Federal Indian Law

The field of Federal Indian law regulates the legal relationships between Indian Tribes, the United States, and States. It is incredibly complex and has significance for everyone. The field of Indian Law involves issues of real property, international law, administrative law, constitutional law, water law, federal jurisdiction, procedure, contracts, criminal law, etc. This federal Indian legal toolkit was created to assist new and experienced judges in cases involving domestic violence by providing easy access to law and other resources. These resources include links to federal law, cases, publications, online courses, video presentations, and other resources relevant to handling cases that cross jurisdictional lines between a tribal and state court.

 


For information on demographics, maps, and tribal leaders of federally recognized tribes in California, see below:

 

Demographics

Maps: Historical Tribal Territories in California  and Indian Country in California Today

Federally Recognized Tribes in California: The list of California Tribes can be found at the bottom of page 132 of the Bureau of Indian Affairs Tribal Leader’s Directory.

 

Where tribal and state justice systems share jurisdiction and responsibility, it is more efficient for them to work together in a principled and collaborative manner to maximize the use of resources than to provide duplicative, inconsistent or counterproductive and competing justice services. These resources are intended to assist the state courts in understanding the legal landscape of tribal courts in California.  For a listing of tribal courts in California and a map showing their locations, see below. 

 

Tribal Court Directory

Tribal Court Map

Case Types

Remedies

If you would like to learn more about tribal justice systems, the jurisdictional framework in California established by the federal government in 1953 under Public Law 83-280 (PL-280), how tribal and state courts share the same enforcement concerns, how inter-jurisdictional protocols can address those concerns, or view a webinar on PL-280, see below.

Tribal Justice Systems in California

Legal Overview

Enforcement Issues

Inter-Jurisdictional Protocols

Public Law 280:  This webinar gives an introduction to issues of jurisdiction in California Indian lands.
 

Because certain federal and state law procedures apply and the court’s exercise of jurisdiction may be impacted, the court will want to know if the parties are Native American.  For information on these special procedures, guidance on how to learn whether the parties have a relevant pending tribal court case or order, and a directory of statewide services for Native Americans in California, see below.

Special Procedures Relating to Child Custody Cases (Family, Juvenile, Probate Guardianship)
In all child custody proceedings, the court (and the petitioner, including a social worker, a probation officer, a licensed adoption agency or adoption service provider, or an investigator) must ask the child, the parents or legal guardians, and the Indian custodian as soon as possible whether the child may be an Indian child and must record the information, if applicable, on the petition. In all juvenile cases, at their first court appearance, the parent or guardian must be ordered to complete Parental Notification of Indian Status (form ICWA-020). (Fam. Code, § 177(a); Prob. Code, §§ 1459.5(b), 1513(h); WIC, § 224.3; Cal. Rules of Court, rule 5.481) (excerpted from judicial job aid on ICWA, Indian Child Welfare Act (“ICWA”) Requirements).

Special Procedures Relating to All Other Case Types 

Judicial Guidance on Learning About Pending Tribal Court Cases or Orders

Statewide Directory of Services for Native American Families

Constitution
“The Congress shall have power... to regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes." See U.S. Const. Art. I, sec. 8, cl.3 Thus Congress exercises plenary power over the Indian tribes. This Article also puts Indian tribes on a par with the states. The courts have recognized Congressional “plenary and exclusive authority” over Indian affairs.

Key Federal Statutes

Indian Reorganization Act (1934)

Indian Civil Rights Act imposing on tribes such basic requirements as the protection of free speech, free exercise of religion, due process, and equal protection of the laws (1968)

Indian Self Determination and Education Assistance Act, expanding tribal control over reservation programs and authorizing federal funds to build public school facilities on or near Indian reservations (1975)

Indian Health Care Improvement Act clarifying trust responsibilities of the Indian Health Service (1976)

American Indian Religious Freedom Act in which Congress recognizes its obligation to "protect and preserve for American Indians their inherent right of freedom to believe, express and exercise traditional religions (1978)

Indian Child Welfare Act establishing U.S. policy to promote the stability and security of Indian tribes and families by giving tribal courts jurisdiction over children living on reservations (1978)

Indian Gaming Regulatory Act (1988)

Native American Graves and Repatriation Act requiring return to Native American claimants of human bones and artifacts recovered from government sponsored archaeological excavations on public lands (1990)

Key Cases

History: (Source: California Native American Heritage Commission)

