Governing Law for Indian Matters
Indian Commerce Clause, Title 25 USC, RCW 37. Federal Indian Law applies only to federally recognized tribes.
Membership in tribe determined by tribe based on ancestry. Person meeting criteria is an "enrolled member" of 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.
Reservations, dependent indian communities, allotments
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.
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.
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.
- 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.
Tribal Civil Jurisdiction over Indians
Absolute j over tribal members. Tribes not subject to Bill of Rights (but see Indian Civil Rights Act)
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
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
Tribal Criminal Jurisdiction over Non-Indians
None, save for tribal police stop and detain or criminal contempt of court
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
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.
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
State Criminal J
Law must be prohibitory.
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.
unmarried person under 18 who is enrolled member of federally recognized tribe or is eligible and has biological parent member.
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.
Tribe Rights under ICWA
intervene and receive notice of pending proceedings.
Scope of Hunting/Fishing Rights
Reserved by treaty or executive order
On Rez H/F rights
free from state regulation on Indian Country by subject to tribal regs
- 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
Implied reservation of enough to fulfill purposes of rez, including for agricultural purposes