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Published: 2008-03-26

Reservations of Right: An Introduction to Indian Law



Over the past decade, Indian tribes throughout the United States have become major players in the nation's economy. Tribes are aggressively creating and operating new businesses in the areas of real estate development, banking and finance, media, telecommunications, wholesale and retail trade, tourism, and gaming.[1] Consider these facts:

  • Indian tribes occupy more than 55 million acres of reservation lands in 30 states.[2]

  • Reservation businesses generate $246 million in tax revenue annually for state and local governments, and $4.1 billion in annual tax revenue for the Federal Government.[3]

  • In 2001, gaming tribes generated $13 billion in direct and indirect economic activity.[4]

  • Washington State's 29 federally-recognized tribes, for example, contribute $1 billion annually to the State's overall economy.[5]

  • Washington's tribes currently employ nearly 15,000 Indian and non-Indian employees.[6] By comparison, Microsoft Corp. employs 20,000 Washingtonians.

A corollary to the dramatic increase in tribal economic development is the increased interaction of tribes and non-Indian citizens who seek business, employment, or fun on Indian reservations. In turn, legal matters between Indian tribes and non-Indians continue to increase.

As Indian law issues now intersect both litigation and transactional practices, and virtually every niche of law,[7] every attorney should be cognizant of the general Indian law principles at work and be prepared to answer common Indian law questions. For that reason, I thought it appropriate to share with readers of FindLaw some legal principles that govern relations between Indian tribes and non-Indians across the U.S.

Question: "What is Tribal Sovereignty?"

Answer: Indian tribes are "distinct, independent political communities, retaining their original natural rights" in matters of local self-government.[8] Although no longer "possessed of the full attributes of sovereignty," tribes remain a "separate people, with the power of regulating their internal and social relations."[9] In short, Indians possess "the right . . . to make their own laws and be ruled by them."[10]

Much like a state government, tribal governments are elaborate entities, consisting of executive, legislative, and judicial branches. The office of the tribal chairman (like that of a state governor) and the tribal council (a state legislature) operate the tribe under a tribal constitution and code of laws.

Question: "Are Tribal Courts Different than State and Federal Courts?"

Answer: Yes. Although the 150 tribal courts that exist in the U.S. today are modeled after Anglo-American courts,[11] Indian courts are significantly different.[12] Tribal judges, who are often tribal members, are not necessarily lawyers.

Tribal courts operate under the tribes' written and unwritten code of laws. Most tribal codes contain civil rules of procedure specific to tribal court, as well as tribal statutes and regulations. Such laws outline the powers of the tribal court and may set forth limitations on tribal court jurisdiction.[13]

A tribe's code also includes customary and traditional practices, which are based on oral history and may not be codified in tribal statutes and regulations.[14] Tribal judges consider testimony regarding tribal custom and tradition from tribal elders and historians, who need not base their opinions on documentary evidence as may be required by state and federal evidentiary rules.

Tribal courts generally follow their own precedent and give significant deference to the decisions of other Indian courts. However, because there is no official tribal court reporter[15] and because not all tribal courts keep previous decisions on file, finding such caselaw can be difficult.[16] The opinions of federal and state courts are persuasive authority, but tribal judges are not bound by such precedents. Nevertheless, many state courts extend full faith and credit to valid tribal court orders,[17] and federal courts grant comity to tribal court rulings.[18]

Before handling a matter in tribal court, an advocate must appreciate the character of tribal courts, pay careful attention to tribal laws and statutes, and understand the fundamental differences between tribal courts and state and federal courts.

Question: "Can We Sue the Tribe for Damages or Equitable Relief?"

Answer: Probably not. Like other sovereign governmental entities, tribes enjoy common law sovereign immunity and cannot be sued:[19] An Indian tribe is subject to suit only where Congress has "unequivocally" authorized the suit or the tribe has "clearly" waived its immunity.[20] There is a strong presumption against waiver of tribal sovereign immunity.[21]

The doctrine of sovereign immunity shields tribes from suit for monetary damages and requests for declaratory or injunctive relief.[22] However, tribal government officials who act beyond the scope of their authority are not immune from claims for damages.[23]

Tribes are also immune from the enforcement of a subpoena, e.g., to compel production of documents.[24] Further, a court cannot compel the Department of the Interior (DOI) or the Bureau of Indian Affairs (BIA) – fiduciary for the benefit of tribes[25] – to comply with the Freedom of Information Act (FOIA) and release documents passed between tribes and the agencies unless the communications involve "tribal interests subject to state and federal proceedings."[26] Arguably, if a tribe is immune from state or federal suit, documents exchanged between tribes and DOI or BIA regarding "tribal interests" or "matters internal to the tribe,"[27] are exempt from disclosure under FOIA.

