FEDERAL INDIAN LAW
Law 240
Kathryn R.L. Rand, Dean
and
Joseph Morsette, Director of NAIL Program & NPILC Faculty Fellow
University of North Dakota School of Law
Fall 2011
Tuesday/Thursday 10:40 am to 12:10 pm
Room 103
RAND:
Office: Room 108
Phone: 777-2104
e-mail: rand@law.und.edu
Office hours:
Immediately following class and by appointment
(please contact Phyllis Trelfa to schedule an appointment)
MORSETTE:
Office: Room 302
Phone: 777-2223
e-mail: morsette@law.und.edu
Office hours:
Immediately following class and by appointment
COURSE DESCRIPTION
This course provides an overview of federal Indian law—that is, the United States’
policies and laws regarding tribal governments and individual Indians. Major topics include the
origin and scope of federal power over Indian affairs; the nature and history of intergovernmental
relations among tribes, the federal government, and the states; tribal governmental authority;
civil and criminal jurisdiction in Indian Country; and current issues in federal Indian law. The
course will incorporate real-life practice scenarios. Students will be graded on a series of skills
exercises and written assignments.
COURSE GOALS
After successful completion of the course, students will:
1.
Recognize and understand the basic principles of federal Indian law, including
legal terms of art, tribal sovereignty, the federal government’s trust responsibility,
exclusive federal authority, and the relationship among tribes, the federal government,
and the states.
2.
Be familiar with the historical context of federal Indian law, including the eras of
federal Indian policy.
3.
Understand the key U.S. Supreme Court decisions and federal statutes in federal
Indian law, and be able to apply statutory, regulatory, and case law to issues.
4.
Understand the political issues that arise from applicable statutory, regulatory, and
case law, and be able to critically examine current legal and public policy issues
surrounding Indian law.
5.
Be able to effectively communicate, orally and in writing, an appropriate and
effective analysis of issues related to federal Indian law.
REQUIRED READING
GETCHES, WILKINSON, WILLIAMS, & FLETCHER, CASES
INDIAN LAW (6th ed. 2011)
AND
MATERIALS
ON
FEDERAL
In the syllabus, “CB” refers to the Getches casebook; “CB 1.A,” for example, refers to
Chapter 1, Section A, as organized in the casebook’s table of contents. In addition to the
required text, we will distribute supplementary readings designed to contextualize a particular
topic or to suggest a problem for class discussion, as well as to incorporate current events. You
may wish to supplement the casebook with the recommended study aide for the course, WILLIAM
C. CANBY, JR., AMERICAN INDIAN LAW IN A NUTSHELL (5th ed. 2009).
COURSE REQUIREMENTS
Your final grade in the course will be based on a research paper assignment (worth
50% of the course grade), additional skills exercises and shorter written assignments (worth
40% of the course grade), and class participation (worth 10% of the course grade).
During this course, relevant information will be conveyed to you not only through the
assigned readings and lecture, but through class discussion, which includes not only our
questions and comments, but your classmates’ answers and questions as well. It is imperative
that you come to class prepared by completing the assigned reading and thinking about what
you’ve read prior to class.
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In lieu of a final exam, students will be required to write a research paper on a topic
related to the course. We will hand out a detailed description of the paper assignment early in
the course. Students also will be required to complete additional skills exercises and shorter
written assignments, such as presenting an early draft of your research paper to your classmates,
presenting a “current event briefing” for the class, or similar assignments. The course also will
require your attendance and/or participation in events outside of class. These will be identified
as mandatory, and as such will be scheduled in one of the “make-up” slots on the class schedule,
or voluntary, in which case you will be encouraged though not required to attend.
In determining the quality of your written work, we will take into account (1) content,
including the completeness of your handling of the topic; (2) clarity and organization; (3)
argument and analysis; (4) research and sourcing; (5) creative and critical thinking; and (6)
writing skill and style, including citation form. We will assess oral presentations or skills
exercises using the same criteria as for your written work, along with your oral communication
skills. In determining the quality of class participation we will take into account (1) the
frequency of participation, (2) content of questions and comments, (3) performance on class
exercises, and (4) apparent effort and preparation.
‘A’ work is of superb quality. Written work is clear, well organized and thoughtprovoking, and is free of grammatical and mechanical errors. Argument and analysis are
relevant and original, and grounded in thorough and careful research supported by
primary and other appropriate sourcing. Class participation is voluntary, frequent,
relevant, and reflects that you have read, fully understood and are prepared to discuss the
readings.
‘B’ work is of high quality. Written work reflects good understanding of issues and
concepts, and writing is coherent, with minimal errors. Argument and analysis are
relevant and grounded in solid research supported by appropriate sourcing. Class
participation is voluntary, frequent, and reflects that you have read and understood the
readings.
‘C’ work minimally meets course requirements. Written work may contain arguments
that are confusing, with minimal evidence of organization. Writing is marred by serious
or many errors. Argument and analysis may be derivative, research is lacking or
inappropriately sourced. Class participation is occasional and/or rarely voluntary, with
comments that reveal a superficial grasp of issues and concepts and/or a lack of
preparation and understanding of the readings.
‘D’ work reflects minimal clarity, comprehension, preparation, or completion.
