Photo: Scott Denny, “The Approach” © 2015

In almost every constitutional law class, students spend a substantial amount of time learning about the balance of power between states and the federal government. But often the entire law school curriculum leaves out the balancing of power for unique sovereigns that predate any form of western civilization on this continent: American Indian tribes.¹ For countless generations, these tribes have occupied, governed, and lived on the land that is now known as the United States.

This article provides an introduction to federal Indian law, with special attention to Wisconsin and the 11 Indian tribes that call the state home. (For a list of these tribes and their official websites, see the accompanying sidebar.) Recognizing Judge William C. Canby’s warnings to avoid oversimplification of the current status of federal Indian law, his four doctrines are nonetheless worth repeating here²:

• The tribes are independent entities with inherent powers of self-government.

• The independence of the tribes is subject to exceptionally great powers of Congress to regulate and modify the status of the tribes.

• The power to deal with and regulate the tribes is wholly federal; the states are excluded unless Congress delegates power to them.

• The federal government has a responsibility for the protection of the tribes and their properties, including protection from encroachments by the states and their citizens.

With these doctrines in mind, we provide a snapshot of the highlights to help readers gain a better understanding of this unique area of law.

History of Federal Government-Indian Tribe Relationship

Federal Indian law, like many other practice areas, reflects changes in popular attitudes and governmental policy over time.

Treaties. Initially, the federal government dealt with Indian tribes on a government-to-government basis with treaties serving as the foundation for these relationships.³ Typically, these treaties centered on land transactions, with Indian tribes ceding their land to the United States at a price the United States set with a perpetual guarantee from the United States to protect the title to the land the tribes maintained.⁴

Marshall Trilogy. In the early 1800s, the Supreme Court reflected on these relationships and issued a series of three decisions now known as “the Marshall Trilogy.”⁵ This trilogy set the stage for what was to come of Indian sovereignty.⁶ The first case, Johnson v. McIntosh, set forth the principle that the Europeans “discovered” the new world and therefore gained title to the land through that discovery.⁷ Tribes retained the right to occupy the land but could not sell it without the approval of the federal government.⁸

The second case, Cherokee Nation v. Georgia, described tribes as “domestic dependent nations” possessing attributes of sovereignty similar to states but not rising to the level of a foreign state.⁹ This decision also established the relationship between the federal government and Indian tribes as a guardian and a ward, with the tribes being wards of the federal government.¹⁰

The third case, Worcester v. Georgia, established that the federal government, and not the individual states, had sole and exclusive authority to deal with Indian tribes.¹¹ This “plenary”¹² power over Indian tribes has been cited as justification for Congress to pass acts that negatively affect tribal governments¹³ but also has been cited as justification to exclude states from interfering with tribal affairs.¹⁴

Allotment and Assimilation. During the late 1800s, popular attitudes and governmental policy shifted away from recognizing tribes as separate sovereign nations with rights of self-government. An attempt to break up tribal landholdings and assimilate Indian people into mainstream society emerged with the passage of a series of allotment acts.¹⁵ These laws called for the transfer of title from Indian tribes to individual tribe members.¹⁶ Generally, after 25 years, the land would become subject to taxation and the tribe members could sell and mortgage the land. In the wake of these laws, tax foreclosures, mortgage foreclosures, and fraudulent land transactions, tribes and tribe members lost title to roughly 90 million acres of land, equivalent to 65 percent of the U.S. land base.¹⁷

Reorganization and Restoration. In the early 1900s, Congress evaluated the effectiveness of this allotment policy and decided it was a failure.¹⁸ While the policy did break up tribal landholdings, it did not succeed in assimilating Indian people into “mainstream” society.¹⁹ Throughout the country, Indian people remained on their reservations, poorer and more desolate than ever.²⁰

Congress’s response came in the form of the Indian Reorganization Act of 1934.²¹ Although this law did not repeal the various allotment acts, it did set in place a mechanism for tribes to rebuild their land bases through reacquisition of land lost through allotment.²² It also restored management of tribal affairs to Indian tribes.²³ Under this act, many Indian tribes reorganized their governments and adopted new constitutions.²⁴

