Wednesday, April 25, 2018

Indian Law

FAQ about Indian Law

From: Gabriel S. Galanda, Indian Law in Idaho--what You Should Know, 46-MAR Advocate (Idaho) 10 (March, 2003) (76 Footnotes Omitted)

Over the past decade, the 42 federally-recognized Indian tribes in Washington, Oregon and Idaho have become major players in the local, state and national economies. Northwest tribes are aggressively creating and operating new businesses in the areas of real estate development, banking and finance, media, telecommunications, wholesale and retail trade, tourism, and gaming. Consider these facts:

  • Northwest tribes occupy more than 5.6 million acres of reservation lands in Washington, Oregon and Idaho.
  • Washington tribes currently employ nearly 15,000 Indian and non-Indian employees. By comparison, Microsoft employs 20,000 Washingtonians.
  • In 2001, Idaho tribes contributed $50 million to the state's overall economy.
  • Reservation businesses across the country generate $246 million in tax revenue annually for state and local governments, and $4.1 billion in annual tax revenue for the Federal Government.
  • In 2001, national gaming revenues from such tribes as the Tulalip, Warm Springs and Coeur d'Alene exceeded $12 billion.

A corollary to the dramatic increase in tribal economic development is the increased interaction of tribes and non-Indian citizens who seek business, employment, or recreation on Indian reservations. In turn, legal matters between Indian tribes and non-Indians continue to increase.

As Indian law issues now intersect both litigation and transactional practices and virtually every niche of law, every attorney should be cognizant of the general Indian law principles at work and be prepared to answer common Indian law questions. For that reason, I thought it appropriate to share with readers of The Advocate some legal principles that govern relations between Indian tribes and non-Indians in Idaho.


GABRIEL S. GALANDA is an associate with the Seattle-Portland law firm Williams, Kastner & Gibbs, PLLC. He is a descendant of the Nomlaki and Concow Tribes, and an enrolled member of the Round Valley Indian Confederation in Northern California. He serves as President of the Northwest Indian Bar Association and chair-elect of the Washington State Bar Association Indian Law Section.

 "What is Tribal Sovereignty?"

Answer: Indian tribes are "distinct, independent political communities, retaining their original natural rights" in matters of local self-government. Although no longer "possessed of the full attributes of sovereignty," tribes remain a "separate people, with the power of regulating their internal and social relations." In short, Indians possess "the right ... to make their own laws and be ruled by them."

Much like the state government, tribal governments are elaborate entities, consisting of executive, legislative, and judicial branches. The office of the tribal chairman (like that of the state governor) and the tribal council (the state legislature) operate the tribe under a tribal constitution and code of laws.

"Are Tribal Courts Different than State and Federal Courts?"

Answer: Yes. Although Idaho tribal courts are modeled after Anglo- American courts, Indian courts are significantly different. Tribal judges, who are often tribal members, are not necessarily lawyers.

Tribal courts operate under the tribes' written and unwritten code of laws. Most tribal codes contain civil rules of procedure specific to tribal court, as well as tribal statutes and regulations. Such laws outline the powers of the tribal court and may set forth limitations on tribal court jurisdiction.

A tribe's code also includes customary and traditional practices, which are based on oral history and may not be codified in tribal statutes and regulations. Tribal judges consider testimony regarding tribal custom and tradition from tribal elders and historians, who need not base their opinions on documentary evidence as may be required by state and federal evidentiary rules.

Tribal courts generally follow their own precedent and give significant deference to the decisions of other Indian courts. However, because there is no official tribal court reporter and because not all tribal courts keep previous decisions on file, finding such caselaw can be difficult. The opinions of federal and state courts are persuasive authority, but tribal judges are not bound by such precedents. Nevertheless, Idaho's state courts may extend full faith and credit to valid tribal court orders, and both state and federal courts in Idaho grant comity to tribal court rulings.

Before handling a matter in tribal court, an advocate must appreciate the character of tribal courts, pay careful attention to tribal laws and statutes, and understand the fundamental differences between tribal courts and state and federal courts.

