Indian law is a complex legal framework that covers criminal law, civil law and everything in between. There are two categories of Indian Law; Federal Indian Law and Tribal Law. The two categories include laws that are not identical but are often times related. For every general body of American law there is, or soon will be, a correlative Federal Indian and or Tribal law. For example there are specific bodies of Indian law, both Federal and Tribal, for:
□ Criminal Jurisdiction;
□ Civil Jurisdiction Over Persons (including businesses);
□ Real Property;
□ Administrative Law;
□ Constitutional Rights including Freedom of Religion, Equal Protection and the Rights of States;
□ Health Care Law;
□ Gaming Law;
□ International Law; and
□ Any number of other too numerous to name.
Indian law is a highly specialized field but there are some basic principles that every practitioner should know before beginning any legal interactions with tribes. The following principles are two of the many building blocks for understanding this field.
Tribes are Nations and They Have Their Own Bodies of Law
Tribal law is not a new phenomenon; the United States’ system of federalism is based on one such governance system, the Iroquois Confederacy. Tribal laws, of which there is a significant amount, are organic bodies of law that do not derive themselves from any federal action or document. Tribes are independent, sovereign nations that exist within the external boundaries of the United States. There are approximately 566 “federally recognized” tribes—a term used United States government to identify those tribal nations that the United States recognizes as having a government-to-government relationship. There are also scores of tribes not captured within the term of “federally recognized.” Each tribe has its own governance system, many, but not all, of which have executive, legislative and judicial branches. They also often have constitutions, by-laws, codes and other written documents that lay out Tribal law. Every body of Tribal law is unique and each tribal nation enforces its own laws. The conscientious practitioner should be aware of, if not familiar with, the laws of the tribal nation that they are dealing with.
The Federal in Federal Indian Law is Specifically Indicative
Federal Indian Law is separate and distinct from tribal law and is one of the earliest of United States legal doctrines. Article IV of the Articles of Confederation granted the Continental Congress the exclusive right of “regulating trade and managing all affairs with the Indians.” Subsequently, Article I, Section 8 of the United States Constitution included a similar principle. The vast majority of Indian law used by the average practitioner is Federal Indian law; the body of law derived from the U.S. Constitution, United States Supreme Court judicial action, United States treaties with Indian tribes, Congressional legislation and federal regulations, not necessarily in that order which governs the relationships between tribes, states, and the federal government.
A practitioner should note that the United States Constitution’s limitations on the relationship with tribes includes the phrase “with the Indians” and is not the same as “for” them. This distinction is an important one to understand when attempting to learn and apply the two separate and distinct categories of Indian law. This extraordinarily broad overview does not provide a comprehensive discussion of Indian law and should do nothing to undermine its complexity or prevalence. There are legal practitioners who spend their whole careers doing nothing but Indian law and most major law firms have Indian law practice groups today. The United States Supreme Court hears a disproportionate number of Indian law cases every term, making Indian law an ever changing body of law. A young or new to the practice lawyer should be prepared to take the time to thoroughly research any issue involving Indian law lest they find themselves or their client unwillingly facing Supreme Court litigation. Finally, several states now test Federal Indian law on their bar exams, so a move out of state may involve learning the basics of Federal Indian law.
* Heather McMillan Nakai is a graduate of the UCLA School of Law and practices Federal Indian Law. She is a member of the North Carolina bar and currently serves as a Staff Attorney at the National Indian Gaming Commission. She may be reached at email@example.com.
Any statements or opinions expressed in this article are Mrs. McMillan Nakai’s and are not statements or opinions of the National Indian Gaming Commission or the United States Government.