Vol. 78, No. 7, July
Indian Law Online
Here are some basic resources to help you navigate the complex web of
treaties, federal statutes and regulations, federal case law, and tribal
codes, constitutions, and jurisprudence that affect American
by Amy Gannaway
"Law dominates Indian life in a way not duplicated in other segments
of American society,"1 write the editors of
a leading treatise on federal American Indian law. Since the American
Revolution, American Indian law has evolved into a complex web of
treaties, federal statutes and regulations, and federal case law, as
well as tribal codes, constitutions, and jurisprudence.
For the purposes of this article, American Indian law can be divided
into two broad categories: 1) laws that deal with the relationship of
tribes to the U.S. government, and 2) laws that deal with the internal
governance of individual tribes. Treaties, federal statutes and
regulations, federal case law, and administrative appeals decisions all
make up the body of law referred to as federal American Indian law.
Additionally, as sovereign nations each tribe has its own system of
government, which usually includes a tribal constitution and a tribal
code, along with tribal courts that adjudicate civil and criminal
matters when the tribe has jurisdiction. This article provides sources
for finding tribal codes, constitutions, and court decisions, together
with sources for finding treaties, federal statutes and regulations,
case law, and administrative appeals decisions relating to American
com agannaway lathropclark Amy Gannaway is the firm
librarian at Lathrop & Clark LLP, Madison, and a member of the Law
Librarians Association of Wisconsin.
Tribal Constitutions and Codes
To research an issue over which a tribe has jurisdiction, begin with
the particular tribe's constitution and code. (Questions of jurisdiction
are complex and beyond the scope of this article.) The most
comprehensive Internet source for tribal codes and constitutions is the
Law Library's Tribal Law Gateway. The Tribal Law Gateway provides
links to digital copies of constitutions and codes for different tribes.
Some materials are available on a tribe's own Web site, some materials
are in .pdf format, and other materials include a searchable database.
The Tribal Law Gateway also indicates whether a print copy is available,
so even if a particular tribe's constitution or code is not available
online, the National Indian Law Library may indicate where you can
locate a print copy.
Additional resources for locating tribal codes and constitutions
include the National
Tribal Justice Resource Center, which provides a searchable database
of tribal constitutions and codes; and the Tribal Court Clearinghouse,
which gives links to tribal
constitutions and tribal
laws/codes . These links provide an alphabetical listing of
constitutions and codes by tribe and are not searchable.
Tribal Case Law
Along with reviewing the tribe's constitution and code, a review of
tribal case law may be useful when researching issues over which a tribe
has jurisdiction. Tribal court structures range in complexity from a
single court with a part-time judge to court systems with multiple
courts, including appellate courts. The National
Tribal Justice Resource Center has a searchable database of more
than 1,800 opinions from various tribal courts. You can browse by tribe
or search the entire database.
Some tribes also may post their court opinions on their individual
Web sites, visit www.tribalresourcecenter.org
for a listing. Wisconsin's
Ho-Chunk Nation has some court decisions online.
To shift into research that involves the relationship of American
Indian tribes to the U.S. government, turn to federal law. One of the
first ways that American Indian tribes interacted with the U.S.
government was through the negotiation of treaties. From 1787 to
18712 American Indian tribes negotiated
hundreds of treaties with the U.S. government. These treaties covered
subjects such as land boundaries, hunting and fishing rights, regulation
of trade, and so on, and are still authoritative today. Many of these
treaties are available on the Internet in multiple places. Determining
which Web site to use will depend on the purpose of your research.
To get acquainted with treaties, visit http://memory.loc.gov.
This Web site contains the United States Statutes at Large for
the first 43 Congresses, covering 1789 to 1875 (before 1948 the
Statutes at Large contained all treaties and international
agreements entered into by the U.S. government). To find American Indian
treaties, click on the "treaties with Indians" link. Browse through the
table of contents using the "Prev Image" and "Next Image" links to find
the page number of the treaty that you need. Enter the page number in
the "Turn to image" box to get to the correct page. Full-text searching
is not available on this Web site.
Another source for treaties is Oklahoma State University's
digitization of Indian Affairs: Laws
and Treaties,3 at . Volume two of
this seven-volume compilation of laws relating to American Indians
covers treaties between American Indian tribes and the U.S. government
entered into from 1778 to 1883. (Although treaty-making ended in 1871,
the U.S. government continued to make "agreements" with American Indian
tribes.) You can browse treaties by name of tribe or by year ratified.
The Web site also has an index that includes names of places where
treaties were negotiated. While full-text searching is available, there
is no way to narrow your search to only the volume on treaties.
Therefore, if you are searching for something fairly specific, such as
the name of a particular river, the search engine could prove useful,
but a broader search may be difficult.
The American Memory
Web site from the Library of Congress also is useful. It brings
together congressional records, including records of floor debate and
copies of bills, from 1774 to 1785. The collection also contains Indian Land
Cessations in the United States, 1784-1894,4 which describes lands ceded by or reserved for
American Indian tribes and includes maps.
Federal Statutes and Regulations
Many federal statutes and regulations also relate to American
Indians. One place to begin this type of research is the Indian law
section of the Cornell Legal Information Institute (LLI) Web site.
