What is Indian Law?
By Jedd Parr, CILS Sacramento office Directing Attorney
Indian law is rooted in two main concepts – first, that Indian tribes are sovereign entities with powers which predate the U.S. Constitution, including the inherent power to make their own laws and be governed by them, and second, that there is a political relationship between the federal government and Indian tribes which generally removes tribes from state jurisdiction.
The first concept seems obvious, as tribes have occupied North America since time immemorial. The second draws largely from the Constitution’s Indian Commerce Clause, giving Congress the sole power to regulate commerce with Indian tribes. As is true in other practice areas, case law has been the most significant factor in defining exactly how Indian law is built on these bedrock concepts. Beginning with a series of Supreme Court decisions in 1823-1832, commonly referred to as the “Marshall Trilogy” since they were principally authored by then Chief Justice John Marshall, case law has laid the foundations of Indian law – one key principle being that while Indian tribes retain certain aspects of their original sovereignty, Congress can abrogate that sovereignty unilaterally.
There are competing views of whether a federal law may be imposed upon tribes only when Congress expresses an intent to do so explicitly, or whether Congress, without saying so, implied that the law would apply to tribes. For many years, the first view was widely accepted – that an intrusion upon the right of tribes to be governed by their own laws must be plainly set forth in the federal law itself, or in the legislative history of the law’s passage. But in 1985, the Ninth Circuit Court of Appeals held that a federal law which was silent on whether it was intended to apply to tribes would apply by default unless one of three exceptions was present: 1) if it interfered with “exclusive rights of self-governance in purely intramural matters;” 2) if it would abrogate rights guaranteed by treaties, or 3) if it could be shown (by legislative history or otherwise) that Congress did not intend the law to apply to tribes. This position has been widely criticized by scholars of Supreme Court jurisprudence but has been adopted by several federal appellate circuits, while others remain of the view that a tribe’s sovereignty may only be undermined explicitly.
Direct and tribal-specific actions of Congress have also affected tribal sovereignty, though unintended consequences have sometimes been the result. For example, in California, the passage of Public Law 280 in 1953 by Congress had a tremendous effect. Under Public Law 280, the transfer of federal criminal jurisdiction on Indian lands to the state, and the provision for limited state civil jurisdiction on those lands, inadvertently created a new state-tribal concurrent jurisdictional maze, the parameters of which are still being litigated today.
Thus, Indian law today is highly varied and complex. An Indian law case can be a question of purely tribal law, or the interplay of tribal and state law, or of tribal and federal law, or even all three simultaneously. It can involve the rights of individuals, or of tribes, or of one or both of those in relation to the state or to each other. It can pertain to activities both on and off Indian reservations. This mosaic is laid over a number of practice areas – real property, taxation, child welfare, environmental and cultural resource protection, an inheritance of estates, public safety, religious practices, public benefits, contracts, and torts, just to name a few. At CILS, we are proud to work in this field and to assist wherever we can to protect and advance Indian rights, foster Indian self-determination, and facilitate tribal nation-building.