Termination and Public Law No. 83-280. In the 1950s, popular attitudes and governmental policy shifted back away from promoting tribal self-governance and turned toward assimilation and termination. This new trend would be “as rapidly as possible, to make the Indians within the territorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to the other citizens of the United States [and] to end their status as wards of the United States.…”²⁵

One key way of advancing this policy involved terminating Indian tribes.²⁶ The Menominee Tribe in Wisconsin was among the tribes terminated by the United States.²⁷ Like allotment, this termination policy had devastating effects on tribes such as the Menominee.²⁸ Fortunately, after years of efforts, in 1973 the Menominee people secured legislation that reinstated their status as an Indian tribe and restored their land base.²⁹

An act of Congress that continues to affect federal Indian law in Wisconsin is Public Law Number 83-280 (P.L. 83-280). Through the passage of P.L. 83-280, Congress transferred federal criminal prohibitory jurisdiction over tribe members on Indian reservations to several states, including Wisconsin.³⁰ With the exception of the Menominee Indian Reservation, tribe members on Indian reservations in Wisconsin are subject to Wisconsin’s criminal laws.³¹ This act of Congress also opened the state courts to civil disputes between tribe members and gave the state rather than the federal government the ability to prosecute crimes occurring on these reservations. Although P.L. 83-280 opened the state courts to tribal members, it did not give the state regulatory or taxation powers over tribes or tribal lands.³²

Photo: Scott Denny, “Adoration” © 2014

Sovereignty and Self-determination

As with the lessons learned from allotment, during the 1960s people began to realize that termination was a failure.³³ Popular attitudes and governmental policy shifted back to not interfering with rights of tribal self-government. Congress passed a series of acts meant to effectuate this change in policy.³⁴

Today the federal government recognizes 566 tribes.³⁵ The U.S. Supreme Court still recognizes each of them as “‘domestic dependent nations’ that exercise ‘inherent sovereign authority.’”³⁶ Since a tribe is a sovereign, it enjoys a stature under law that is far different from a city or other subdivision of a state. Cities, villages, and towns derive their sovereign authority from the state in which they are located. The sovereign power a tribe enjoys is organic. When a city considers whether it can pass certain legislation, it must look to state law to see if that right has been properly conferred. A tribe can establish a court or license businesses on its lands and needs no authority from the federal government to do this.³⁷

Controlling law recognizes that “Indian tribes generally are not subject to the laws of the state wherein their territory resides.”³⁸ Against the “deeply rooted” federal policy of “leaving Indians free from state jurisdiction and control[,]”³⁹ “there are two independent but related barriers to the state’s exercise of jurisdiction on reservations”: infringement and preemption.⁴⁰ Under infringement analysis, state authority must not unlawfully infringe “on the right of reservation Indians to make their own laws and be ruled by them.”⁴¹ The Wisconsin Supreme Court has cautioned against such unlawful intrusions on tribal sovereignty.⁴²

Under the related but distinct preemption analysis, “[s]tate jurisdiction is preempted … if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority.”⁴³ One example of the U.S. Supreme Court barring state law from intruding into Indian country is that states cannot tax a tribe member’s income earned on tribal land.⁴⁴

One of the most important attributes of tribal sovereignty is “sovereign immunity.” The U.S. Supreme Court has described it as the “common-law immunity from suit traditionally enjoyed by sovereign powers”⁴⁵and has stated that immunity goes part and parcel with sovereignty itself.⁴⁶ This immunity in the Indian context extends back to the late 1800s in federal district and appellate courts.⁴⁷ The U.S. Supreme Court first recognized it in 1919 and has adhered to it ever since.⁴⁸ The immunity applies to activities of the tribe whether on or off the reservation, and whether the activity is deemed governmental or commercial.⁴⁹

In short, tribal sovereignty is inextricably linked to all core facets of governmental power for modern Indian nations: the powers to determine the form of tribal government,⁵⁰ determine citizenship,⁵¹ legislate and tax,⁵² administer justice,⁵³ and exclude noncitizens from tribal territory.⁵⁴

Tribal Jurisdiction Today

As previously noted, P.L. 83-280 was a grant of authority from the federal government to several named state governments. It did not remove or supplant tribal jurisdiction.⁵⁵ The jurisdiction of Indian tribes stems from their inherent sovereignty as periodically interpreted by the U.S. Supreme Court. Unquestionably a tribe can exercise jurisdiction over all matters arising between members on tribal lands.⁵⁶ Beyond that, for civil matters the seminal case law is Montana, which created a two-part test for determining whether a tribe may properly exercise jurisdiction.