Moreover, tribal immunity generally extends to agencies of the tribe[28] such as tribal casinos and other business enterprises. As many U.S. citizens flock to tribal casinos and resorts, slip-and-falls and other tort claims arising on tribal reservations have increased. Nevertheless, courts routinely dismiss personal injury suits against tribes for lack of jurisdiction.[29]

Therefore, in considering whether to sue a tribe on behalf of an injured party, you must closely evaluate issues of sovereign immunity and waiver. Unless you can show clear evidence of tribal waiver or unequivocal Congressional abrogation, do not waste your time, your client's money, or a court's resources by filing suit. A judge will simply dismiss the plaintiff's claims for damages for lack of subject matter jurisdiction.

Question: "Can We Sue the Tribe to Enforce a Contract?"

Answer: Probably not. Tribes retain immunity from suit when conducting business transactions both on and off the reservation.[30] Generally, a tribe can only be sued in contract if the agreement explicitly waived tribal immunity;[31] a waiver will not be implied.[32] Nonetheless, the U.S. Supreme Court recently held that a contractual agreement to arbitrate disputes constitutes a clear waiver of immunity.[33]

Increasingly, tribes will agree to limited waivers of immunity. Some tribes set up subordinate entities whose assets, the tribes acknowledge, are not immune from suit, levy, or execution (although assets not held by the entity remain protected by immunity).[34]

So, if you are asked to sue a tribe for breach of contract, you should first consider the entity with which your client contracted – i.e., a tribe, which is likely immune from suit; or a subordinate entity, for which the tribe may have waived its immunity. If you are asked to create a contract with a tribe, you must explain to your client that there may not be any remedy available in the event of a contractual breach. You should then negotiate with the tribe to reach a meeting of the minds with respect to the immunity issue. Again, some tribes will agree to a limited waiver.

Question: "Can I Sue the Tribe for Employment Discrimination?"

Answer: Probably not. Both Title VII[35] and the Americans with Disabilities Act (ADA)[36] expressly exclude Indian tribes.[37] Similarly, the Age Discrimination in Employment Act (ADEA)[38] has been held inapplicable to tribal employers.[39] Tribes are also immune from suit under 42 U.S.C. 1983.[40] Likewise, state discrimination laws do not apply to tribal employers.[41]

Tribally-owned entities are generally not subject to state and federal discrimination laws either.[42] Tribal officials are also immune from suit arising from alleged discriminatory behavior, so long as they acted within the scope of their authority.[43] In short, any employment suit against a tribe or its officials based upon federal or state discrimination law will likely be dismissed for lack of subject matter jurisdiction.

Indian tribes have become one of the nation's largest employers. As a result, non-Indians' employment records and documents concerning tribal employment practices are increasingly becoming the focus of discovery, even in litigation against non-tribal entities. If the employee is a party, his or her employment records are discoverable if they are in the employee's custody or control. However, if the tribe is immune from suit, a court cannot subpoena a tribe to produce the employee's records.[44] By the same token, a court cannot compel a tribe – or DOI or BIA[45] – to provide documents about the tribe's employment practices, i.e., matters "internal" to the tribe.

Question: "Can I Sue the Tribe for Violation of Labor and Employment Laws?"

Answer: Maybe. The circuits are split regarding the application of federal regulatory employment laws to tribal employers. The Tenth and Eight Circuits have refused to apply to tribes such laws as the Occupational Safety and Health Act (OSHA),[46] the Employee Retirement Income Security Act (ERISA),[47] the Fair Labor Standards Act (FLSA),[48] and the National Labor Relations Act (NLRA),[49] because doing so would encroach upon well-established principles of tribal sovereignty and tribal self-governance.[50]

Conversely, the Ninth, Seventh and Second Circuits have applied OSHA and ERISA to tribes, and the Seventh Circuit leans toward application of FLSA to tribes, reasoning that such statutes of general applicability govern tribal employment activity because Indian tribes are not explicitly exempted from the laws.[51] Nevertheless, state labor laws and workers' compensation statutes remain inapplicable to tribal businesses.[52]

Question: "Where Should We File a Claim that Arises on the Reservation?"

