Native American Law

Native American law is the collection of laws, administrative rules and other authorities that impact Native American populations and their relationship to the United States and state governments. Native American law defines the relationships between Native American tribes and other governments. It also encompasses the self-government of Native American tribes.

Achievements in Native American law

There are several purposes to Native American law. The laws seek to allow Native Americans to self-govern in an effective and fair way. The laws aim to preserve Native American culture. In addition, by defining jurisdictional issues that relate to Native American tribes, the laws promote access to justice and fairness in civil and criminal proceedings that impact both Native Americans and non-Natives alike. There are also laws that promote health services specifically for Native American populations.

Native American autonomy and courts

Native American laws preserve the right of recognized American tribes to make and enforce their own laws. Federal laws say when, where and how Native American tribes can hear legal disputes. The laws also clarify when U.S. federal and state courts may hear cases that involve Native Americans. There are laws that reserve certain lands for the exclusive possession and disposition of tribal members. Native American tribes generally have their own constitution, laws and courts.

Jurisdictional issues and questions

Many of the issues that arise in the practice of Native American law are jurisdictional issues. There are rules for when a Native American court can hear a case that involves a non-native person or corporation. There are also rules for when a U.S. or state court may hear a case that involves a Native American. Jurisdictional issues often hinge on where the crime or civil dispute arose and whether the perpetrator or victim is a member of a Native American tribe.

A great deal of the practice of Native American law involves knowing what jurisdictional issues exist in a case and knowing how to raise those claims. Often times, if an issue regarding jurisdiction isn’t raised at the first opportunity, it’s waived. That makes it important to understand jurisdictional issues and how to timely assert them.

Alaska Native Claims Settlement Act of 1971

The Alaska Native Claims Settlement Act of 1971 called for cash payments from the U.S. government to Native American tribes. In return, the Act determines the boundaries of Native American lands in Alaska. The Act is the largest land settlement in U.S. history.

Gaming rights

The California v. Cabazon Band of Mission Indians case of 1987 addressed Native American gaming activities in the United States. The case ruled that states can’t ban gaming activities by Native Americans in their states. However, Congress quickly responded with the Indian Gaming Regulations Act that provides for federal and state oversight of gaming activities.

Indian Arts and Crafts Act of 1990

The Indian Arts and Crafts Act of 1990 is a federal law that prohibits marketing an item as a Native American product if it isn’t made by a Native American or endorsed by a tribe. A violation can result in a fine of up to $250,000 and up to five years in prison. If a business violates the law, the fine may be up to $1 million.

The Indian Child Welfare Act of 1978

Before the Indian Child Welfare Act of 1978, Native American children were removed from their homes at a rate that was 16 times greater than that of the general population. In fact, the Bureau of Indian Affairs incentivized states to place children in non-Native homes. The Indian Child Welfare Act of 1978 removes federal and state jurisdiction of custody or adoption in cases where a child lives on a reservation or is a member of a recognized tribe.

There are also notice requirements in some cases so that Native American governmental authorities are aware of proceedings in state and federal courts. The purpose of the Indian Child Welfare Act is to prevent the intentional removal of children from Native American culture. The Act also aims to preserve Native American culture and heritage by ensuring Native American children can remain in their communities whenever possible.

Civil disputes

The general rule is that a Native American court can resolve a dispute that arises on Native-owned land. They may also hear a case that threatens Native American land. In the 2008 Plains Commerce Bank v Long Family Cattle Company, the U.S. Supreme Court ruled that a tribal court has no authority over a case if the dispute arises on property that is not native owned even if the property sits on a reservation. The only exception is if the dispute threatens the welfare of the tribe.

Health initiatives

In addition to laws that address jurisdictional questions and creation of laws by Native American tribes, the U.S. government also has health initiatives aimed at providing health services for Native American tribes. The Indian Health Service is a division of the U.S. Department of Health and Human Services. The Indian Health Service exists to promote the health of tribal members including physical, emotional and spiritual health.

The Indian Health Service isn’t an insurance company, and it’s not a health care provider. Instead, the Service provides some health care services at facilities throughout the United States. You must be a member of a federally recognized tribe in order to receive care. There is no guarantee of care or an established list of covered services. Instead, health-care providers prioritize services based on their funding and patient needs.

How can you practice in a Native American court?

Each tribe creates their own rules for appearing in front of a Native American court. With more than 500 tribes in the United States, it’s important to find the rules for the tribe where you want to appear. Some tribes, like the Saginaw Chippewa, only require an applicant to take an oath that they’re a licensed attorney in good standing in the state where the tribe is located.

In other cases, there are more things to do in order to qualify to appear in a Native American court. The St. Regis Mohawk tribe requires applicants to not only prove membership in the State Bar of New York but also to demonstrate a knowledge of tribal history and culture. Applicants must take cultural awareness training, tour a cultural museum and pass a test. In addition to qualification requirements, most tribes also create rules and regulations for disciplining and dismissing attorneys from practice in their courts.

Who practices Native American law?

Both Native Americans and non-Natives alike may practice Native American law. Lawyers in the field are both civil attorneys and criminal attorneys. Lawyers who establish their practice near a tribe’s land are likely to encounter Native American law questions and jurisdictional issues the most.

Even though a lawyer who practices in the area of law must understand the jurisdictional issues and challenges thoroughly, they must also fully understand the criminal and civil law that applies to the case. They must help their clients effectively address substantive law issues as well as jurisdictional issues and application of law questions that might arise in the case. In addition, Native American lawyers include the judges and legal administrators that work in tribunal courts. A practice in Native American law is often highly unique to the individual practice of the attorney. Each tribe has their own laws, and each attorney must understand how tribal laws interact with the federal and state laws in the cases that they handle.

Why Become a Native American lawyer?

Native American lawyers play an important role in creating, applying and challenging Native American laws. Lawyers have the opportunity to protect their client’s interests and promote the fair application of the law for everyone involved. In addition, knowing when Native American laws might apply and knowing how to assert those rights is a critical part of providing competent representation for a client in any type of legal practice. A Native American lawyer might focus their practice on cases and issues that advocate for the preservation of Native American culture or they may practice Native American law incidentally as part of a practice that generally focuses on another type of law.

Preserving Native American culture through the practice of law

Native American laws exist to preserve culture and promote the fair creation and application of law. Attorneys who focus on Native American law play an important part of this work. Helping a client understand and assert their rights as they relate to Native American laws and jurisdiction is a critical part of representing a client and contributing to the complex American legal system.