Contents
Foreword to First Edition
Foreword to Second Edition
Foreword to Third Edition
Foreword to Fourth Edition
Chapter 1
Federal Indian Law Policy: Origins And Legal Development
I.	Judicial Foundations of Federal Indian Policy
A.	The Marshall Trilogy
B.	Federal Common Law Application of Marshall Trilogy Principles
1.	Tribes¿ extraconstitutional sovereign status
2.	Plenary power doctrine
3.	Indian trust doctrine
4.	Indian canons of construction
II.	Evolution of Federal Indian Policy: Congress and the Executive Branch
A.	The Trade and Intercourse Acts Period: 1789 to 1887
B.	The General Allotment Act Period: 1887 to 1934
C.	The Indian Reorganization Act and Subsequent Legislation: 1934 to the Present
Chapter 2
Indian, Indian Tribe, and Indian Country
I.	Indian
A.	Federal Law and the Definition of Indian
1.	Federal common law-based Indian status
2.	Statute-based Indian status
B.	Indian Status under Federal Law and the Fifth Amendment¿s Due Process Clause
C.	Membership in State-Recognized Tribes
II.	Indian Tribe
A.	Federally Recognized Indian Tribes
B.	State Recognition as a Tribe
III.	Indian Country
A.	Reservations
B.	Dependent Indian Communities
C.	Trust Allotments
D.	Trust Land and Indian Country Status
E.	Land Claims Settlement Lands
Chapter 3
Indian Land and Property: Title and Use
I.	Sources of Tribal Land Occupancy Rights
A.	Aboriginal Title-Based Occupancy Rights
B.	Nonaboriginal Title-Based Occupancy Rights
II.	Reservation Diminishment
III.	Ownership of Navigable Waters
A.	Equal Footing Doctrine Principles
B.	The Equal Footing Doctrine and Indian Reservations
IV.	Leasing Indian Natural Resources
A. Mineral Leasing
B.	Farm Leases
C.	Grazing Leases
D.	Miscellaneous Leases
E.	Timber Harvesting
F.	Rights-Of-Way and Eminent Domain
V.	Fractional Property Interests
VI.	Indian Graves, Cultural Items, and Sacred Sites
A.	Native American Graves Protection and Repatriation Act
B.	Spiritual Practice-Based Protection
Chapter 4:
Criminal Law
I.	Indian Country Crimes
A.	Federal Crimes
1.	General Crimes Act
2.	Major Crimes Act
3.	Federal Juvenile Delinquency Act
B.	Tribal Crimes
C.	State Crimes
1.	State criminal jurisdiction under Public Law 280
2.	General state criminal jurisdiction outside of Public Law 280
D.	Summary Analysis
1.	Crimes committed by an Indian against an Indian
2.	Crimes committed by an Indian against a non-Indian
3.	Crimes committed by a non-Indian against an Indian
4.	Crimes committed by a non-Indian against a non-Indian
5.	Victimless crimes committed by Indians
6.	Victimless crimes committed by non-Indians
II.	Special Questions of State and Federal Authority in Indian Country
A.	Liquor-Related Offences
B.	Criminal Conduct Occurring Within and Without Indian Country
C.	Incidental Law Enforcement Activities
Chapter 5
General Civil Regulatory Jurisdiction
I.	Congressional Exercise of Indian Commerce Clause Power
A.	General Scope of Power¿s Exercise
B.	Congressional and Tribal Regulation of Nonmembers
1.	Congressional delegation
2.	Congressional deferral
3.	Congressional restoration of inherent authority
II.	Retained Inherent Tribal Authority
A.	The Road to Montana
1.	The 1978 trilogy
2.	Colville
B.	The ¿Pathmarking¿ Montana
C.	Application of Montana Standards
1.	Merrion
2.	Brendale
3.	Bourland
4.	Strate
5.	Atkinson and Hicks
6.	Plains Commerce
III.	State Authority in Indian Country
A.	State Regulation of Nonmembers
1.	Bracker interest-balancing standards
2.	The Williams self-governance standard
B.	Direct State Regulation of Resident Tribe or Its Members
Chapter 6
Civil Adjudicatory Jurisdiction
I.	Federal Adjudicatory Jurisdiction
A.	28 U.S.C. º 1362: Special Jurisdictional Authorization for Indian Tribes
B.	28 U.S.C. ºº 1331 and 1332: Federal Question Exhaustion and Diversity Deferral Requirements
