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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Featured Cases

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Legislation

Bill Signed by President: S.1193 Albuquerque Indian School Act
An act to direct the Secretary of the Interior to take into trust 2 parcels of Federal land for the benefit of certain Indian Pueblos in the State of New Mexico, and for other purposes.

December 02, 2008: Signed by President.
(November 30, 2008)
Bill Introduced: S.3689 National Park Centennial Fund Act
A bill making supplemental appropriations for job creation and preservation, infrastructure investment, and economic and energy assistance for the fiscal year ending September 30, 2009, and for other purposes.

(November 15, 2008)
Bill Signed by President: S.3641 A bill to authorize funding for the National Crime Victim Law ...
A bill to authorize funding for the National Crime Victim Law Institute to provide support for victims of crime under Crime Victims Legal Assistance Programs as a part of the Victims of Crime Act of 1984.

October 15, 2008: Signed by President.
(October 13, 2008)
Bill Enacted: H.R.4544 Code Talkers Recognition Act of 2008
To require the issuance of medals to recognize the dedication and valor of Native American code talkers.

October 15, 2008: Became Public Law No: 110-420.
(October 13, 2008)
Bill Signed by President: H.R.2786 Native American Housing Assistance and Self-Determination ...
To reauthorize the programs for housing assistance for Native Americans.

October 14, 2008: Signed by President.
(October 12, 2008)

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Regulations

Rule - Indian Trust Management Reform
Indian Affairs Bureau
Rule
Indian Trust Management Reform,
67256-67305 [E8-26487]
Part II Department of the Interior Bureau of Indian Affairs 25 CFR Parts 15, 18 and 179 43 CFR Parts 4 and 30 Indian Trust Management Reform; Final Rule DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs 25 CFR Parts 15, 18, 179 Office of the Secretary 43 CFR Parts 4, 30 RIN 1076-AE59 Indian Trust Management Reform AGENCY: Bureau of Indian Affairs, Office of the Secretary, Interior. ACTION: Final rule. SUMMARY: This final rule amends several Bureau of Indian Affairs (BIA) and Office of the... [read document]
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(November 12, 2008)
Rule - Technical Standards for Electronic, Computer, or Other Technologic Aids Used in the Play ...
National Indian Gaming Commission
Rule
Technical Standards for Electronic, Computer, or Other Technologic Aids Used in the Play of Class II Games,
60508-60535 [E8-23084]
DEPARTMENT OF THE INTERIOR National Indian Gaming Commission 25 CFR Part 547 RIN 3141-AA29 Technical Standards for Electronic, Computer, or Other Technologic Aids Used in the Play of Class II Games AGENCY: National Indian Gaming Commission, Interior. ACTION: Final rule. SUMMARY: The rule adds a new part to the Commission's regulations establishing technical standards for Class II games--bingo, lotto, other games similar to bingo, pull tabs, and ``instant bingo''--that are played using... [read document]
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(October 9, 2008)
Proposed Rule - Classification Standards for Bingo, Lotto, Other Games Similar to Bingo, etc. ...
National Indian Gaming Commission
Proposed Rule
Classification Standards for Bingo, Lotto, Other Games Similar to Bingo, etc. When Played Through an Electronic Medium; Withdrawal,
60490-60491 [E8-23070]
DEPARTMENT OF THE INTERIOR National Indian Gaming Commission 25 CFR Part 546 Classification Standards for Bingo, Lotto, Other Games Similar to Bingo, Pull Tabs and Instant Bingo as Class II Gaming When Played Through an Electronic Medium Using ``Electronic, Computer, or Other Technologic Aids'' AGENCY: National Indian Gaming Commission, Interior. ACTION: Notice of withdrawal of proposed rule. SUMMARY: The National Indian Gaming Commission is withdrawing the proposed Classification standards... [read document]
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(October 9, 2008)
Proposed Rule - Definition for Electronic or Electromechanical Facsimile; Withdrawal
National Indian Gaming Commission
Proposed Rule
Definition for Electronic or Electromechanical Facsimile; Withdrawal,
60490 [E8-23075]
Part V Department of the Interior National Indian Gaming Commission 25 CFR Parts 502 and 546 Definition for Electronic or Electromechanical Facsimile; Classification Standards for Bingo, Lotto, etc.; Withdrawal of Proposed Rules 25 CFR Parts 542, 543 and 547 Class II Games; Establishment of Technical Standards and Minimum Internal Control Standards; Final Rules DEPARTMENT OF THE INTERIOR National Indian Gaming Commission 25 CFR Part 502 Definition for Electronic or Electromechanical Facsimile... [read document]
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(October 9, 2008)
Rule - Minimum Internal Control Standards for Class II Gaming
National Indian Gaming Commission
Rule
Minimum Internal Control Standards for Class II Gaming,
60492-60508 [E8-23081]
DEPARTMENT OF THE INTERIOR National Indian Gaming Commission 25 CFR Parts 542 and 543 RIN 3141-AA37 Minimum Internal Control Standards for Class II Gaming AGENCY: National Indian Gaming Commission (``NIGC'' or ``Commission''), Interior. ACTION: Final rule. SUMMARY: This rule supersedes certain specified sections of the current Minimum Internal Control Standards and replaces them with a new part titled Minimum Internal Control Standards for Class II Gaming. Since the implementation of Minimum... [read document]
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(October 9, 2008)

