LS 011: Native Americans and the Law



Native American law (or “Indian law” as it is sometimes called) lies at the intersection of federal, state, and tribal laws, some of which pre-date the arrival of European colonists in North America. In today’s episode, we discuss the nature of Indian law, its origins, applications, powers, jurisdictional issues, and sovereign immunity.

I interview Thomas Weathers, an attorney with an active Indian law practice. Mr. Weathers is an Aleut and an enrolled member of the Qawalangin Tribe of Unalaska. He and I discuss the following in detail:

– The origins of Native American law, both before and after the arrival of Europeans. Article 1, section 8 of the U.S. Constitution empowers Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The Constitution, however, in particular the Bill of Rights, does not apply to Indian tribes.  In 1968, Congress passed the Indian Civil Rights Act, which extended most of the Bill of Rights to Indian tribes.

– As with the federal and state governments, Indian tribes enjoy sovereign immunity- they cannot be sued without their consent. Consent can be express, as when a Congressional statute specifically provides for a right to file lawsuits against a tribe. Tribes may also affirmatively waive their rights to sovereign immunity by entering into contracts that provide for other parties to seek redress in alternate forums (e.g. arbitration clauses that allow awards to be enforced in state or federal courts). In the absence of Congressional action or affirmative waiver by tribes, they are generally immune from lawsuits.

– Tribal courts retain jurisdiction over most civil and criminal matters involving Indians; however, they have virtually no jurisdiction over non-Indians. Mr. Weathers discusses a few different factual scenarios to illustrate how jurisdictional issues may arise.

– Mr. Weathers discusses some recurrent issues involving Indian law as it pertains to state business and contract law, and to commerce between Indians and non-Indians.

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