1.	National Farmers Union exhaustion and Iowa Mutual deferral
a.	The basic rules
b.	Exceptions to the basic rules
2.	Approaches to tribal court proceeding element
a.	The ¿reservation affairs¿ approach
b.	The interference with an existing tribal court proceeding approach
3.	Federal court review of tribal court jurisdictional determinations
II.	Tribal Adjudicatory Jurisdiction
A.	The Precursor Decisions: National Farmers Union and Iowa Mutual
B.	The Defining Decisions: Strate and Hicks
III.	State Adjudicatory Jurisdiction
A.	Nonstatutory Adjudicatory Jurisdiction
B.	Public Law 280 Jurisdiction
 IV.	Recognition of Foreign Judgments: Full Faith and Credit or Comity
Chapter 7
Tribal Sovereign Immunity and the Indian Civil Rights Act
 I.	Sovereign Immunity from Suit
A.	Doctrinal Foundation: Fidelity & Guaranty Through Manufacturing Technologies
B.	Current Application of the Tribal Sovereign Immunity Doctrine
1.	Congressional Abrogation
a.	Federal Statutes of General Applicability
b.	Indian Tribe-Specific Statutes
c.	Compulsory Process
2.	Tribal Waiver
a.	By agreement
b.	In litigation
c.	Through ¿sue and be sued¿ ordinance and corporate charter provisions
3.	Officer capacity suits
II. The Indian Civil Rights Act
A.	The ICRA¿s Provisions
B.	Santa Clara Pueblo v. Martinez
C.	Post-Martinez Federal Court Enforcement
D.	Tribal Court Application of ICRA
Chapter 8
Indian Reserved Water Rights
I.	Substantive Elements of Reserved Water Rights
A.	Historic Background
B.	Non-Indian Reserved Water Right Cases
C.	Purposes of the Reservation
D.	Quantity of Reserved Water Right
1.	Historical approaches
2.	The practicably irrigable acreage standard
3.	The future of the PIA standard
4.	Standards for quantifying nonagricultural reserved rights
E.	Priority of Reserved Water Rights
F.	Miscellaneous Issues
1.	Appurtenant waters
2.	Groundwater
3.	Allotments and reacquired lands
G.	Change of Use and Transfer of Reserved Water Rights
1.	Change of use
2.	Transfer of tribal reserved water rights
II.	Jurisdictional Issues
A.	State Legal Systems Relating to Water Rights
1.	State regulation of water rights
2.	Adjudication of water rights
B.	The McCarran Amendment and State Adjudication of Reserved Rights
1.	Nature of state adjudications to which McCarran Amendment is applicable
2.	Federal court abstention
3.	Removal to federal court
C.	The McCarran Amendment and State Administration of Water Rights
D.	Inherent Tribal Authority Over Water Rights and Resources
1.	Regulatory authority based on tribal proprietary interests in water
2.	Tribal regulatory authority over appropriative water rights and unappropriated waters on reservation
Chapter 9
Fish and Wildlife Regulation
I.	Constitutional Framework
II.	Fishing and Hunting Within Indian Country
A.	Fishing and Hunting by Tribal Members
1.	Tribal regulation
2.	State regulation
B.	Fishing and Hunting by Non-Tribal Members
1.	Tribal regulation
2.	State regulation
III.	Fishing and Hunting Outside Indian Country
A.	General Principles
B.	Aboriginal Rights
C.	Federally Secured Off-Reservation Indian Fishing and Hunting Rights
1.	The holder of the right
2.	Effect of changing circumstances on the exercise of the rights
3.	The geographic scope of off-reservation federally secured rights
a.	¿Usual and accustomed¿ fishing places in the Stevens/Palmer treaties.
b.	Treaty hunting rights on ¿open and unclaimed lands¿ and ¿unoccupied lands of the United States.¿
c.	Treaty-based right of access as easement and property right.
d.	Preemption and conservation necessity.
e.	Quantifying treaty rights: Securing a ¿fair share.¿
f.	Burdens of proof in state-court prosecutions.
4.	Off-reservation treaty rights and habitat
a.	Phase II of United States v. Washington.
b.	Other habitat litigation.
