Homeland Security FEDERAL LAW ENFORCEMENT TRAINING CENTERS OFFICE OF CHIEF COUNSEL ARTESIA LEGAL DIVISION ARTESIA, NM INDIAN LAW HANDBOOK 2016 Foreword October 2015 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 (ALG) 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 commitment, ALG 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, and civil liability. In addition, ALG provides 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 first textbook from the FLETC that addresses the unique jurisdictional challenges of Indian Country: the Indian Law Handbook. It is our hope in the ALG that the Indian Law Handbook can serve all law enforcement students and law enforcement officers in Indian Country and can foster greater cooperation between the federal government, state, local, and tribal officers. An additional resource for federal, state, local and tribal law enforcement officers and agents is the LGD website: https://www.fletc.gov/legal-resources i 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. We hope to continue to provide excellent legal training programs, tools, and resources that meet our mission of training those who protect our homeland. Robert J. Duncan Editor [email protected] ii Current Instructors Artesia, New Mexico Robert J. Duncan is a graduate of Bacone College (B.S.), 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 currently assigned to the Artesia Legal Division as an Instructor (Attorney-Advisor) and Editor of the Indian Law Handbook. Prior to joining the FLETC, he was the Attorney-Advisor and Associate Professor of Transnational Law at Bacone College. Mr. Duncan also taught state, local and tribal law enforcement officers in the Oklahoma Council on Law Enforcement Training and Education Reserve Academy. In private practice, he served as an Arbitrator for the Cherokee Nation Supreme Court and advised colleges and universities on Title IX, VAWA and Clery Act issues. He 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. He 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 Artesia Training Facility, Mr. Haefner was promoted to Associate Chief Counsel assuming the supervision and guidance of the instructional legal division staff. Current Instructors iii Mr. Haefner is licensed to practice law in Ohio. Mr. Haefner can be contacted at (575) 746-5799 or [email protected]. David Hall is a graduate of the University of Central Oklahoma (B.A.) and the University of Oklahoma (J.D.). He has prosecuted and defended cases in the state and federal courts of Oklahoma. In addition, he has served as the prosecuting attorney for the Citizen Potawatomi Nation of Oklahoma and for the Seminole Nation of Oklahoma. Mr. Hall can be contacted at (575) 748-8105 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 began her legal career as an Assistant State Attorney in Jacksonville, Florida, during which she was quickly promoted 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, Ms. Heldmyer 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. For the past six years, Ms. Heldmyer has 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, and three commendation letters from the Director of the Federal Bureau of Investigation. She can be contacted at (575) 746-5986 or [email protected]. iv Current Instructors 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……………………................. 117 Chapter 5 – Indian Child Welfare Act………………............. 145 Chapter 6 – Juvenile Law……………..…............................ 169 Chapter 7 – Chapter 109A Felonies ……………..………....... 191 Chapter 8 – Rights of Inmates …………………..……............ 221 Table of Contents v Chapter One Survey of Indian Law History 1.1 Introduction ........................................................... 1 1.2 Discovery through PROCLAMATION OF 1763 ................ 2 1.3 Johnson v. M’Intosh ............................................... 8 1.4 Cherokee Nation v. Georgia .................................. 11 1.5 Worcester v. Georgia ............................................ 15 1.6 Mexican Cession, Pueblo people and the Navajo .... 17 1.7 Treaty-making Gives Way to Plenary Power .......... 25 1.8 Indian Reorganization Act and Self-Governance ... 28 1.9 Indian Self-Determination Act and Beyond ........... 32 1.1 Introduction For all practical purposes, there are three types of sovereign entities in the United States1 – federal, state, and tribal. Tribal governments are unique among the three: they possess a separate sovereignty that has never been formally incorporated into the American constitutional framework, they have histories as separate nations that precede that of the United States, and they enjoy special recognition under Federal law because the nations themselves share treaty relationships with the United States. As a result, “the entire field of American Indian law is constitutionally, historically, and jurisprudentially characterized by exceptionalism.”2 Over the past three hundred fifty years, “laws dealing specifically with Indian tribes and Indian people”3 have been revised and reimagined to bring Indians into the Constitutional structure of government as individuals in a “separate minority population.”4 “Indian” is a term of art in Federal law – it is a word with a specific legal meaning separate and distinct from its meaning in ordinary use or language. Individually, Indians are defined by statute in Survey of Indian Law History 1 the U.S. Code. Generally speaking, an “Indian” is a person who is a member of a federally-recognized Indian tribe. An “Indian tribe” is any Indian tribe, band, nation, pueblo or other organized group or community, including any Alaska Native village or regional or village corporation as defined or established pursuant to the Alaska Native Claims Settlement Act, which is subject to the jurisdiction of the United States and recognized as possessing powers of self-government, or recognized as “eligible for the special programs and services provided by the United States to Indians because of their status as Indians.”5 Likewise, Indian Country is legislatively defined and includes areas of tribal jurisdiction where criminal jurisdiction has been assumed by the United States. This chapter follows the history of Indian law from early settlement