First, Montana permits a tribe to exercise jurisdiction when there is a consensual relationship “through commercial dealing, contracts, leases, or other arrangements.”⁵⁷ These consensual relationships have been broadly interpreted and apply to domestic relationships as well as contractual ones.⁵⁸ Second, tribes have jurisdiction when the conduct being regulated or the case being adjudicated “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”⁵⁹ It is important to remember that tribal jurisdiction under Montana can arise from facts occurring within, or even in some circumstances away from, the tribe’s reservation.⁶⁰

Each of the 11 tribes in Wisconsin has a reservation or land base over which it exercises jurisdiction. Generally these areas are easy to identify as being within the exterior boundaries of an established Indian reservation. However, some tribal lands are not within reservation boundaries, such as the Ho-Chunk Nation trust lands, which are parcels spread throughout western and central Wisconsin. And it is important to mention that due to the reserved usurfructuary rights of the Chippewa Tribes, they retain jurisdiction to regulate certain activities throughout the ceded territories in northern and central Wisconsin.⁶¹

P.L. 83-280 did not strip the tribes of their inherent sovereign authority to hear disputes, thus creating a system of concurrent jurisdiction in which both a circuit court and a tribal court could exercise jurisdiction over the same case. Case law in Wisconsin has interpreted P.L. 83-280 very narrowly and has generally held that if a tribe has a law on an issue and the ability to enforce that law, the tribal forum is the best place to pursue the case.⁶²

To encourage judicial efficiency, the Wisconsin Supreme Court has created two mechanisms to move an active case from a circuit court to a tribal court. The first stems from Teague v. Bad River Band of Indians and requires the circuit court to hold a hearing to determine whether the circuit court or the tribal court is the proper forum in situations in which the same case has been filed in both forums.

The second mechanism is the discretionary transfer rule, Wis. Stat. section 801.54, which requires the circuit court to make a finding on a series of factors similar to those set forth in Teague.⁶³

Broadly speaking, tribal courts may exercise jurisdiction over all cases involving tribe members, including family law cases involving members who do not live on the reservation, and all cases involving the tribe as a party.⁶⁴ Each tribe interprets the extent of its authority differently, and a tribe might not have statutory or constitutional authority to hear all cases.

It is not uncommon for contracts with tribes to contain a forum-selection clause, mandating use of the tribal court to resolve all disputes regarding or arising from the contract.⁶⁵ Therefore, any lawyer representing businesses that want to do business with tribes should familiarize themselves with tribal court practice and consider admission to one or more tribal bars.

Being familiar with tribal court litigation also presents an opportunity for general practice lawyers to expand their practice to a population that is generally underserved. Surveys have shown that more than 90 percent of litigants in tribal court are unrepresented, in large part because of the relatively small number of lawyers practicing in tribal courts.⁶⁶

Although tribal court practice may seem rarified, the subject matter is familiar to most lawyers. Every tribal court in Wisconsin hears family law matters involving their members, and the number of cases is increasing as tribes take over child support enforcement from the county child support agencies.⁶⁷ Tribes may also self-insure for worker’s compensation and unemployment, requiring all tribal employees to make use of tribal forums to litigate claims that might arise.⁶⁸ Tribal courts may also hear probate, real property, and juvenile matters involving both members and nonmembers.

Conclusion

This article provides a glimpse of the variety and complexity within the field of Indian law. Indian people and tribal governments face challenges far different from other people and communities due to their unique historical, legal, and political relationship with the United States. Many of the lawyers who practice in the field do so due to these unique challenges and wanting to assist Indian people and tribal governments with the new and ongoing legal issues that arise.

Endnotes

¹ See Cohen’s Handbook of Federal Indian Law § 4.01(1)(a) (Neil Jessup Newton et. al eds., 2012) [hereinafter Cohen’s Handbook]. For a brief history of tribal sovereignty, see David M. Schraver & David H. Tennant, Indian Tribal Sovereignty – Current Issues, 75 Alb. L. Rev. 133, 134-160 (2012).

