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Amer Indian Law Deskbook 3ed
by Hardy Conference of Western Attorneys General
University Press of Colorado, 2004
Cloth: 978-0-87081-756-4
Library of Congress Classification KF8205.A76 2004
Dewey Decimal Classification 342.730872
TOC | REQUEST ACCESSIBLE FILE
TABLE OF CONTENTS
Contents
Foreword to Third Edition	xvii
Foreword to Second Edition	xix
Foreword to First Edition	xxi
Chapter 1
Federal Indian Law Policy: Origins and Legal Development	1
	I.	Judicial Foundations of Federal Indian Policy	1
	A.	The Marshall Trilogy	1
	B.	Federal Common Law Application of Marshall Trilogy	
Principles	6
	1.	Tribes' extraconstitutional sovereign status	7
	2.	Plenary power doctrine	8
	3.	Indian trust doctrine	11
	4.	Indian canons of construction	19
	II.	Evolution of Federal Indian Policy: Congress and the Executive 
Branch	23
	A.	The Trade and Intercourse Acts Period: 1789 to 1887	24
	B.	The General Allotment Act Period: 1887 to 1934	30
	C.	The Indian Reorganization Act and Subsequent 	
Legislation: 1934 to the Present	34
Chapter 2
Indian, Indian Tribe, and Indian Country	41
	I.	Indian	41
	A.	Federal Law and the Definition of Indian	42
	1.	Federal common law-based Indian status	42
	2.	Statutorily based Indian status	45
	B.	Indian Status and the Fifth Amendment's Due Process 
Clause	46
	II.	Indian Tribe	51
	III.	Indian Country	57
	A.	Reservations	58
	B.	Dependent Indian Communities	59
	C.	Trust Allotments	61
	D.	Trust Land and Indian Country Status	62
	E.	Land Claims Settlement Lands	64
Chapter 3
Indian Land and Property: Title and Use	65
	I.	Sources of Tribal Land Occupancy Rights	65
	A.	Aboriginal Title-Based Occupancy Rights	66
	B.	Nonaboriginal Title-Based Occupancy Rights	73
	II.	Reservation Diminishment	76
	III.	Ownership of Navigable Waters	83
	A.	Equal Footing Doctrine Principles	83
	B.	The Equal Footing Doctrine and Indian Reservations	86
	IV.	Leasing Indian Natural Resources and the Government's Trust Responsibilities	90
	A.	Mineral Leasing	91
	B.	Farm Leases	94
	C.	Grazing Leases	96
	D.	Miscellaneous Leases	98
	E.	Timber Harvesting	100
	F.	Rights-of-Way	103
	G.	The Government's Trust Responsibility for Managing Indian Land	105
	V.	Fractional Property Interests	108
	VI.	Indian Graves and Cultural Items	112
Chapter 4
Criminal Law	119
	I.	Indian Country Crimes	120
	A.	Federal Crimes	120
	1.	General Crimes Act	120
	2.	Major Crimes Act	125
	3.	Federal Juvenile Delinquency Act	127
	B.	Tribal Crimes	128
	C.	State Crimes	131
	1.	State criminal jurisdiction under Public Law 280	131
	2.	General state criminal jurisdiction outside of Public 
Law 280	136
	D.	Summary Analysis	137
	1.	Crimes committed by an Indian against an Indian	137
	2.	Crimes committed by an Indian against a non-Indian	138
	3.	Crimes committed by a non-Indian against an Indian	138
	4.	Crimes committed by a non-Indian against a non-Indian	138
	5.	Victimless crimes committed by Indians	138
	6.	Victimless crimes committed by non-Indians	138
	II.	Special Questions of State and Federal Authority in Indian 
Country	138
	A.	Liquor-Related Offenses	139
	B.	Criminal Conduct Occurring Within and Without 
Indian Country	141
	C.	Incidental Law Enforcement Activities	142
Chapter 5
General Civil Regulatory Jurisdiction	146
	I.	Congressional Exercise of Indian Commerce Clause Power	148
	A.	General Scope of Power's Exercise	148
	B.	Congressional and Tribal Regulation of Nonmembers	149
	1.	Congressional delegation	150
	2.	Congressional deferral	152
	3.	Congressional restoration of inherent authority	153
	II.	Retained Inherent Tribal Authority	157
	A.	The Road to Montana	158
	1.	The 1978 trilogy	158
	2.	Colville	161
	B.	The "Pathmarking" Montana	162
	C.	Application of Montana Standards	163
	1.	Merrion	163
	2.	Brendale	164
	3.	Bourland	166
	4.	Strate	170
	5.	Atkinson and Hicks	172
	III.	State Authority in Indian Country	179
	A.	State Regulation of Nonmembers	180
	1.	Bracker interest-balancing standards	180
