B/92504

American Indian Law DeskbookFOURTH EDITIONConference of Western Attorneys General

Chair, Editing Committee:

LARRY LONG, Attorney General, South Dakota

Chief Editor:

CLAY SMITH, Idaho

UNIVERSITY PRESS OF COLORADO

Contents

Foreword to Fourth Edition xxi

Foreword to Third Edition xxiii

Foreword to Second Edition xxv

Foreword to First Edition xxvii

Chapter 1Federal Indian Law Policy: Origins and Legal Development 1

I. Judicial Foundations of Federal Indian Policy 1A. The Marshall Trilogy 1B. Federal Common Law Application of Marshall Trilogy

Principles 61. Tribes' extraconstitutional sovereign status 72. Plenary power doctrine 83. Indian trust doctrine 114. Indian canons of construction 24

II. Evolution of Federal Indian Policy: Congress and the ExecutiveBranch - 29A. The Trade and Intercourse Acts Period: 1789 to 1887 30B. The General Allotment Act Period: 1887 to 1934 35C. The Indian Reorganization Act and Subsequent Legislation:

1934 to the Present 39

Chapter 2Indian, Indian Tribe, and Indian Country 48

I. Indian 48A. Federal Law and the Definition of Indian 50

1. Fed&ral common law-based Indian status 502. Statute-based Indian status 53

B. Indian Status Under Federal Law and the Fifth Amendment'sDue Process Clause 54

C. Membership in State-Recognized Tribes 59

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II. Indian Tribe 61A. Federally Recognized Indian Tribes 61B. State Recognition as a Tribe 67

III. Indian Country 68A. Reservations 69B. Dependent Indian Communities 71C. Trust Allotments 74D. Trust Land and Indian Country Status 74E. Land Claims Settlement Lands 78

Chapter 3Indian Land and Property: Title and Use 79

I. Sources of Tribal Land Occupancy Rights 79A. Aboriginal Title-Based Occupancy Rights 80B. Nonaboriginal Title-Based Occupancy Rights 88

II. Reservation Diminishment 91

III. Ownership of Navigable Waters 97A. Equal Footing Doctrine Principles 98B. The Equal Footing Doctrine and Indian Reservations 100

IV. Leasing Indian Natural Resources 104A. Mineral Leasing 105B. Farm Leases 109C. Grazing Leases 111D. Miscellaneous Leases 112E. Timber Harvesting 115F. Rights-of-Way and Eminent Domain 118

V. Fractional Property Interests 120

VI. Indian Graves, Cultural Items, and Sacred Sites 126A. Native American Graves Protection and Repatriation Act 127B. Spiritual Practice-Based Protection 133

Chapter 4Criminal Law 141

I. Indian Country Crimes 141A. Federal Crimes 142

1. General Crimes Act 1422. Major Crimes Act 1473. FederalJuvenile Delinquency Act 149

B. Tribal Crimes 151C. State Crimes 153

1. State criminal jurisdiction under Public Law 280 153

Contents - ix

2. General state criminal jurisdiction outside of PublicLaw 280 158

D. Summary Analysis 1601. Crimes committed by an Indian against an Indian 1602. Crimes committed by an Indian against a non-Indian 1603. Crimes committed by a non-Indian against an Indian 1604. Crimes committed by a non-Indian against a non-Indian 1615. Victimless crimes committed by Indians 1616. Victimless crimes committed by non-Indians 161

II. Special Questions of State and Federal Authority in IndianCountry 161A. Liquor-Related Offenses 161B. Criminal Conduct Occurring Within and Without Indian

Country 163C. Incidental Law Enforcement Activities 164

Chapter 5General Civil Regulatory Jurisdiction 169

I. Congressional Exercise of Indian Commerce Clause Power 170A. General Scope of Power's Exercise 170B. Congressional and Tribal Regulation of Nonmembers 172