"Can We Sue the Tribe for Damages or Equitable Relief?"

Answer: Probably not. Like other sovereign governmental entities, tribes enjoy common law sovereign immunity and cannot be sued. An Indian tribe is subject to suit only where Congress has "unequivocally" authorized the suit or the tribe has "clearly" waived its immunity. There is a strong presumption against waiver of tribal sovereign immunity.

The doctrine of sovereign immunity shields tribes from suit for monetary damages and requests for declaratory or injunctive relief. However, tribal government officials who act beyond the scope of their authority are not immune from claims for damages.

Tribes are also immune from the enforcement of a subpoena, e.g., to compel production of documents. Further, a court cannot compel the Department of the Interior (DOI) or the Bureau of Indian Affairs (BIA)-- fiduciaries for the benefit of tribes--to comply with the Freedom of Information Act (FOIA) and release documents passed between tribes and the agencies unless the communications involve "tribal interests subject to state and federal proceedings." Arguably, if a tribe is immune from state or federal suit, documents exchanged between tribes and DOI or BIA regarding "tribal interests" or "matters internal to the tribe," are exempt from disclosure under FOIA.

Tribal immunity generally extends to agencies of the tribe such as tribal casinos and other business enterprises. As many Idaho citizens flock to tribal casinos, slips-and-falls and other tort claims arising on tribal reservations have increased. Nevertheless, courts routinely dismiss personal injury suits against tribes for lack of jurisdiction.

Therefore, in considering whether to sue a tribe on behalf of an injured party, you must closely evaluate issues of sovereign immunity and waiver. Unless you can show clear evidence of tribal waiver or unequivocal Congressional abrogation, do not waste your time, your client's money, or a court's resources by filing suit. A judge will simply dismiss the plaintiff's claims for damages for lack of subject matter jurisdiction.

"Can We Sue the Tribe to Enforce a Contract?"

Answer: Probably not. Tribes retain immunity from suit when conducting business transactions both on and off the reservation. Generally, a tribe can only be sued in contract if the agreement explicitly waived tribal immunity; a waiver will not be implied. Nonetheless, the U.S. Supreme Court recently held that a contractual agreement to arbitrate disputes constitutes a clear waiver of immunity.

Increasingly, tribes will agree to limited waivers of immunity. Some tribes set up subordinate entities whose assets, the tribes acknowledge, are not immune from suit, levy, or execution (although assets not held by the entity remain protected by immunity).

So, if you are asked to sue a tribe for breach of contract, you should first consider the entity with which your client contracted--i.e., a tribe, which is likely immune from suit; or a subordinate entity, for which the tribe may have waived its immunity. If you are asked to create a contract with a tribe, you must explain to your client that there may not be any remedy available in the event of a contractual breach. You should then negotiate with the tribe to reach a meeting of the minds with respect to the immunity issue. Again, some tribes will agree to a limited waiver.

"Can I Sue the Tribe for Employment Discrimination?"

Answer: Probably not. Both Title VII35 and the Americans with Disabilities Act (ADA) expressly exclude Indian tribes. Similarly, the Ninth Circuit Court of Appeals has held that tribes are immune from suit under the Age Discrimination in Employment Act (ADEA). Tribes are also immune from suit under 42 U.S.C. 1983. Likewise, state discrimination laws do not apply to tribal employers.

Tribally-owned entities are generally not subject to state and federal discrimination laws either. Tribal officials are also immune from suit arising from alleged discriminatory behavior, so long as they acted within the scope of their authority. In short, any employment suit against a tribe or its officials based upon federal or state discrimination law will likely be dismissed for lack of subject matter jurisdiction.

Idaho tribes have become one of the nation's largest employers. As a result, non-Indians' employment records and documents concerning tribal employment practices are increasingly becoming the focus of discovery, even in litigation against non-tribal entities. If the employee is a party, his or her employment records are discoverable if they are in the employee's custody or control. However, under the doctrine of sovereign immunity, a tribe cannot be forced to produce the employee's records. By the same token, a court cannot compel a tribe--or the Bureau of Indian Affairs--to provide documents about the tribe's employment practices.

