INDIAN CASE LAW OF INTEREST

Caution - California is a PL 280 state and some cases involve non-PL 280 states

• Links to significant Indian cases; Indian Law (Cornell)

• Fletcher v. Peck, 6 Cranch 87, 147 (1810) Peck, in his deed to Fletcher, covenanted 'that the state of Georgia aforesaid was, at the time of the passing of the act of the legislature thereof, (entitled as aforesaid,) legally seised in fee of the soil thereof, subject only to the extinguishment of part of the Indian title thereon. (Johnson, J., concurring) (stating that "the limitation upon their [Indian tribe's] sovereignty amounts to the right of governing every person within their limits except themselves."right of governing every person within their limits except themselves"),

• Johnson v. McIntosh 8 Wheat. 543 (1823) This U.S. Supreme Court decision states that the U.S. government has ultimate title to Indian lands based on European’s law to the right of discovery. The text reads: “This opinion conforms precisely to the principle which has been supposed to be recognized by all European governments, from the first settlement of America. The absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring. Such a right is no more incompatible with a seisin in fee, than a lease for years, and might as effectually bar an ejectment.”

• Cherokee Nation v. Georgia 30 U.S. (5 Pet.) 1 (1831) In 1831 the US Supreme Court issued a decision that defined Native Americans as "domestic dependant nations" instead of foreign nations. This redesignation allowed states, such as Georgia, to disenfranchise Native American tribes of their lands. The Supreme Court refused to intervene stating that the Cherokee Nation didn't have control of their lands, because they were not a foreign nation with sovereignty rights. The "Cherokee Tribe is a state in the sense that it is a "distinct political society," but is not a foreign state within the meaning of Article III of the Constitution. It is more like a "domestic dependent nation" with the relation of the tribe to the Federal government like that of "ward to guardian." The tribes are separate nations within a nation."

  "They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kindness and  its power; appeal to it for relief of their wants[.]

• Worcester v. Georgia 31 U.S. 515 (1832)  In an opinion delivered by Chief Justice John Marshall, the Court held that the Georgia act, under which Worcester was prosecuted, violated the Constitution, treaties, and laws of the United States. Noting that the "treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the union," Chief Justice Marshall argued, "The Cherokee nation, then, is a distinct community occupying its own territory in which the laws of Georgia can have no force. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States." The Georgia act thus interfered with the federal government's authority and was unconstitutional. Justice Henry Baldwin dissented for procedural reasons and on the merits.

• Ex Parte Crow Dog 109 U.S. 556 (1883) (pre-suspension of treaty authority): The decision rendered in this case was that the U.S. had no jurisdictional authority to prosecute one Indian for killing another on an Indian reservation. The court's determination in this instance led to the extension of federal jurisdiction over Indian Country via the 1885 Major Crimes Act.

• Elk v. Wilkins 1884."...utmost possible effect [of the 1871 Act] is to require the Indian tribes to be dealt with for the future through the legislative and not the treaty-making power."

• United States v. Kagama (1886):(118 U.S. 375) The Congress had an "incontrovertible right" to exercise its plenary authority over Indians as it saw fit.

• Stephen v. Cherokee Nation 1899 The Supreme Court said: "[A]ssuming that Congress possesses plenary power of legislation in regards [Indians], subject only to the Constitution of the United States, it follows that the validity of remedial legislation of this sort cannot be questioned unless in violation of some prohibition of that instrument."

• Lone wolf v. Hitchcock (1903) (187 U.S. 553): The United States, as part of its plenary power over Indian affairs, could abrogate sections of treaties with Indians at any time it chose, with or without Indian consent, and without disturbing the force of the treaty itself.

• United States v. Winans (198 U.S. 371 (1905) Yakima Indian Fishing Rights secured by treaty

• Winters v. United States (207 U.S. 564 (1908) Reserved Water Rights. Winters Doctrine. The Court upheld the power of the federal government to exempt waters from appropriation under state water law, and held that the government had in fact reserved the waters of the Milk River in order to fulfill the purposes of the agreement between the Indians and the United States. The case dealt only with current needs and did not address the future needs of the Indians. Skeem v. United States, 273 F. 93 (9^th Cir. 1921)(applying Winters Doctrine to allotted lands;)

  • “reserved” water rights are unlike riparian rights or prior appropriation rights, although they contain elements of both. For example, like riparian rights, reserved rights are appurtenant to land; that is, land ownership is the basis of the right. Also like riparian rights, reserved rights are not lost by nonuse. But reserved water can be used on nonriparian lands. And like prior appropriation rights, reserved rights have priority dates which reflect the security of the right. . . . However, the priority date for reserved rights is the date of the reservation or earlier, not the date of diversion, as in the case of most appropriation rights.
    