1. Congressional delegation 1722. Congressional deferral 1743. Congressional restoration of inherent authority 175

II. Retained Inherent Tribal Authority 185A. The Road to Montana 186

1. The 1978 trilogy 1862. Colville 189

B. The Tathmarking" Montana 190C. Application of Montana Standards 191

1. Merrion 1912. Brendale 1923. Bourland 1944. Strate 1975. Atkinson and Hicks 1996. Plains Commerce 205

III. State Authority in Indian Country 210A. Statf^Regulation of Nonmembers 211

1. Bracker interest-balancing standards 2112. The Williams self-governance standard 216

B. Direct State Regulation of Resident Tribe or Its Members 218

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Chapter 6Civil Adjudicatory Jurisdiction 225

I. Federal Adjudicatory Jurisdiction 225A. 28 U.S.C. § 1362: Special Jurisdictional Authorization for

Indian Tribes 226B. 28 U.S.C. §§ 1331 and 1332: Federal Question Exhaustion

and Diversity Deferral Requirements 2311. National Farmers Union exhaustion and Iowa Mutual

deferral 232a. The basic rules 232b. Exceptions to the basic rules 234

2. Approaches to tribal-court-proceeding element 239a. The "reservation affairs" approach 240b. The interference with an existing tribal court

proceeding approach 2453. Federal court review of tribal court jurisdictional

determinations 248

II. Tribal Adjudicatory Jurisdiction 249A. The Precursor Decisions: National Farmers Union and Iowa

Mutual 251B. The Defining Decisions: Strate and Hicks 254

III. State Adjudicatory Jurisdiction 266A. Nonstatutory Adjudicatory Jurisdiction 266B. Public Law 280 Jurisdiction 273

IV. Recognition of Foreign Judgments: Full Faith and Credit orComity 279

Chapter 7Tribal Sovereign Immunity and the Indian Civil Rights Act 287

I. Sovereign Immunity from Suit 288A. Doctrinal Foundation: Fidelity & Guaranty Through

Manufacturing Technologies 288B. Current Application of the Tribal Sovereign Immunity

Doctrine 2961. Congressional abrogation 296

a. Federal statutes of general applicability 297b. t Indian tribe-specific statutes 298c. ^Compulsory Process 300

2. Tribal waiver 301a. By agreement 302b. In litigation 306

Contents xi

c. Through "sue and be sued" ordinance and corporatecharter provisions 308

3. Officer capacity suits 313

II. The Indian Civil Rights Act 316A. The ICRA's Provisions 316B. Santa Clara Pueblo v. Martinez 322C. Post-Martinez Federal Court Enforcement 324D. Tribal Court Application of ICRA 327

Chapter 8Indian Reserved Water Rights 331

I. Substantive Elements of Reserved Water Rights 333A. Historic Background 333B. Non-Indian Reserved Water Rights Cases 337C. Purposes of the Reservation 339D. Quantity of Reserved Water Right 343

1. Historical approaches 3432. The practicably irrigable acreage standard 3453. The future of the PIA standard 3474. Standards for quantifying nonagricultural reserved rights 350

E. Priority of Reserved Water Rights 352F. Miscellaneous Issues 353

1. Appurtenant waters 3542. Groundwater 3543. Allotments and reacquired lands 356

G. Change of Use and Transfer of Reserved Water Rights 3571. Change of use 3572. Transfer of tribal reserved water rights 360

II. Jurisdictional Issues 363A. State Legal Systems Relating to Water Rights 363

1. State regulation of water rights 3632. Adjudication of water rights 365

B. The McCarran Amendment and State Adjudication ofReserved Rights 3671. Nature of state adjudications to which McCarran

Amendment applicable 3692. Federal court abstention 3733. Remo^l to federal court 376

C. The McCarran Amendment and State Administration ofWater Rights 376

D. Inherent Tribal Authority Over Water Rights and Resources 3801. Regulatory authority based on tribal proprietary interests

in water 380

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2. Tribal regulatory authority over appropriative water rightsand unappropriated waters on reservation 381

