Introduction... where did NDN law come from?

The field of federal Indian law is a distinct body of law that regulates the legal relationships between NDN tribes and the United States. Now, the way things are set up, the tribes deal in large part with the federal government, which means the states have a limited reach in their control over tribes.

Tribal law, which governs most tribes (usually found today in tribal constitutions and codes) is based in custom and tradition as the tribal courts interpret it, as well as being based on US and state laws. Tribal law affects and is affected by federal indian law.

It has become more and more common for federal and state courts to enforce tribal law under constitutional principles- for example, the "full faith and credit" clause of the constitution, or the doctrine of "comity" - basically, the feds and the state courts respect the tribes just like they would respect and honor the laws of sister states. And Congress has lately been passing special legislation that gives legal recognition to tribal law and jurisdictional authority within the US legal system. So the US is coming more and more to respect tribal authority.

What makes up federal Indian law? Lots of things. Much of the way the US has decided to deal with indians has come from thousands of cases that have wound their way through the courts. In the US legal system, when a case is decided by a judge, it can be appealed (challenged,) if there are reasonable grounds, and if not, then that decision stands as "precedent" - meaning that if similar cases come up in the future, generally speaking, other judges in that district or state or area are usually expected to respect that precedent and follow it, unless a higher court overrules that lower court. And if a different court in a different district or state, which is not part of that same judicial circle, has a similar case, they tend to look at how the issue was handled in other states or districts. If two different districts rule on things in different ways, it usually gets tossed up to the supreme law of the land, the United States Supreme court.

I know, this is heavy stuff, but bear with me, I just want to make sure you have the background so you can understand some of what happens later. It gets really interesting in some of these cases, and it can get hard to try to explain it all in layman's terms to people who haven't studied other areas of law like constitutional law or who don't get how the courts work. So I will try to explain the basics as simply as I can.

Anyhow, the Supreme Court is pretty big because they are charged with interpreting the Constitution, and with interpreting the laws Congress makes. So they get to ultimately decide how major issues will turn out - and this can have MAJOR effects on indian law. The interesting thing to watch is how some of these judges rule on stuff. I will get into some of the major cases in a bit, and while I am not going to punish you by making you choke down pages of legal mumbo-jumbo that make up their opinions, I will try to boil down the essence of what their opinions say. And trust me, some of these judges - on every level - federal, district, and state - are interesting characters. Some of them are very respectful of native rights, and you can tell that from the way they explain how they reached their decision. And some of them are weenies. You'll see that, too.

In addition to the cases creating the body of NDN law, there are other materials that are important. The US has separate volumes of the United States Code, and the Code of Federal Regulations, and there are some 380 treaties still in effect, and there have been hundreds of "opinions" published by the Solicitor of the Department of the Interior - which are read and generally respected by lawmakers and decisionmakers. In addition, there have been lots and lots of law review articles - these are articles written by law students and professors, each tackling a specific topic and researching the hell out of it, trying to make arguments as to how things should be interpreted or explaining why certain things are the way they are.

So there is a TON of information out there - some of it "codified" (made into law) and some of it based on history, and some of it based on official reports or scholars who are interested in making change. And all of that boiled down gives us... this blog. Just kidding, it gives us Federal Indian Law. And I am going to try to explain as much of it as I can to you guys as I go.

The main things to remember here is that with this massive amount of information that composes NDN law, it affects more than just the interests and rights of NDNs. And, as you are going to quickly see, NDNs are subjected to way more legal regulation of their rights than anyone else is.

Indian law is really interesting for a handful of reasons. First, it seems that the government, every so often, gets bored and decides to shake up their policies on how to view and treat the NDNs. And these policy shifts can get confusing. It can make you think that things are always in a state of turbulence with regards to indian law. But then on the other hand, treaties signed more than 200 years ago are still respected and given legal force today. So basically, some elements of NDN law are always shifting, and some elements of NDN law have been rock-solid and IN PLACE LONGER THAN THE UNITED STATES HAS EVEN EXISTED.

Add to this the fact that Congress sometimes creates new laws to implement changed policy without getting RID of older laws that addressed a different policy, and the fact that some tribes are singled out for special legislation because of treaty provisions or because of where they are located, and it can make for some confusing studying. But I hope to be able to untangle the web of confusion here and make it easier for everyone to understand. A lot of themes are common throughout NDN law, and I am going to try to tackle those themes.

:o)

In my next post, I am going to give a brief rundown of the three central sets of concerns:
Tribal sovereignty and NDN property rights
Federal Power and Obligations
Jurisdiction over the rez.

So stay tuned. Once we do a sketch of these three basic sets of concerns that the laws are focused on, I will get into the cool stuff...