Vol. 78, No. 7, July 2005
Researching American 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 Indians.
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 Indian law.
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 National Indian 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 Act6).
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 federal agencies.
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 Indians.
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 not searchable.
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.
1Rennard Strickland, 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 1904).
4H.R. Doc. No. 736, 56th Congress, 1st Sess. (1899).
5Pub. L. No. 95-608, 92 Stat. 3069.
6Pub. L. No. 100-467, 102 Stat. 2467.
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. 2206.