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Marilyn K. Nicely
Technical Services and American Indian Law Subject Specialist
University of Oklahoma Law Library

April, 2003

Annotated Bibliography of Federal and Tribal Law :
 Print and Internet Sources

 

Federal Indian Law

The field of federal Indian Law regulates the legal relationships between Indian tribes and the United States. It is incredibly complex and has significance for everyone. The field of Indian Law involves issues of real property, international law, administrative law, constitutional law, water law, federal jurisdiction, procedure, contracts, criminal law, etc.

Sovereign Status

Indian Tribes were recognized by "Discovering Europeans " as Sovereigns i.e. governments. Therefore they entered into treaties with the Indians. The purpose of the treaties was to make alliances with tribes for peaceful relations originally and later as a means of securing tribal lands in exchange for various promises of "protection. "

Treaties were the earliest attempt to establish a relationship between tribes and the United States. Treaties began the trust relationship which continues today between the United States and tribes. Sovereignty is a political concept.  It means the right to govern.

 

Treaties

Indians often made treaties without really understanding the European concepts of property.  The Europeans frequently negotiated treaties with persons who were not leaders in the tribe. Indian treaties are essentially laws.  The treaties were negotiated by the President (Executive Branch) and ratified by the Senate.  Treaty rights in effect today include beneficial ownership of Indian lands, hunting and fishing rights, and the rights to certain federal services such as education or health care.  Other rights may also exist based on statutory and executive orders.  Congress has the power to abrogate treaty provisions. Treaties are an important aspect of the trust relationship that exists between the Indians and the Federal Government.


Print Sources of Treaties

Charles J. Kappler, 2 Indian Affairs Laws and Treaties. Washington D.C. : U.S.Govemment Printing Office, 1904

Vine Deloria, Documents of American Indian Diplomacy: Treaties, Agreements
and Conventions, 1775-1979.
Norman : University of Oklahoma Press, 1999

United States Statutes at Large Volume 7 (1846)  Washington D.C. : United States Government Printing Office
 (Volume 7 is entirely treaties)

 

Internet Sources of Treaties

WESTLAW by subscription

LEXIS by subscription

Westlaw and Lexis are fee-based legal databases.  They include many of the same documents and publications,  however they do have distinctive coverage in many areas as well.  While both use Windows operating system there are some variations in interfaces.

   
Charles J. Kappler, Indian Affairs: Laws and Treaties, vol.2, Washington D.C. : United States Government Printing Office,1904.
http://digital.library.okstate.edu/kappler/

LEXIS: Native American People Treaties Ratified and Unratified (1787-l 883)
File name: EXEC NAPTRY or GENFED NAPTRY

European Doctrine of Discovery and  American Indian Rights

When the Europeans came to this continent they found people with an advanced civilization already inhabiting it. Because of the great numbers of Indians, in the beginning the Europeans had no hope of outright conquest. The Europeans brought a theory called "Discovery" based on the centuries-old European legal heritage. The discovering potentates believed they took title to the land by the act of "discovery" and in return brought Christianity and civilization. This theory was applied by Great Britain and was continued by the new federal government. The treaties with Indians recognized the tribes as sovereign entities. That is, Indians had the power to regulate their internal affairs.

The earliest concepts of Federal Indian Law were established by the "Marshall Trilogy. "

Foundational Supreme Court Cases - The Marshall Trilogy

        Johnson v. M'Intosh 21 U.S. 543 (1823)

"Indian inhabitants are to be considered merely as occupants, to be protected, indeed while in peace, in the possession of heir lands, but to be deemed incapable of transferring absolute titles to others".

Cherokee Nation v. Georgia 30 U.S. l (1831)

 
        Establishes Indians as wards and the United States government as a guardian.

Worcester v. Georgia 3 1 U.S. 5 15 (1832)

        Recognizes principles of tribal sovereignty.