    The chief characteristic of reserved rights is that they are federal rights, grounded on the (mostly implied) intent of the federal government to reserve water for its purposes. This characteristic serves to distinguish reserved rights from both prior appropriation and riparian rights. [In Re: The general Adjudication of all rights to use water in the Big Horn System and all other Sources, State of Wyoming Case Number: 00-296 Decided: 06/14/2002]

• Donnelly v. United States, 228 U.S. 243 (1913). This case questioned the legality of the enlargement of the Hoopa Valley Reservation by two executive orders. See id. The plaintiff, who was charged with murdering an Indian on the reservation, contended that the President had exhausted his authorization under the Act of April 8, 1864 when the original reservation was created. See id. at 252–55. If the plaintiff’s contention was proven true it would have denied the federal court jurisdiction over the case. See id. However, the Supreme Court upheld the validity of the executive order and prosecuted the plaintiff. See id. at 258–59.

• Super et al. v. Work, Secretary of the Interior, et al.. No. 4110 Court of Appeals of District of Columbia 55 App. D.C 149; J F.2d 90; 1925 U.S. App. LEXlS 3721 Submitted December 5, 1924 January 5, 1925, Decided. Karuk tribe failed to make any land claim to the lands commission established by congressional act in 1851 to implement the terms of  Treaty of Guadalupe Hidlago. Therefore, any aboriginal claims on lands are deemed abandoned. (The lands commission barred assertion of any additional land claims not presented in the first two years of the commission.) 

• California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935): "What we hold is that following the act of 1877, if not before, all non-navigable waters then a part of the public domain became publici juris, subject to the plenary control of the designated states, including those since created out of the territories named, with the right in each to determine for itself to what extent the rule of appropriation or the common-law rule in respect of riparian rights should obtain. 295 U.S. at 163-64.

• U.S. v. Powers, 305 U.S. 527 (1939) Reserved Water Rights reserved water rights attach to allotments where water is necessary to fulfill the purposes to be served by allotment

• United States v. Alcea Band of Tillamooks 329 U.S. 40 (1946).

• Hynes v. Grimes Packing Co.  , 337 U.S. 86 (1949) : An Indian reservation created by Executive Order of the President conveys no right of use or occupancy to the beneficiaries beyond the pleasure of Congress or the President. Such rights may be terminated by the unilateral action of the United States without legal liability for compensation in any form even though Congress has permitted suit on the claim. When a reservation is established by a treaty ratified by the Senate or a statute, the quality of the rights thereby secured to the occupants of the reservation depends upon the language or purpose of the congressional action. The Court stated - " It would take specific and unambiguous legislation to cause us to rule that Congress intended to authorize the Secretary of the Interior to alienate the Alaska fisheries permanently from public control."

• Tee-Hit-Ton v. United States 348 U.S. 272 (1955): Extending the rationalizations offered in Johnson v. McIntosh, Justice Reed delivered the opinion in this case (348 U.S. 272) that the Tee-Hit-Ton band of the Tlingit Nation (in Alaska) could not establish aboriginal title to some 350,000 acres of territory the court acknowledged they had used and occupied since "time immemorial," there being no treaty by which Congress recognized their title. Hence, in the court's view, the Tee-Hit-Tons were not entitled to the land nor the resources upon it. The decision neatly finished the U.S. reversal of the "Discovery Doctrine" principle concerning who conveys title to whom in North America and effectively gutted whatever was left of aboriginal rights in U.S. jurisprudence. Aboriginal title and treaty title are distinctly different.

• Arizona v. California, 373 U.S. 546 (1963) Court announced a standard for quantification of Indian reservations with an agricultural purpose for present and future needs.   The Court ruled that the quantity of water reserved would be measured by practicably irrigable acreage:  “Those acres susceptible to sustained irrigation at reasonable costs.”  United States v. Walker River Irrigation Dist., 104 F.2d 334 (9^th Cir. 1939)(limiting water rights to Indians’ current use);  In re United States v. Anderson, 736 F.2d 1358 (9th Cir. 1984)(reserved water rights for irrigation of reacquired tribal land have priority as of date of reacquisition;  date of reservation if water put to use and not lost to nonuse;  tribe may use water for any lawful purpose); Colville Confederated Tribes v. Walton,  647 F.2d 42 (9th Cir. 1981), cert. denied, 454 U.S. 1092 (1981) (water reserved for the purpose of maintaining a tribal fishery; and there may be more than one primary purpose; also setting out tests for former reservation lands distributed under allotment acts);

• Oct., 31, 1966 Elser v. Gill Net Number One (Dewey George and Grover Reed): "...The Klamath River area was originally a part of the public domain transferred by Mexico to the United States in 1848 by the treaty of Guadalupe Hidalgo (Donnelly v. United States, 228 U.S. 243, 252-259 [57 L.Ed. 820, 33 S.Ct. 449]). The earliest Indian reservation in that part of northern California, known as the Klamath River Reservation, was a military reservation established by executive order dated November 16, 1855, pursuant to an Act of Congress (10 Stats. 686). It extended 20 miles up the river from its mouth, and was one mile in width on each side of the Klamath River and was subsequently inhabited by about 2,500 Indians. It was abandoned in 1861 after a disastrous flood. The Klamath River Reservation was formally terminated in 1864, when Congress enacted a statute designed to provide adequate permanent reservations for all of the Indians of California (13 Stats. 39). This statute authorized the President to set apart four tracts of land within the State of California to be retained by the United States as Indian reservations of suitable extent and for the accommodation of all of the Indians of California, and specifically directed that any existing reservations not retained were to be surveyed into lots or parcels of suitable size, to be offered for public sale (United States v. Forty- eight Pounds of Rising Star Tea (N.D.Cal. 1888) 35 F. 403, at pp. 404-405.)
  