Answer: It depends. Subject matter jurisdiction of tribal, state or federal courts depends largely upon (1) whether the defendant is an Indian or non-Indian person or entity;[53] and (2) whether the act occurred on Indian fee or allotted lands, non-Indian-owned reservation lands, or even a state right-of-way on the reservation.[54] These two complex issues should be the first area of inquiry for any question regarding jurisdiction over a dispute arising on a reservation.[55]

Tribal courts have jurisdiction over a suit by any party – Indian or non-Indian – against an Indian person, a tribe, or tribal entity for a claim arising on the reservation.[56] Jurisdiction over lawsuits between non-Indians arising on the reservation lies in state court.[57] So, assuming your client is prepared to show clear or unequivocal waiver of tribal immunity, you should file any tort claims arising on Indian lands or in tribal casinos, in tribal court.

Specifically, state courts have jurisdiction over any dispute arising from an auto accident occurring on a state right-of-way through the reservation, including a dispute between non-Indian citizens,[58] and a suit by an Indian against a non-Indian.[59] As such, any common claims that arise on U.S. highways running through reservations should be brought in state court.

Question: "Can We Be Sued in Tribal Court?"

Answer: It depends. Generally, a tribal court can only assert jurisdiction over a claim against a non-Indian person or entity when "necessary to protect tribal self-government or to control internal relations."[60] Essentially, a tribal court only has jurisdiction over the reservation activities of non-Indian parties "who enter consensual relationships with the tribe . . . through commercial dealing, contract, leases, or other arrangements."[61]

State courts may exercise jurisdiction over a non-Indian person or entity for a claim arising on the reservation.[62] Federal courts may assert jurisdiction over a claim against a non-Indian party based upon reservation activities if there is federal question jurisdiction,[63] or diversity jurisdiction.[64] Thus, absent a contractual relationship with the tribe, non-Indian parties can only be sued in state or federal court.

Question: "Can We Challenge the Assertion of Tribal Court Jurisdiction?"

Answer: Yes. When sued in tribal court, non-Indian persons or entities can challenge the tribal court's assertion of jurisdiction in federal court. However, federal courts typically stay their proceedings to allow the tribal court to determine its own jurisdiction.[65] Thus, before you challenge a tribal court's assertion of jurisdiction in federal court, you must first exhaust tribal remedies.[66]

In any case, a tribal court first decides jurisdiction over non-Indian parties. If the tribal court rules that it has jurisdiction, it proceeds to hear the case. If the federal court later agrees that the tribal court had jurisdiction, it will not relitigate the case.[67] Therefore, you should thoroughly present the merits of your client's case to the tribal judge, as you and your client may not have a subsequent opportunity to do so in federal court. In doing so, you should be ever mindful of the unique aspects of tribal courts described above.

Question: "Can I Be Prosecuted in Tribal Court?"

Answer: It depends. Tribal courts do not have general criminal jurisdiction over non-Indian crimes occurring on the reservation.[68] However, tribal courts do retain the power to exclude any unwanted person from their reservations.[69]

Jurisdiction for non-Indian criminal offenses on the reservation lies with state or federal courts: Crimes committed on the reservation by non-Indians against non-Indians are subject to state jurisdiction.[70] Also, although unsupported by federal law, some state courts typically try non-Indians for traffic and other minor offenses occurring on the reservation. Federal courts have jurisdiction under the General Crimes Act[71] over reservation crimes committed by non-Indians against Indians or Indian "interests" (e.g., property).[72]

In 1990, the U.S. Supreme Court ruled in Duro v. Reina,[73] that state or federal courts could also assert jurisdiction over on-reservation crimes of Indians who are not members of the tribal community in which the crime occurred. However, Congress quickly overrode Duro, and affirmed the "inherent power of Indian tribes . . . to exercise criminal jurisdiction over all Indians."[74] Thus, absent federal statutes that limit tribal jurisdiction,[75] tribal courts retain jurisdiction over Indian crimes carried out on the reservation.[76]

Conclusion

U.S. states and their citizens are witnessing firsthand both the tremendous rise in tribal economic development, and an array of legal disputes between Indians and non-Indians. Indeed, Indian law principles impact litigation and transactional practices, and intersect general tort, contract, employment, and criminal law. Further, Indian law issues implicate tribal, state and federal court practice and challenge attorneys' common understandings of procedural and jurisdictional principles. For these reasons, it is vital that you recognize and understand the Indian law issues that you will inevitably encounter in your practice.