Chapter 9Fish and Wildlife Regulation 384

I. Constitutional Framework 384

II. Fishing and Hunting Within Indian Country 386A. Fishing and Hunting by Tribal Members 387

1. Tribal regulation 3872. State regulation 388

B. Fishing and Hunting by Nontribal Members 3891. Tribal regulation 3892. State regulation 391

III. Fishing and Hunting Outside Indian Country 392A. General Principles 392B. Aboriginal Rights 393C. Federally Secured Off-Reservation Indian Fishing and Hunting

Rights 3951. The holder of the right 3952. Effect of changing circumstances on the exercise of the

rights 3973. The geographic scope of off-reservation federally secured

rights 398a. "Usual and accustomed" fishing places in the Stevens/

Palmer treaties 399b. Treaty hunting rights on "open and unclaimed lands"

and "unoccupied lands of the United States" 401c. Treaty-based right of access as easement and property

right 402d. Preemption and conservation necessity 403e. Quantifying treaty rights: Securing a "fair share" 405f. Burdens of proof in state court prosecutions 409

4. Off-reservation treaty rights and habitat 411a. Phase II of United States v. Washington 411b. Other habitat litigation 414

IV. Federal Regulation of Fishing and Hunting 416A. Bureau of Indian Affairs Management Authority 416B. Federal Regulatory Statutory Schemes 417

1. Endangered Species Act 4172. Magnuson-Stevens Fishery Conservation and

Management Act 4193. Pacific Salmon Treaty Act 4204. Marine Mammal Protection Act 421

Contents xiii

5. Whaling Convention Act 4216. Bald and Golden Eagle Protection Act 4227. Migratory Bird Treaty Act 423

C. Lacey Act 424D. Alaska National Interest Lands Conservation Act 425

Chapter 10Environmental Regulation 427

I. Tribal and State Programs 428A. Tribal Regulatory Authority 428B. State Regulatory Authority in Indian Country 434

II. EPA-Administered Federal Regulatory Programs 436A. EPA's Implementation of Federal Environmental Laws on

Indian Reservations 4361. Procedure for tribal program approval 4362. EPA's Indian policy and interpretation of federal Indian

law 439B. Federal Environmental Laws Providing for State or Tribal

Program Assumption 4411. Clean Water Act 4412. Safe Drinking Water Act 4473. Clean Air Act 4494. Resources Conservation and Recovery Act 4515. Federal Insecticide, Fungicide, and Rodenticide Act 454

C. Federal Environmental Laws Not Providing for DirectProgram Assumption by States or Tribes 455

D. Tribal Liability for Violation of Federal Pollution ControlStatutes 458

III. Non-EPA Federal Environmental Programs 459A. Hazardous Materials Transportation Act 459B. Surface Mining Control and Reclamation Act 460

Chapter 11Taxation in Indian Country 464

I. Tribal Taxation Authority 464

II. State Taxation Authority 469A. General Principles 469

1. Taxatjfon of tribes and tribal members 4702. State taxation of nonmembers 473

B. Validity of Specific Types of State Taxes 4781. Natural resource taxes 4782. Personal and real property taxes 482

a. Taxes on tribal personal property 483

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b. Taxes on tribal real property 484c. Taxes on nontribal property 487

3. Motor fuel taxes 4874. Nonfuel excise and sales taxes 496

a. Liquor taxes 496b. Cigarette taxes 497c. Gross receipts and other sales taxes 503

5. Income taxes 505

III. Federal Taxation Authority 507

Chapter 12Indian Lands Gaming 510

I. Pre-IGRA Regulation of Indian Country Gaming 511A. Federal Regulation 512B. State Regulation 515

II. The Indian Gaming Regulatory Act 518A. Geographical Scope 519

1. Reservation 5202. Governmental power 5213. Prohibition of gaming on land acquired in trust after

October 17, 1988, and the exceptions 524a. Within or contiguous to an existing reservation 525b. Secretarial determination and gubernatorial

concurrence 526c. The three general exceptions 527

B. Classes of Gaming 5311. Class I gaming 5312. Class II gaming . 532

a. Bingo and related gaming 533b. Banking and nonbanking card games 534c. Electronic or electromechanical facsimiles 535d. Grandfathered card games 537e. Grace periods 538