IV.	Federal Regulation of Fishing and Hunting
A.	Bureau of Indian Affairs Management Authority
B.	Federal Regulatory Statutory Schemes
1.	Endangered Species Act
2.	Magnuson-Stevens Fishery Conservation and Management Act
3.	Pacific Salmon Treaty Act
4.	Marine Mammal Protection Act
5.	Whaling Convention Act
6.	Bald and Golden Eagle Protection Act
7.	Migratory Bird Treaty Act
C.	Lacey Act
D.	Alaska National Interest Lands Conservation Act
Chapter 10
Environmental Regulation
I.	Tribal and State Programs
A.	Tribal Regulatory Authority
B.	State Regulatory Authority in Indian Country
II.	EPA¿Administered Federal Regulatory Programs
A.	EPA¿s Implementation of Federal Environmental Laws on Indian Reservations
1.	Procedure for tribal program approval
2.	EPA¿s Indian policy and interpretation of federal Indian law
B.	Federal Environmental Laws Providing for State or Tribal Program Assumption
1.	Clean Water Act
2.	Safe Drinking Water Act
3.	Clean Air Act
4.	Resources Conservation and Recovery Act
5.	Federal Insecticide, Fungicide, and Rodenticide Act
C.	Federal Environmental Laws Not Providing for Direct Program Assumption by States or Tribes
D.	Tribal Liability for Violation of Federal Pollution Control Statutes
III.	Non¿EPA Federal Environmental Programs
A.	Hazardous Materials Transportation Act
B.	Surface Mining Control and Reclamation Act
Chapter 11
Taxation in Indian Country
I.	Tribal Taxation Authority
II.	State Taxation Authority
A.	General Principles
1.	Taxation of tribes and tribal members
2.	State taxation of nonmembers
B.	Validity of Specific Types of State Taxes
1.	Natural resource taxes
2.	Personal and real property taxes
a.	Taxes on tribal personal property
b.	Taxes on tribal real property
c.	Taxes on nontribal property
3.	Motor fuel taxes
4.	Non-fuel excise and sales taxes
a.	Liquor taxes
b.	Cigarette taxes
c.	Gross receipts and other sales taxes
5.	Income taxes
III.	Federal Taxation Authority
Chapter 12
Indian Lands Gaming
I.	Pre¿IGRA Regulation of Indian Country Gaming
A.	Federal Regulation
B.	State Regulation
II.	The Indian Gaming Regulatory Act
 A.	Geographical Scope
 1.	Reservation
 2.	Governmental power
3.	Prohibition of gaming on land acquired in trust after October 17, 1988, and the exceptions
a.	Within or contiguous to an existing reservation
b.	Secretarial determination and gubernatorial concurrence
c.	The three general exceptions
B.	Classes of Gaming
 1.	Class I gaming
 2.	Class II gaming
 a.	Bingo and related gaming
 b.	Banking and nonbanking card games
 c.	Electronic or electromechanical facsimiles
 d.	Grandfathered card games
 e.	Grace periods
 3.	Class III gaming
 C.	Requirements for Lawful Indian Lands Gaming
 1.	Class I gaming
 2.	Class II gaming
 a.	Requirements for lawful gaming
 i.	State-law compliance
 ii.	Ordinance requirement
 b.	The Commission¿s responsibilities
 c.	State regulatory authority
 3.	Class III gaming
 a.	Ordinance requirement
 b.	State law condition requirement
c.	Tribal-state compact or secretarially prescribed procedures requirement
i.	Authority to enter into compacts
ii.	Compact provisions and approval
iii.	Compact enforcement
iv.	Good-faith litigation
D.	Federal Civil and Criminal Enforcement Authority
Chapter 13
Indian Child Welfare Act
I.	ICWA Applicability
A.	¿Child Custody Proceeding¿
1.	General scope
2.	Existing Indian family doctrine
B.	¿Indian Child¿ Status
1.	Multiple tribal membership and unwed fathers
2.	¿Reason to know¿
II.	Jurisdiction Under the ICWA
A.	Exclusive Tribal Jurisdiction Over All Child Custody Proceedings
B.	Preferred Tribal Jurisdiction Over Foster Care Placement And Parental Rights Termination Proceedings
1.	General scope
2.	Notice requirements
3.	Good cause not to transfer
III.	State Court Adjudication of Child Custody Proceedings: The Merits
A.	Involuntary Proceedings
B.	Voluntary Proceedings
C.	Placement Preferences
IV.	Collateral Attack Upon State Court Decrees
V.	Full Faith and Credit Requirements
VI.	Rights of Adult Adoptees
Chapter 14
State-Tribal Cooperative Agreements
I.	Conduct of Government-to-Government Relations
II.	Governmental Authority for Entering State-Tribal Cooperative Agreements
A.	Tribal Authority
1.	Tribal law
2.	Federal law
B.	State Authority
III.	Subject Areas Appropriate for State-Tribal Cooperative Agreements
 A.	Environmental Issues
1.	Legislation authorizing tribal responsibility over environmental programs
2.	Hazardous or solid waste disposal programs
B.	Resource Conservation
C.	Taxation Issues
D.	Law Enforcement Activities
E.	Quantification of Reserved Indian Water Rights
F.	Protection of Indian Graves, Sacred Sites and Cultural Items
IV.	Considerations for Negotiating Cooperative Agreements
