings in state court.
Indian Child Welfare Act: ICWA Placement Preferences
State court must follow ICWA placement preference as follows: i) member of child’s extended family; ii) member of child’s Indian tribe; iii) or any other Indian family.
Indian Rights to Hunt, Fish, and Gather
Treaty – reserved by tribes through treaty both on and off-reservation.
Executive Order – rights attach to land set aside for tribes by President under Executive Order.
Aboriginal Use – may be exercised off-reservation on aboriginal lands if Congress has not extinguished title.
Indian Rights to Hunt, Fish, and Gather: On Reservation
Members have right to hunt fish and gather free of state regulation within Indian Country.
Indian Rights to Hunt, Fish, and Gather: Off-Reservation
Over 20 tribes in WA retain right to fish at usual and accustomed stations; and to hunt and gather on open and unclaimed land free of state regulation.
Fishing right includes right to harvest up to 50% of harvestable surplus.
Indian Rights to Hunt, Fish, and Gather: Off-Reservation State Regulation for Conservational Necessity
State may regulate Indian off-reservation hunting and fishing rights only when it is necessary for conservation, and non-discriminatory against Indian fishing or hunting.
Indian Water Rights
Indian reservation have implied reservation of enough water to fulfill the purposes of the reservation usually for agricultural and domestic purposes.