3. Class III gaming 538C. Requirements for Lawful Indian Lands Gaming 539

1. Class I gaming 5392. Class II gaming 539

a. Requirements for lawful gaming 539i. State law compliance 539

ii. Ordinance requirement 542b. The Commission's responsibilities 544c. State regulatory authority 547

3. Class III gaming 548

Contents xv

a. Ordinance requirement 548b. State law condition requirement 549c. Tribal-state compact or secretarially prescribed

procedures requirement 552i. Authority to enter into compacts 553

ii. Compact provisions and approval 555iii. Compact enforcement 557iv. Good-faith litigation 559

D. Federal Civil and Criminal Enforcement Authority 567

Chapter 13Indian Child Welfare Act 571

I. ICWA Applicability 573A. "Child Custody Proceeding" 573

1. General scope 5732. Existing Indian family doctrine 576

B. "Indian Child" Status 5791. Multiple tribal membership and unwed fathers 5812. "Reason to know" 582

II. Jurisdiction Under the ICWA 585A. Exclusive Tribal Jurisdiction Over All Child Custody

Proceedings 585B. Preferred Tribal Jurisdiction Over Foster Care Placement

and Parental Rights Termination Proceedings 5891. General scope 5902. Notice requirements 5923. Good cause not to transfer 597

III. State Court Adjudication of Child Custody Proceedings: TheMerits 600A. Involuntary Proceedings 601B. Voluntary Proceedings 610

C. Placement Preferences 610

IV. Collateral Attack Upon State Court Decrees 614

V. Full Faith and Credit Requirements 617

VI. Rights of Adult Adoptees 618

Chapter 14State-Tribal (^operative Agreements 620

I. Conduct of Government-to-Government Relations 621

II. Governmental Authority for Entering State-Tribal CooperativeAgreements 623A. Tribal Authority 624

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1. Tribal law 6242. Federal law 624

B. State Authority 625

III. Subject Areas Appropriate for State-Tribal CooperativeAgreements 629A. Environmental Issues 629

1. Legislation authorizing tribal responsibility overenvironmental programs 629

2. Hazardous or solid waste disposal programs 630B. Resource Conservation 631C. Taxation Issues 632D. Law Enforcement Activities 633E. Quantification of Reserved Indian Water Rights 635F. Protection of Indian Graves, Sacred Sites, and Cultural Items 636

IV. Considerations for Negotiating Cooperative Agreements 636A. Find a Common Ground 636B. Maintain Theme of Equal Partnership and Respect 637

1. Learn about the tribe 6372. Clarify approval protocols 6373. Listen 6384. Be professional and courteous 638

C. Attempt Compromise Through Creative Cross-IssueDevelopment 638

D. Avoid Demanding Jurisdictional Concessions 638E. Involve in the Process All Parties Who Will Be Affected by

the Agreement 639F. Prepare to Be Flexible and Creative 639G. Agree on Minimum Regulatory Standards 639H. Consider Mediation 639I. Special Considerations for Agreement Terms 640

1. Confidentiality/public records laws 6402. Dispute resolution, waivers of sovereign immunity, and

choice of forum . 6413. Choice of law 6424. Indemnification 642

V A Case Study: Colorado Ute Water Rights Agreement 643

VI. State-Tribal Agreements: A Representative Sample 646A. Environmental Protection 646

1. Clean Air Act implementation agreement between PugetSound Air Pollution Control Agency and Puyallup Tribe ofIndians 646

Contents xvii

2. Agreement between the Southern Ute Indian Tribe andState of Colorado concerning air quality control on theSouthern Ute Indian Reservation 647