A.	Find a Common Ground
B.	Maintain Theme of Equal Partnership and Respect
1.	Learn about the tribe
2.	Clarify approval protocols
3.	Listen
4.	Be professional and courteous
C.	Attempt Compromise through Creative Cross-Issue Development
D.	Avoid Demanding Jurisdictional Concessions
E.	Involve in the Process all Parties Who will be Affected by the Agreement
F.	Prepare to Be Flexible and Creative
G.	Agree on Minimum Regulatory Standards
H.	Consider Mediation
I.	Special Considerations for Agreement Terms
1.	Confidentiality/public records laws
2.	Dispute resolution, waivers of sovereign immunity, and choice of forum
3.	Choice of law
4.	Indemnification
V.	A Case Study: Colorado Ute Water Rights Agreement
VI.	State-Tribal Agreements: A Representative Sample
A.	Environmental Protection
1.	Clean Air Act implementation agreement between Puget Sound Air Pollution Control Agency and Puyallup Tribe of Indians
2.	Agreement between the Southern Ute Indian Tribe and State of Colorado concerning air quality control on the Southern Ute Indian Reservation
3.	Agreement between Assiniboine and Sioux Tribes and State of Montana for regulation and enforcement of pesticide use on the Fort Peck Reservation
4.	Agreement between Assiniboine and Sioux Tribes and State of Montana for the regulation of underground storage tanks on the Fort Peck Reservation
5.	Hazardous waste agreement between Menominee Tribe and State of Wisconsin
6.	Water quality management plan implementation agreement between Colville Tribe and State of Washington
B.	Natural Resources
1.	Agreement between the Colville Tribes and the Washington Department of Fish and Wildlife on jointly managed salmon and steelhead populations
2.	Hunting and fishing cooperative agreement between Ute Indian Tribe and State of Utah
3.	Agreements between the Confederated Tribes of the Colville Reservation and the Washington Department of Fish and Wildlife regarding regulation of hunting and fishing
4.	Hunting and fishing settlement agreement between Southern Ute Tribe and State of Colorado
5.	State-tribal cooperative agreement between Confederated Salish and Kootenai Tribes of the Flathead Reservation and Montana Department of Fish, Wildlife and Parks
6.	Puget Sound Salmon Management Plan
7.	Fort Berthold oil and gas agreement
8.	Agreement between Counties of Uintah and Duchesne, State of Utah, and Ute Indian Tribe of the Uintah and Ouray Reservation
C.	Taxation Agreements
1.	Agreements between State of Washington and Indian Tribes for purchase and resale of liquor
2.	Settlement agreement among State of Washington, United States, and tribes exercising treaty fishing rights in State of Washington
3.	Settlement agreements between State of Washington and Yakama Indian Nation, Lummi Indian Nation, and Confederated Tribes of the Colville Reservation concerning motor vehicle fuel taxation
4.	Cigarette tax refund agreements between Oregon Department of Revenue and several Oregon Tribes
D.	Quantification of Water Rights
E.	Law Enforcement
1.	Law enforcement agreement between Kootenai Indian Tribe of Idaho and the City of Bonners Ferry, Idaho
2.	Cross-deputization agreement Between Montana Highway Patrol, Cities of Wolf Point and Poplar, County of Roosevelt and the Assiniboine and Sioux Tribes of the Fort Peck Reservation
3.	Cross-deputization agreement between State of Nebraska and several Nebraska Tribes
F.	Delivery of Social Services
1.	Agreement between the Montana Department of Public Health and Human Services and Blackfeet Tribe for tobacco use prevention program
2.	Indian child welfare services agreement between State of Utah and Navajo Nation
3.	Indian Child Welfare Act agreement between Minnesota and eleven tribes
4.	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
5.	Weatherization contracts between State of Montana and various Tribes
6.	Agreement between State of New Mexico and Navajo Nation for child support enforcement
7.	Agreements between Oregon Youth Authority and Oregon Tribes
8.	Medicaid agreement between the Montana Department of Public Health and Human Services and the Chippewa Cree Tribe of Rocky Boy¿s Reservation
G.	Cultural Resources
1.	Agreement between Wisconsin Department of Transportation and the Ho-Chunk Nation regarding the Kingsley Bend Effigy Mound Site
2.	Agreement between the Oregon Parks and Recreation Department and the Confederated Tribes of the Umatilla Indian Reservation regarding cultural resources on state park lands
3.	Memorandum of understanding regarding access to Department of Natural Resources lands for hunting and gathering of resources and accessing cultural sites between the Washington State Department of Natural Resources and the Lummi Nation