	2.	The Williams self-governance standard	186
	B.	Direct State Regulation of Resident tribe or Its Members	187
Chapter 6
Civil-Adjudicatory Jurisdiction	190
	I.	Federal Adjudicatory Jurisdiction	190
	A.	28 U.S.C. 1362: Special Jurisdictional Authorization for	
Indian Tribes	191
	B.	28 U.S.C. 1331 and 1332: Federal Question Exhaustion 
and Diversity Deferral Requirements	196
	1.	National Farmers Union exhaustion and Iowa 
Mutual deferral	196
	a.	The basic rules	196
	b.	Exceptions to the basic rules	200
	2.	Unresolved exhaustion and deferral issue: The need for 
an existing tribal court proceeding	205
	a.	The "reservation affairs" approach	205
	b.	The interference with an existing tribal court 
proceeding approach	211
	II.	Tribal Adjudicatory Jurisdiction	214
	A.	The Precursor Decisions: National Farmers Union and Iowa Mutual	216
	B.	The Defining Decisions: Strate and Hicks	219
	III.	State Adjudicatory Jurisdiction	229
	A.	Nonstatutory Adjudicatory Jurisdiction	229
	B.	Public Law 280 Jurisdiction	236
	IV.	Recognition of Foreign Judgments: Full Faith and Credit or 
Comity	241
Chapter 7
Tribal Sovereign Immunity and the Indian Civil Rights Act	247
	I.	Sovereign Immunity From Suit	248
	A.	Doctrinal Foundation: Fidelity & Guaranty Through 
Manufacturing Technologies	248
	B.	Waiver and Officer Suits	257
	1.	Waiver	258
	a.	By agreement	258
	b.	In litigation	262
	c.	By corporate action	264
	2.	Officer capacity suits	266
	II.	The Indian Civil Rights Act	269
	A.	The ICRA's Provisions	269
	B.	Santa Clara Pueblo v. Martinez	273
	C.	Post-Martinez Federal Court Enforcement	274
	D.	Application of ICRA Relief by Tribal Courts	277
Chapter 8
Indian Reserved Water Rights	280
	I.	Substantive Elements of Reserved Water Rights	281
	A.	Historical Background	281
	B.	Non-Indian Reserved Water Right Cases	285
	C.	Purpose of the Reservation	287
	D.	Quantity of Reserved Water Right	292
	1.	Historical approaches	292
	2.	The practicably irrigable acreage standard	294
	3.	The future of the PIA standard	296
	4.	Standards for quantifying nonagricultural reserved rights	300
	E.	Priority of Reserved Water Right	300
	F.	Miscellaneous Issues	302
	1.	Appurtenant waters	303
	2.	Groundwater	303
	3.	Allotments and reacquired lands	305
	G.	Change of Use and Transfer of Reserved Water Rights	306
	1.	Change of use	306
	2.	Transfer of tribal reserved water rights	309
	II.	Jurisdictional Issues	311
	A.	State Legal Systems Relating to Water Rights	311
	1.	State regulation of water rights	312
	2.	Adjudication of water rights	314
	B.	The McCarran Amendment and State Adjudication of 
Reserved Rights	315
	1.	Nature of state adjudications to which McCarran 
Amendment applicable	318
	2.	Federal court abstention	321
	3.	Removal to federal court	324
	C.	The McCarran Amendment and State Administration of 
Water Rights	325
	D.	Inherent Tribal Authority Over Water Rights and Resources	328
	1.	Regulatory authority based on tribal proprietary interests 
in water	328
	2.	Tribal regulatory authority over appropriative water 
rights and unappropriated waters on reservation	330
Chapter 9
Fish and Wildlife Regulation	333
	I.	Constitutional Framework	333
	II.	Fishing and Hunting Within Indian Country	336
	A.	Fishing and Hunting by Tribal Members	336
	B.	Fishing and Hunting by Non-Tribal Members	337
	III.	Fishing and Hunting Outside Indian Country	340
	A.	General Principles	340
	B.	Aboriginal Rights	341
	C.	Federally Secured Off-Reservation Indian Fishing and 
Hunting Rights	342
	1.	The holder of the right	343
	2.	The geographic scope of off-reservation federally-	
secured rights	344
	a.	"Usual and accustomed" fishing places in the 
Stevens/Palmer treaties	345
	b.	Treaty hunting rights on "open and unclaimed lands" 
and "unoccupied lands of the United States"	347
	c.	Treaty-based right of access as easement and 
property right	348
	d.	Preemption and conservation necessity	349
	e.	Quantifying treaty rights: Securing a "fair share"	351