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Government

Notice - Privacy Act; Systems of Records
Indian Health Service
Notice
Privacy Act; Systems of Records,
70655-70662 [E8-27708]
DEPARTMENT OF HEALTH AND HUMAN SERVICES Indian Health Service Privacy Act of 1974; Report of Amended or Altered System; Medical, Health and Billing Records System AGENCY: Indian Health Service (IHS), HHS. ACTION: Amendment of One Altered Privacy Act System of Records. SUMMARY: Pursuant to the provisions of the Privacy Act of 1974, as amended, 5 U.S.C. 552a(e)(4), the IHS has amended and is publishing the proposed alteration of a system of records, System No. 09-17-0001, ``Medical, Health and... [read document]
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(November 20, 2008)
Notice - Agency Information Collection Activities; Proposals, Submissions, and Approvals: ...
Indian Health Service
Notice
Agency Information Collection Activities; Proposals, Submissions, and Approvals:
Behavioral Health Preventive Care Assessment Focus Group Guide,
64959-64960 [E8-25795]
DEPARTMENT OF HEALTH AND HUMAN SERVICES Indian Health Service Request for Public Comment: 30-Day Proposed Information Collection: Behavioral Health Preventive Care Assessment Focus Group Guide Note: The purpose of this second announcement is to provide another opportunity for public comment. The previous Federal Register notice was published on August 19, 2008, FR Doc. E8-19050. AGENCY: Indian Health Service, HHS. ACTION: Notice. SUMMARY: In compliance with Section 3506(c)(2)(A) of the... [read document]
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(October 29, 2008)
Notice - Rate Adjustments for Indian Irrigation Projects
Indian Affairs Bureau
Notice
Rate Adjustments for Indian Irrigation Projects,
64629-64635 [E8-25920]
DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs Rate Adjustments for Indian Irrigation Projects AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice of proposed rate adjustments. SUMMARY: The Bureau of Indian Affairs (BIA) owns, or has an interest in, irrigation projects located on or associated with various Indian reservations throughout the United States. We are required to establish irrigation assessment rates to recover the costs to administer, operate, maintain, and rehabilitate... [read document]
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(October 28, 2008)
Notice - Approved Tribal - State Gaming Compact Amendment
Indian Affairs Bureau
Notice
Approved Tribal - State Gaming Compact Amendment,
63503 [E8-25349]
DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs Indian Gaming AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice of Approved Tribal--State Gaming Compact Amendment. SUMMARY: This notice publishes an approval of the First Amendment to the Tribal-State Compact between the Spokane Tribe and the State of Washington. DATES: Effective Date: October 24, 2008. FOR FURTHER INFORMATION CONTACT: Paula L. Hart, Acting Director, Office of Indian Gaming, Office of the Deputy Assistant... [read document]
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(October 23, 2008)
Notice - Tribal Consultation on Proposed Special Education Policies and Procedures
Indian Affairs Bureau
Notice
Tribal Consultation on Proposed Special Education Policies and Procedures,
63503-63504 [E8-25203]
DEPARTMENT OF THE INTERIOR Bureau of Indian Affairs Tribal Consultation on Proposed Special Education Policies and Procedures AGENCY: Bureau of Indian Affairs, Interior. ACTION: Notice of tribal consultation meetings. SUMMARY: The Bureau of Indian Education (BIE), Division of Performance and Accountability (DPA), will conduct tribal consultation meetings to obtain oral and written comments on proposed BIE Special Education Policies and Procedures. The proposed policies and procedures are... [read document]
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(October 23, 2008)

