American Indian Law

Introduction

Research in the area of American Indian law is complex and particularly challenging for jurisdictional, conflict of laws, and identity issues. Depending upon the legal issue involved, federal, state, and/or tribal law may apply. An understanding of federal Indian policy is essential in forming the foundation for research.  Federal statutes apply to most criminal, civil and jurisdictional issues.  Executive orders, proclamations, and other executive department actions also play a role in Indian law jurisprudence. States have some jurisdiction in selected issues affecting Indian tribes.  Tribes also generally have legislative, administrative and judicial systems similar to the federal government, including individual tribal codes.  There is no national tribal code.  For some tribes, the tribal council functions as the tribal court.  There are court opinions which must be used in tribal courts or tribal councils. There are also cultural, religious customs and common law considerations. Finally, some local laws may also apply.

Indian tribes were recognized as sovereigns (having their own governments) by the Europeans who settled America. The first form of government relations between the Europeans and the Indians were treaties. Treaties were used to make peaceful alliances with the Indians and to obtain land in exchange for promises of various kinds of protections.  They were often negotiated with Indian representatives other than tribal leaders and without complete understanding on the part of the Indians. Treaty making was discontinued in 1871. Treaties currently in force remain primarily with particular Indian tribes. The Secretary of the Interior is responsible for maintaining relations with the Indians and must publish a list of recognized tribes in the Congressional Record on an annual basis.