  Pursuant to the above statute, on April 8, 1864, the President set aside, by the posting of a public notice by the Superintendent of Indian Affairs for the State of California, four Indian reservations in California, including the Hoopa Valley Indian Reservation. fn. 5 On June 23, 1876, President Grant, by {Page 246 Cal.App.2d 34} executive order, formally defined the boundaries of the Hoopa Valley Reservation as a tract of country approximately 12 miles square, containing about 89,000 acres, lying on both sides of the Trinity River immediately above its junction with the Klamath River. No portion of the abandoned Klamath River Reservation was included in the Hoopa Valley Reservation.
  
  Fifteen years later, on October 16, 1891, President Harrison, by executive order, enlarged the Hoopa Valley Reservation to include a two-mile-wide strip of land lying one mile on each side of the Klamath River from the original northern boundary of the reservation at the junction of the Klamath and Trinity Rivers to the mouth of the Klamath, a distance of about 40 miles. The lower 20 miles of this 40-mile-long strip of land coincided with the area of the former Klamath River Reservation. The validity of this executive order was challenged and upheld in Donnelly v. United States, 228 U.S. 243 [57 L.Ed. 820, 33 S.Ct. 449]. fn. 6 The Donnelly opinion further pointed out (at pp. 258, 259) that in the year immediately following President Harrison's executive order, the extended area was occupied by the Lower Klamath Tribe, whose principal subsistence was fishing.
  
  In 1887 Congress passed the General Allotment Act (25 U.S.C.A., §§ 331, 358) designed to break up the reservations and allot specific parcels of land to individual Indians, the land remaining after allotment to be opened for settlement. Accordingly, in 1892 Congress passed a Special Act directing that the area of the old Klamath River Reservation be immediately opened for public purchase (27 Stats. 52). Thus, the lower 20 miles of the 40-mile-long strip of land included in the 1891 extension of the Hoopa Valley Reservation, for all practical purposes, almost immediately lost its identity as part of the Hoopa Valley Reservation. However, the upper 20 miles of the strip was not affected by the Act of 1892, has remained an integral part of the Hoopa Valley Reservation to the present time, and has become commonly known as the Hoopa Extension or Hoopa Extension Reservation."

• Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974) It has been implicitly assumed that Indians have a federal common-law right to sue to enforce their aboriginal land rights, and their right of occupancy need not be based on a treaty, statute, or other Government action.

  "It very early became accepted doctrine in this Court that although fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign - first the discovering European nation and later the original States and the United States - a right of occupancy in the Indian tribes was nevertheless recognized. That right, sometimes called Indian title and good against all but the sovereign, could be terminated only by sovereign act. Once the United States was organized and the Constitution adopted, these tribal rights to Indian lands became the exclusive province of the federal law. Indian title, recognized to be only a right of occupancy, was extinguishable only by the United States. The Federal Government took early steps to deal with the Indians through treaty, the principal purpose often being to recognize and guarantee the rights of Indians to specified areas of land. This the United States did with respect to the various New York Indian tribes, including the Oneidas. The United States also asserted the primacy of federal law in the first Nonintercourse Act passed in 1790, 1 Stat. 137, 138, which provided that "no sale of lands made by any Indians . . . within the United States, shall be valid to any person . . . or to any state . . . unless the same shall be made and duly executed at some public treaty, held under the authority of the United States." This has remained the policy of the United States to this day. See 25 U.S.C. 177.

• United States v. Mazurie, 419 U.S. 544 (1975) In regard to licensing of a bar on private lands within a reservation, the court concluded that federal authority was properly delegated to the Indian tribes and was  adequate, even though the lands were held in fee by non-Indians, and even though the persons regulated were non-Indians. Article I, 8, of the Constitution gives Congress power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." This Court has repeatedly held that this clause affords Congress the power to prohibit or regulate the sale of alcoholic beverages to tribal Indians, wherever situated, and to prohibit or regulate the introduction of alcoholic beverages into Indian country.

• DeCoteau v. District County Court, 420 U.S. 425, 427 , n. 2 (1975). "Indian country," as defined at 18 U.S.C. 1151, includes "all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation." This definition applies to questions of both criminal and civil jurisdiction.  Lake Traverse Indian Reservation in South Dakota, created by an 1867 treaty between the United States and the Sisseton and Wahpeton bands of Sioux Indians, was terminated and returned to the public domain, by the Act of March 3, 1891, c. 543, 26 Stat. 1035. The Court upheld South Dakota jurisdiction members of the Sisseton-Wahpeton Tribe for acts done on lands which, though within the 1867 reservation borders that have been owned and settled by non-Indians since the 1891 Act.

• Colorado Water Conservation District v U.S. 424 U.S. 800 (1976) The McCarran Amendment, passed by Congress in 1952, consents to the joinder of the United States as a defendant in Federal and State court adjudications of water rights. In Colorado River Water Conservation District v. United States (1976), the Supreme Court ruled that although Federal courts continue to have concurrent jurisdiction, the McCarran Amendment provides State courts with jurisdiction to adjudicate Indian water rights held in trust by the United States.

