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   Adverse Tribal Enrollment Actions - a Pathfinder by Michael Bird

This pathfinder was prepared as a final project for the Advanced Legal Research course offered at the University of Arizona James E. Rogers College of Law (LAW 689). All cites and sources are accurate as of 12/04.


As the economic interests of North American Indian tribes expand through casinos, enrollment issues have emerged as a growing concern for both tribes and their membership. This pathfinder attempts to create a focus and direction for research involving Indian tribal enrollment for both the layman seeking membership in a tribe and his legal counsel.

Part I outlines the scope of the pathfinder as well as providing a framework for the layman as to what avenues he may pursue generally to obtain tribal membership. Part II describes primary sources for counsel if legal issues arise. Part III describes secondary sources to the same end. Part IV describes other sources, including online databases and government/tribal websites. Part V provides tips for staying current on tribal enrollment issues.

BACKGROUND OF FEDERAL INVOLVEMENT IN TRIBAL ENROLLMENT

American courts have consistently held that absent an act of Congress, the tribes have the right to govern their own enrollment and the practices facilitating it. Indeed, Patterson v. Council of Seneca Nation held that the Indian tribes are to be considered sovereign nations where Congress has not abrogated their authority. However, even though specific protocols vary from tribe to tribe, the universal threshold for admittance is a “blood quantum”; that is, the proof that a certain fraction of the prospective member’s heritage is made up of recognized members of the tribe in which he seeks enrollment.

Beyond this, the federal government’s power in tribal enrollment extends only as far as defining the membership of certain, specific tribes in statutes regarding allotment, and the right of the Secretary of the Interior to promulgate a final tribal roll for the purpose of dividing and distributing tribal funds. This section will deal with the establishment of a blood quantum, how to contact the tribe in which the petitioner seeks membership, and protecting his tribal membership once he attains it.

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ESTABLISHING A BLOOD QUANTUM

The term “blood quantum” refers to the percentage of an individual’s ancestry that is Indian. Naturally, establishing his blood quantum is one’s first step to achieving membership in a tribe, since he cannot prove he is an Indian otherwise. The first step is to research information to prove tribal ties, if one does not have it already. Particularly useful sources include names of ancestors, dates of births, marriages, and deaths, places of residence, brothers and sisters of the ancestors, and their tribal affiliations.

The next step is to check the Bureau of Indian Affairs’ tribal roll or census for the applicable tribe. The Secretary of the Interior is empowered to create definitive tribal rolls to resolve membership issues and distribute funds and these rolls are kept in the National Archives. The Archives can be reached at the following address:

 

 !  Index

Information for Tribal Applicants


Information for Counsel of Applicants

Address
The National Archives and Record Administration
700 Pennsylvania Avenue, NW
Washington, DC 20408

E-mail
http://www.archives.gov/global_pages/inquire_form.html

Telephone
1-866-272-6272

NARA will check the tribal rolls for the tribe from which the petitioner claims ancestry and will notify the petitioner of its results. Once ancestry has been sufficiently established, the petitioner must contact the Bureau of Indian Affairs in the Department of the Interior to receive a Certificate Degree of Indian Blood (CDIB). The BIA may be contacted by telephone at 1-202-208-3710.

If the evidence provided sufficiently proves a familial link with a member on the rolls of a tribe, the BIA will issue the petitioner a CDIB card. A CDIB will recognize the Indian portion of the holder’s ancestry; for instance, an individual with proof of one Shoshone grandparent will be recognized as ¼ Shoshone on his CDIB. Once the CDIB has been obtained, the petitioner must apply for membership with his tribe.

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APPLYING FOR MEMBERSHIP WITH A TRIBE

Once a CDIB card has been received, one must apply to a tribe directly to be considered for membership. The BIA maintains a Tribal Leaders Directory which may be accessed by contacting the BIA at 1-202-208-3711. Every tribe maintains its own methods of enrolling new members; most require a ¼ blood quantum as a bare minimum, but that alone may not be enough. The membership procedures of various tribes are outlined in their respective constitutions. Also, many tribes have put (often indefinite) membership moratoriums in place to manage booms in membership applications resulting from the distribution of casino profits.