[1] See Henson, E.C. & Jonathan B. Taylor, et al., "The State of Native America," American Indian Research & Grants Assessment Project (Cambridge, MA: Harvard Project on American Indian Economic Development, forthcoming).

[2] Department of the Interior, Land Under Jurisdiction of the Bureau of Indian Affairs, December 31, 1996.

[3] See Naake, Buffy, "The Economic and Fiscal Importance of Indian Reservations in the U.S. Economy," Center for Applied Research, Inc., Presentation to the Native American Finance Officers Association, June 4, 1998.

[4] Alan Meister, Ph.D., The Economics Impact of Indian Gaming in the United States, April 2002 (on file with the author).

[5] See Tiller, Veronica and Robert E. Chase, Economic Contributions of Indian Tribes to the State of Washington, http://www.goia.wa.gov/econdev/index.html (Mar. 26, 2002).

[6] See Id.

[7] See generally Matt Fleischer, No Reservations About Indian Law, The National Law Journal, May 8, 2000 ("Like corporations, tribes now need advice on employment law, trademarks, Federal Communications Commission regulations, bond financing, environmental standards and taxation." ).

[8] Worcester v. Georgia, 31 U.S. 515, 559 (1832).

[9] U.S. v. Kagama, 118 U.S. 375, 381-82 (1886).

[10] Williams v. Lee, 358 U.S. 217, 220 (1959).

[11] DAVID H. GETCHES ET AL., CASES AND MATERIALS ON FEDERAL INDIAN LAW (4th ed. 1998), at 390.

[12] As the U.S. Supreme Court recently explained:

Tribal courts . . . differ from other American courts (and often from one another) in their structure, in the substantive law they apply, and in the independence of their judges. Although some modern tribal courts "mirror American courts" and "are guided by written codes, rules, procedures, and guidelines," tribal law is still frequently unwritten, being based instead "on the values, mores, and norms of a tribe and expressed in its customs, traditions, and practices," and is often "handed down orally or by example from one generation to another." The resulting law applicable in tribal courts is a complex "mix of tribal codes and federal, state, and traditional law," which would be unusually difficult for an outsider to sort out.

Nevada v. Hicks, 533 U.S. 353 (2001) (citations omitted); see also Michael Taylor, Modern Practice in the Indian Courts, 10 Univ. Puget Sound Law Rev. 231 (1989); GETCHES, supra note 11, at 413-418 (discussing unique nature of tribal courts).

[13] See Id., Taylor, at p. 238-241.

[14] See Id.

[15] The Indian Law Reporter (Indian L. Rptr.) has published selected tribal court opinions since 1983. See Id.

[16] See Id.

[17] See, e.g., In re Buehl, 555 P.2d 1334 (Wash. 1976); Jim v. CIT Financial Services Corp., 533 P.2d 751 (N.M. 1975); Sheppard v. Sheppard, 655 P.2d 895 (Idaho 1982), cited in GETCHES, supra note 11, at 656-58.

[18] See, e.g., Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997); In Matter of Marriage of Red Fox, 542 P.2d 918 (1975); Mexican v. Circle Bear, 370 N.W.2d 737 (S.D.1985); Leon v. Numkena, 689 P.2d 566 (Ariz.Ct.App.1984); Wippert v. Blackfeet Tribe, 654 P.2d 512 (Mont. 1982); Wakefield v. Little Light, 347 A.2d 228 (Md.1975); In Re Lynch's Estate, 377 P.2d 199 (Ariz. 1962), cited in GETCHES, supra note 11, at 656-58. Comity "is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws." Begay v. Miller, 222 P.2d 624 (Ariz. 1950), quoting Hilton v. Guyot, 159 U.S. 113 (1895).

[19] Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978).

[20] Id.; Kiowa Tribe v. Manufacturing Technologies, Inc., 523 U.S. 757 (1998) ("As a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity."); see also Oklahoma Tax Comm'n v. Citizen Band Potawatomi Tribe, 498 U.S. 505 (1991) ("Suits against Indian tribes are barred by sovereign immunity absent a clear waiver by the tribe or congressional abrogation.").