There have been many court cases interpreting federal Indian law. A good source for rounding up the most signtficant cases is:

           
National Indian Law Library Landmark Indian Law Cases. Buffalo, NY : Hein Publishing, 2002

Over the years the Supreme Court has more and more entered the arena of interpreting the law and making new law, even though Congress is supposed to be the main source of federal Indian law.

Cases

Print Sources

U.S. Reports, Washington, DC :U.S. Government Printing Office.

Supreme Court Reporter St. Paul, MN : West Group

Supreme Court Reports, Lawyers edition  Charlottesville, VA :Lexis Law Publishing

U.S. Law Week Washington, DC :Bureau of National Affairs

Federal Reporter,  St. Paul, MN : West Group

Federal Supplement St. Paul, MN : West Group

Decisions, Reports Dockets and other Documents of the Indian Claims Commission (Clearwater, 1979 microfiche)

This Commission was in existence from 1946-1978. It was established to
permit certain types of suits against the U.S. Government for mistakes, fraud,
failure to pay agreed upon compensation, claims based on fair and honorable
dealings that are not recognized by any existing rule of law or equity. (Primary
function was adjudication)

Digests

(Indexes to Court Decisions) Digests are arranged by topic and also have case name tables.

Federal Digest St. Paul, MN : West Group

Modern Federal Practice Digest, St. Paul, MN : West Group

Federal Practice Digest, St. Paul, MN : West Group

Supreme Court Digest, St. Paul, MN : West Group

Internet Sources of Cases


Cornell Legal Information Institute. Indian Law an Overview
http://topics.law.cornell.edu/wex/American_Indian_law (comprehensive site for various kinds of Indian Law)

Legal Information Institute. Supreme Court Collection
http://supct.law.cornell.edu/supctlindex.php

WESTLAW (File names below:)

    Cases 1789-                                FNAM-CS
    Supreme Court 1790-                  FNAM-SCT
    Courts of Appeals  1891-             FNAM-CTA
    District Courts 1789-                    FNAM-DCT
    Oklahoma Tribal Court Reports    OKTRIB-CS 

Constitutional Sources of Federal Indian Law

U.S. Const. art. I, sec. 8, cl.3 "The Congress shall have power... to regulate Commerce with foreign Nations, and among the several States and with the Indian Tribes."

From this language, Congress exercises plenary power over the Indian tribes. Plenary = full, complete, entire, unqualified, absolute power. This Article also puts Indian tribes on a par with the states.

Congress

Major acts of Congress include  the Indian Civil Rights Act imposing on tribes such basic requirements as the protection of free speech, free exercise of religion, due process, and equal protection of the laws (1968); the Indian Self Determination and Education Assistance Act, expanding tribal control over reservation programs and authorizing federal funds to build public school facilities on or near Indian reservations (1975); the Indian Health Care improvement Act clarifying trust responsibilities of the Indian Health Service (1976), The American Indian Religious Freedom Act in which Congress recognizes its obligation to "protect and preserve for American Indians their inherent right of freedom to believe, express and exercise traditional religions (1978); Indian Child Welfare Act, establishing U.S. policy to promote the stability and security of Indian tribes and families by giving tribal courts jurisdiction over children living on reservations (1978);  the Native American Graves and Repatriation Act requiring return to Native American claimants of human bones and artifacts recovered from government-sponsored archaeological excavations on public lands (1990).

Print Sources

House and Senate Documents and Reports on microfiche (also available in paper at some libraries)

House and Senate Bills on microfiche

Congressional Information Service Index and Abstracts, including microfiche of indexed documents

Statutes at Large Public Laws of the United States Congress

U.S. Code Title 25

U.S. Code Title 18 secs. 1152-1153, sec 3242 and other criminal statutes

 c:\capture2\html\bib2.htmlCongressional Record

 
Current issues in paper, older materials in microfiche or bound volume in some libraries.