² William C. Canby Jr., American Indian Law: In a Nutshell 1-2 (Thomson West 2004) (1981).

³ See Charles J. Kappler, Indian Treaties 1778-1883 (Amereon House 1972) (1904).

⁴ Id.

⁵ Chief Justice John Marshall authored the decisions in the three cases: Johnson v. McIntosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831); Worcester v. Georgia, 31 U.S. 515 (1832).

⁶ See William Wood, It Wasn’t an Accident: The Tribal Sovereign Immunity Story, Am. U. L. Rev. 1587, 1629-30 (2013).

⁷ Johnson, 21 U.S. at 595.

⁸ Id. at 604.

⁹ Cherokee Nation, 30 U.S. at 17.

¹⁰ Id.

¹¹ Worcester, 31 U.S. at 596.

¹² The concept of Congress having “plenary” power over Indian tribes originated in Cherokee Nation v. Georgia and Worcester v. Georgia, but the U.S. Supreme Court did not fully articulate this power until its decision in United States v. Kagama, 118 U.S. 375 (1886). When discussing the two earlier cases, the Supreme Court explained how the federal government was to deal with Indian tribes: “In the opinions in these cases they are spoken of as ‘wards of the nation,’ ‘pupils,’ as local dependent communities. In this spirit the United States has conducted its relations to them from its organization to this time. But, after an experience of a hundred years of the treaty-making system of government, Congress has determined upon a new departure – to govern them by acts of Congress.” Kagama, 118 U.S. at 382.

¹³ See, e.g., General Allotment Act, 25 U.S.C. § 331 (1887).

¹⁴ See, e.g., Oneida Indian Nation of New York v. County of Oneida, 414 U.S. 661 (1974).

¹⁵ See, e.g., General Allotment Act, 25 U.S.C. § 331 (1887).

¹⁶ Id.

¹⁷ Armen H. Marjian, An Unbroken Chain of Injustice: The Dawes Act, Native American Trusts, and Cobell v. Salazar, 46 Gonzaga L. Rev. 609, 618 (2011).

¹⁸ See Institute for Government Research, The Problem of Indian Administration (1928). This document is more commonly known as the Meriam Report.

¹⁹ Frank Pommersheim, Land Into Trust: An Inquiry into Law, Policy, and History, 49 Idaho L. Rev. 519, 520 (2013).

²⁰ Id. at 520-22.

²¹ Id. at 525.

²² Id.

²³ Id.

²⁴ Cohen’s Handbook, supra note 1, § 4.04(3)(a), at 252-5.

²⁵ H. Con. Res. 108, 83rd Cong., 1st Sess., 67 Stat. B132 (153).

²⁶ See, e.g., 25 U.S.C. § 891 et seq. (1954).

²⁷ Id.

²⁸ Canby, supra note 2, at 26.

²⁹ 25 U.S.C. § 903 et seq.

³⁰ Public Law No. 83-280. Wisconsin is one of six mandatory P.L. 83-280 states, along with California, Alaska, Nebraska, Minnesota, and Oregon.

³¹ When Congress passed P.L. 83-280, the Menominee Tribe had been terminated and not yet restored. Upon restoration of federal recognition of the Menominee Tribe, the state of Wisconsin retroceded its jurisdiction over the reservation back to the federal government.

³² P.L. No. 83-280, 18 U.S.C. §1162.

³³ Cohen’s Handbook, supra note 1, § 1.07, at 99-101.

³⁴ Indian Civil Rights Act of 1968; Indian Financing Act of 1874, 25 U.S.C. § 1451 et seq.; Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450 et seq. Congress did not repeal P.L. 83-280, but it did put in place a mechanism by which states could request that the federal government take back all or part of its jurisdiction. 25 U.S.C. § 1323(a) (1968). In addition, if new states wanted to assume jurisdiction over tribe members on Indian reservations, they needed to obtain the consent of the Indian tribes. 25 U.S.C. § 1321(a) (1968).

³⁵ These tribal governments receive a variety of federal benefits through the U.S. Department of the Interior. See What We Do, US Department of the Interior (Mar. 2, 2015), www.bia.gov/WhatWeDo/index.htm.