[21] Demontiney v. U.S., 255 F.3d 801 (9th Cir. 2001), citing Pan Am. Co. v. Sycuan Band of Mission Indians, 884 F.2d 416 (9th Cir. 1989).

[22] Santa Clara Pueblo, supra note 19; Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269 (9th Cir. 1991); Hardin v. White Mountain Apache Tribe, 779 F.2d 476 (9th Cir. 1985).

[23] Imperial Granite Co., supra note 22. Then again, tribal officials who do act within the scope of their authority are protected from suit under the tribe's immunity. See Hardin, supra note 22.

[24] United States v. James, 980 F.2d 1314, 1319-20 (9th Cir. 1992).

[25] See U.S. v. Cherokee Nation of Okla., 480 U.S. 700 (1987); U.S. v. Mitchell, 463 U.S. 206 (1983); Seminole Nation v. U.S., 316 U.S. 286 (1942).

[26] Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001).

[27] See Great Northern Paper, Inc. v. Penobscott Nation, 770 A.2d 574 (Me. 2001) (interpreting Klamath).

[28] Weeks Construction, Inc. v. Oglala Sioux Housing Authority, 797 F.2d 668 (8th Cir. 1986). Cf. Wilson v. Turtle Mountain Band of Chippewa Indians, 459 F. Supp. 366, 368-69 (D.N.D. 1978).

[29] See Barker-Hatch v. Viejas Group, 83 F. Supp. 2d 1155 (S.D. Cal. 2000); Gavle v. Little Six, Inc., 524 N.W.2d 280 (Minn. App. 1995).

[30] Kiowa, supra note 20; In re Greene, 980 F.2d 590 (9th Cir. 1992).

[31] Kiowa, supra note 20; Weeks, supra note 28.

[32] Maynard v. Narragansett Indian Tribe, 984 F.2d 14 (1st Cir. 1994).

[33] C&L Enterprises, Inc. v. Citizen Band Potawatomi Tribe of Oklahoma, 532 U.S. 411 (2001).

[34] See generally GETCHES, supra note 11, at 383-88.

[35] Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e(b).

[36] 42 U.S.C. §§ 12101-12213.

[37] Pink v. Modoc Indian Health Project, 157 F.3d 1185 (9th Cir. 1998); Dille v. Council of Energy Resource Tribes, 801 F.2d 373 (10th Cir. 1986); but see Florida Paraplegic Assoc., Inc. v. Miccosukee Tribe of Indians of Florida, 166 F.3d 1126 (11th Cir. 1999) (held public accommodation portion of ADA applicable to tribes but held that tribe was immune from suit).

[38] 29 U.S.C. § 621-34.

[39] EEOC v. Cherokee Nation, 871 F.2d 937 (10th Cir. 1989) ("ADEA is not applicable because its enforcement would directly interfere with the Cherokee Nation's treaty-protected right of self-government"); EEOC v. Fond du Lac Heavy Equip. & Constr. Co., Inc., 986 F.2d 246 (8th Cir. 1993); but cf. EEOC v. Karuk Tribe Housing Authority, 260 F.3d 1071 (9th Cir. 2001) (narrowly held "the ADEA does not apply in these circumstances"); but see infra note 51.

[40] See Corrigan v. Bargala, 1999 U.S. App. Lexis 33671, 1999 WL 1217935 (9th Cir. 1999); Dry v. City of Durant, 242 F.3d 388 (10th Cir. 2000).

[41] See, e.g., A.R.S. § 41-1464 (exempts Arizona's tribes from state employment discrimination laws); see also New Mexico v. Mescalero Apache Tribe, 463 U.S. 324 (1983) ("State jurisdiction is preempted by the operation of federal law if it interferes with or is incompatible with federal and tribal interests reflected in the federal law, unless the state interests at stake are sufficient to justify the assertion of state authority."); FELIX S. COHEN, COHEN'S HANDBOOK OF FEDERAL INDIAN LAW (1982 ed.), at 259 (state civil laws are "generally not applicable to Indian affairs within the territory of an Indian tribe, absent the consent of Congress").

[42] See Hagen v. Sisseton-Wahpeton Community College, 205 F.3d 1040 (8th Cir. 2000).