"Can I Sue the Tribe for Violation of Labor and Employment Laws?"

Answer: Maybe. The circuits are split regarding the application of federal regulatory employment laws to tribal employers. The Ninth Circuit has applied the Occupational Safety and Health Act (OSHA) and the Employee Retirement Income Security Act (ERISA) to tribes, reasoning that such statutes of general applicability govern tribal employment activity because Indian tribes are not explicitly exempted from the laws. The Seventh and Second Circuits have adopted the Ninth Circuit's rationale and also applied OSHA and ERISA to tribes, and the Seventh Circuit leans toward application of Fair Labor Standards Act (FLSA) to tribal employers.

Conversely, the Tenth and Eight Circuits have refused to apply to tribes such laws as OSHA, ERISA, FLSA, and the National Labor Relations Act (NLRA), because doing so would encroach upon well-established principles of tribal sovereignty and tribal self-governance. While the Ninth Circuit's rulings that apply federal employment statutes of general applicability to tribes are binding in Idaho, and the decisions of the Seventh and Second Circuits serve as persuasive precedent, state labor laws and workers' compensation statutes remain inapplicable to tribal businesses.

 "Where Should We File a Claim that Arises on the Reservation?"

Answer: It depends. Subject matter jurisdiction of tribal, state or federal courts depends largely upon (1) whether the defendant is an Indian or non- Indian person or entity; and (2) whether the act occurred on Indian fee or allotted lands, non-Indian-owned reservation lands, or even a state right-of-way on the reservation. These two complex issues should be the first area of inquiry for any question regarding civil jurisdiction over a dispute arising on a reservation.

State courts have jurisdiction over lawsuits between non-Indians arising on the reservation. However, jurisdiction over a suit by any party--Indian or non-Indian--against an Indian person, a tribe, or tribal entity for a claim arising on the reservation, lies in tribal court. So, if your client is prepared to show clear or unequivocal waiver of immunity, you should file any tort claims against the tribe that arose on Indian lands or in tribal casinos, in tribal court.

In particular, state courts have jurisdiction over any dispute arising from an auto accident occurring on a state right-of-way through the reservation, including a dispute between non-Indian citizens, and a suit by an Indian against a non-Indian. As such, common claims that arise on Idaho state highways running through reservations should be brought in state court.

"Can We Be Sued in Tribal Court?"

Answer: It depends. Generally, a tribal court can only assert jurisdiction over a claim against a non-Indian person or entity when "necessary to protect tribal self-government or to control internal relations." Essentially, a tribal court only has jurisdiction over the reservation activities of non-Indian parties "who enter consensual relationships with the tribe ... through commercial dealing, contract, leases, or other arrangements."

State courts may exercise jurisdiction over a non-Indian person or entity for a claim arising on the reservation. Federal courts may assert jurisdiction over a claim against a non-Indian party based upon reservation activities if there is federal question jurisdiction, or diversity jurisdiction. Thus, absent a contractual relationship with the tribe, non-Indian parties can only be sued in state or federal court


"Can We Challenge the Assertion of Tribal Court Jurisdiction?"

Answer: Yes. If sued in tribal court, non-Indian persons or entities can challenge the tribal court's assertion of civil jurisdiction in federal court. However, federal courts typically stay their proceedings to allow the tribal court to determine its own jurisdiction. Thus, before you challenge a tribal court's assertion of jurisdiction in federal court, you must first exhaust tribal remedies.

In any case, a tribal court first decides jurisdiction over non-Indian parties. If the tribal court rules that it has jurisdiction, it proceeds with the case. If the federal court later agrees that the tribal court had jurisdiction, it will not relitigate the case. Therefore, you should thoroughly present the merits of your client's case to the tribal judge, as you and your client may not have a subsequent opportunity to do so in federal court. In doing so, you should be ever mindful of the unique aspects of tribal courts described above.

"Can I Be Prosecuted in Tribal Court?"

