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2017 Indian Law Handbook Homeland Security FEDERAL LAW ENFORCEMENT TRAINING CENTERS OFFICE OF CHIEF COUNSEL ARTESIA LEGAL DIVISION ARTESIA, NM INDIAN LAW HANDBOOK Second Edition March 2017 For Christy and Rian - RJD Foreword March 2017 The Federal Law Enforcement Training Centers (FLETC) has a vital mission: to train those who protect our homeland. As a division of the Office of Chief Counsel, the Artesia Legal Division is committed to delivering the highest quality legal training to law enforcement agencies and partner organizations in Indian Country and across the nation. In fulfilling this committment, our Attorney-Advisors provide training on all areas of criminal law and procedure, including Constitutional law, authority and jurisdiction, search and seizure, use of force, self-incrimination, courtroom evidence, courtroom testimony, electronic law and evidence, criminal statutes, civil liability and instruction unique to Indian Country: Indian Country Criminal Jurisdiction, Conservation Law, and the Indian Civil Rights Act. My colleagues and I are pleased to present the second edition of this text; we hope that the Indian Law Handbook can serve all law enforcement students and law enforcement officers in Indian Country. An additional resource for federal, state, local and tribal law enforcement officers and agents is the LGD website: https://www.fletc.gov/legal-resources The LGD website has a number of resources including articles, podcasts, links, federal circuit court and Supreme Court case digests, and The Federal Law Enforcement Informer. Robert J. Duncan Editor [email protected] Foreword i (Page intentionally left blank.) Current Instructors Artesia, New Mexico Robert J. Duncan is a graduate of Bacone College (B.S. cum laude), Oklahoma City University School of Law (J.D.), and the University of Tulsa College of Law (LL.M. with honor – American Indian and Indigenous Law). He is assigned to the Artesia Legal Division as an Attorney-Advisor (Instructor) and serves as the Editor of the Indian Law Handbook, which earned a DHS/OGC Excellence in Training Award in 2016. Mr. Duncan has also been a guest lecturer at the International Law Enforcement Academy— Roswell (ILEA) and has contributed to The Informer and the Legal Division Workbook. Prior to joining FLETC, he was the Attorney- Advisor and Associate Professor of Transnational Law at Bacone College; Mr. Duncan also served as an arbitrator for the Cherokee Nation and advised colleges and universities on Title IX, VAWA and Clery Act issues in private practice. He served as a reserve law enforcement officer in Oklahoma for ten years and taught state, local and tribal law enforcement officers in the Oklahoma Council on Law Enforcement Training and Education Reserve Academy. Mr. Duncan is a member of the bars of the State of Oklahoma, the Cherokee Nation, and the Muscogee (Creek) Nation. He may be contacted at (575) 748-0416 or [email protected]. Joseph P. Haefner graduated from Cornell University in 1985. Mr. Haefner served as an Unrestricted Line Officer in the U.S Navy, operating in the Western Pacific while forward deployed to Sasebo, Japan, and participated in Operation Desert Storm as part of the USS Nimitz Battle Group. He left active duty in 1993 and attended Case Western Reserve University School of Law, graduating in 1996. He then entered the private practice of law as an attorney in Medina, Ohio, before being appointed as the Deputy Law Director and Prosecutor in Stow, Ohio. In November 1999, he was elected as the Stow City Law Director and served two four-year terms. Mr. Haefner joined the FLETC Office of Chief Counsel in June 2008 and is physically located at the Artesia, New Mexico, facility, providing dedicated legal support in the areas of labor, employment, and administrative law. In 2012, he added contract and fiscal law to his areas of responsibilities supporting the Procurement Branch in Artesia. In November 2014, to better support the mission at the Current Instructors ii Artesia Training Facility, Mr. Haefner was promoted to Associate Chief Counsel and assumed the supervision and guidance of the instructional legal division staff. Mr. Haefner is licensed to practice law in Ohio. Mr. Haefner may be contacted at (575) 746-5799 or [email protected]. Michelle M. Heldmyer is a graduate of the Florida State University, earning a Bachelor’s Degree in Economics (magna cum laude) and a Juris Doctor (with honors) from the Florida State University College of Law. She is assigned to the Artesia Legal Division as an Attorney-Advisor (Instructor) and Editor of the Legal Division Workbook and is a frequent guest lecturer at the International Law Enforcement Academy—Roswell (ILEA). She began her legal career as an Assistant State Attorney in