Indian and Indigenous Peoples Law Overview

Indian and Indigenous Peoples Law Resources

Native Americans, also called American Indians or Indians, are the indigenous peoples who, before colonization, first inhabited the territory now encompassed by the United States. Today, their descendants make up many distinct tribes or nations, many of which still exist as political communities. Some of these communities are officially recognized by the federal government or the government of the state in which they live and have been granted specific economic, political, social, and cultural rights. State, federal, and tribal laws govern these communities, called nations or peoples by their members.

Indian or Indigenous Peoples law in the United States encompasses a wide variety of issues. The main issues concern control over land and tribal sovereignty, or Native Americans' right to self-determination. Other statutes address the protection of tribal natural resources, sacred sites, cultural property, religious freedom, cultural history and practices, civil and economic rights.

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Land

Westward expansion of the United States in the 19th century gradually forced large numbers of Native Americans to move further west. The federal Indian Removal Act of 1830 authorized the President to conduct treaties to exchange Native American land east of the Mississippi River for lands west of the river. Tremendous pressure was put on Native American leaders to agree to these treaties, and although many Indians moved west, they made long, hard journeys under duress. Native Americans lost their land, homes, and many members of their tribes along the way. An estimated 4,000 Cherokee Indians died from disease on what became known as the Trail of Tears, when 17,000 Cherokees were forced westward by federal troops enforcing the Treaty of New Echota.

Conflicts broke out between Indian nations and U.S. troops as a result of the Indian removal policy, and on January 31, 1876, the United States government ordered all remaining Native Americans to move into reservations or reserves. Later, the General Allotment Act of 1887, called the Dawes Act, authorized the division of Indian tribal land into allotments for each Native American, replacing the tribal system of common property. The Dawes Act had disastrous effects on Indian tribal identity and culture, and Native Americans lost a lot of land to non-members living in tribal areas.

The Indian Reorganization Act of 1934, also known as the Wheeler-Howard Act, reversed the Dawes Act's privatization of common holdings and a return to tribal self-government. The Act also restored to Native Americans the management of their land and attempted to provide economic benefits for American Indians. Tribes regained over two million acres of land in the first 20 years after passage of the Act, although relocation policies resumed when additional provisions of the Act were implemented and American Indians continued to lose their land.

Native Americans continue to struggle to hold onto and reclaim land now held by the federal and state governments as well as private individuals. There are approximately 300 Indian reservations in the U.S. today, though many Native Americans do not live on a reservation.

Tribal Sovereignty

Over 2.5 million Native Americans reside in the United States. The federal government recognizes 561 tribes, making them eligible for funding and services from the Bureau of Indian Affairs. Indian tribes are considered by federal law to be "domestic, dependent nations." The federal government has a trust responsibility to protect tribal lands, assets, resources and treaty rights. Numerous federal statutes deal with Indian rights and governance, such as the Indian Civil Rights Act of 1968 (also known as the Indian Bill of Rights) and the Indian Self-Determination and Education Assistance Act of 1975.

The U.S. recognizes the right of these tribes to tribal sovereignty and self-government. Federally-recognized tribes have the right to form their own governments and courts, enforce civil and criminal laws, establish membership and tax members, license and regulate activities, and decide their own fates. Limitations on tribal powers of self-government are the same constitutional limits on state sovereignty: Indian Nations do not have the power to make war, engage in foreign relations, or coin money.

An Indian Nation may exist and be recognized by a state without being recognized by the federal government. Courts and legislatures examine such factors as the extent of tribal control over individual lives and activities, the extent of political control exercised over specific territory, and the continuity of the group's history.

Religious Rights

Native American religions have frequently conflicted with federal laws. Some laws, such as those protecting endangered species or national parks, have unintentionally caused problems such as denial of access to sacred sites or bans on possession of animal-derived sacred objects, such as eagle feathers and bones, by Native Americans.