Internet Sources of Congressional Resources

FedLaw: Native Americans http://www.thecre.com/fedlaw/legal22x.htm

Thomas-Legislative Information on the Internet http://thomas.loc.gov/

Senate Committee on Indian Affairs http://indian.senate.gov/

Executive Orders

The Constitution grants to the President and to Congress what have been construed as broad powers over Indian affairs.

Print Sources of Executive Orders

Code of Federal Regulations Title 3 Washington D.C.: U.S. Government Printing Office.

Libraries that retain all revisions of CFR title 3 have a valuable historic resource

Internet Sources of Executive Orders

NARA (National Archives and Records Administration) Federal Register
http://www.archives.gov/federal-register/cfr/index.html

Searchable data base of Executive Orders.

LEXIS:
    Code of Federal Regulations Title 25 File name: EXEC NAPE0 or GENFED

     Executive Orders Pertaining to Native American People 1854-Nov.2000
File name: EXEC NAPE0 or   GENFED or NAPE0

WESTLAW:

Code of Federal Regulations Title 25 File Name: FNAM-CFR

Federal Register File Name: FNAM-FR

 Federal Native American Law-Executive Documents File Name: FNAM-EXEC includes:

    Executive Orders
    Presidential Memoranda
    Presidential Proclamations

Periods of U.S. Policy toward Indians

Sovereignty (1608-l 830)

Tribes dealt with as nations

Removal (1830-l850)

Competition with non-Indians for land led to removal to Indian Territory i.e. Oklahoma. Removal was forced. For example Cherokee removal from Georgia was became known as the "Trail of Tears."

Treaties (1778-1871/Reservations 1850-1887)

In 1871 Congress passed a statute providing that no tribe should thereafter be recognized as an independent nation with the United States and could not make treaties. Existing treaties were not affected. Reservations established after 1871 were not affected. Reservations established after 1871 were accordingly created either by statute,or until 1919 by executive order. Reservations were originally intended to keep distance and peace between Indians and non-Indians, but they came to be viewed also as instruments for "civilizing" native peoples.

Allotments and Assimilation (1871-1928)

The goal was in theory to civilize the Indians by dividing the reservations into 160 acre parcels for heads of households and 80 acres for others (or double if land suitable for grazing) so they would become yeoman farmers. Excess lands were sold to non-Indians.

Indian Reorganization (1928-1945)

Allotment policy decimated tribes and reduced tribal land holdings from 138 million acres to 48 million acres. The Indian Reorganization Act of 1934 was intended to re-establish tribes as governments. A key issue was the creation of tribal charters and constitutions.

Termination (1945-1961)

Intent was to assimilate Indians by making them subject to the same laws as applicable to all United States citizens and by ending their special relationship with the federal government and subject to state laws. Over 100 tribes were terminated.

Self-Determination (1961 -present)

Termination was deemed a failure. President Nixon stressed the continuing importance of the trust relationship between the federal government and the tribes and urged a program of legislation to permit the tribes to manage their affairs with a maximum degree of autonomy.

Treatises, Casebooks and Law Reviews

Print Sources

William C. Canby, American Indian Law in a Nutshell, 5th ed. St. Paul, MN :West Thomson Reuters, 2009

Robert Clinton, American Indian Law Cases and Materials,  Michie, 1991


Felix S. Cohen, Handbook of Federal Indian Law , Washington, D.C. U.S. Government Printing Office, 1941.

Felix S. Cohen's Handbook of Federal Indian Law, Michie, 1982
This edition was written by a board of authors and editors headed by Rennard Strickland to update Indian law issues after 1941

Felix S. Cohen, Handbook of Federal Indian Law with Reference Tables and Index, Buffalo NY : Hein Publishing, 1941 reprint 1992 (Available for purchase)

David H. Getches, Federal Indian Law, 4th ed_St Paul MN : Westgroup, 1993

American Indian Law Review  Norman : University of Oklahoma College of Law 1974-

Internet Sources of Treatises and Law Reviews

LEXIS  American Indian Law Review  File Name: ENERGY AMILR or LAWREV AMILR or OKLA AMILR