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LITIGATING ADVERSE ENROLLMENT ACTIONS

As has been mentioned, the federal government allows tribal councils wide discretion in membership disputes, only getting involved a member or potential member’s constitutional rights have been violated. In the event of a membership dispute, it is highly advisable to secure legal counsel and pursue an appeal of the council's decision. When one of the federally-mandated circumstances giving rise to a rightful enrollment appeal occurs, the litigant must file an appeal with the Bureau of Indian Affairs. Upon receipt of the appeal, the Bureau will notify the tribe and schedule a hearing before the local Superintendant. On conclusion of this hearing, the Superintendant will issue a ruling, which either party may appeal to the Regional Director, and finally to the Assistant Secretary of the Interior.

If the Assistant Secretary’s final decision finds for the tribe and against the Indian, the Indian’s remedies may not completely be exhausted. The Indian Civil Rights Act (ICRA) forbids the alienation of an Indian’s property by a tribe without due process of law. The remedy for an ICRA claim is habeas corpus , meaning he may obtain a review of a tribal court decision in federal court. The courts recognize membership as a property right with substantial economic consequences and thus the denial or expulsion of members or potential members by the tribal council without due process gives rise to an ICRA claim in federal court. In short, once the case moves to federal court, the best chance for an Indian to convince the court to trump tribal sovereignity in enrollment decisions is to argue the tribe denied his membership or expelled him without due process of law.

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PRIMARY LEGAL SOURCES

The goal of the remainder of this Pathfinder is to provide a brief look at the law of enrollment of Indian tribes, which is exclusively federal. The researcher must bear in mind that while many statutes and regulations have been promulgated and revised over the years, the fundamentals of federal tribal enrollment law are settled and have been so for some time, as is demonstrated in case law.

STATUTES

Since Indian statutory law is entirely federal, this Pathfinder solely discusses search methods for and relevant portions of the United States Code.

SEARCH VEHICLES

Statutes and Digests

  • Comment: The United States Code Service and United States Code Annotated are both excellent means of researching statutes in a cost-effective manner. Effective research can be carried out by consulting “Indians” in the indexes of the United States Code Annotated and the United States Code Service and using the search terms “enrollment” and “membership”.
  • Recommendation: The United States Code Service is recommended for its indexing system. Under the “Indians” heading, the U.S.C.A. delineates the different tribes first, then the relevant topic (e.g., Indians > Shoshone tribe > membership), while the U.S.C.S. lists the topic before the tribe (e.g., Indians > membership > Shoshone). Furthermore, the U.S.C.S. contains cross-references to other statutes mentioning a particular statute being researched, and so is generally preferable when confining one’s research to the U.S.C. If a researcher is seeking statutes regarding a specific tribe, the U.S.C.A. is preferable, but when researching Indian enrollment and membership generally (or as pertaining to a tribe not mentioned in the U.S.C.), the U.S.C.S. is highly recommended.

LEXIS and WestLaw

  • Comment: LEXIS and WestLaw are comprehensive online legal databases. Because relevant statutes in the U.S.C. are fairly concentrated, it is unlikely that they will be preferable to the paper sources. However, LEXIS possesses a database of treaties between the United States and various tribes, many of which are not listed in the U.S.C. The locations of those databases is Legal > Area of Law - By Topic > Native American Law > Statutes & Legislative Materials > Native American People Treaties, Ratified and Unratified.
  • Recommendation: LEXIS and WestLaw are largely unnecessary for U.S.C. research here. Since the statutory law is confined to one jurisdiction (federal), the U.S.C.S. and U.S.C.A. are sufficient. If one is researching federal statutes on a particular tribe, the database of treaties on LEXIS can be helpful if that tribe is not mentioned in the U.S.C. Most of the treaties, however, are general agreements regarding peace and land, and Boolean searching on specific issues of membership and enrollment return nothing. It is advisable not to bother with LEXIS for purely statutory research here, as all but the most recent treaties can be found in paper sources.

