INDIAN LAW

1. INDIAN LAW Indian tribes are “distinct, independent political communities, retaining their original natural rights” in matters of local self-government. They are “separate people” with the power to make their own substantive law in internal matters.

2. Montana’s 7 Indian Reservations • Crow • Northern Cheyenne • Fort Peck • Fort Belknap • Rocky Boy • Blackfeet • Flathead • NOTE: the State of Montana has no authority over the 7 Indian Reservations located within its boundaries. Indian lands are under the “absolute jurisdiction and control of the Congress of the United States.” • In 2012, Native Americans comprised approximately 6.4% of Montana’s estimated population of 1,005,141.

3. Montana Indian Reservations Montana’s Urban Indians: over 63% of Native Americans live off the reservations in either small rural communities or large urban areas. Indian population in Montana was 57,225 in 1999. Largest urban populations of Indians are found in Big Horn, Blaine, Cascade, Hill, Missoula, Roosevelt and Yellowstone counties.

4. Indians are citizens of the states in which they reside • Non Indians have the same constitutional right to bring actions in Montana courts as non-Indians. • Congressional Authority over Indian Tribes is absolute. “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian Tribes.” Article I, Section 8 of the Constitution. • Montana lacks jurisdiction and has not authority over the seven Indian reservations located here. • Montana cannot tax Indian tribes – income earned from Indian trust land is exempt from state taxes. • Tribal lands and land allotted to individual Indians to which U.S. holds legal title is exempt from state real estate taxes.

5. Practice of Law on the Reservation • Governed by the tribe • Admission before a tribal court is within the tribe’s jurisdiction • Some tribes administer their own bar exam, and require a lawyer to pass the exam before practicing on the reservation.

6. A Tribe is a Sovereign and Possesses Inherent Related Sovereign Powers: • The power to make rules governing itself and internal relations, i.e., tribal constitution, code, regulations. • The power to create and administer its own government • The 14th Amendment to the U.S. Constitution does not apply to tribes. • Tribal Employment Right Ordinances (TERO) often require those doing business on a reservation grant preferential employment opportunities to tribal members. • A tribe is IMMUNE TO SUIT FOR DAMAGES in any court unless the tribe has expressly waived immunity or Congress expressly abrogated the immunity. • To waive immunity, the tribe’s waiver must be “clear.” • Tribe may contract away immunity via a construction contract, for example. • Note that tribal immunity is not confined to noncommercial activities.

7. Tribal Jurisdiction Over Non-Members • Tribes generally lack civil jurisdiction over non-members unless the authority is expressly granted by Congress. • Two Montana exceptions: • Consensual relationship exception: a tribe may exercise civil jurisdiction over nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases or other arrangements.” • Conduct that threatens the tribe exception: a tribe may exercise civil jurisdiction over a nonmember when the nonmember’s conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. • When a nonmember challenges the jurisdiction of the trial court, he must ordinarily exhaust his remedies in tribal court before seeking relief elsewhere unless it is “clear” the tribal court lacks jurisdiction.

8. Indian Child Welfare Act of 1978 • Governs jurisdiction over removal of Indian children from their families. • Tribe has exclusive jurisdiction over adoption proceedings when child resides or is domiciled on the reservation or when the child is a ward of the tribe. • Provides concurrent but presumptive tribal jurisdiction over non-reservation Native Americans’ foster care placement proceedings.

9. Criminal Jurisdiction in Indian Country • Divided among federal, tribal and state governments • Which government has jurisdiction depends on: • Location of the crime • Type of crime • Race of the perpetrator or offender • Race of the Victim • Indian country is defined as all land within the limits of any Indian reservation under the jurisdiction of the United States, all dependent Indian communities within the borders of the U.S., and all Indian allotments, the Indian titles to which have not been extinguished.

10. FEDERAL CRIMINAL JURISDICTION • Tribal courts do not have inherent criminal jurisdiction to try and punish non-Indians, and may not assume such jurisdiction unless expressly authorized by Congress. • Congress did grant Tribes authority to prosecute nonmembers for domestic abuse offenses in 2013 (no authority until March 7, 2015) • Non-major crimes committed by Indians against non-Indians are subject to tribal jurisdiction, but this is shared with the federal government. • Generally, tribal jurisdiction is confined to crimes committed within the geographic limits of its reservations and any dependent Indian communities. • Tribal court criminal penalties are limited by the Indian Civil Rights Act, which states that tribal courts cannot impose any penalty or punishment greater than one year in prison or$5,000 fine or both. • Federal courts had jurisdiction over interracial crimes committed in Indian Country pursuant to the General Crimes Act, 18 USC §1152. Exceptions: offenses committed by one Indian against another Indian, offenses committed in Indian country by an Indian who has already been punished by tribal law, offenses in any case, where by treaty, exclusive jurisdiction over such offense lies with the tribe. • Indian Major Crimes Act provides for federal criminal jurisdiction for seven major crimes when committed by Indians against Indians or non-Indians in Indian country (over time this has increased to 16 offenses). Crimes include, but are not limited to, murder, manslaughter, kidnapping, incest, felony assault, assault against an individual not yet 16, felony child abuse or neglect. Persons shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

11. State Criminal Jurisdiction • States generally do not have jurisdiction over crimes occurring in Indian Country UNLESS wholly non-Indian crime or non-Indian offender. • In 1953, Congress authorized states to exercise jurisdiction over offenses by or against Indians under Public Law 280 (very controversial – has been called “extermination legislation”). • Montana is an ‘optional state.’ Six states were required to adopt jurisdiction changes on all of its reservations. • It assumed PL 280 jurisdiction only as to Salish and Kootenai tribes. Thus, Montana assumed criminal and civil jurisdiction on the reservation. The Confederated Salish and Kootenai were the only tribe to agree to PL 280. • In 1993, the Confederated Salish and Kootenai partially withdrew their consent, giving the tribes sole control over misdemeanor charges against tribal members. The state still prosecutes misdemeanors against non-tribal members and all felonies, regardless of who is involved. • Since that time, both tribal and state agency officials agree that the law has made prosecutions more efficient because the tribes need not rely on FBI agents – so they can interview witnesses promptly and keep evidence untainted. • Montana’s other 6 tribal governments have never been subject to PL 280.

12. The “Jurisdictional Maze” • Always consider: • Where did the crime occur? • Are the perpetrators Indian or non-Indian? • Are the victims Indian or non-Indian? • What specific crimes are alleged?