American Indian law: an overview
In U.S. law the term "Indians" refers generally to the indigenous peoples of the continent at the time of European colonization. "Alaska Natives" and "Native Hawaiians" refer to peoples indigenous to the areas occupied by those named states. The terms "tribe" or "band" designate a group of Indians of the same or similar heritage united in a community under one leadership or government and inhabiting a particular territory. Because Indians have increasingly preferred "nation" or "people," the term "tribe" has become controversial. The terms used may vary from statute to statute and case to case as well.
States may recognize particular Indian groups, even if the federal government does not recognize the group. To determine whether a group will be recognized, courts and legislatures examine such factors as the extent of Indian governmental control over individual lives and activities, the extent to which the group exercises political control over specific territory, and the continuity of the group's history.
Federal law recognizes a special kind of Indian sovereign authority to govern themselves, subject to an overriding federal authority. Indian tribes are considered by federal law to be "domestic, dependent nations." Congress enacted this sovereign authority to protect Indian groups from state authority. This sovereign authority extends to Indian tribal courts, which adjudicate matters relating to Indian affairs. The U.S. Supreme Court heard a case in in 2008 concerning the extent of tribal courts' jurisdiction. In Plains Commerce Bank v. Long Family Cattle Co. (07-411), the U.S. Supreme Court reaffirmed a long-held principle that tribes do not have jurisdiction over non-Indians conducting activity on a non-Indian fee simple, even if on an Indian reservation, unless the activity threatens the welfare of the tribe.
There are numerous federal statutes dealing with Indian rights and governance, such as the Indian Reorganization Act, and the Indian Civil Rights Act (also known as the Indian Bill of Rights). 28 U.S.C. § 1360 deals with state civil jurisdiction in actions in which Native Americans are parties.
menu of sources
- Article I
- Fourteenth Amendment
- CRS Annotated Constitution:
- See also: Seltzer, "Excluding Indians Not Taxed: Federal Census and Native Americans in the 19th Century" (pdf)
- U.S. Code:
- Title 25 C.F.R. - Indians
- U.S. Supreme Court:
- Recent U.S. Court of Appeals Indian Law Decisions
State Judicial Decisions
- N.Y. Court of Appeals:
- Appellate Decisions from Other States
Conventions and Treaties
Key Internet Sources
- Federal Agencies:
- The University of Oklahoma Law Center - American Indian Legal Resources
- Fourth World Documentation Project
- International Indian Treaty Council
- National Tribal Justice Resource Center
- Native Americans
- Tribal Court Clearinghouse
- Native Americans and the Environment
Useful Offnet (or Subscription - $) Sources
- Good Starting Point in Print: Canby's American Indian Law in a Nutshell, West Group (2004).