WESTLAW American Indian Law Review  File Name: AMINDLR

LEXIS Cohen's Handbook of Federal Indian Law, Michie, 1982 ed. File Name: 2NDARY COHEN or GENFED COHEN

Felix S. Cohen, Handbook of Federal Indian Law Washington D.C. : United States Government Printing Office, 1941
Native American Constitution and Law Digitization Project
http://thorpe.ou.edu  PDF file

Joseph Rarick, Cases and Materials on Problems in Lands Allotted to American Indians. Norman : University of Oklahoma College of Law, 1982
Native American Constitution and Law Digitization Project 
http://thorpe.ou.edu 

Joseph Rarick, A Guide to Rarick's Oklahoma Indian Land Titles,  Norman : University of Oklahoma College of Law, 1988. Native American Constitution and Law Digitization Project http://thorpe.ou.edu

Administrative Law

The following federal agencies may publish brochures and other literature aimed at NativeAmericans

Bureau of Indian Affairs

The BIA was created as part of the War Department in I824 and transferred to the Department of Interior when the latter was established in I849. Its purpose is to assist Indians and Alaska Native People to manage their affairs under the trust relationship with the Federal Government; to assist in the full development of human and natural resources potential; to mobilize public and private aids to the advancement of Indian and Native Alaskan people; to promote self-determination, etc.

Bureau of Land Management

The BLM was established in 1946 manages public lands. It also manages oil and gas drilling, production and plugging on Indian land.

Internal Revenue Office of Indian Tribal Governments

Provides a single point of contact for assistance and service to Indians related to federal tax matters.

Minerals Management Service

Responsible for collecting, accounting and for distributing mineral revenues from Federal and Indian Lands.

 National Park Service

Works with various Native American tribes providing continual coordination and assistance.

Office of Hearings and Appeals, Social Security Administration

Administers Appeals for Claims for Social Security Benefits with outreach to Native Americans.

Social Security Administration

Outreach to Native Americans and other minorities

U.S. Army Corps of Engineers

Provides services in support of Indian tribes for the Native American Graves and Repatriation Act

U.S. Department of Agriculture, National Agricultural Statistics Service

Census publication includes such things as a count of the number of American Indian farm operators, land in farms, and value of sales of agricultural products from these farms.

U.S. Department of Housing and Urban Development

Provides housing assistance and economic opportunities for Native Americans with various types of assistance and economic development.

U.S. Small Business Administration

Outreach to Native Americans and other minorities.

Print Sources

Code of Federal Regulations Title 25 Indians (The CFR volumes are recompiled with current rules as scheduled)

Regulations of the Bureau of Indian Affairs, Department of the Interior; Indian Arts and Crafts Board, Department of the Interior; National Indian Gaming Commission, Department of the Interior; Office of Navajo and Hopi Indian Relocation; Bureau of Indian Affairs, Department of Interior, and Indian Health Service, Department of Health and Human Services; Office of the Assistant Secretary, Indian Affairs, Department of the Interior; Office of the Special Trustee for American Indians, Department of the Interior.

Decisions of the Interior Board of Indian Appeals, (The Board, Vol. l 1970-)

Deals primarily with disputes involving the Bureau of Indian Affairs and probate cases.

Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs, 1917-1974. Washington, D.C. : United States Government Printing Office: 1979

Internet Sources of Administrative Law

WESTLAW: Interior Board of Indian Appeals Decisions File Name: FNAM-IBIA

Solicitor's Opinions 1917- 1974 (not yet complete--over 2000 pages available) Native American Constitution and Law Digitization Project http://thorpe.ou.edu

LEXIS: Native American Solicitor's 1917-l 974 Opinions File Name : ADMIN DOINA or ENVIRN DOINA or GENFED DOINA

WESTLAW: Solicitor General Opinions 1917- 1974 FNAM-EXEC

Tribal Law

Tribal Law is intertwined with federal Indian law. State law also impacts tribes primarily in the subject area of economic development through compacts negotiated between the tribes and the governor. These compacts are essentially treaties but can`t be called that. Although the self-governmental process may be fairly independent, many structures and limitations on sovereignty are imposed by the federal government on today tribes. Major reasons are the trust responsibility that derives from treaties and from court decisions and Congress's  plenary power.