Jacksonville, Florida, during which she was assigned to the Special Prosecutions Unit to conduct wiretap operations and investigate and prosecute large-scale criminal organizations. After three years in state prosecution, Ms. Heldmyer began her 26-year service as an Assistant United States Attorney, practicing in Florida and Colorado. Ms. Heldmyer has prosecuted all types of criminal offenses and tried over 100 cases, including homicides, narcotics, fraud, tax, firearms, Indian Country cases and alien crimes, and land management violations. In addition, she was an instructor for a private consulting firm, during which she taught police liability, FOIA and narcotics enterprise tactics, and has guest lectured on many occasions at universities, police academies and law enforcement training centers. Ms. Heldmyer has also provided legal update training for the Bureau of Land Management, the U.S. Forest Service and the U.S. Park Service throughout Western Colorado. Ms. Heldmyer has been the recipient of two Director’s Awards for Superior Performance from the Department of Justice, the Top Prosecutor Award from the Internal Revenue Service, an Exceptional Service Award from the Department of Homeland Security, a DHS/OGC Excellence in Training Award and three commendation letters from the Director of the Federal Bureau of Investigation. She may be contacted at (575) 746-5986 or [email protected]. iii Current Instructors Henry W. McGowen is a graduate of the University of Texas (B.A. Economics); St. Mary’s University School of Law (J.D.) where he was inducted into the Order of Barristers; and University of Notre Dame (Executive Certificate in Management and Leadership). He is assigned to the Artesia Legal Division as an Attorney-Advisor (Instructor) and is a frequent guest lecturer at the International Law Enforcement Academy—Roswell (ILEA). Prior to joining FLETC, he spent a decade abroad working in international legal development and judicial reform programs supported by the U.S. State Department and was the program manager for the Kosovo Judicial Institute (KJI), a post-graduate magistrate school established to provide continuing legal education for sitting judges and prosecutors and initial legal magistrate training for prospective judges and prosecutors adapting to a post-conflict environment. During his tenure at KJI, he developed and delivered curriculum in areas of war crimes and comparative law, promoted policy change for the former Yugoslav judicial system, introduced new laws promulgated by the United Nations administration until the establishment of the Kosovo Assembly, and taught subsequent domestic law passed by the Kosovo Assembly. Mr. McGowen has also taught international law at Saint Mary’s School of Law, court procedure and capstone courses in the graduate program (M.S. Criminal Justice) at Saint Leo University, and comparative and transnational law at Law Enforcement Academy—Roswell (ILEA). He previously served as a judge and a prosecutor, and held a post- graduate clerkship as a briefing attorney for Hon. Lucius Bunton in the Western District of Texas. Mr. McGowen may be contacted at (575) 748-8105 or [email protected]. Current Instructors iv Past Contributors David Hall is a graduate of the University of Central Oklahoma (B.A.) and the University of Oklahoma (J.D.). He served in the Artesia Legal Division from 2012-2015 and was recognized by a DHS/OGC Excellence in Training Award for his contributions to the first edition of the Indian Law Handbook. v Past Contributors Table of Contents Chapter 1 – Survey of Indian Law History...............................1 Chapter 2 – Indian Civil Rights Act ......................................35 Chapter 3 – Indian Country Criminal Jurisdiction.................52 Chapter 4 – Conservation Law…………………….....................110 Chapter 5 – Indian Child Welfare Act……………….................134 Chapter 6 – Juvenile Law……………..…................................157 Chapter 7 – Chapter 109A Felonies ……………..………..........178 Chapter 8 – Rights of Inmates …………………..……...............202 Table of Contents vi (Page intentionally left blank.) Chapter One Survey of Indian Law History 1.1 Introduction ........................................................... 1 1.2 Discovery through PROCLAMATION OF 1763 ................ 2 1.3 Removal “On Reasonable Terms” ............................ 8 1.4 Johnson v. M’Intosh ................................................ 9 1.5 Cherokee Nation v. Georgia ................................... 12 1.6 Worcester v. Georgia ............................................. 15 1.7 Mexican Cession and Western Tribes ..................... 17 1.8 Treaty-making Gives Way to Plenary Power ........... 24 1.9 Indian Reorganization Act ....................................
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