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Flashcards in Indian Law Deck (16):
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What are the three jurisdictional categories of Indian country?

(1) Reservations
(2) Dependent Indian communities
(3) Allotment

1

What is a reservation?

Generally a reservation is landed to set aside for Indians that is under federal superintendence.

2

What is an allotment?

Parcels of land held in trust by the United States for individual Indians outside the boundaries of a reservation.

3

What is a dependent Indian community?

To be deemed dependent Indian community land must satisfy the venetie test: (1) the land must be set aside for Indian use; and (2) the land must be under federal superintendence [some federal oversight].
** The effect of the Venetie test is that you should only look at the title status of the exact parcel on which the action occurred, and ignore the surrounding community. If the land is general federal public land or non Indian owned fee land, the federal government did not set aside the parcel, and it would appear not to fill the first problem of the test.

4

Tribe sovereignty?

While tribes have inherent sovereignty, such sovereignty is a limited within the federal system. The Supreme Court has coined the term domestic dependent nations to describe the status of tribes within the United States.
--The tribe is immune from all suits except that by the federal government. Tribal sovereign immunity applies in every court, even where the tribe acted beyond it's own territory.

5

What are 638 contracts?

Tribes can contract with United States to perform services previously performed by the Bureau of Indian affairs. Tribal officials operate under these contracts they are considered federal employees and are covered by the Federal tort claims that.

6

Interracial crimes?

Any crime committed by an Indian against a non Indian and any crime committed by non-Indian against an indian. The Federal government has no jurisdiction over a nonmajor crime committed by an Indian against another Indian or over a victimless crime committed by Indian or a non-indian.
**Note that if the tribe prosecutes the Indian for a non major crime against a non-Indian the federal government loses jurisdiction over him or her under federal statute.

7

Major crimes?

These are 15 enumerated crimes, including murder. The federal government has jurisdiction over all Indians who commit such crimes, whether the victim is Indian or non-Indian. Importantly, the tribe also has jurisdiction to prosecute Indian offender in addition to United States and double jeopardy does not apply.

8

Tribal jurisdiction as to non-Indians?

Tribes have no jurisdiction to prosecute non-Indians. They may however, detain them until state or federal law enforcement arrives to arrest offenders. They may also exclude them from tribal lands with an Indian country.
** The one exception is the violence against women act.

9

The Indian civil rights act and jurisdictional issues?

Under the Indian civil rights act, as amended by the tribal law and order act tribes can only imprison a dependent for one year and/or may find a defendant a maximum of $5000 per offense. A tribe may expand its sentencing authority to three years in a fine of a maximum of 15 K per offense, with a maximum combine sentence of nine years. If the try sentences it into a total senses of over one year, the tribe must fulfill the following requirements:
(1) defective counsel equal to the US Constitution
(2) provide an indigent defendant a defense attorney licensed in any jurisdiction in the United States
(3) a licensed judge with sufficient legal training to preside over criminal case
(4) criminal laws, rules of evidence, and rules of procedure must be published
(5) tribal court must record the criminal trial.

10

Exhaustion requirement

A defendant must exhaust remedies and tribal court before proceeding to federal court. There are four exceptions: motivated by desire to harass, jurisdiction plainly liking.

11

Jurisdiction over non-– member Indian?

Duro fix. Though the Supreme Court ruled in Duro v Reina that tribes do not have criminal jurisdiction over non-– member Indians, Congress reversed the ruling in the so-called Duro fix by reaffirming the inherent sovereignty of a tribe over nonmember Indians.
--always question equal protection violation. Non-member may be a suspect classification and therefore require strict scrutiny. No answer yet but should mention issue.

12

Domestic relations?

Tribes may marry individuals and issue divorces. They may also divide marital property and the child custody decisions arising out of divorces. There are very few decisions regarding the scope of such jurisdiction, and therefore there's not much to say about it. Note that the New Mexico version of the UCCJEA treats tribes as states.

13

Indian Child welfare act and child custody?

ICWA only applies to four types of adjudications: foster care placement, pre-adoption, adoption proceeding, and termination of parentage right. Any other type of proceeding to decide child custody is not affected by the ICWA.

14

Indian child under ICWA?

For purposes of ICWA, an Indian child is a child who is a member of the tribe or is eligible for membership and the biological child of a member.

15

ICWA jurisdiction?

If the Indian child resides or is domiciled within tribal territory in the tribal court has exclusive jurisdiction. If not, then the state court has jurisdiction. However, even where the state has jurisdiction, the tribe or the Indian parent may request that the case be transferred to tribal court. The state must transfer it back unless good cause exists not to or if either parent objects.
--in the case where an Indian parent request transfer, the tribal court can always refuse to accept the case.
** note: the New Mexico Supreme Court recently held that fee land owned by non Indians within Pueblo grant is "the state" for residency requirement in the UCCJEA