• In Cappaert v. United States, 426 U.S. 128 (1976) the Court concluded that the establishment of Devil’s Hole National Monument carried with it an implied reservation of water:The Court, however, ruled that the federal reserved right quantification was limited to the primary purpose of the reservation and only to the minimum amount of water necessary to fulfill the purpose of the reservation. "[W]hen the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation.  In so doing the United States acquires a reserved right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators."

• U.S. v. New Mexico, 438 U.S. 696 (1978; ) Limited the extent of reserved water rights for Federal, non-Indian reservations of land (such as National Forests). Reserved water rights for these non-Indian reservations are limited to the primary purposes for which the reservation was created, i.e., those purposes actually stated. Water rights necessary for secondary uses must be obtained pursuant to State law. The courts still must determine the extent to which these limitations apply to reserved water rights for Indian reservations. "Implied-reservation-of-water doctrine" spoke to implied water use rights associated with the portions of the public domain that have been withdrawn and reserved by the United States for use as Indian reservations, forest reserves, national parks, and national monuments. Such implication of "reserved water"  is to water necessary to achieve the specific federal purposes for which these reservations were made.no more. The right referred to   "appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation." Cappaert, supra, at 138 (emphasis added). See Arizona v. California, supra, at 595-601; United States v. District Court for Eagle County 401 U.S. 520, 522 -523 (1971); Colorado River Water Cons. Dist. v. United States, 424 U.S. 800, 805 (1976). Where water is only valuable for a secondary use of the reservation, the United States would acquire water in the same manner as any other public or private appropriator. [The case denied U.S. claims to reservation of minimum instream flows for aesthetic, recreational, and fish-preservation purposes as not among the organic purposes of the national Forests. The Court found that the reserved water rights on national forests apply only to the preservation of timber resources and water flows The Court also cautioned that quantification of these reserved rights should involve consideration of the potential impacts on downstream junior state law-based water rights appropriators. ] The reservation of water for federal or Indian purposes and its exemption from appropriation under state law can occur either before or after statehood.  Arizona v. California, 373 U.S. 546, 597-98 (1963), decree entered, 376 U.S. 340 (1964).  The power to do this derives from the Indian Commerce Clause, the Property Clause, and other sources. Cohen, supra at 581-82. 

• Bryan v. Itasca County, 426 U.S. 373 (1976) Public Law 280 did not grant States the authority to impose taxes on reservation Indians, Section 4 (a), 28 U.S.C. 1360 (a), provides:

  "Each of the States . . . listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed . . . to the same extent that such State . . . has jurisdiction over other civil causes of action, and those civil laws of such State . . . that are of general application to private persons or private property shall have the same force and effect within such Indian country as they have elsewhere within the State . . .: The statute does not in terms provide that the tax laws of a State are among "civil laws . . . of general application to private persons or private property."

  The primary concern of Congress in enacting Pub. L. 280 that emerges from its sparse legislative history was with the problem of lawlessness on certain Indian reservations, and the absence of adequate tribal institutions for law enforcement. See Goldberg, Public Law 280: The Limits of State Jurisdiction over Reservation Indians, 22 U. C. L. A. L. Rev. 535, 541-542 (1975). The House Report states:

  "These States lack jurisdiction to prosecute Indians for most offenses committed on Indian reservations or other Indian country, with limited exceptions. The applicability of Federal criminal laws in States having Indian reservations is also limited. The United States district courts have a measure of jurisdiction over offenses committed on Indian reservations or other Indian country by or against Indians, but in cases of offenses committed by Indians against Indians that jurisdiction is limited to the so-called 10 major crimes: murder, manslaughter, rape, incest, assault with intent to kill, assault with a dangerous weapon, arson, burglary, robbery, and larceny.

  "As a practical matter, the enforcement of law  and order among the Indians in the Indian country has been left largely to the Indian groups themselves. In many States, tribes are not adequately organized to perform that function; consequently, there has been created a hiatus in law-enforcement authority that could best be remedied by conferring criminal jurisdiction on States indicating an ability and willingness to accept such responsibility." H. R. Rep. No. 848, 83d Cong., 1st Sess., 5-6 (1953).

• United States v. Wheeler, 435 U.S. 313, 322, 98 S. Ct. 1079, 1085-86 (1978). The EEOC does not have  jurisdiction over Indian tribes for purposes of enforcing the ADEA .

• California v. United States, 438 U.S. 645 (1978).

• Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978), the Court held that Indian tribes lack criminal jurisdiction over non Indians

• Washington v. Fishing Vessel Assn., 443 U.S. 658 (1979)

• Nance v. United States EPA, 645 F.2d 701 (9th Cir.) Upheld ability of   Northern Cheyenne Tribe to redesignate the Air Quality Classification of its reservation.