Indian Affairs, Laws and Treaties. (Kappler, Government Printing Office, 1903).

  • Comments: A compilation of treaties between the federal government and Indian tribes. Updated in multiple volumes as far as 1971. Useful for finding treaties with tribes not located in the U.S.C., but the reader must know the year of the treaty he is looking for because each volume has its own index.

Felix S. Cohen's Handbook on Indian Law. (Strickland, Rennard ed. Michie Bobbs-Merril Law Publishing, 1982).

  • Comments: Comprehensive treatise on Indian law. Periodically updated after the authors death, though finding the most recent edition can be problematic. Has an Annotated Table of Statutes and Treaties which can be helpful for finding the year of a specific treaty. Use this to find a tribe's treaty with the federal government, then refer to Kappler for the treaty itself.

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FEDERAL STATUTES

The U.S. Constitution empowers Congress to "regulate commerce" with Indian tribes through the Commerce Clause. As such, statutory authority with regard to Indian law is entirely federal and is realized as Title 25 of the United States Code. In addition, other areas of the United States Code may be of importance to membership litigation, particularly jurisdictional issues in Title 28. Very little of it is of concern to litigation involving membership in Indian tribes, but there are a few statutes to which a researcher should pay attention. This is not intended to be an exhaustive listing of statutory authority; rather, it is a listing of generally relevant statutes to membership litigation. Specific fact patterns may require additional research.

UNITED STATES CODE
25 U.S.C. § 163 (2002).
Gives Secretary of the Interior authority to create a definitive tribal roll of membership. Use of “definitive” suggests final authority of federal government as to the roll’s accuracy.

25 U.S.C. § 184 (2002).
Allows descendants of Indians claim to rights and protection under their forebears’ tribes, regardless of whether their “blood” is solely Indian. Statute underlying the formation of the “blood quantum” requirement.

25 U.S.C. §§ 1301-03 (2002). (Indian Civil Rights Act of 1968)
Provides the basis under which the Bureau of Indian Affairs typically hears claims regarding membership challenges. § 1302(8) is particularly important in that it forbids tribes from denying members property without due process of law, which is the claim under which many BIA membership claims have arisen.

28 U.S.C. § 1360 (2004).
Grants federal courts jurisdiction over civil litigation arising between Indians or to which an Indian is a party when that litigation arises from Indian lands.

STATUTES AT LARGE
Statutes at Large 24 § 5, 390 (1887).
Outlines the process for allotment of land to Indian tribes and their members. Provides that the Secretary of the Interior shall have sole, unreviewable discretion in determining the right of inheritance by an heir to land allotted a member of a tribe.

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CASE LAW

As an exhaustive listing of all cases in all state and federal jurisdictions regarding membership in an Indian tribe would be impractical, if not impossible, this pathfinder will restrict itself to seminal cases relevant to understanding this area of law. This listing will begin with relevant Supreme Court cases, followed by selected cases from the federal courts and the Department of the Interior Board of Indian Appeals cases. This section will begin by listing useful search tools, and then list relevant cases themselves.

SEARCH VEHICLES

LEXIS and WestLaw

  • Comments: LEXIS and WestLaw have reached preeminence in the field of case research. An effective and efficient search can be carried out through use of either’s databases concerning Indian Law. The LEXIS database for Indian related case law is located at Legal > Area of Law – By Topic > Native American Law > Cases and Court Rules; “Federal & State Cases, Combined” and “Department of Interior Board of Indian Appeals Decisions” are the two most useful databases along that track. In WestLaw, the Indian Law database is FNAM, with jurisdictional limits provided therein. When using the term “enroll!” in a Boolean search, be careful to limit usage to membership on a tribal roll; most usages of the word “enrollment” in Indian cases involve enrollment in schools.