³⁶ Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2030 (2014).

³⁷ Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 149 (1982).

³⁸ Aasen-Robles v. Lac Courte Oreilles Band of Lake Superior Chippewa Indians, 2003 WI App 224, ¶ 22 n.7, 267 Wis. 2d 333, 671 N.W.2d 709.

³⁹ McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 168 (1973) (citation omitted).

⁴⁰ St. Germaine v. Chapman, 178 Wis. 2d 869, 872, 505 N.W.2d 450 (Ct. App. 1993) (internal quotation and citation omitted).

⁴¹ White Mountain Apache Tribe v. Bracker, 448 U.S 136, 142-43 (1980) (internal quotation and citations omitted). See also Teague v. Bad River Band of Lake Superior Tribe of Chippewa Indians (Teague III), 2003 WI 118, ¶ 25, 265 Wis. 2d 64, 665 N.W.2d 899 (“State circuit courts … have no authority to limit, modify or control the power of the tribal court or vice versa” (emphasis added)).

⁴² Teague III, 2003 WI 118, ¶ 25, 265 Wis. 2d 64.

⁴³ California v. Cabazon Band of Mission Indians, 480 U.S. 202, 216 (1987) (citation omitted).

⁴⁴ McClanahan, 411 U.S. 168.

⁴⁵ Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).

⁴⁶ Bay Mills Indian Cmty., 134 S. Ct at 2030.

⁴⁷ Wood, supra note 6, at 1640-49.

⁴⁸ See Turner v. United States, 248 U.S. 354 (1919).

⁴⁹ Kiowa Tribe of Okla. v. Manufacturing Techs. Inc., 523 U.S. 751, 756 (1998).

⁵⁰ Martinez, 436 U.S. at 62-63.

⁵¹ Id.

⁵² Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195 (1985).

⁵³ Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987).

⁵⁴ Worcester v. Georgia, 31 U.S. 515 (1832).

⁵⁵ Cohen’s Handbook, supra note 1, at 344.

⁵⁶ Montana v. United States, 450 U.S. 544 (1981).

⁵⁷ Id. at 565.

⁵⁸ Sanders v. Robinson, 864 F.2d 630, 632-33 (8th Cir. 1988) (applying the first Montana exception in favor of tribal jurisdiction over divorce proceedings); Aernam v. Nenno, No. 06-CV-0053C(F), 2006 WL 1644691 (W.D.N.Y. June 9, 2006).

⁵⁹ Montana, 450 U.S. at 566.

⁶⁰ See DISH Network Serv. L.L.C. v. Laducer, 725 F.3d 877, 884 (8th Cir. 2013) (indicating that tribal court would still have power to adjudicate when claim “arises out of and is intimately related” to the parties’ contract with tribe member related to activities on tribal land).

⁶¹ Patty Loew, Indian Nations of Wisconsin (rev. 2d ed. 2001).

⁶² State v. Big John, 146 Wis. 2d 741, 432 N.W.2d 576 (1988); Vilas Cnty. v. Chapman, 122 Wis. 2d 211, 361 N.W.2d 699 (1985)

⁶³ See Teague (III), Tribal/State Protocol for the Judicial Allocation of Jurisdiction Between the Four Chippewa Tribes of Northern Wisconsin and the Tenth Judicial District of Wisconsin, Dec. 7, 2001, Wis. Stat. 801.54.

⁶⁴ Cohen’s Handbook, supra note 1, § 4.02(3)(c).

⁶⁵ Mark A. Jarboe, Fundamental Legal Principles Affecting Business Transactions in Indian Country, 17 Hamline L. Rev. 417 (1993-1994).

⁶⁶ Wisconsin Judicare Indian Law Office, Survey of Tribal Courts, 2011. Presented to Wisconsin Access to Justice Commission.

⁶⁷ The Wisconsin Tribal Judges Association website contains up-to-date information on tribal court bar admission and subject matter jurisdiction for each tribe in Wisconsin. Wisconsin Tribal Judges Association, wtja.org (last visited Mar. 16, 2015).

⁶⁸ Larry Betz & Donna Budnick, Labor and Employment Law and American Indian Tribes: How State and Federal Laws Apply to Tribal Employment. 83 Mich. Bar J. 16 (July 2004).