TBL chp 1

Terminology

• Indigenous: broad term that can refer to native peoples worldwide; often used when no region is specified. May include Indigenous peoples in the United States, South America, etc. Without a region, it is less specific than terms like Native American or American Indian.
• Native American / American Indian: terms used in U.S. context; may carry more region-specific or policy-specific connotations depending on usage.
• In the context of this course, the focus is on federal Indian law, i.e., the federal law that governs Indians and federally recognized tribes in the United States.

Federal Indian Law: Definition and History

• Federal Indian law is primarily driven by history; current statutes and regulations are built on a long historical record spanning centuries.
• The environment of tribal law today is the result of many building blocks of legal history from the beginnings of the country as religious colonies to the present time.
• History is essential for understanding how current rules developed; knowing this history makes you a better practitioner when handling Indian law matters.

The Role of Policy and History in Lawmaking

• Developments over time have been shaped by political policymakers in Washington, D.C., from the 1700s to today.
• Law and policy in federal Indian law are driven by who is in the White House and who controls Congress; it is, in effect, policy-driven.
• Understanding historical policy shifts helps explain why old laws and cases remain in effect and how they influence current practice.
• When working for a particular tribe, it is wise to know that tribe’s treaties and historical relationships (referred to in the transcript as “trees” but intended to mean “treaties”).

Treaties, History, and the Treaty-Rooted Foundation

• Federal Indian law is a pan-tribal legal environment, but each tribe also has its own distinct legal history and treaty relationships.
• Start with history, then treaties (or “treaties” if you correct the transcript), and then statutes that may pertain to a particular tribe.
• Treaties and statutes together shape the modern status of tribes and their rights.

Four Broad Descriptions of the Current Situation (as described in the transcript)
1) Private sovereign entities with inherent powers of self-government.

• Inherent sovereignty means tribes possess governmental authority by virtue of their status as distinct political nations.
  

2) The sovereignty of the tribes is subject to plenary powers of Congress which is near absolute. - This means that while tribes possess inherent sovereignty, it can be limited or modified by the near-absolute authority of the U.S. Congress, as tribes are considered 'domestic dependent nations' under federal law.

3) The power to deal with tribes exclusively federally; states are excluded unless Congress authorizes the state to deal with a tribe or tribes.

• Federal government has primary responsibility for intergovernmental relations with tribes; state involvement requires congressional authorization.
  

4) The federal government is responsible for the protection of the tribes and their properties.

• This is part of the trust responsibility and federal obligation to safeguard tribal lands, resources, and members.

Jurisdiction, Conflict, and Case Law

• Over time, the powers of tribes and the federal government have been narrowed by the Supreme Court.
• Most conflicts between states and tribes center on:
• Jurisdiction
• Tax revenues
• The power to regulate
• A typical analytical question: Is the activity taking place in Indian country? Is the person Indian? Based on these questions, which court has jurisdiction to prosecute?
• Major Crimes Act (MCA): If a crime is committed by an Indian in Indian country and falls under certain serious categories, jurisdiction may shift to federal courts.
• In general, an Indian person in Indian country: jurisdiction often lies with tribal courts; but certain serious offenses can be prosecuted in federal court under the MCA.
• Note: There are future/related chapters that cover MCA specifics in more depth.

Federal Law vs Tribal Law

• Indian law (federal law) governs Indians, tribes, or any persons in the federal framework.
• Tribal law is the internal law of the tribe, governing its own internal affairs.
• The relationship is government-to-government: federal government to tribe as political entities; tribes are recognized as distinct governments.

Tribal Recognition and Government-to-Government Relationships

• Recognition status affects eligibility for funding opportunities, grants, and government programs; recognized tribes enter into formal government-to-government dealings (e.g., with agencies, executive orders, or administrative actions).
• In the context of federal recognition, recognized tribes are those acknowledged as sovereign entities with rights to participate in programs and to engage in formal government dealings.
• Unrecognized tribes can still pursue recognition if they meet certain criteria (per the transcript, see Montoya case and related discussion).