  • Potential Boolean searches:
    --member! w/5 enroll! AND NOT (education or school)
    --member! AND “final determination”
    --member! w/3 moratorium

Other Sources

  • Comments: Other primary sources such as the West key number system, the West General Digest, and so forth are ineffective in this area. The body of case law in this area is small enough not to warrant a subject heading under these. If LEXIS or WestLaw are unavailable to the researcher, he is strongly encouraged to pursue on of the secondary legal sources listed herein to fid case law to begin his search.
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SELECTED CASES

This section will begin by listing Supreme Court cases regarding membership in Indian tribes, followed by selected federal court and BIA cases regarding the same.

SUPREME COURT CASES
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). (A tribal ordinance extending membership to the mixed children of male members but not to those of female members violated ICRA’s equal protection provision, regardless of the fact that the ordinance reflected the tribe’s patriarchal traditional values. Also, ICRA only permits a manner of judicial review of tribal decisions enumerated in § 1303 of the Act; namely, a writ of habeas corpus.)

United States v. Rogers, 45 U.S. 567 (1846). (A white man who was recognized as a member of an Indian tribe was not an Indian for the purposes of criminal jurisdiction; membership alone in a federally-recognized tribe is insufficient to establish oneself as an Indian for legal purposes.)

Rice v. Cayetano, 528 U.S. 495 (2000). (Applying a limit of reasonableness to the minimum requirement of Indian blood to be defined as such, even when an individual is recognized as a tribe; a tribal member whose Indian ancestry was one possible Indian out of 500 ancestors could not qualify for federal recognition as an Indian although he was recognized by a tribe with no blood quantum requirement.)

OTHER FEDERAL CASES
Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874 (2nd Cir. 1996). (The banishment of several members of the tribe for questioning decisions by the council was held to be “detention” under ICRA even though it was not a criminal punishment; removal of said members sufficiently curtailed their liberty so that ICRA could be brought in to effect.)

United States v. Prentiss, 273 F.3d 1277 (10th Cir. 2001); United States v. Keys, 103 F.3d 758 (9th Cir. 1996); United States v. Lawrence, 51 F.3d 150 (8th Cir. 1995). (Holding that whether a person is an “Indian”, for specific legal purposes, is determined by whether that person has “some” Indian blood and is “recognized” as an Indian by a tribe or the federal government.)

BOARD OF INDIAN APPEALS AND TRIBAL COURT CASES
Delgado v. Puyallup Tribal Council, No. 95-3604 (Puyallup 04/03/1996). (Membership is a property right, and ICRA forbids a tribe from denying an Indian property rights without due process of law. The due process requirement was not met in this case because the appellant did not receive notice of the fact that her membership was under review by the tribe.)

B.B. v. Rocky Mountain Regional Director, Bureau of Indian Affairs, 39 IBIA 48 (2003). (The Board of Indian Appeals in the Bureau of Indian Affairs does not have jurisdiction to hear an appeal of an adverse enrollment action. However, the Regional Director that initially hears the appeal must state in his ruling whether he intends for his decision to be the final ruling of the BIA on the matter or if he intends to forward it to the Assistant Secretary of the Interior. This particular appeal was remanded to the Regional Director for such a statement of intent.)

Cahto Tribe of the Laytonville Rancheria v. Pacific Regional Director, Bureau of Indian Affairs, 38 IBIA 244 (2002). (Holding that even when the constitution of the tribe allows for Board of Indian Appeals rulings on enrollment disputes, that authority granted must be narrowly construed, and any action must be taken in such a way as to avoid unnecessary interference with that tribe’s right to self-govern.)

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ADMINISTRATIVE REGULATIONS

Since this pathfinder deals with a particular process mandated by federal law, administrative law is of particular importance to the researcher.