The American Indian Religious Freedom Act of 1978 (AIRFA) marked a shift in U.S. policy toward protecting Native American religious freedom. AIRFA acknowledged that Native American's religious freedom had been restricted, and established a policy of protecting the right of Native Americans to believe and practice their traditional religions. It set forth a new federal policy that laws passed for other purposes were not meant to restrict the rights of Native Americans, who would have rights of access to religious sites, use and possession of sacred objects, and freedom to worship through traditional ceremonies and rites. The 1994 amendment to the Act made it legal for Native Americans to use peyote for traditional religious ceremonial purposes.

Cultural Protections

Congress has also enacted statutes to protect cultural artifacts of American Indians. The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) allows Native Americans to request the return of human remains and other culturally-sensitive items in the possession of federal agencies, museums or institutions. Many religious artifacts and ancestral remains have been returned to tribes, though many remain in museums and institutions.

NAGPRA also governs the intentional excavation and removal of, unintentional discovery of, and illegal trafficking in Native American human remains and cultural artifacts. Federal agencies that manage land must comply with NAGPRA.

American Indians have attempted to use NAGPRA to protect sacred sites with mixed results. Northern California tribes sued the Forest Service in the 1980s to stop a logging road through a sacred forest and won, but the Supreme Court overturned their victory. But some protections have been granted; for example, at Devil's Tower in Wyoming, the park requests rock climbers not climb in June, when the Lakota hold several ceremonies.

Economic Rights

In California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), the U.S. Supreme Court held that federally-recognized Native American tribes, as sovereign political entities, could operate gaming facilities without being subject to state regulation or jurisdiction. Congress then enacted the 1988 Indian Gaming Regulatory Act (IGRA), which governs how Indian Nations can operate casinos and gaming establishments. The IGRA states Congress' goal to "promote economic development, tribal self-sufficiency and strong tribal government" and the Act definitely promoted tribal economic development: Indian gaming revenues increased from $20 million in 1982 to an approximately $19.4 billion in 2004.

State and federal laws also afford special hunting and fishing rights to Native Americans.

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Legislation

Bill Sent To President: H.R.4137 College Opportunity and Affordability Act of 2007
To amend and extend the Higher Education Act of 1965, and for other purposes.

August 31, 2008: Cleared for White House.
(August 29, 2008)
Bill Enacted: H.R.4841 Soboba Band of Luiseno Indians Settlement Act
To approve, ratify, and confirm the settlement agreement entered into to resolve claims by the Soboba Band of Luiseno Indians relating to alleged interferences with the water resources of the Tribe, to authorize and direct the Secretary of the Interior to execute and perform the Settlement Agreement and related waivers, and for other purposes.

July 31, 2008: Became Public Law No: 110-297.
(July 29, 2008)
Bill Introduced: H.R.6733 Midwest Schools Disaster Recovery Act
To provide assistance to local educational agencies in areas of the Midwest adversely affected by storms and severe flooding that occurred in May and June, 2008, and for other purposes.

(July 29, 2008)
Bill Enacted: H.R.3221 Housing and Economic Recovery Act of 2008
A bill to provide needed housing reform and for other purposes.

July 30, 2008: Became Public Law No: 110-289.
(July 28, 2008)
Bill Introduced: H.R.6599 Military Construction and Veterans Affairs Appropriations Act, 2009
Making appropriations for military construction, the Department of Veterans Affairs, and related agencies for the fiscal year ending September 30, 2009, and for other purposes.