Periods of U.S. Policy toward Indians (Source: American Indian Law in a Nutshell, 5th Edition)

  • Sovereignty (1608-l830)
    Tribes dealt with as nations
  • Removal (1830-l850)
    Competition with non-Indians for land led to removal to Indian Territory i.e. Oklahoma. Removal was forced. For example Cherokee removal from Georgia was became known as the "Trail of Tears."
  • Treaties (1778-1871/Reservations 1850-1887)
    In 1871 Congress passed a statute providing that no tribe should thereafter be recognized as an independent nation with the United States and could not make treaties. Existing treaties were not affected. Reservations established after 1871 were not affected. Reservations established after 1871 were accordingly created either by statute, or until 1919 by executive order. Reservations were originally intended to keep distance and peace between Indians and non-Indians, but they came to be viewed also as instruments for "civilizing" native peoples.
  • Allotments and Assimilation (1871-1928)
    The goal was in theory to civilize the Indians by dividing the reservations into 160 acre parcels for heads of households and 80 acres for others (or double if land suitable for grazing) so they would become yeoman farmers. Excess lands were sold to non-Indians.
  • Indian Reorganization (1928-1945)
    Allotment policy decimated tribes and reduced tribal land holdings from 138 million acres to 48 million acres. The Indian Reorganization Act of 1934 was intended to re-establish tribes as governments. A key issue was the creation of tribal charters and constitutions.
  • Termination (1945-1961)
    Intent was to assimilate Indians by making them subject to the same laws as applicable to all United States citizens and by ending their special relationship with the federal government and subject to state laws. Over 100 tribes were terminated.
  • Self-Determination (1961 -present)
    Termination was deemed a failure. President Nixon stressed the continuing importance of the trust relationship between the federal government and the tribes and urged a program of legislation to permit the tribes to manage their affairs with a maximum degree of autonomy.


 

American Indian Law Deskbook / Conference of Western Attorneys, General. Boulder, Colo: University Press of Colorado, c2008

American Indian Law Review, (subscription database on Lexis/Westlaw)

William C. Canby, Jr., American Indian Law, in a Nut Shell, 5th ed. St Paul, MN; West Thompson Reuters (2009)

Robert N. Clinton, American Indian Law: Native Nations and the Federal System: cases and materials, 5th ed., Newark, NJ: LexisNexis Matthew Bender, c2007

Cohen’s Handbook of Federal Indian Law (2005)

Indian Reorganization Act era constitutions and charters  
According to the National Congress of American Indians, about 60% of tribal constitutions are based on IRA Constitutions created in the 1930’s. Constitutions are available online as a public service at various websites. The only versions that should be relied upon for currency and authority are those found on tribal websites or otherwise provided and verified by the tribe itself.

Making of Modern Law: Legal Treatises 1800 – 1926 (subscription database)
A searchable collection of 19th and 20th century legal treatises, casebooks, local practice manuals, form books, pamphlets, letters, speeches, and other historical legal works, covering a wide range of topics of US and British law for over 21,000 works. The results of a search for "Indian tribes" include the full, scanned texts of numerous titles.

National Indian Law Library Indian Law Bulletins
A current awareness service giving timely updates on developments in courts, regulatory agencies, news, law
review/bar journal articles.

National Indian Law Library

Native American Constitution and Law Digitization Project

Tribal Court Clearinghouse

Tribal Court Opinions

Native American Rights Fund- National Indian Law Library

Native American Rights Fund - Tips on How to Find Tribal Court Opinions  

Tribal Law and Policy Institute

Versuslaw.com

Westlaw and Lexis  

Tribal Supreme Court Project
Federal Indian law cases, which are currently before the United States Supreme Court- a project of the Tribal Sovereignty Protection Initiative staffed by the Native American Rights Fund and the National Congress of American Indians .


 

Public Law 280 Curriculum
This webinar gives an introduction to issues of jurisdiction in California Indian lands.


Jurisdiction and Tribal Land (Video: #6934, May 2014, 80 min) (requires access to Serranus listed in the Family toolkit under the headings: Custody and Spousal Support, Property, and Custody and Visitation.

Federal Indian law by topic


Domestic Violence

This domestic violence resources page includes links to (1) an overview of the law; (2) federal, state, and tribal laws; (3) publications; (4) subscription databases; (5) videos; (6) online courses; and (7) other resources relevant to handling domestic violence cases that cross jurisdictional lines between a tribal and state court. 

 

© 2017 Judicial Council of California