SEARCH VEHICLES

Code of Federal Regulations

  • Comments: The CFR compiles all regulations from the administrative agencies of the federal government. The regulations are compiled under title numbers corresponding to the place of their subject matter in the United States Code; for instance, Indian regulations are listed under 25 CFR.
  • Recommendations: Barring citation in specific court decisions, the index of the CFR is the most effective way to find a relevant regulation. For this particular area, there is a heading for “Indians-Enrollment” in the index which will cover everything the researcher would need to know in this area.
LEXIS and WestLaw
  • Comments: LEXIS and WestLaw maintain the Code of Federal Regulations in its entirety. The LEXIS database is located at Federal Legal, U.S. > CFR – Code of Federal Regulations, and the WestLaw database is at “Code of Federal Regulations” under the Administrative Materials heading.
  • Recommendations: Since the index of the CFR itself is so direct in this area of law, pay services are unnecessary. However, a quick online check of the regulation in question is worthwhile after reading it in paper to make sure it has not been modified since the CFR’s last printing. For this, LEXIS is recommended, as it allows the researcher to limit his search to a specific regulation before accruing charges. WestLaw directs the researcher to a terms and connectors search upon selection of the Code of Federal Regulations.

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REGULATIONS

One particular regulation is of obvious importance for the advocate seeking to appeal an adverse enrollment action by a tribe: Enrollment Appeals under 25 CFR.

25 CFR § 62 (2004). – Enrollment Appeals

  • Details necessary procedures for filing an appeal to an adverse enrollment action with the Bureau of Indian Affairs, including who may appeal, how they may go about appealing, and what actions the Secretary of the Interior may take on their behalf.

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SECONDARY LEGAL SOURCES

Secondary sources in this area can offer a researcher an insight into historical developments of the law such as how adverse enrollment actions fit in to the larger framework of tribal sovereignity, and can help a researcher stay abreast of the current directions of the law. Being that adverse enrollment touches on other areas of Indian Law, it is more fruitful to conduct a broader search for sources on Indian legal issues in general and search for relevant information within the source itself, rather than begin the search on the narrow topic.

BOOKS AND TREATISES

SEARCH VEHICLES

Library Catalog Systems

  • Comments: Library catalog systems are a highly cost- and time-efficient means of finding books and treatises on Indian Law.

  • Recommendations: Many libraries have online search engines or cataloging systems within the library itself wherein the researcher can find what he is looking for. A broad search for “Indian Law” or “Native American Law” will turn up a wealth of sources in any reasonably well-appointed library. A librarian should be asked any questions about procedures specific to the library in question.

Encyclopedia of Legal Information Sources, 2nd Ed. (Baker, Brian L. & Petit, Patrick J. Gale Research, Inc., 1993).
  • Comments: Un-annotated guide to various sources of legal information, such as statutes, treatises, periodicals, organizations, and so forth.
  • Relevant sources are listed under Indians of North America > Textbooks and General Works, and Interior Department > Textbooks and General Works.

National Indian Law Library Catalog. (www.narf.org/nill/catalog.html)
  • Comments: Bibliographical index of over 10,000 publications and legal documents pertaining to Indian law. Uses a modified method of Boolean searching that substitutes other characters for the same purposes as in LEXIS and WestLaw. These differences are explained in the search menu.
  • Recommendations: Using the same search strings as used for LEXIS and WestLaw research will turn up numerous sources.

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SELECTED SOURCES

Treatises and other academic books can offer the researcher a broad overview of the law, as well as put the status of the law into an historical perspective that may be crucial to constructing a persuasive argument. The following list is intended as an introduction to enrollment in Indian tribes, offering historical perspectives and general overviews. It is arranged alphabetically by author/editor.