• Montana v. United States, 450 US544 (1981) The inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe on a reservation with two exceptions (called the "Montana Exceptions"):  Exception #1 is "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. Williams v. Lee, supra, at 358 U. S. 223; Morris v. Hitchcock, 194 U.S. 384; Buste v. Wright, 135 F. 947, 950 (CA8); see Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134, 152-154."  Exception #2 "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. See Fisher v. District Court, 424 U. S. 382, 386; Williams v. Lee, supra at 358 U. S. 220; Montana Catholic Missions v. Missoula County, 200 U. S. 118, 128-129; Thomas v. Gay, 169 U. S. 264, 273. " (Also, See Bugenig V. Hoopa Valley Tribe No. 99-15654.)

• United States v. Mitchell, 463 U.S. 206 (1983). The current trust doctrine creates a fiduciary duty between the United States and Indians, whereby the U.S. government, and not the Indians, manages the land and resources of the Indians. The Court compared the trust relationship existing between the U.S. government and Indians to that of a fiduciary duty existing between a beneficiary and a trustee. As in a fiduciary relationship, the trust relationship holds the trustee accountable in damages for breach of that trust.

• Arizona v. San Carlos Apache Tribe 463 U.S. 545 (1983)  In its 1983 decision in Arizona v. San Carlos Apache Tribe, the Supreme Court held that the McCarran Amendment allows State adjudication of Indian water rights even in those States that expressly have disclaimed jurisdiction in their constitutions or enabling acts. It should be noted that the McCarran Amendment allows joinder of tribes only in general stream adjudications- -comprehensive actions in which all potential water users in a watershed are joined. In addition, the statute confers judicial jurisdiction only. Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976)(McCarran Amendment waiver applies to Indian reserved water rights held in trust by the United States. The Court held that the suit brought by the United States in federal court was properly dismissed in favor of the concurrent adjudication addressing the same issues in state court.)

• Solicitor's Opinion on Allotees share of reserved reservation rights (See Skeem v. United States, 273 F. 93 9th Cir. 1921 - applying Winters Doctrine to allotted lands;  water right unaffected by leasing); (Hackford v. Babbitt, 14 F.3d 1457 (10^th Cir. 1994)(allottees shared in right to right with priority as of date of reservation).

• Nevada v. United States, 463 U.S. 110, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983)

• United States v. Washington, 759 F.2d 1353 (9th Cir. 1985)(Phase II), the Ninth Circuit Court of Appeals considered the district court's determination that ``the right to take fish necessarily includes the right to have those fish protected from man-made despoliation, so that the treaties impose upon the State a corresponding duty to refrain from degrading or authorizing the degradation of the fish habitat to an extent that would deprive the treaty Indians of their moderate living needs.'' 759 F.2d at 1355.  

• County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) Respondent Indian Tribes (hereafter respondents) brought an action in Federal District Court against petitioner counties alleging that respondents' ancestors conveyed tribal land to New York State under a 1795 agreement that violated the Nonintercourse Act of 1793 - which provided that no person or entity could purchase Indian land without the Federal Government's approval - and that thus the transaction was void.

  Held: Respondents have a federal common-law right of action for violation of their federal possessory rights that was not preempted by the Nonintercourse Acts. In determining whether a federal statute pre-empts common-law causes of action, the relevant inquiry is whether the statute speaks directly to the question otherwise answered by federal common law. Here, the 1793 Act did not speak directly to the question of remedies for unlawful conveyances of Indian land, and there is no indication in the legislative history that Congress intended to pre-empt common-law remedies.

• Montana v. Blackfeet Tribe, 471 U.S. 759 (1985)  The States may tax Indians only when Congress has manifested clearly its consent to such taxation, and statutes are to be construed liberally in favor of Indians.

• In United States v. Billie, 667 F. Supp. 1485 (S.D. Fla. 1987) the court ruled that the ESA applies to abrogate the exercise of tribal treaty rights with respect to the taking of an endangered Florida panther by a Seminole Indian on reservation land.  The court determined that the ESA abrogated the reserved right to take endangered panthers based on the Act’s “general comprehensiveness, its nonexclusion of Indians, and the limited exceptions for certain Alaskan natives.”  Id. at 1490. 

• California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987). When a State seeks to enforce a law within an Indian reservation under the authority of Pub. L. 280, it must be determined whether the law is criminal in nature, and thus fully applicable to the reservation , or civil in nature, and applicable only as it may be relevant to private civil litigation in state court. Neither the State nor the county had any authority to enforce its gambling laws within the reservations. There is a fair basis for the Court of Appeals' conclusion that California's statute, which permits bingo games to be conducted only by certain types of organizations under certain restrictions, is not a "criminal/prohibitory" statute falling within Pub. L. 280's grant of criminal jurisdiction, but instead is a "civil/regulatory" statute not authorized by Pub. L. 280 to be enforced on Indian reservations. Although state laws may be applied to tribal Indians on their reservations if Congress has expressly consented, Congress has not done so here either by Pub. L. 280 or by the Organized Crime Control Act of 1970.

• Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408 (1989) - The Tribe does not have authority to zone fee lands owned by nonmembers within the reservation outside of its "closed" area. Any regulatory power the Tribe might have under its treaty with the United States cannot apply to lands held in fee by non-Indians. The Tribe no longer retains the "exclusive use and benefit" of such lands within the meaning of the treaty, since the Indian General Allotment Act allotted significant portions of the reservation, including the lands at issue, to individual members of the Tribe, and those lands subsequently passed, through sale or inheritance, to nonmembers such as petitioners. The Tribe's treaty rights must be read in light of those subsequent alienations, it being unlikely that Congress intended to subject non-Indian purchasers to tribal jurisdiction when an avowed purpose of the allotment policy was to destroy tribal government. Id., at 560, n. 9, 561. The fact that the Allotment Act was repudiated in 1934 by the Indian Reorganization Act is irrelevant, since the latter Act did not restore exclusive use of the lands in question to the Tribe. Id., at 560, n. 9. Nor does the Tribe derive authority from its inherent sovereignty to impose its zoning ordinance on petitioners' lands. Such sovereignty generally extends only to what is necessary to protect tribal self-government or to control internal relations, and is divested to the extent it is inconsistent with a tribe's dependent status - i. e., to the extent it involves the tribe's external relations with nonmembers - unless there has been an express congressional delegation of tribal power to the contrary.

Justice Stevens assenting: The Tribe's power to exclude nonmembers from its reservation - which derived from its aboriginal sovereignty and the express provisions of its treaty with the United States - necessarily includes the lesser power to regulate land use in the interest of protecting the tribal community. Although, at one time, the Tribe's power to exclude was virtually absolute, the General Allotment Act (Dawes Act) in some respects diminished tribal authority by providing for the allotment of reservation lands in severalty to resident Indians, who were eventually free to sell to nonmembers. While the Indian Reorganization Act repudiated that allotment policy, large portions of reservation lands were conveyed to nonmembers in the interim. To the extent that large portions of reservation land were sold in fee, such that the Tribe could no longer determine the region's essential character by setting conditions on entry to those parcels, the Tribe's legitimate interest in land-use regulation was also diminished. Although it is inconceivable that Congress would have intended that the sale of a few lots would divest the Tribe of the power to determine the character of the region, it is equally improbable that Congress envisioned that the Tribe would retain its interest in regulating the use of vast ranges of land sold in fee to nonmembers who lack any voice in setting tribal policy. Thus, the resolution of these cases depends on the extent to which the Tribe's virtually absolute power to exclude has been either diminished by statute or voluntarily surrendered by the Tribe itself with respect to the relevant areas of the reservation.

• In Re Big Horn River System, 835 P.2d 273 (Wyo. 1992), the Big Horn Court affirmed three principles: (i) that Winters rights may be changed in purpose and place of use; (ii) that the change be made under state administration; and (iii) employ certain principles of state law. The concern for dislocation to existing economies based on state permits was shown in Justice Cardine's opinion

• Montana v. US EPA  450 U.S. at 565-66; (9th Circuit Appelate Ct No. 96-35505) Upheld right of Confederated Salish and Kootenai Tribes to grant discharge permits under the National Pollutant Discharge Elimination System (NPDES), permits for dredging and filling under CWA 404, and to set water quality standards under section 303 of the CWA (33 U.S.C. 1377 (1988); see 58 Fed. Reg. 67966-67985 (Dec. 22, 1993) within the boundaries of their reservation.

   In 1987, Congress added §518(e) to the CWA which authorized EPA to permit tribes "to be treated as a state" (TAS) for purposes of promulgating Water Quality Standards: 33 U.S.C. S 1377(e). "The Administrator is authorized to treat an Indian tribe as a State for purposes of subchapter II . . . to the degree necessary to carry out the objectives to this section, but only if -- (1) the Indian tribe has a governing body carrying out substantial governmental duties and powers; (2) the functions to be exercised by the Indian tribe pertain to the management and protection of water resources which are held by an Indian tribe, held by the United States in trust for Indians, held by a member of an Indian tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the borders of an Indian reservation; and (3) the Indian tribe is reasonably expected to be capable, in the Administrator's judgment, of carrying out the functions to be exercised in a manner consistent with the terms and purposes of this chapter and of all applicable regulations"

  EPA issued a final rule in 1991 implementing the provision by setting forth the standards for processing tribal requests for TAS status and concomitant authority to institute.  (1991) (codified at 40 C.F.R. §131.8(b)(3)) 1). The tribe must be federally recognized and exercising governmental authority; 2). The tribe must have a governing body carrying out "substantial governmental duties and powers;" 3.) The water quality standards program which the tribe seeks to administer must "pertain to the management and protection of water resources," which are "within the borders of an Indian reservation;" 4.) The Indian tribe is reasonably expected to be capable of carrying out the functions of an effective water quality standards program in a manner consistent with the terms and purposes of the Clean Water Act and regulations.

   To demonstrate authority over the activities of nonmembers on non-Indian fee lands, EPA requires a tribe to show that the regulated activities affect "the political integrity, the economic security, or the health or welfare of the tribe." Final Rule, 56 Fed. Reg. at 64,877 (quoting Montana, 450 U.S. at 566, 101 S. Ct. at 1258). The potential impacts of regulated activities on the tribe must be "serious and substantial." Id. at 64,878.