	f.	Burdens of proof in state-court prosecutions	357
	3.	Off-reservation treaty rights and habitat	358
	a.	Phase II of United States v. Washington	358
	b.	Other habitat litigation	361
	IV.	Federal Regulation of Fishing and Hunting	362
	A.	Endangered Species Act	363
	B.	Magnuson-Stevens Fishery Conservation and 
Management Act	365
	C.	Pacific Salmon Treaty Act	366
	D.	Marine Mammal Protection Act	367
	E.	Whaling Convention Act	367
	F.	Bald and Golden Eagle Protection Act	368
	G.	Migratory Bird Treaty Act	369
	H.	Bureau of Indian Affairs Management Authority	369
	I.	Lacey Act	370
Chapter 10
Environmental Regulation	371
	I.	Tribal and State Programs	373
	A.	Tribal Regulatory Authority	00
	B.	State Regulatory Authority in Indian Country	00
	II.	EPA-Administered Federal Regulatory Programs	00
	A.	EPA's Implementation of Federal Environmental Laws on 
Indian Reservations	00
	1.	Procedure for tribal program approval	00
	2.	EPA's Indian policy and interpretation of federal 
Indian law	00
	B.	Federal Environmental Laws Providing for State or Tribal 
Program Assumption	00
	1.	Clean Water Act	00
	2.	Safe Drinking Water Act	00
	3.	Clean Air Act	00
	4.	Resources Conservation and Recovery Act	00
	5.	Federal Insecticide, Fungicide, and Rodenticide Act	00
	C.	Federal Environmental Laws Not Providing for Direct 
Program Assumption by States or Tribes	00
	D.	Tribal Liability for Violation of Federal Pollution 
Control Statutes	00
	III.	Non-EPA Federal Environmental Programs	00
	A.	Hazardous Materials Transportation Act	00
	B.	Surface Mining Control and Reclamation Act	00
Chapter 11
Taxation in Indian Country	00
	I.	Tribal Taxation Authority	00
	II.	State Taxation Authority	00
	A.	General Principles	00
	1.	Taxation of tribes and tribal members	00
	2.	State taxation of nonmembers	00
	B.	Validity of Specific Types of State Taxes	00
	1.	Natural resource taxes	00
	2.	Personal and real property taxes	00
	a.	Taxes on tribal personal property	00
	b.	Taxes on tribal real property	00
	c.	Taxes on nontribal property	00
	3.	Motor fuel taxes	00
	4.	Non fuel sales and excise taxes	00
	a.	Liquor taxes	00
	b.	Cigarette taxes	00
	c.	Gross receipts taxes	00
	5.	Income taxes	00
	III.	Federal Taxation Authority	00
Chapter 12
Indian Lands Gaming	00
	I.	Pre-IGRA Regulation of Indian Country Gaming	00
	A.	Federal Regulation	00
	B.	State Regulation	00
	II.	The Indian Gaming Regulatory Act	00
	A.	Geographical Scope	00
	B.	Classes of Gaming	00
	1.	Class I gaming	00
	2.	Class II gaming	00
	a.	Bingo and related gaming	00
	b.	Banking and nonbanking card games	00
	c.	Electronic or electromechanical facsimiles	00
	d.	Grandfathered card games	00
	e.	Grace periods	00
	3.	Class III gaming	00
C. Requirements for Lawful Indian Lands Gaming	00
	1.	Class I gaming	00
	2.	Class II gaming	00
	a.	Requirements for lawful gaming	00
		i.	State-law compliance	00
		ii.	Ordinance requirement	00
	b.	The Commission's responsibilities	00
	c.	State regulatory authority	00
	3.	Class III gaming	00
	a.	Ordinance requirement	00
	b.	State-law condition requirement	00
	c.	Tribal-state compact or secretarially prescribed 	
procedures requirement	00
		i.	Authority to enter into compacts	00
		ii.	Compact provisions and approval	00
		iii.	Good-faith litigation	00
	D.	Federal Civil and Criminal Enforcement Authority	00
Chapter 13
Indian Child Welfare Act	00
	I.	ICWA Applicability	00
	A.	"Child Custody Proceeding"	00
	1.	General scope	00
	2.	Existing Indian family doctrine	00
	B.	"Indian Child" Status	00
	1.	Multiple tribal membership and unwed fathers	00
	2.	"Reason to know"	00
	II.	Jurisdiction Under the ICWA	00
	A.	Exclusive Tribal Jurisdiction Over All Child 
Custody Proceedings	00
	B.	Preferred Tribal Jurisdiction Over Foster Care Placement and
Parental Rights Termination Proceedings	00
	1.	General scope	00
	2.	Notice requirements	00
	3.	Good cause not to transfer	00
	III.	State Court Adjudication of Child Custody Proceedings: 
The Merits	00
	A.	Involuntary Proceedings	00
	B.	Voluntary Proceedings	00
