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Indian Law

Overview of Indian Law

1.  Indian law is unique body of law regarding the political status of Indian tribes and their special relationship to the federal and state government, and the related consequences for tribes and tribal members, states and their citizens, and the federal government.
2. Four major principles form the doctrinal underpinnings of modern day Indian law:
First Tribes are sovereign with inherent powers of self-government and self governance that pre-date the U.S. Constitution. This principle is that those power which are lawfully vested in an Indian tribe are not, in general, delegated power granted by express acts of Congress, but rather inherent power of a limited sovereignty which has never been extinguished. Powers of Indian Tribes, 55 Interior Dec. 14, 19 (1934).
Second, Tribes are subject to the plenary power of Congress.
Third, the power to regulate tribes is almost exclusively federal and states are preempted unless Congress delegates power to the states.
Fourth, the federal government has a trust responsibility for the protection of tribes including protection from encroachments by state and their citizens.

Overview of Indian Tribes

1. An Indian tribe is group of tribal citizens recognized by the federal government as constituting a distinct and historically continuous political entity. Tribes gain federal recognition  from treaties, statues, executive or administrative orders.
2. Even when a tribe has clearly been recognized by a treaty, Congress has the power to end this status though legislation. This happened to the Menominee Indian Tribe in the early 1961, but this recognition was eventually restored by Congress through Menominee Restoration Act in 1975.
3. Tribes have inherent powers of a limited sovereignty which include:

  • The power to adopt a form of government, to create various offices and to prescribe the duties thereof,
  • To define condition of membership within the tribe,
  • To regulate the domestic relations of its members,
  • To prescribe rules of inheritance.
  • To levy dues, fees or taxes upon the members of the tribe and upon nonmembers residing or doing business within the reservation,
  • To remove or exclude from the limits of the reservation nonmembers of the tribe and to prescribe appropriate rules and regulations governing such removal and exclusion, and governing the conditions such removal and exclusion, and governing the conditions under which nonmembers of the tribe may come upon tribal land or have dealings with tribal members,
  • To regulate the use and disposition of all property within the jurisdiction of the tribe and to make public expenditures for the benefit of the tribe out of tribal funds,
  • To administer justice with respect to all disputes and offenses of or among the members of the tribe.
  • See generally, F. Cohen Handbook of Federal Indian Law (1941).

4. Generally, most tribes have an elected tribal council or Legislature and many tribes have a separation of powers between their legislative, executive, and judicial branches of government. Many tribes have a form of direct democracy called a General Council. Typically, General Council meetings are annual or periodic meetings and they are vested with broad governing powers according to tribal customs, traditions, constitutions,  or statutes.
5.  There are approximately 557 federally recognized tribe; 226 of these are in Alaska; 11 federally recognized Indian tribe in Wisconsin: Bad River Band of Lake Superior Chippewa, Forest County Potawatomi Indian Community, Ho-Chunk Nation, Lac Court Oreilles Band of Lake Superior Chippewa, Lac du Flambeau Band of Lake Superior Chippewa, Menominee Indian Tribe of Wisconsin, Oneida Tribe of Indians, Red Cliff Band of Lake Superior Chippewa, Sokaogan Mole Lake Community,  Stockbridge-Munsee Band of Mohican Indians, St Croix Chippewa Indians.
6.  Tribes have the sovereign authority to set their own conditions of employment and employment law. Many tribes are the largest employers in their counties because of their successful gaming facilities. Most tribes have developed their own law, regulations, and procedures to govern the employment agreements with their employees including both tribal and non-tribal members. Typically employment disputes must be litigated in tribal courts or though a tribes employment procedures. Although the United States Court of Appeals for the D.C. Circuit affirmed a decision by the National Labor Relations Board that held that the tribe was an employer within the scope of the National Labor Relations Act, and therefore must not interfere with a union's effort to organize tribal casino employees or other union activity protected by the NLRA.