  EPA believes that tribes will normally be able to demonstrate that the impacts of regulated activities are serious and substantial due to "generalized findings" on the relationship between water quality and human health and welfare. See id. Nonetheless, under the Final Rule EPA will make a casespecific determination on the scope of each tribal applicant's authority. See id. Because EPA's generalized findings will be incorporated into the analysis of tribal authority, the factual showing required under §131.8 is limited to the tribe's assertion that (1) there are waters within the reservation used by the tribe, (2) the waters and critical habitat are subject to protection under CWA, and (3) impairment of waters would have a serious and substantial effect on the health and welfare of the tribe. See id. at 64,879.

  Once the tribe meets this initial burden, EPA will, in light of the facts presented by the tribe and the generalized statutory and factual findings regarding the importance of reservation water quality, presume that there has been an adequate showing of tribal jurisdiction over fee lands. See id. Unless the party objecting demonstrates the tribe's lack of jurisdiction, the EPA will determine there is inherent authority. See id.   

• Minnesota v. Mille Lacs Band 000 U.S. 97-1337 (1997) In order to find that Congress intended to abrogate Indian treaty rights “[t]here must be "clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty."

• Strate v. A-1 Contractors, 520 U. S. 438, 459 (1997), When an accident occurs on a portion of a public highway maintained by the State under a federally granted right of way over Indian reservation land, the tribal courts may not entertain a civil action against an allegedly negligent driver and the driver's employer, neither of whom is a member of the tribe. Case law establishes that, absent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances. Aa tribe's inherent power does not reach beyond what is necessary to protect tribal self government or to control internal relations.

• Klamath Water Users Association v. Patterson (15 F. Supp. 2d 990, 996 (D. Or. 1998), 204 F.3d 1206 (9 Cir. 2000) that BOR is legally obligated to operate the Project “to meet the requirements of the ESA, requirements that override the water rights of the Irrigators.” The court relied on the principal that “contractual arrangements can be altered by subsequent Congressional legislation” even when the legislation was passed after the contracts were made.

• Montana v. Envtl. Prot. Agency, 137 F.3d 1135 (9th Cir. 1998) (upholding a facial challenge to EPA regulations qualifying Indian tribes to be treated as states for purposes of setting water quality standards under the Clean Water Act).

• State of Wisconsin  v. Environmental Protection Agency and Sokaogon Chippewa Community, United States Court of Appeals For the Seventh Circuit No. 99-2618, involved EPA TAS (The Same as States) status grant to a reservation and its extraterritorial effects 33 U.S.C. sec. 1377(e). The EPA has developed the mechanism called for by the statute, which allows it to mediate conflicting interests when a tribe's standards differ from those of a state. See also 33 U.S.C. sec. 1341(a). In addition, once a tribe is given TAS status, the Act gives it the same right as that given to states to object to permits issued for upstream off- reservation activities. See 56 Fed. Reg. at 64887. In deciding whether to issue a permit for discharge within a state that may violate the water quality standards of a downstream tribe, the EPA may ask the parties to engage in mediation or arbitration, in which the decision-maker and the EPA administrator, who has the final authority over the issuance of the permit, will consider such factors as "the effects of differing water quality permit requirements on upstream and downstream dischargers, economic impacts, and present and historical uses and quality of the waters subject to such standards." 33 U.S.C. sec. 1377(e). The EPA may then ask the tribe to issue a temporary variance from its standards for the particular discharge or may ask the state to provide additional water pollution controls. See 54 Fed. Reg. at 39099-101; 56 Fed. Reg. at 64885-89; 40 C.F.R. secs. 121.11 through 121.16. The tribe cannot impose any water quality standards or take any action that goes beyond the federal statute or the EPA's power.

• No. 99-1871 US DOI and BIA v. Klamath Water Users Protective Assoc. Writ of Certiorari

• US Court of Appeals - Ninth Circuit Bugenig V. Hoopa Valley Tribe No. 99-15654 - (summary) scope of tribal jurisdiction over the activities (logging) of nonmembers: specifically, to what extent can the tribe regulate land use of fee-patented private property within a reservation boundary see also link

  The Ninth Circuit ruled that nothing in the Settlement Act explicitly conferred regulatory jurisdiction to the Tribe over nonmembers. The Ninth Circuit reasoned that although an argument could be made for congressional authorization of tribal jurisdiction in the Settlement Act, the Supreme Court requires an "express authorization" from Congress for an Indian tribe to exercise authority over nonmembers.Courts are reluctant to find the requisite congressional authorization through implication. In Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, the Supreme Court found that all of the examples of express statutory delegations of authority contained the same standard language: "notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation." The Ninth Circuit reformulated this inquiry into a "clear statement rule," holding that because the Settlement Act failed to include the "gold standard" of delegation in the form of the "notwithstanding" proviso and does not reflect on its face any congressional consideration of the proper scope of tribal authority, the Settlement Act did not overcome the presumption against tribal jurisdiction over nonmembers.

  The Ninth Circuit also concluded that the Hoopa Valley Tribe's assertion of jurisdiction over Bugenig's land use could not be upheld under the second Montana exception. Under the main rule in Montana, "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." But tribes may exercise civil jurisdiction over nonmembers 1) who enter consensual relationships with the tribe or its members, or 2) when the nonmember activity "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." The Ninth Circuit underscored that the second exception "is narrowly construed."