(July 22, 2008)

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Regulations

Proposed Rule - Class III Tribal State Gaming Compact Process; Extension of Comment Period
Indian Affairs Bureau
Proposed Rule
Class III Tribal State Gaming Compact Process; Extension of Comment Period,
51255-51256 [E8-20257]
DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 293 RIN 1076-AE99 Class III Tribal State Gaming Compact Process AGENCY: Bureau of Indian Affairs, Interior. ACTION: Extension of comment period for proposed rule. SUMMARY: On July 2, 2008, the Bureau of Indian Affairs (BIA) proposed a rule to establish procedures for Indian tribes and States to submit Tribal-State compacts and compact amendments, governing the conduct of class III gaming activities on the tribe's Indian lands... [read document]
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(September 1, 2008)
Rule - Law and Order on Indian Reservations
Indian Affairs Bureau
Rule
Law and Order on Indian Reservations,
39857-39863 [E8-15599]
Rules and Regulations Federal Register DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 11 RIN 1076-AE67 Law and Order on Indian Reservations AGENCY: Bureau of Indian Affairs, Interior. ACTION: Final rule. SUMMARY: This final rule amends the Bureau of Indian Affairs regulation governing the Courts of Indian Offenses (otherwise known as CFR Courts) and the Law and Order Code. CFR Courts administer justice where Indian tribes retain exclusive jurisdiction over Indians but where... [read document]
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(July 10, 2008)
Proposed Rule - Class III Tribal State Gaming Compact Process
Indian Affairs Bureau
Proposed Rule
Class III Tribal State Gaming Compact Process,
37907-37910 [E8-14951]
DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 293 RIN 1076-AE99 Class III Tribal State Gaming Compact Process AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice of proposed rulemaking. SUMMARY: The Bureau of Indian Affairs (BIA) proposes to establish procedures for Indian tribes and States to submit Tribal-State compacts and compact amendments, governing the conduct of class III gaming activities on the tribe's Indian lands located within that State, for review and... [read document]
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(July 1, 2008)
Rule - Gaming on Trust Lands Acquired After October 17, 1988; Correction
Indian Affairs Bureau
Rule
Gaming on Trust Lands Acquired After October 17, 1988; Correction,
35579-35580 [E8-14211]
DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 292 RIN 1076-AE81 Gaming on Trust Lands Acquired After October 17, 1988; Correction AGENCY: Bureau of Indian Affairs, Interior. ACTION: Final rule; correction and stay of effective date. SUMMARY: This document contains a correction to a final rule that was published May 20, 2008 (73 FR 29354). The regulation relates to gaming on trust lands acquired after October 17, 1988. DATES: The effective date of this correction is June 24,... [read document]
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(June 23, 2008)
Rule - Gaming on Trust Lands Acquired (After October 17, 1988)
Indian Affairs Bureau
Rule
Gaming on Trust Lands Acquired (After October 17, 1988),
29354-29380 [E8-11086]
Part V Department of the Interior Bureau of Indian Affairs 25 CFR Part 292 Gaming on Trust Lands Acquired After October 17, 1988; Final Rule DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Part 292 RIN 1076-AE81 Gaming on Trust Lands Acquired After October 17, 1988 AGENCY: Bureau of Indian Affairs, Interior. ACTION: Final rule. SUMMARY: The Bureau of Indian Affairs (BIA) is publishing regulations implementing section 2719 of the Indian Gaming Regulatory Act (IGRA). IGRA allows Indian... [read document]
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(May 19, 2008)