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Articles

Barava Tru- Judicial Approaches to the Pleading and Proof of Custom in the South Pacific
J Corrin, '"Barava Tru" - Judicial Approaches to the Pleading and Proof of Custom in the South Pacific' (2002) 51 (3) International and Comparative Law Quarterly 611-639 http://journals.cambridge.org/action/displayJournal?jid=ILQ Jennifer C Corrin and TC Beirne School of Law Submitter affiliation not provided to SSRN and TC Beirne School of Law Date Posted: December 1, 2008 Last Revised: December 1, 2008
(November 30, 2008)
'Failed States,' Self-Determination, and Preventive Diplomacy: Colonialist Nostalgia and ...
Temple International & Comparative Law Journal, Vol. 10 Henry J. Richardson III Temple University - James E. Beasley School of Law Date Posted: November 12, 2008 Last Revised: December 1, 2008
(November 30, 2008)
The Guatemalan Ways of Death
London Times Literary Supplement, No. 5185, August 16, 2002 Kenneth Anderson Washington College of Law, American University Date Posted: November 24, 2008 Last Revised: November 24, 2008
(November 23, 2008)
North-South Benefit Sharing Arrangements In Bioprospecting and Genetic Research: A Critical ...
doi:10.1111/j.1471-8847.2006.00149.x udo schuklenk Department of Philosophy Date Posted: November 10, 2008 Last Revised: November 22, 2008
(November 21, 2008)
Treaties of Conquest: Property Rights, Indian Treaties, and the Treaty of Guadalupe Hidalgo
New Mexico Law Review, Vol. 26, p. 201, 1996 Christine A. Klein University of Florida - College of Law Date Posted: November 21, 2008 Last Revised: November 21, 2008
(November 20, 2008)

Cut Bank officials listen to Blackfeet concerns about racism
Great Falls Tribune, MT - 2 hours ago
Tribal Attorney Sandra Watts then asked how many members of the city police department were Native American. "We don't have a lot of Native American ...

(December 3, 2008)
Law professors join Obama transition team
The Daily of the University of Washington, WA - 5 hours ago
He also served as a senior staff attorney for the Native American Rights Fund in Boulder, Colo. and Anchorage, Alaska. Prior to his position at the UW, ...

(December 3, 2008)
Indian cigarette arrest raises legal issues
Utica Observer Dispatch, NY - 11 hours ago
â€œBut, when you start coming from the black and white to the gray area, when some of the employees are not Native American, and they are coming to our state ...

(December 2, 2008)
Department of Justice Announces Improvements and Name Change for ...
MarketWatch - 18 hours ago
The Office of Justice Programs, headed by Assistant Attorney General Jeffrey L. Sedgwick, provides federal leadership in developing the nation's capacity to ...

(December 2, 2008)
Regional Briefs: Novant project in Huntersville under appeal
Winston-Salem Journal, NC - 9 hours ago
Elouise Cobell, an American Indian activist, will speak at 5 pm today at the Wake Forest University School of Law. She is the lead plaintiff in a ...

(December 2, 2008)

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