  The Ninth Circuit distinguished the Hoopa Valley Tribe's case from Montana v. Envtl. Prot. Agency, 137 F.3d 1135 (9th Cir. 1998) (upholding a facial challenge to EPA regulations qualifying Indian tribes to be treated as states for purposes of setting water quality standards under the Clean Water Act).

• Arizona Public Service Co. v. EPA, .No. 98-1196, Ruling: Agency did not err in finding delegated authority to Native American nations to regulate all land within reservations, including fee land owned by nonmembers. .2000 the Clean Air Act grants states primary responsibility for assuring that air quality meets national standards. See 42 U.S.C. § 7407(a) (1994). States meet this burden by submit ting state implementation plans ("SIPs") that "provide[ ] for implementation, maintenance, and enforcement" of these standards. Id. § 7410(a)(1) (1994). SIPs must be approved by the Agency before they may be federally enforced. In 1990, § 7410 was amended to authorize Native American nations to submit tribal implementation plans ("TIPs") "applicable to all areas ... located within the exterior boundaries of the reservation." Id. § 7410. 1990 Amendments added language to the Act granting EPA the "author[ity] to treat Indian tribes as States under this chapter," id. § 7601(d)(1)(A) (1994), provid- ed tribes meet the following requirements: (A) the Indian tribe has a governing body carrying out substantial governmental duties and powers; (B) the functions to be exercised by the Indian tribe pertain to the management and protection of air re- sources within the exterior boundaries of the reservation or other areas within the tribe's jurisdiction; and (C) the Indian tribe is reasonably expected to be capa- ble, in the judgment of the Administrator, of carrying out the functions to be exercised in a manner consistent with the terms and purposes of this chapter and all applicable regulations.

• In Re: The general Adjudication of all rights to use water in the Big Horn System and all other Sources, State of Wyoming Case Number: 00-296 Decided: 06/14/2002 (transfer of reserved rights to non-Indians)

• Kandra v. U.S.  145 F.Supp.2d 1192 (2001)

• Atkinson Trading Co., Inc. v. Shirley, 121 S. Ct. 1825 (2001). Right of tribes to impose TOT. Tribal jurisdiction is limited: For powers not expressly conferred them by federal statute or treaty, Indian tribes must rely upon their retained or inherent sovereignty. In Montana, the most exhaustively reasoned of our modern cases addressing this latter authority, we observed that Indian tribe power over nonmembers on non-Indian fee land is sharply circumscribed.

• Klamath Irrigation District  v. U.S. 2/28/05

• US v. Lowry (CA9) An occupant claiming individual aboriginal title bears the burden of demonstrating such title as an affirmative defense.

• PLAINS COMMERCE BANK, PETITIONER v. LONG FAMILY LAND AND CATTLE COMPANY, INC., et al. June 2008 Tribal  jurisdiction over nonmembers on fee land.  Once tribal land is converted into fee simple, the tribe loses plenary jurisdiction over it. When the tribe or tribal members convey a parcel of fee land “to non-Indians, [the tribe] loses any former right of absolute and exclusive use and occupation of the conveyed lands.” South Dakota v. Bourland, 508 U. S. 679, 689 (1993) (emphasis added). This necessarily entails the “the loss of regulatory jurisdiction over the use of the land by others.” Ibid. As a general rule, then, “the tribe has no authority itself, by way of tribal ordinance or actions in the tribal courts, to regulate the use of fee land.” Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 430 (1989) (opinion of White, J.).... "Montana Exceptions" 450 U. S., at 565. First, “[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.” Ibid. Second, a tribe may exercise “civil authority over the conduct of non-Indians on fee lands within the 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.” Id., at 566. ...Efforts by a tribe to regulate nonmembers, especially on non-Indian fee land, are “presumptively invalid,” Atkinson, supra, at 659. The burden rests on the tribe to establish one of the exceptions to Montana’s general rule that would allow an extension of tribal authority to regulate nonmembers on non-Indian fee land. Atkinson, 532 U. S., at 654. These exceptions are “limited” ones, id., at 647......By virtue of their incorporation into the United States, the tribe’s sovereign interests are now confined to managing tribal land, see Worcester, 6 Pet., at 561 (persons are allowed to enter Indian land only “with the assent of the [tribal members] themselves”), “protect[ing] tribal self-government,” and “control[ling] internal relations,” see Montana, supra, at 564. The logic of Montana is that certain activities on non-Indian fee land (say, a business enterprise employing tribal members) or certain uses (say, commercial development) may intrude on the internal relations of the tribe or threaten tribal self-rule. To the extent they do, such activities or land uses may be regulated. See Hicks, supra, at 361 (“Tribal assertion of regulatory authority over nonmembers must be connected to that right of the Indians to make their own laws and be governed by them”). Put another way, certain forms of nonmember behavior, even on non-Indian fee land, may sufficiently affect the tribe as to justify tribal oversight. While tribes generally have no interest in regulating the conduct of nonmembers, then, they may regulate nonmember behavior that implicates tribal governance and internal relations....

  
  

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American Indian Virtual Law Library

Library of Congress Native Americans

Environmental Enforcement on Tribal Lands - Congressional Authority and Major Case Law by Thomas Schlosser, August 2001

Reserved Water Rights Settlement Manual by Peter Sly