The LLI Web site gives links to relevant constitutional, statutory, and
regulatory sections, such as title 25 of the United States Code (U.S.C.)
(Indians) and 18 U.S.C. § 1152 (dealing with tribal court
jurisdiction). You can either browse or search the code.
The Tribal Court Clearinghouse provides links for particular sections of
title 25 that are relevant to tribal courts. The Wisconsin Judicare Web
site has links to federal laws affecting American Indians, with
links organized by popular name (such as the Indian Child Welfare
Act5 and the Indian Gaming Regulatory
In addition, title 25 of the Code of Federal Regulations (C.F.R.) is
devoted to American Indians. You can use the Government
Printing Office's C.F.R. Web site, to browse and search title 25 of
the C.F.R. The U.S.C. is the codification of laws passed by Congress,
while the C.F.R. is the compilation of regulations promulgated by
Even though the C.F.R. covers many aspects of regulations relating to
American Indians, individual federal agencies also publish regulatory
guidance. The Bureau of Indian Affairs (BIA) is a major regulatory
agency for American Indians. The BIA's Web site has been taken off-line
due to the Cobell litigation,7 and
there is no estimate as to when the Web site will resume operation.
However, the BIA has been
able to provide a Web page with links to other federal agencies that
also deal with American Indians. The Department of Interior's (DOI) subject index also may
be a useful resource for finding federal government Web sites that
relate to American Indians. In addition, the Tribal Court
Clearinghouse has a Web page devoted to the different federal
agencies that have administrative responsibilities related to American
Another source of administrative agency guidance are DOI Solicitor's
opinions. Opinions may be requested on various topics, much like
requesting attorney general opinions. The DOI Web site has
solicitor's opinions from 1993 to January 2001, organized by decision
number (it appears that no new opinions have been issued since 2001). In
addition, the University of Oklahoma has DOI Solicitor's opinions
from 1917 to 1974. These also are organized by decision number, but a
subject index is included at the bottom of the page.
Administrative Appeals Decisions
Federal administrative agencies also enforce laws and regulations
relating to American Indians. The BIA is the agency primarily
responsible for enforcing many of these laws. Administrative actions of
BIA officials and decisions of administrative law judges regarding land
allotments, leases, probate, grazing permits, tribal government, and
other issues may be appealed to the Interior Board of Indian Appeals
(IBIA). Because the BIA's Web site is not currently online, an IBIA
administrative judge has created an unofficial Web site for IBIA decisions. This site
contains IBIA decisions from 1970 to the present listed in alphabetical
order by name and listed by date. The Web site does not have its own
searchable database, but it provides instructions for searching
decisions using the Google or Yahoo search engines.
The unofficial Web site includes decisions of the Interior Board of
Land Appeals (IBLA) from 1992 to the present. The IBLA decides appeals
of decisions issued by DOI officials on the use of federal lands. Some
of these decisions may involve American Indian tribes. The Web site also
includes Indian Self-Determination Act8 decisions, which may
be decided by an administrative law judge, the IBIA, or the Appeals
Board of the Department of Health and Human Services (if the decision
involves the Indian Health Service).
Federal Case Law
For the most part, claims filed on behalf of tribes or individual
tribal members are adjudicated in federal court, because laws dealing
with the relationship of tribes and tribal members to the U.S.
government are federal laws. Therefore, when researching case law
related to American Indians you will most likely be researching federal
case law. As is true when researching federal court decisions on any
topic, U.S. Supreme Court decisions are the most readily available.
To find a U.S. Supreme Court case by case name, visit Judicare.org. This site
lists seminal U.S. Supreme Court cases relating to Indian law from 1800
to the present in chronological order, and it is not searchable.
Links to U.S. Supreme Court decisions from 1991 to the present can be
found at the Tribal Court
Clearinghouse Web site. This site includes summaries of each
decision and provides links to the full text of decisions. Decisions are
The U.S. Court
of Federal Claims, which hears cases involving claims against the
United States, also decides American Indian law cases. All of the
court's opinions from July 1997 to the present are available and are
organized by year.
Choosing the proper source when beginning a research project in
American Indian law depends on several factors, such as the particular
tribe involved and the nature of the research matter. While this article
discusses only basic resources, this information will help you begin
your research on American Indian law.
Introduction to Felix S. Cohen's Handbook of Federal Indian
Law at vii (Rennard Strickland et al. eds., Michie 1982).
2Act of March 3, 1871, ch. 120,
§ 1, 16 Stat. 544 (codified at 25 U.S.C. § 71) (ending
treaty-making with American Indian tribes).
3Indian Affairs: Laws and
Treaties (Charles J. Kappler ed., Government Printing Office
4H.R. Doc. No. 736, 56th Congress,
1st Sess. (1899).
5Pub. L. No. 95-608, 92 Stat.
6Pub. L. No. 100-467, 102 Stat.
7Cobell v. Norton, No.
96-1285 (D.D.C. filed June 10, 1996) (class-action lawsuit filed on
behalf of American Indian beneficiaries of trust accounts held by the
federal government for revenue generated by leasing of American
Indian-owned land for activities such as mining and grazing). In 2001
Judge Royce C. Lamberth ordered the BIA's Web site disconnected from the
Internet because of concerns about data security.
8Pub. L. No. 93-638, 88 Stat.