American Indians, American Justice. (Delovia, Vine Jr. & Lytle, Clifford M. Univ. of Texas Press, 1983).
  • Comments: Legal history of Indians and their relationship to the courts. Gives an excellent treatment of the social forces behind ICRA (pp. 126-130) and the legislative intent behind its enactment.
American Indian Law Deskbook, 3rd Ed. (Smith, Clay ed. Univ. Press of Colo., 2004).
  • Comments: Provides an excellent framework for modern United States Indian law. Written in an accessible style. Very helpful for a general discussion of the underlying concerns of federal tribal enrollment policy, but does not speak to the issue directly.

  • See chapters 1 and 7 generally for a discussion of the federal definition of “Indian” and federal jurisdiction over Indian claims, respectively.
Felix S. Cohen’s Handbook on Indian Law. (Strickland, Rennard ed. Michie Bobbs-Merril Law Publishing, 1982).
  • Comments: Seminal treatise on Indian law in the United States. Updated regularly, but different libraries may not always carry the must up-to-date edition Older versions recommended for general history of Indian Law.
  • See Chapter 1, Section C in the 1982 edition for a general discussion of tribal enrollment. See also Chapter 6 for a discussion of jurisdictional issues.
The Legal Status of the Indian. (Weil, Robert. AMS Press, Inc., 1975).
  • Reprint of an 1888 Master’s Thesis. Steeped in language of the time and its requisite white supremacy, but may offer the researcher a uniquely historical view of the realization of Indian tribal sovereignity by presenting the issue in the language and perspective of an academic living at the time.
  • The book is not very long and may be read in one sitting, but the researcher should pay particular note to the treatment of government jurisdiction over Indian tribes in §§ 17 onward.
Native American Sovereignity on Trial. (Wildenthal, Bryan H. ABC-CLIO, 2003).
  • Comments: Excellent resource on the history of tribal sovereignity in the United States. Short and easy to read; can be read by the researcher in its entirety without much of an investment of time. Has a substantial compilation of cases involving tribal sovereignity, arranged chronologically, and direction towards a wealth of further reading.
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LOOSELEAFS AND REPORTERS

SEARCH VEHICLES

Legal Looseleafs in Print 2004. (Eis, Arlene L. InforSources Publishing, 1998).

  • Comments: Lists and provides a subject index for United States legal looseleafs. Excellent source for looseleaf research generally but only mentions the Indian Law Reporter under the Indian Law subject, mentioned below. This compilation does not record the looseleafs and reporters of individual tribes.
Library Catalog Systems
  • Some larger tribes (the Navajo, for instance) have reporters printed for their individual tribes. A catalog search for a specific tribe’s reporter is recommended, as a library may carry that looseleaf, which may contain information more directly relevant.
Encyclopedia of Legal Information Sources, 2nd Ed. (Baker, Brian L. & Petit, Patrick J. Gale Research, Inc., 1993).
  • Comments: Has no mention of Indian Law looseleafs or reporters.

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SOURCES

Legal looseleafs are a cost-effective way to stay aware of the current state of the law, since they are regularly updated. However, they can be quite voluminous, and the researcher must be careful not to allow himself to be bogged down by their size.

Indian Law Reporter. (American Indian Lawyer Training Program, 1974-).