[43] See Hardin, supra note 22.

[44] See James, supra note 24.

[45] See Klamath, supra note 26.

[46] 29 U.S.C. § 651 et seq.

[47] 29 U.S.C. § 1001 et seq.

[48] 29 U.S.C. § 201 et seq.

[49] 29 U.S.C. § 158(a)(3) et seq.

[50] Donovan v. Navajo Forest Products, Indus., 692 F.2d 709 (10th Cir. 1982) (OSHA held inapplicable to tribe in part because enforcement "would dilute the principles of tribal sovereignty and self-government recognized in the treaty:); National Labor Relations Board v. Pueblo of San Juan, 276 F.3d 1186 (2002) (held NLRA inapplicable to tribes); see also EEOC v. v. Fond du Lac, supra note 39.

[51] Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985) (right of self-government is too broad to defeat applicability of OSHA); DOL v. OSHA Review Comm'n, 935 F.2d 182 (9th Cir. 1991) (applying OSHA); Labor Industry Pension Fund v. Warm Springs Forest Products Industries, 939 F.2d 683 (9th Cir. 1991) (applying ERISA); Smart v. State Farm Ins., 868 F.2d 929 (7th Cir. 1989) (the "argument that ERISA will interfere with the tribe's right of self-government is overbroad"); Reich v. Great Lakes Indian Fish and Wildlife Commission, 4 F.3d 490 (7th Cir. 1993); Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d. Cir. 1996) (following Ninth and 7th Circuits to apply OSHA).

[52] See Begay v. Kerr McGee Corp, 682 F.2d 1311 (9th Cir. 1982); Tibbets v. Leech Lake Reservation Business Comm., 397 N.W.2d 883 (Minn. 1986) (held Minnesota worker' compensation law inapplicable to tribal employer); see generally Mescalero Apache, COHEN, supra note 41.

[53] To make civil jurisdiction issues even more complicated, courts consider whether the party is a tribal "member" and "nonmember." In short, "nonmembers" are non-Indian persons or entities, or Indian persons who are not enrolled as a member of the tribe which is asserting jurisdiction. See U.S. v. Wheeler, 435 U.S. 313 (1978); Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134 (1980); Strate v. A-1 Contractors, 520 U.S. 438 (1997); Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997). In order to keep this analysis cleaner, the terms "Indian" and "non-Indian" will be used.

[54] See, e.g., Montana v. U.S., 450 U.S. 544 (1981); Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U.S. 408 (1989) South Dakota v. Bourland, 508 U.S. 679 (1993); Strate, supra note 53.

[55] Another threshold determination should include whether the reservation is governed by Public Law 280, 18 U.S.C.A. § 1162(a), which extends state civil and criminal authority onto reservations in specific states.

[56] Williams v. Lee, 358 U.S. 217 (1958).

[57] See Strate, supra note 53.

[58] Id.

[59] Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997).

[60] Montana, supra note 54.

[61] Id; FMC v. Shoshone-Bancock Tribes, 905 F.2d 1311 (9th Cir. 1990).

[62] Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 467 U.S. 138 (1984).

[63] 28 U.S.C. §§ 1331, 1343.

[64] 28 U.SC. § 1332.

[65] See Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987); National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985).

[66] Id; Stock West Corp. v. Taylor, 964 F.2d 912 (9th Cir. 1992).

[67] LaPlante, supra note 65.

[68] Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978).

[69] Hardin v. White Mountain Apache Tribe, 779 F.2d 476 (9th Cir. 1985).

[70] New York ex rel Ray v. Martin, 326 U.S. 496 (1946); Solem v. Bartlett, 465 U.S. 463 (1984).

[71] 18 U.S.C. § 1152.

[72] Williams v. U.S., 327 U.S. 711 (1946).

[73] 495 U.S. 676 (1990).

[74] 25 U.S.C. § 1301(2).

[75] See, e.g., the General Crimes Act, 18 U.S.C.A. §§ 1152; the Major Crimes Act, 18 U.S.C.A. §§ 1153, 3242; Public Law 280, 18 U.S.C.A. §§ 1162(a).

[76] See U.S. v. Enas, 255 F.3d 662 (9th Cir. 2001) (upholding Duro fix); see also Walker v. Rushing, 898 F.2d 672 (8th Cir. 1990) (upheld tribal jurisdiction over member despite Public Law 280).