Recognition Criteria and Key Cases (Unrecognized Tribes)

• Montoya case: Unrecognized tribes that meet common-law requirements of ethnicity, continuity of leadership, and territoriality can be recognized and may enjoy sovereignty from suits comparable to recognized tribes.
• Bulldog case: Pertains to unrecognized tribes and the recognition process; the transcript notes it as part of the contours of how recognition is determined.
• The federal government, as of 1918 (as referenced in the transcript), indicated that lack of recognition does not automatically deprive a group of treaty rights; this is referenced in the discussion of Benodo’s tribe vs. Conway (note: the exact case name appears with typographical errors in the transcript).
• Recognition decisions are tied to concrete criteria and are publicly documented.

Federal Register and Recognition Evidence

• Recognized tribes are published annually in the Federal Register.
• Publication serves as formal evidence of recognition and enables eligibility for funding and program opportunities.

Who Is an Indian?

• The term Indian is debated and has been hotly contested for decades.
• A broader understanding of Indigenous identity can be provided, but for purposes of government recognition, enrollment, and program eligibility, the status is tied to specific criteria.
• Formal recognition by the government is often evidenced by individuals receiving services intended only for Indian people, benefits and travel affiliations, and social recognition through living on a reservation and participating in Indian social life.
• For some purposes, actual proof of enrollment is required; simply citing federal demarcation is not sufficient.
• Enrollment status is commonly tied to membership in a tribe; typically, there must be a recognized tribe to be a member of.
• The transcript notes that breaking away from a tribe does not automatically grant independent Indian status or create a new tribe; membership and recognition are still anchored to tribal structures and definitions.
• Blood quantum: membership determinations can involve ancestry fractions; the transcript mentions a threshold of five-eighths ($\frac{5}{8}$) as part of some enrollment criteria, though exact thresholds vary by tribe.
• The tribe’s own rules govern enrollment and membership decisions; tribes decide their own criteria and priorities.
• Freedmen: The transcript raises the topic of Freedmen (people descended from enslaved individuals who were associated with some tribes, notably in historically enslaving Confederacy contexts) and how treaty rights and recognition apply to them; this remains a complex and evolving issue.

Practical and Ethical Implications

• History-driven approach: Understanding historical treaties, laws, and court decisions is essential for fair and accurate legal practice in federal Indian law.
• Policy implications: Shifts in presidential administration and Congressional action can change tribal law and recognition processes, affecting funding, rights, and governance.
• Sovereignty and self-determination: The inherent sovereignty of tribes underpins self-government and the government-to-government relationship with the federal government.
• Recognition disparities: The process of recognition (and lack thereof) creates real-world consequences for funding, jurisdiction, and access to services.
• Unrecognized tribes and rights: Legal frameworks may recognize treaty rights for unrecognized tribes under certain conditions, illustrating the ongoing evolution of the recognition regime.

Key Takeaways

• Federal Indian law is built on a long history, with policy and law evolving through statutes, case law, and government actions.
• The current landscape rests on four broad concepts: tribal sovereignty, the plenary power of Congress over tribal sovereignty, exclusive federal authority over dealing with tribes, and federal responsibility to protect tribal rights and lands.
• Jurisdiction in Indian country is a central issue, often resolved by considering whether the location is Indian country, whether the person is Indian, and what offenses trigger federal jurisdiction (e.g., Major Crimes Act).
• Tribal recognition (and the related “government-to-government” status) is critical for access to funding, programs, and formal intergovernmental relations; recognition can be evidenced by inclusion in the Federal Register.
• Enrollment and membership are tribal-determined, with thresholds like blood quantum used in some tribes (e.g., $\frac{5}{8}$), and with equal importance placed on tribal continuity, leadership, and territorial ties (Montoya framework).
• Ongoing debates (e.g., Freedmen) highlight that recognition, rights, and treaty obligations continue to evolve in federal Indian law.

References and Notable Terms Mentioned in the Transcript

• Major Crimes Act
• Indian country
• Tribal law vs Federal law
• Recognition and the Federal Register
• Montoya case (criteria: ethnicity, continuity, leadership, territoriality)
• Bulldog case (unrecognized tribes and recognition framework)
• Benodo's tribe v. Conway (treaty rights related to recognition status)
• Five-eighths blood quantum: $\frac{5}{8}$
• Inherent sovereignty
• Government-to-government relationship
• Trust responsibility of the federal government
• 18xx reference to federal government actions (as stated in the transcript; year not clearly specified)
• Freedmen and treaty rights discussions (ongoing and evolving issue)