	C.	Placement Preferences	00
	IV.	Collateral Attack Upon State Court Decrees	00
	V.	Full Faith and Credit Requirements	00
	VI.	Rights of Adult Adoptees	00
Chapter 14
State-Tribal Cooperative Agreements	00
	I.	Conduct of Government-to-Government Relations	00
	II.	Governmental Authority for Entering State-Tribal Cooperative 	
Agreements	00
	A.	Tribal Authority	00
	1.	Tribal law	00
	2.	Federal law	00
	B.	State Authority	00
	III.	Subject Areas Appropriate for State-Tribal Cooperative 
Agreements	00
	A.	Environmental Issues	00
	1.	Legislation authorizing tribal responsibility over 
environmental programs	00
	2.	Hazardous or solid waste disposal programs	00
	B.	Resource Conservation	00
	C.	Taxation Issues	00
	D.	Law Enforcement Activities	00
	E.	Quantification of Reserved Indian Water Rights	00
	IV.	Considerations for Negotiating Cooperative Agreements	00
	A.	Find a Common Ground	00
	B.	Maintain Theme of Equal Partnership and Respect	00
	1.	Learn about the tribe	00
	2.	Clarify approval protocols	00
	3.	Listen	00
	4.	Be professional and courteous	00
	C.	Attempt Compromise Through Creative Cross-Issue 
Development	00
	D.	Avoid Demanding Jurisdictional Concessions	00
	E.	Involve in the Process All Parties Who Will Be Affected by 
the Agreement	00
	F.	Prepare to Be Flexible and Creative	00
	G.	Special Considerations	00
	1.	Confidentiality/public records laws	00
	2.	Dispute resolution and waivers of sovereign immunity	00
	V.	A Case Study: Colorado Ute Water Rights Agreement	00
	VI.	State-Tribal Agreements: A Representative Sample	00
	A.	Environmental Protection	00
	1.	Clean Air Act implementation agreement between 
Puget Sound Air Pollution Control Agency and Puyallup 
Tribe of Indians	00
	2.	Agreement between Assiniboine and Sioux Tribes and 
State of Montana for regulation and enforcement of 
pesticide use on the Fort Peck Reservation	00
	3.	Agreement between Assiniboine and Sioux Tribes and 
State of Montana for the regulation of underground 
storage tanks on the Fort Peck Reservation	00
	4.	Hazardous waste agreement between Menominee 
Tribe and State of Wisconsin	00
	5.	Water Quality Management Plan implementation 
agreement between Colville Tribe and State of 
Washington	00
	B.	Natural Resources
	1.	Hunting and fishing cooperative agreement between 
Ute Indian Tribe and State of Utah	00
	2.	Hunting and fishing settlement agreement between 
Southern Ute Tribe and State of Colorado	00
	3.	State-tribal cooperative agreement between 
Confederated Salish and Kootenai Tribes of the 
Flathead Reservation and Montana Department of 
Fish, Wildlife and Parks	00
	4.	Puget Sound Salmon Management Plan	00
	5.	Fort Berthold oil and gas agreement	00
	6.	Agreement between counties of Uintah and Duchesne, 
State of Utah, and Ute Indian Tribe of the Uintah and 
Ouray Reservation	00
	C.	Taxation Agreements	00
	1.	Agreements between State of Washington and Indian 
tribes for purchase and resale of liquor	00
	2.	Settlement agreement between State of Washington, 
United States, and tribes exercising treaty fishing rights 
in State of Washington	00
	3.	Settlement agreements between State of Washington 
and Yakima Indian Nation, Lummi Indian Nation, and 
Confederated Tribes of the Colville Reservation 
concerning motor vehicle fuel taxation	00
	D.	Quantification of Water Rights	00
	E.	Law Enforcement	00
	F.	Delivery of Social Services	00
	1.	Indian child welfare services agreement between State 
of Utah and Navajo Nation	00
	2.	Agreement for provision of benefits of Special 
Supplemental Food Program for Women, Infants, and 
Children between Chippewa Cree Tribe of the Rocky 
Boy's Reservation and State of Montana	00
	3.	Weatherization contracts between State of Montana and various tribes	00
	4.	Agreement between State of New Mexico and Navajo 
Nation for child support enforcement	00
Table of Cases	00
Table of Statutes and Codes	00
Bibliography	00
Index	00




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