  • Comments: The sole looseleaf reporting Indian Law generally in the U.S. Extremely comprehensive and offers detailed analysis of and commentary on every case reported.
  • Recommendations: Because the Reporter is so voluminous and the case commentary is often quite long, it is important to limit one’s search as much as possible to avoid wasting time on unnecessary research. The “Tribal Membership” and (to a lesser degree) “Indian Civil Rights Act” index subject headings are the only places the researcher should look for “fresh” information; anything else (jurisdiction, for instance) is too broad and can lead to spinning one’s wheels. However, if the researcher hears of a new case in the process of keeping current on the law, rather than parsing the Reporter itself, the Indian Law Reporter’s commentary becomes an excellent tool. In this case, the researcher should use the alphabetical index of cases provided in each volume.
Navajo Reporter. (Judicial Branch of the Navajo Nation, 1978-1987); Navajo Nation Supreme Court Reports. (Judicial Branch of the Navajo Nation, 1988-).
  • Comments: Example of a reporter published by an individual tribe. The researcher should note the change in publication; publishing a reporter is a significant undertaking, and all but the largest tribes will not have a supporting legal community large enough to justify the expense, especially when the Indian Law Reporter largely covers the same subject matter.
  • Recommendation: If the researcher’s litigation involves a tribe whose judiciary publishes its own Reporter and he has the docket number of the specific case he seeks, a tribal Reporter can be an effective research tool. However, the Navajo Reporter, as an example, has no index and the cases are arranged chronologically. This can make researching information on the Navajo treatment of a specific point of law tremendously frustrating. The researcher would do well to avoid it entirely unless he knows exactly what he is looking for.
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LAW REVIEWS AND JOURNALS

SEARCH VEHICLES

LegalTrac

  • Comments: LegalTrac is an online annotated bibliography for over 800 different legal periodicals, dating back to 1980. It is a tremendously effective means of researching law reviews, as many of the featured articles are not even in LEXIS or WestLaw.
  • Recommendations: LegalTrac’s subject search divides articles into databases, but a narrow subject search may revert to a keyword search if not all of the search terms fit in to the databases. Since the engine searches so much material, a narrow search is largely ineffective. The researcher should try a broad subject search for “Native American” and then peruse any relevant databases listed.

LEXIS and WestLaw

  • Comments: LEXIS and WestLaw both have substantial law review databases. Although they are less comprehensive than the other search vehicles, Boolean searches can lead to more on point references than general subject heading searches. When conducting a Boolean search, the researcher must take care to leave out the possibility of education-related issues when using the search term “enroll!”. Both services may be utilized by going to the “Journals and Law Reviews” section from the top page.
    • Potential Boolean searches
      --Indian AND member! AND enroll! AND NOT (education OR
      School)
      --“Native American” AND member! AND enroll! AND NOT
      (education OR school)

Current Law Index/Index to Legal Periodicals

  • Comments: Two different indexes of United States Law Journals, comparable in comprehensiveness to LegalTrac. They are both published monthly and are arranged by subject headings.
  • Recommendations: A subject heading search of “Indians” or “Native Americans” will prove fruitful.

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SOURCES

Law reviews and journals are an excellent way to clarify specific points of law for both the researcher and the court. Also, they are a very effective means of research in that their specific subject matter is usually immediately apparent from the article’s title, and the article will include numerous citations to cases and further reading on the subject.

Unfortunately, if the above-mentioned search vehicles are to be believed, there are as of this writing no articles in the voluminous legal periodical literature dealing with enrollment challenges. This pathfinder will not speculate at length as to why this may be the case, but a cursory glance at law review articles addressing issues of Indian Law suggests a very strong “pro-tribal-sovereignity” base within legal scholarship. Since enrollment actions often involve fact scenarios which paint a rather bleak picture of the use of tribal self-governing authority, it seems that it would be rather difficult to write a “pro-tribe” piece involving it. Law review articles are, after all, intended to be as persuasive as they are informative. Again, however, this is speculation and beyond the scope of this pathfinder to fully explore.

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AMERICAN LAW REPORTS

SEARCH VEHICLES

ALR Quick Index

  • Comments: Indexes to the ALR provide a quick and easy means of gaining information and insight on various areas of law.
  • Recommendations: search the federal ALR index headings for “Indians”