Who is an Indian
Indian tribes have the sovereign right to determine their own membership. Santa Clara Peublo v. Martinez, 436 U.S. 49 (1978). Typically, an Indian is a person whose can trace his or her heritage to their enrolled members. Most tribes set their membership criteria through the Tribal Constitution. According to the 2010 U.S. Census, approximately 1% of the State's population or 57, 117 people are American Indian or Native Alaskan.
Tribal Courts in Wisconsin
All 11 tribes have justice systems, and ten have court systems. The Oneida Tribe has a unique system of justice that functions as a court. Each tribal justice system has its own laws, procedures, regulations, and admission procedures to practice before their courts. Most state laws do apply on Indian reservation or tribal trust lands.
As a general rule, under federal law, 28 USC § 1360 and 18 USC § 1162, (also known as Public Law 280) the State of Wisconsin has criminal and some civil jurisdiction on ten out of §§Neither state criminal nor civil law apply to Indians on the Menominee Reservation.) Under Public Law 280, the State of Wisconsin has criminal jurisdiction over Indians for crimes committed on a reservation. Indian tribes do not have criminal jurisdiction over non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.s 191 (1978).

 The state's civil jurisdiction authority over Indians tribes and Indian living in Indian country is limited. Under Supreme Court rulings, Public Law 280 only gives the state courts concurrent civil adjudicatory jurisdiction. See Bryan v. Itasca County, 426 U.S. 373 (1976). The state does not possess civil regulatory jurisdiction on an Indian reservation. the dividing line between criminal and civil regulatory jurisdiction has been the subject of litigation in Wisconsin and in other states. See e.g. State v. LeMieux, 106 Wis. 2d 484 (Ct. App. 1982) (Transportation of uncased firearms is in civil regulatory category and therefore state does not have jurisdiction to enforce Wis. Stat. § 29.224 against tribal members on the Bad River Reservation.); In re Commitment of Burgess, 2003 WI 71 (Wis. Ch. 980 proceedings are criminal in nature and therefore state court has jurisdiction over reservation tribal members for Wis. Ch. 980 proceedings)

Wisconsin Statute § 806.245: Indian tribal documents: full faith and credit
Tribal Court order and judgment have comity in Wisconsin Court if certain criteria are met. Wis. Stat. § 806.245 provides the criteria as follows:
A. The judicial records, orders and judgment of an Indian tribal court in Wisconsin and acts of an Indian tribal legislative body shall have the same full faith and credit in the courts of this state as do the acts, records, orders and judgments of any other governmental entity, if all of the following conditions are met.
1. The tribe which creates the tribal court and tribal legislative body is organized under 25 U.S.C. §461-479.
2. The tribal documents are authenticated under sub. B.
3. The tribal court is a court of record.
4. The tribal court judgment offered in evidence is a valid judgment.
5. The tribal court certifies that it grants full faith and credit to the judicial records, orders and judgments of the courts of this state and to the acts of other governmental entities in this state.
B. To qualify for admission as evidence in the courts of this state:
1. Copies of the acts of a tribal legislative body shall be authenticated by the certificate of the tribal chairperson and tribal secretary.
2. Copies of records, orders and judgments of a tribal court shall be authenticated by the attestation of the clerk of the court. The seal, if any, of the court shall be affixed to the attestation.
C. In determining whether a tribal court is a court of record, the circuit court shall determine that:
1. The court keeps a permanent record of its proceedings.
2. Either a transcript or an electronic recording of the proceeding at issue in the tribal court is available.
3. Final judgments of the court are reviewable by a superior court.
4. The court has authority to enforce its own orders through contempt proceedings.
D. In determining whether a tribal court judgment is a valid judgment, the circuit court on its own motion, or on the motion of a party, may examine the tribal court record to assure that:
1. The tribal court had jurisdiction of the subject matter and over the person named in the judgment.
2. The judgment is final under the laws of the rendering court.
3. The judgment is on the merits.
4. The judgment was procured without fraud, duress or coercion.
5. The judgment was procured in compliance with procedures required by the rendering court.
6. The proceedings of the tribal court comply with the Indian Civil Rights Act of 1968 under 25 U.S.C. §1301-1341.
E. No lien or attachment based on a tribal court judgment may be filed, entered in the judgment and lien docket or recorded in this state against the real or personal property of any person unless the judgment has been given full faith and credit by a circuit court under this section.
F. A foreign protection order, as defined in §806.247(1)(b), issued by an Indian tribal court in this state shall be accorded full faith and credit under §806.247.
Indian law is specialized area of practice. If you are interested in finding out more about this practice the Wisconsin State Bar has an Indian Law Section.