Answer: It depends. Tribal courts do not have general criminal jurisdiction over non-Indian crimes occurring on the reservation. However, tribal courts do retain the power to exclude any unwanted person from their reservations.

Jurisdiction for non-Indian criminal offenses on the reservation lies with state or federal courts: Crimes committed on the reservation by non-Indians against non-Indians are subject to state jurisdiction. Federal courts have jurisdiction under the General Crimes Act over reservation crimes committed by non-Indians against Indians or Indian "interests" (e.g., property).

In 1990, the US Supreme Court ruled in Duro v. Reina, that state or federal courts also had jurisdiction over on-reservation crimes of Indians who are not members of the tribal community in which the crime occurred. However, Congress quickly overrode Duro, and affirmed the "inherent power of Indian tribes ... to exercise criminal jurisdiction over all Indians."

The Ninth Circuit upheld the statute--commonly known as "the Duro fix"--in an opinion issued in 2001. Thus, absent federal statutes that limit tribal jurisdiction, Idaho tribal courts retain jurisdiction over crimes committed by any Indian (member or nonmember) on the reservation.


Idaho is witnessing firsthand both the tremendous rise in tribal economic development, and an array of legal disputes between Indians and non-Indians. Indeed, Indian law principles impact litigation and transactional practices, and intersect general tort, contract, employment, and criminal law. Further, Indian law issues implicate tribal, state and federal court practice and challenge attorneys' common understandings of procedural and jurisdictional principles. For these reasons, it is vital that you recognize and understand the Indian law issues that you will inevitably encounter in your practice in Idaho.

"Members Only": A Critique of Montana v. United States

William P. Zuger

Excerpted from: William P. Zuger, Members Only: A Critique of Montana v. United States , 87 North Dakota Law Review 1-18, 1-4 (2011) (91 Footnotes Omitted)


The renowned turn-of-the-twentieth-century cynic, Ambrose Bierce, defined lawful as [c]ompatible with the will of a judge having jurisdiction. For those of us who aspire to a higher standard, we have the Law Review.

The landmark United States Supreme Court case defining civil jurisdiction of Indian courts is Montana v. United States. Four years after its decision, the Supreme Court, in the case of Strate v. A-1 Contractors, characterized Montana as the pathmarking case concerning tribal civil authority over nonmembers. As we will see, the confusing and convoluted opinion in Montana was anything but pathmarking, and remained unresolved in its scope for nearly a decade. Montana remains confusing to the present day, even to attorneys and judges familiar with Indian law.

The case was brought by the United States for two reasons. First, both in its own right and as trustee for the Crow Tribe of eastern Montana, the United States wanted to quiet title to the bed of the Big Horn River. The Court held title to the river bed had passed from the tribe to the United States, at least in part by the legislative allotment of tribal land (presumably before and after Montana statehood) intended to terminate the reservation, so that the navigable stream bed was transferred in fee title to Montana upon statehood.

Second, the United States wanted to determine the validity of Crow legislation asserting jurisdiction to regulate non-Indian hunting and fishing rights on nonmember fee land within the external boundaries of the Reservation. However, the issue of continuing civil jurisdiction over activities by non-Indians or non-tribal members, the subject of its pathmarking status and the rationale for the distinction between the two classes, was not made clear. In Montana, the Court stated the permissible extent of Indian civil jurisdiction as follows:

A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

This extent is collectively referred to in Indian law as Montana exceptions one and two because they are exceptions to the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe. This article will first discuss the precedent leading up to the decision in Montana and the reasoning by which the Court reached its conclusion. Next, this article will explain subsequent treatment of the case by the Court. Lastly, this article will discuss the practical ramifications of the case upon Indian country.

Montana was decided in the context of several other contemporary cases addressing the permissible limits of Indian jurisdiction. Of these, the criminal jurisdiction case of Oliphant v. Suquamish Indian Tribe was specifically cited as controlling authority for the holding in Montana. The majority opinion of the Court in Montana was clearly prefaced upon the Oliphant decision, as the majority opinion stated: Though Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe. However, Oliphant did not make a distinction between members and nonmembers, but rested solely upon the Indian status of the defendant, without regard to whether he or she was a member of the tribe asserting jurisdiction.