Trust responsibility is administered by the Interior Department and the Bureau of Indian Affairs. A major case currently being adjudicated is Cobell v. Norton. A website devoted exclusively to tracking the progress of the case alleging that the Secretary of Interior has been and continues to be an unfit trustee delegate for the United States. See web site.
http://www.cobellsettlement.com   Cobell v. Salazar Settlement Agreement

Historically many tribes governed themselves by consensus and were willing to take the time required to achieve consensus. Laws were passed on orally with reasons for the law explained through history and/or legend. Traditional ways ultimately were not viable in the hostile-to-Indians environment created by the non-Indian society. The Indian Reorganization Act of 1934 imposed a solution which was to require the tribes to establish tribal Constitutions in order to achieve federal recognition. Federal recognition was to be the new basis for the government to the government relationship with tribes. There are more than 500 tribes in the 48 state area. (In Alaska each tribal village is considered a tribe).

Tribal Constitutions and Codes

Print Sources of Tribal Constitutions and Codes

Cherokee Code (Equity, 1986)

Cherokee Code Annotated (West Publishing Co.,1993)

Act of Union between Eastern and Western Cherokees
1839 Constitution

1975 Constitution
Titles l-23 of 1992 Code

Jicarilla Apache Tribal Code, (Equity , 1987)

Navajo Tribal Code (Equity, 1962)

Navajo Tribal Code (Executive Secretary for the Navajo Tribe, 1969)

Navajo Tribal Code (Equity, 1978)

Navajo Nation Code (Office of the Legislative Counsel, 1995)

Constitution of the State of Sequoyah,( Muskogee, I.T.:Phoenix, 1905)

 

Internet Sources of Codes and Constitutions

Indian Reorganization Act era constitutions

Native American Constitution and Law Digitization Project  http://thorpe.ou.edu

Iroquois Constitution http://www.indigenouspeople.net/iroqcon.htm

    This Constitution served as a model for the Constitution of the United States.

Latter-day Constitutions

National Indian Law Library http://www.narf.org/nill/

Native American Constitution and Law Digitization Project http://thorpe.ou.edu

Tribal Courts

Indian Law Reporter (American Indian Lawyer Training Program, 1974-)

Navajo Reporter (Judicial Branch of the Navajo Nation 1969-1983)

Oklahoma Tribal Court Reports v. l- 1994-(Native American Legal Resource Center,Oklahoma City University,

Internet Sources of Tribal Court Decisions

National Tribal Justice Resource Center (National American Indian Court Judges Association) http://www.tribalresourcecenter.org/

Tribal Court Clearinghouse
http://www.tribal-institute.org/lists/decision.htm

Treatises and Periodicals

Print Sources of Tribal Law

O'Brien, Sharon, American Indian Tribal Governments. Norman : University of Oklahoma Press, 1989

Llewellyn, Karl N. The Cheyenne Way : Conflict and Case Law in Primitive Jurisprudence. Norman: University of Oklahoma Press, 1973, c 194 1)

American Indian Law Review. Norman : University of Oklahoma College of  Law, 1974-)

Internet Sources of Tribal Law

Jaeger, Lisa. Tribal Court Development : Alaska Tribes. Ankorage: Tanana Chiefs Conference, 2002
Native American Constitutions and Law Digitization Project 
http://thorpe.ou.edu

Tribal Law Journal (e-journal) Albuquerque :University of New Mexico, School of Law v. 1- 2000-)
http://tlj.unm.edu/ 

Native American Constitutions and Law Digitization Project http://thorpe.ou.edu 

National Indian Law Library http://www.narf.org/nill/