Written work is confusing, contradictory, repetitive; not supported by either your own
ideas or your sources; divorced from applicable law; overly reliant on the work of others;
or weakened by serious grammatical and/or mechanical errors. Class participation is
minimal, never voluntary, and reveals that you have either not read or understood the
readings.
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ATTENDANCE POLICY
Per University policy and ABA requirements, regular and punctual attendance is
required. Frequent absenteeism will affect your ability to excel in the course, and may result in
an administrative withdrawal from the course. Students who miss class are expected to obtain
notes and other information from a classmate. No make-ups will be offered for any missed inclass exercises. All assignments must be turned in on time. Serious medical problems and/or
family emergencies are excepted only with sufficient advance notice and appropriate
documentation. Students who fail to turn in the research paper or other assignments on time may
be penalized by being assigned a lower grade, even in the case of medical problems or family
emergencies.
ACCESS AND OPPORTUNITY STATEMENT
If you have emergency medical information, or if you need special arrangements in case
the building must be evacuated, or if you need accommodations in this course because of a
disability, please contact the Assistant Dean for Student Life’s Office as soon as possible. If you
plan to request disability accommodations you are expected to register with the University’s
Disability Support Services Office, 190 McCannel Hall, 777-3425.
If you want to request accommodations, either for the course or the assignments, because
English is not your first language or for any other reason, please contact the Assistant Dean for
Student Life’s Office.
Please note that there are a number of services available on campus to law students,
including the Writing Center (located in Merrifield Hall), the Counseling Center (located in
McCannel Hall), Disability Services for Students (located in McCannel Hall), and NonTraditional Student Services (located in the Memorial Union). More information on these and
other available services may be accessed through the University’s web site at
http://www.und.edu/services/current.html.
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COURSE OUTLINE
Part I.
The History of Federal Indian Law & Policy
Tentative
Coverage
Date(s)
8/23
Topic
Assigned Reading
Introduction to the course & key concepts
Syllabus
CB 1.A&B, pp. 1-29
8/23 & 8/25
A. The Discovery Doctrine
1. Overview of the doctrine
2. Johnson v. McIntosh
B. Early Federal Policy: Tribes as Separate
Nations and the Treaty Era
1. Trade and Intercourse Acts
2. The Cherokee Cases: Cherokee Nation v.
Georgia, Worcester v. Georgia
C. Allotment and Assimilation
1. Historical context
2. Expansion of federal power: Ex Parte Crow
Dog, U.S. v. Kagama, U.S. v. Sandoval
3. General Allotment Act
D. Reorganization
1. Indian Reorganization Act
8/30 & 9/1
9/6 & 9/8
9/13
9/15
9/20 & 9/22
9/23, 12:102:00 pm
9/27
9/29
CB 2.B, pp. 54-64 (skim)
CB 2.C, pp. 64-73
CB 3.B&C, pp. 87-94 (skim)
CB 3.D, pp. 94-128
CB 4.A, pp. 140-52 (skim)
CB 4.A, pp. 153-65
CB 4.A, pp. 165-82
CB 4.B, pp. 187-99 (skim)
E. Termination
1. Termination policy and PL 280
CB 4.C, pp. 200-15
F. Self-Determination
1. Civil rights, economic self-sufficiency, and
CB 4.D, pp. 216-42
nation building: Morton v. Mancari
SPECIAL CLASS SESSION:
CB 6.E, pp. 403-26
Turtle Mountain Tribal Court Session
at UND School of Law
Oral arguments at 11:15 am and 1:15 pm;
question and answer session with the judges over
lunch. The first argument is optional, the lunch
and second argument are required.
Short writing assignment & discussion: History
of Indian law and policy
Short writing assignment & discussion: Tribal
court session
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Part II.
Tentative
Coverage
Date(s)
10/4 & 10/6
10/11 &
10/13
10/18 &
10/20
10/25 &
10/27
11/1 to 11/17
11/22
Current Issues in Federal Indian Law & Policy
Topic
Assigned Reading
A. Tribal Sovereignty
1. Independent sovereigns and “domestic
dependent nations”: Talton v. Mayes, U.S. v.
Wheeler, Santa Clara Pueblo v. Martinez
2. Tribal sovereign immunity: Kiowa Tribe v.
Mfg. Tech., Inc.
B. Tribal Jurisdiction & “Indian Country”
1. Criminal jurisdiction: Major Crimes Act, U.S.
v. Antelope, Assimilative Crimes Act, Oliphant
v. Suquamish Indian Tribe, U.S. v. Lara
2. Civil jurisdiction: PL 280, Bryan v. Itasca
County, Montana v. U.S.
3. Tribal adjudicatory authority: Nat’l Farmers
Union Ins. v. Crow Tribe, Strate v. A-1
Contractors, Nevada v. Hicks, Plains Commerce
Bank v. Long Family Land & Cattle
Research Paper Assignment Workshop
Presentations
1. Instructor presentations & group work on
topics
2. Student presentations
Discussion: Course take-aways
CB 6.A-C, pp. 368-94
CB 6.D, pp. 394-403
CB 7.B&D, pp. 470-88, 50628
CB 7.C&D, pp. 488-505,
528-32
CB 8.A, pp. 532-88
Workshop presentations November 1 to November 17 (as assigned)
Completed research paper due Tuesday, December 13, at 4:30 pm (hard copy turned into
Phyllis Trelfa in the Dean’s Office)
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