The Oliphant Court further relied on the authority of Ex parte Crow Dog. In Ex parte Crow Dog, the Court was faced with almost the inverse issue presented in Montana: whether, prior to the passage of the Major Crimes Act, federal courts had jurisdiction to try Indians who had offended against fellow Indians on reservation land. The Oliphant Court recognized an increased sophistication of several tribal courts that now resemble state counterparts, as well as the disappearance of many of the dangers of exercised jurisdiction over non-Indians due to the passage of the Indian Civil Rights Act of 1968. The Court also acknowledged the tribe-argued need to try non-Indians due to a recognized incidence of non-Indian crime on reservations. The Court noted, however, such considerations of whether Indian tribes should be authorized to try non-Indians are ones properly made by Congress.

Nowhere in Oliphant did the Supreme Court ever address jurisdiction over members, as opposed to Indians. Ultimately, as this article will address, Montana also stands for the odd proposition that the power to invoke civil remedies is less extensive than the power to put one in jail.

“[This] I Know from My Grandfather:” The Battle for Admissibility of Indigenous Oral History as Proof of Tribal Land Claims

Hope M. Babcock

Hope M. Babcock, “[This] I Know from My Grandfather:” The Battle for Admissibility of Indigenous Oral History as Proof of Tribal Land Claims, 37 American Indian Law Review 19 (2012-2013)(321 footnotes)


If our federal courts are to respond to this nation's commitment to cultural diversity, they must be prepared to hear and really listen to Native American voices, quite different from their own, speaking in terms shaped by their non-literate cultural heritage. By doing so, the federal courts would be honoring the Western, liberal tradition that they inherit based on the idea that everyone benefits by adding voices to the marketplace of ideas.

Both the United States and Canada have faced similar judicial hurdles in determining land title claims between Indian and non-Indian claimants. The results have varied greatly between the two court systems, largely because of different evidentiary rules and different attitudes toward indigenous claimants.

U.S. courts have typically closed their doors to indigenous oral history as proof of Indian land claims based on the hearsay and best evidence rules, because the original story teller cannot be produced and there is no written record to confirm the recounted events. Yet these stories often are the “best” evidence of such claims; in fact, they may be the only evidence. Because tribal land claims can dispossess current non-Indian landowners or require the payment of large sums of money to settle such claims, they disrupt the existing economic, social, and political order. Evidentiary rules that block their realization, therefore, frequently have popular and judicial support - even in Canada, where oral history has been more accepted. The fluctuating and ever-shifting federal policies toward Indians, a pendulum between assimilation and self-determination, makes it is easy to see why the United States would be hesitant to grant Indian claimants a right to use oral history in court - allowing such evidence could make Indians successful in their land claims.

Despite the commonality between the United States and Canada's early experience with its indigenous peoples and shared attitudes toward them, Canada's recent history with its indigenous peoples is quite different from the United States. This departure is due principally to a 1982 constitutional amendment recognizing the rights of First Nation peoples. This constitutional reconciliation has had a positive impact on aboriginal claimants, leading Canadian courts to make admissible indigenous oral history when proffered in support of an aboriginal land claim.

A close examination of what constitutes tribal oral history, how it is developed, and how it is passed between generations shows it is more reliable and enduring than one might believe. Tribal stories are not equivalent to the utterances barred under the hearsay rule, and are frequently better evidence than what the written historical record contains. While questions remain about the trustworthiness of oral history and the fitness of courts to deal with evidence from indigenous cultures, the Canadian experience shows that there is sufficient flexibility in the rules of evidence to enable courts to accept oral history and weigh its probative value, as with any other evidence. Sufficient safeguards can also be put in place to establish authenticity and improve reliability.

