Field of law

Tribal & Indian Law

Criminal and civil jurisdiction in Indian country, tribal courts and immunity, the Indian Child Welfare Act, trust land and fee-to-trust, gaming compacts, and enrollment disputes.

Tribal & Indian Law

The Montana Exceptions and Civil Authority Over Non-Members

Under Montana v. United States, the inherent sovereign powers of a tribe do not extend to the activities of non-members. A tribe may regulate non-members who enter consensual relationships with the tribe or its members through commercial dealing, contracts, leases or other arrangements, and may regulate conduct that threatens or directly affects the political integrity, economic security, or health or welfare of the tribe. Both exceptions require a nexus to the regulation asserted.

6 min readFederal law

Tribal & Indian Law

Who Prosecutes a Crime in Indian Country

Criminal authority in Indian country is divided by statute rather than by geography. The General Crimes Act extends federal enclave law there but excludes offenses by one Indian against another. The Major Crimes Act gives federal courts jurisdiction over enumerated felonies by Indian defendants. Tribes retain inherent jurisdiction over Indians and, by congressional restoration, over some non-Indians. States hold authority under Public Law 280 and, over non-Indian offenders, concurrently.

6 min readFederal and state

Tribal & Indian Law

Taking Land Into Trust and the Objections That Follow

The Secretary of the Interior may acquire land in trust for a tribe or an individual Indian under the Indian Reorganization Act and other statutes, following the land acquisition regulations. The criteria differ for on-reservation and off-reservation parcels, and off-reservation applications draw greater scrutiny as distance from the reservation grows. Local governments receive notice and may comment on tax and jurisdictional effects, and an adverse decision may be appealed.

5 min readFederal law

Tribal & Indian Law

Federal Acknowledgment and the Petition Process

The Department of the Interior acknowledges Indian tribes under the procedures at 25 CFR Part 83. A petitioner must satisfy seven mandatory criteria: identification as an Indian entity, existence as a distinct community, political authority over its members, a governing document, descent from a historical tribe, membership not principally in another acknowledged tribe, and the absence of terminating legislation. Acknowledgment establishes a government-to-government relationship.

5 min readFederal law

Tribal & Indian Law

Public Law 280 States and What the Transfer Did

Public Law 280 conferred on named states the criminal jurisdiction over offenses in Indian country that the United States had held, and gave state courts jurisdiction over civil causes of action between Indians or to which Indians are parties. It did not transfer general civil regulatory or taxing authority, did not end tribal jurisdiction, and carried no funding. Later amendments require tribal consent for any further assumption and permit a state to retrocede.

5 min readFederal and state

Tribal & Indian Law

The Indian Child Welfare Act: Notice, Placement and Active Efforts

The Indian Child Welfare Act governs state child custody proceedings involving an Indian child. It gives exclusive jurisdiction to the tribe where the child is domiciled on the reservation, allows transfer of other cases to tribal court, requires notice to the parent and the tribe, requires active efforts to prevent the breakup of the family, imposes heightened standards of proof supported by expert testimony, and orders placement preferences a court may leave only for good cause.

6 min readFederal and state

Tribal & Indian Law

Tribal Sovereign Immunity and How It Is Waived

Tribal sovereign immunity is a matter of federal common law. It bars suit against a tribe absent unequivocally expressed consent by the tribe or unequivocal abrogation by Congress, and it applies to commercial activity conducted off the reservation. Entities that function as arms of the tribe share it. Individual officers do not carry it into suits brought against them personally, and a properly drafted arbitration clause can operate as a waiver.

5 min readFederal law

Tribal & Indian Law

Gaming Classes and the Compacts Behind Them

The Indian Gaming Regulatory Act divides gaming into three classes. Class I traditional and social games are subject to exclusive tribal jurisdiction. Class II bingo and certain card games are regulated by the tribe with federal oversight, and require a tribal ordinance approved by the Commission chair. Class III gaming requires that ordinance, that the state permit the gaming for any purpose by any person, and a tribal-state compact whose lawful subjects the statute enumerates.

6 min readFederal and state

Tribal & Indian Law

Enrollment Disputes, Disenrollment and Where They Are Heard

The determination of tribal membership is a matter of tribal law decided by tribal institutions. Federal courts have held that the Indian Civil Rights Act creates no cause of action for challenging a membership decision, leaving habeas corpus as the only federal remedy the statute supplies. The Bureau of Indian Affairs has no general authority over enrollment, and its involvement is confined to rolls it prepares under a specific statute and to constitutions requiring Secretarial approval.

5 min readFederal law

Tribal & Indian Law

Fractionated Allotments and the Probate of Trust Land

Allotment converted communal reservation land into individually owned parcels held in trust. Because trust interests passed by intestate succession without partition, ownership divided at each generation until single allotments carried hundreds of undivided interests. Congress responded with a federal intestacy rule, a single-heir rule for small interests, purchase options at probate, and consolidation authority. Trust estates are probated by the Department of the Interior.

5 min readFederal law

Tribal & Indian Law

Exhausting Tribal Court Remedies Before Federal Review

A federal court has jurisdiction to determine whether a tribal court has exceeded the lawful limits of its authority, because that is a federal question. As a matter of comity rather than jurisdiction, the federal court will ordinarily abstain until the tribal trial and appellate courts have examined the issue. Recognized exceptions cover bad faith, patent violations of express jurisdictional prohibitions, futility, and cases where the absence of tribal jurisdiction is plain.

5 min readFederal law

Fields of law

This journal

Tribal & Indian Law

The Montana Exceptions and Civil Authority Over Non-Members

Who Prosecutes a Crime in Indian Country

Taking Land Into Trust and the Objections That Follow

Federal Acknowledgment and the Petition Process

Public Law 280 States and What the Transfer Did

The Indian Child Welfare Act: Notice, Placement and Active Efforts

Tribal Sovereign Immunity and How It Is Waived

Gaming Classes and the Compacts Behind Them

Enrollment Disputes, Disenrollment and Where They Are Heard

Fractionated Allotments and the Probate of Trust Land

Exhausting Tribal Court Remedies Before Federal Review