American Indian Law Deskbook

By Hardy Myers; Clay Smith | Go to book overview
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Chapter 5
General Civil Regulatory Jurisdiction

Among the most difficult and recurring issues in Indian law is the scope of federal, tribal, and state civil regulatory authority in Indian country. Since Worcester v. Georgia, 1 the Supreme Court has labored to articulate general principles to resolve these issues, but even today there remain significant differences within the Court both as to governing principles and how accepted principles should be applied. The serious doctrinal differences among members of the high court have made “[g]eneralizations on this subject ... particularly treacherous.” 2 Reasoned analysis of the myriad questions arising over the permissible scope of state and tribal civil regulatory authority is impossible, however, without some attempt to distill basic principles. Consequently, while all the cases discussed in this chapter are treated in later chapters focusing on specific regulatory concerns such as taxation, environmental regulation, and hunting and fishing rights, the general principles that underlie their analysis are largely common. These principles, moreover, have direct relevance to the scope of tribal adjudicatory jurisdiction discussed in Chapter 6.

Analysis of civil regulatory authority in Indian country invariably begins with identifying relevant codified and uncodified 3 statutes and, in some instances, pertinent treaty provisions. Where Congress has directly spoken, its wishes must be honored. 4 Quite often, however, no federal statute or treaty will authorize or prohibit explicit assertion of state or tribal regulatory power

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1
31 U.S. (6 Pet.) 515 (1832).
2
Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (1973).
3
Aside from laws appearing in the United States Code, many enactments affecting particular reservations or tribes are found only in the Statutes at Large. These uncodified statutes are often central to determining the scope of state, federal, and tribal authority in a specific situation. See, e.g., DeCoteau v. District County Court, 420 U.S. 425 (1975) (construing Act of March 3, 1891, 26 Stat. 1035, to determine whether portion of Lake Traverse Indian Reservation disestablished); Crow Tribe v. Montana, 819 F.2d 895, 898 (9th Cir. 1987) (construing Act of May 19, 1958, 72 Stat. 121, as restoring subsurface mineral estate to reservation status), aff 'd mem., 484 U.S. 997 (1988).
4
E.g., Rice v. Rehner, 463 U.S. 713 (1983) (construing 18 U.S.C. § 1161 as investing states with regulatory authority over on-premises sale of alcoholic beverages by tribal retailer for off-premises consumption); United States v. Mazurie, 419 U.S. 544 (1975) (upholding congressional delegation of legislative authority to tribes with respect to on-reservation liquor transactions by nonmembers).

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