But, unlike Canada, the United States does not have a constitutional directive to “reconcile” indigenous and non-indigenous interests. Without this type of constitutional amendment in the United States, U.S. courts have little motivation to lend evidentiary credence to tribal oral history in support of Indian land claims.

This article discusses the challenges a common law court faces when dealing with indigenous oral history in a tribal land claim proceeding and how those challenges can be overcome. The primary goal of this article is to showcase the injustice of the current evidentiary barriers to tribal oral history in the United States and to expose the lack of a rational basis for maintaining those barriers, especially in light of the Canadian judicial experience.

The first part of this article explains the importance of land to indigenous peoples, and exposes some fundamental differences in the judicial approach of Canada and the United States toward the legal basis of indigenous claims. This part also lays out how Canadian aboriginal claimants establish a land claim. The second part, after briefly introducing the tribal practice of legal storytelling, discusses indigenous oral history, its various purposes, the forms that it may take, the ways in which it may be transmitted over time, and the important role land plays in those stories. Part three looks at the uneasy fit between oral history evidence and the type of evidence usually presented in court. Part three also discusses the additional complexities that tribal language and cultural differences bring to a land claim adjudication. Part four examines the barriers to the introduction of oral history presented by the best evidence and hearsay rules, and the adoption by Canadian courts of a “principled exception” to the most serious of these barriers, the hearsay rule. Included in this discussion is the creative use by Canadian courts of judicial notice and other evidentiary procedures to authenticate oral history in aboriginal land claim proceedings when a written record or first-hand observer is unavailable. This part also identifies the measures Canadian courts have enacted to authenticate aboriginal oral history sufficiently to allow its use in court without disrupting the integrity of the judicial process. The fifth part of this article discusses the differences between the experience of Canadian courts with aboriginal oral history and that of courts in the United States.

There is no objective reason why U.S. courts could not take the same path as Canadian courts. This article concludes that the U.S. has not adopted the Canadian evidentiary rule due to the federal government's fluctuating and fickle approach to the “Indian problem.” Unlike Canada, which has made efforts to address evidentiary barriers with its First Nations peoples, the United States has only recently entered an era of indigenous Self-Determination, and the jury is still out on the benefits of this era.

* * *

“The battle between orality and literacy is a battle over what constitutes truth[,]” and the “triumph of literacy is a triumph of certainty over It is also a battle over memory and what “constitutes history,” and the stories nations preserve to ensure their survival. The battlefield has been the courthouse, and the weapons employed by courts to block the admission of indigenous oral history have been the rules of evidence.

Despite invasion and obstruction brought by contact with Europeans, indigenous peoples have preserved their history through stories, artifacts, and rituals. But everything about oral history evidence presents a challenge to a court accustomed to written and recorded evidence. Canada has encouraged its courts to surmount these problems by amending its Constitution to require the reconciliation of the interests of its indigenous peoples with non-indigenous Canadians. In response to this mandate, Canada's courts have adopted a liberal vision of the exceptions to the best evidence and hearsay rules and used judicial notice to put indigenous oral history on equal footing with written evidence.

Canada's 1982 amendment of its constitution set the country's courts on a mission to make amends for what it did to its indigenous peoples throughout much of that country's colonial and post-colonial history. The country recognized that indigenous peoples had been wrongly displaced from their lands and restitution required opening the courts to claims for the return of those lands. Oral history became a critical component of establishing those claims, and the constitutional mandate could not be fulfilled if that evidence was not allowed to be heard. The story in the United States is quite different. There has been no formal recognition of wrongs done to Indians by removing them from their ancestral lands.

There is no procedural reason that U.S. courts cannot follow Canada's lead. No evidentiary rule stands in our way, and there is no evidentiary exception that cannot be liberally interpreted to favor indigenous rights. What Canadian courts have done since 1982 is not revolutionary from an evidentiary rule perspective; it is only revolutionary from the standpoint of its substantive impact. The U.S. must also reconcile and allow procedural and evidentiary rules to achieve fair outcomes for its indigenous peoples.

Hope M. Babcock is an environmental and natural resources law professor at Georgetown University Law Center.

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