3. Agreement between Assiniboine and Sioux Tribes andState of Montana for regulation and enforcement ofpesticide use on the Fort Peck Reservation 647

4. Agreement between Assiniboine and Sioux Tribes andState of Montana for the regulation of undergroundstorage tanks on the Fort Peck Reservation 648

5. Hazardous waste agreement between Menominee Tribeand State of Wisconsin 648

6. Water quality management plan implementationagreement between Colville Tribe and State of Washington 649

B. Natural Resources 6491. Agreement between the Colville Tribes and the

Washington Department of Fish and Wildlife on jointlymanaged salmon and steelhead populations 649

2. Hunting and fishing cooperative agreement between UteIndian Tribe and State of Utah 650

3. Agreements between the Confederated Tribes of theColville Reservation and the Washington Department ofFish and Wildlife regarding regulation of hunting andfishing 651

4. Hunting and fishing settlement agreement betweenSouthern Ute Tribe and State of Colorado 651

5. State-tribal cooperative agreement between ConfederatedSalish and Kootenai Tribes of the Flathead Reservationand Montana Department of Fish, Wildlife and Parks 652

6. Puget Sound Salmon Management Plan 6527. Fort Berthold oil and gas agreement 6528. Agreement between Counties of Uintah and Duchesne,

State of Utah, and Ute Indian Tribe of the Uintah andOuray Reservation 653

C. Taxation Agreements 6531. Agreements between State of Washington and Indian

Tribes for purchase and resale of liquor 6532. Settlement agreement among State of Washington, United

States,t and tribes exercising treaty fishing rights in Stateof Washington 653

3. Settlement agreements between State of Washingtonand Yakama Indian Nation, Lummi Indian Nation,and Confederated Tribes of the Colville Reservationconcerning motor vehicle fuel taxation 654

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4. Cigarette tax refund agreements between OregonDepartment of Revenue and several Oregon tribes 655

D. Quantification of Water Rights 655E. Law Enforcement 656

1. Law enforcement agreement between Kootenai IndianTribe of Idaho and the City of Bonners Ferry, Idaho 656

2. Cross-deputization agreement between MontanaHighway Patrol, Cities of Wolf Point and Poplar, Countyof Roosevelt, and the Assiniboine and Sioux Tribes of theFort Peck Reservation 656

3. Cross-deputization agreement between State of Nebraskaand several Nebraska tribes 656

F. Delivery of Social Services 6571. Agreement between the Montana Department of Public

Health and Human Services and Blackfeet Tribe fortobacco use prevention program 657

2. Indian child welfare services agreement between State ofUtah and Navajo Nation 657

3. Indian Child Welfare Act agreement between Minnesotaand 11 tribes 657

4. Agreement for provision of benefits of specialsupplemental food program for women, infants, andchildren between Chippewa Cree Tribe of the Rocky Boy'sReservation and State of Montana 658

5. Weatherization contracts between State of Montana andvarious tribes 658

6. Agreement between State of New Mexico and NavajoNation for child support enforcement 659

7. Agreements between Oregon Youth Authority and Oregontribes 659

8. Medicaid agreement between the Montana Departmentof Public Health and Human Services and the ChippewaCree Tribe of Rocky Boy's Reservation 659

G. Cultural Resources 6601. Agreement between Wisconsin Department of

Transportation and the Ho-Chunk Nation regarding theKingsley Bend Effigy Mound Site 660

2. Agreement between the Oregon Parks and RecreationDepartment and the Confederated Tribes of the UmatillaIndian Reservation regarding cultural resources on statepark lands 660

3. Memorandum of understanding regarding access toDepartment of Natural Resources lands for hunting

Contents xix

and gathering of resources and accessing cultural sitesbetween the Washington State Department of NaturalResources and the Lummi Nation 660

Table of Cases 661

Table of Statutes and Codes 719

Bibliography 728

Index 755