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Government

Notice - Agency Information Collection Activities; Proposals, Submissions, and Approvals
Indian Affairs Bureau
Notice
Agency Information Collection Activities; Proposals, Submissions, and Approvals,
50835-50837 [E8-19909]
DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs Submission of Information Collection to OMB for Renewal AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice. SUMMARY: In compliance with the Paperwork Reduction Act of 1995, the Bureau of Indian Affairs is submitting the following collection of information to the Office of Management and Budget (OMB) Office of Information and Regulatory Affairs for approval and renewal: Law and Order on Indian Reservations, which concerns marriage and... [read document]
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(August 27, 2008)
Notice - Agency Information Collection Activities; Proposals, Submissions, and Approvals
Indian Health Service
Notice
Agency Information Collection Activities; Proposals, Submissions, and Approvals,
50036-50037 [E8-19479]
DEPARTMENT OF HEALTH AND HUMAN SERVICES Indian Health Service Request for Public Comment: 60-Day Proposed Information Collection: Indian Health Service; HIV Knowledge/Attitudes/Practice Customer Survey AGENCY: Indian Health Service, HHS. ACTION: Notice. SUMMARY: In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 which requires 60 days for public comment on proposed information collection projects, the Indian Health Service (IHS) is publishing for comment a summary... [read document]
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(August 24, 2008)
Notice - Agency Information Collection Activities; Proposals, Submissions, and Approvals
Indian Health Service
Notice
Agency Information Collection Activities; Proposals, Submissions, and Approvals,
50037-50038 [E8-19480]
DEPARTMENT OF HEALTH AND HUMAN SERVICES Indian Health Service Request for Public Comment: 60-Day Proposed Information Collection: Indian Health Service; Health Promotion/Disease Prevention Grantee Survey AGENCY: Indian Health Service, HHS. ACTION: Notice. SUMMARY: In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 which requires 60 days for public comment on proposed information collection projects, the Indian Health Service (IHS) is publishing for comment a summary... [read document]
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(August 24, 2008)
Notice - Privacy Act; Systems of Records
Indian Health Service
Notice
Privacy Act; Systems of Records,
50038-50045 [E8-19481]
DEPARTMENT OF HEALTH AND HUMAN SERVICES Indian Health Service Privacy Act of 1974; Report of Modified or Altered System Medical, Health and Billing Records System AGENCY: Indian Health Service (IHS), HHS. ACTION: Notice of Proposed Modification or Alteration to a System of Records (SOR). SUMMARY: In accordance with the requirements of the Privacy Act of 1974, IHS is proposing to modify or alter an SOR, ``Medical, Health and Billing Records,'' System No. 09-17-0001. IHS is proposing to amend... [read document]
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(August 24, 2008)
Notice - Agency Information Collection Activities; Proposals, Submissions, and Approvals
Indian Arts and Crafts Board
Notice
Agency Information Collection Activities; Proposals, Submissions, and Approvals,
46639-46641 [E8-18490]
DEPARTMENT OF THE INTERIOR Indian Arts and Crafts Board Renewal of Information Collection for Source Directory Publication AGENCY: Indian Arts and Crafts Board. ACTION: Notice and request for comments. SUMMARY: The Indian Arts and Crafts Board (IACB) collects information to identify and revise listings for the Source Directory of American Indian and Alaska Native Owned and Operated Arts and Crafts Businesses (Source Directory). In compliance with the Paperwork Reduction Act of 1995, the IACB... [read document]
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(August 10, 2008)

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Articles

Minority Rights in International Law
Patrick Macklem University of Toronto - Faculty of Law Date Posted: September 7, 2008 Last Revised: September 7, 2008
(September 6, 2008)
The Ties that Bind: Indigenous Peoples and Environmental Governance
Indigenous Peoples and the Law: Comparative and Critical Perspectives, 2009, CLPE Research Paper No. 26/2008 Benjamin J. Richardson York University - Osgoode Hall Law School Date Posted: September 4, 2008 Last Revised: September 4, 2008
(September 3, 2008)
Mediating in Aboriginal Communities
Commercial Dispute Resolution Journal, Vol. 3, No. 245, 1996-97 David L. Spencer La Trobe University Date Posted: September 3, 2008 Last Revised: September 3, 2008
(September 2, 2008)
Judicial Treatment of Indigenous Land Rights in the Common Law World
CLPE Research Paper No. 24/2008 Kent McNeil York University - Osgoode Hall Law School Date Posted: September 3, 2008 Last Revised: September 3, 2008
(September 2, 2008)
Indigenous Self-Determination and the State
Indigenous Peoples and the Law: Comparative and Critical Perspectives, 2009, CLPE Research Paper No. 25/2008 Shin Imai Shin Imai Date Posted: September 3, 2008 Last Revised: September 3, 2008
(September 2, 2008)

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