West’s ALR Digest (West. Pub Co., 2004).
  • Comments: Provides brief summaries of all subjects covered by the ALR. Basically, an extended version of the Quick Index.
  • Recommendations: Given the relatively brief treatment Indian Law is given by the ALR, the Digest is preferable to the Quick Index. Check volume 11 under “Indians” for a complete listing of the ALR’s headings on the subject.
LEXIS and WestLaw
  • Comments: LEXIS and WestLaw maintain the ALRs in their full and complete state.
  • Recommendations: If the researcher has access to the ALR and index in print, he should use that, as the annotated nature of the ALR makes it very easy to index effectively and the researcher will be able to fully exploit it as a result. If that is not an option, use LEXIS and WestLaw Boolean searches incorporating “Indian”, “native american” and “member!”.
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SOURCES

While the ALR is often an excellent means of familiarizing oneself with an area of law, this is unfortunately not the case with Indian membership and enrollment. The ALR’s treatment of Indian Law generally is not very thorough for such a broad area of law, and this leads to a rather surprising lack of treatment of issues relevant to enrollment and membership. The Indian Law Reporter, supra, is recommended over the ALR. Regardless, the researcher should not fully discount the ALR; it is regularly updated and may include more relevant topics as new cases emerge.

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PRACTICE AIDS

SEARCH VEHICLES

Library Catalog System

  • Comments: As many practice aids are published in print form by independent sources, a library may carry one or several that are accessible through that library’s catalog system.
  • Recommendations: Since it is unlikely for even a law library to carry a multitude of practice aids for one specific topic (like enrollment challenges), it is best to carry out a subject search for “Indian legal” or “Native American legal” to find a relevant source, and then check the source itself to see if it is relevant.
Encyclopedia of Legal Information Sources, 2nd Ed. (Baker, Brian L. & Petit, Patrick J. Gale Research Inc., 1993.)
  • Comments: Un-annotated guide to various sources of legal information, such as statutes, treatises, periodicals, organizations, and so forth.
  • Recommendations: Search under Indians of North America > Handbooks, Manuals, Formbooks and Interior Department > Handbooks, Manuals, Formbooks.
Am Jur Trials and Causes of Action
  • Comments: Comprehensive listing of causes of action and trial procedures in all areas of law.
  • Recommendations: Not recommended. Causes of Action has no listings for Indians or Native Americans, and Trials’s only listing of the same is a mention of the right of habeas corpus in ICRA claims.
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SOURCES

Practice aids attempt to offer the litigator a glimpse of the step-by-step process of litigating a claim in their area.

Emerging Trends in Tribal Enrollment. (Falmouth Institute, 2003).

  • Comments: Publication of a seminar on litigating tribal enrollment claims. Covers virtually every aspect of enrollment law, and would be indispensable to counsel litigating an enrollment claim.
  • If the researcher does not have access to this publication through his own library, the Falmouth Institute may be reached at http//:www.falmouthinst.com, or by phone at 1-800-992-4489.
The Rights of Indians and Tribes: the Basic ACLU Guide to Indian and Tribal Rights. (Pevar, Stephen L. Southern Illinois Univ. Press, 1992.)
  • Comments: Listed in the Encyclopedia of Legal Information Sources, supra. The compiler of this pathfinder did not have access this book during the process of writing, but the ACLU is the definitive source for the practice of civil rights law in America, and since enrollment actions often arise under ICRA, this would most likely be a tremendously useful resource. The author is currently the National Staff Counsel of the ACLU.
  • More information on this book, as well as purchasing information, can be found at http://www.siu.edu/~siupress/titles/f02_titles/pevar_indians3rd.htm.

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ENCYCLOPEDIAS

SEARCH VEHICLES

Am. Jur. 2nd General Index

  • Comments: The Am Jur index is basically an extended series of annotations on a variety of subjects. Regularly updated, but the sheer size of the index in print can make keeping up with the updates a tremendous and unnecessary burden for a library.
  • Recommended subject heading: Indians
Corpus Juris Secundum General Index
  • Comments: Arranged in generally the same fashion and order as the Am Jur Index.
  • Recommended subject heading: Indians
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SOURCES

Encyclopedias serve to provide the researcher with a general view of an area of law; they are a broader, less detail amalgam to the ALR. As such, detailed information will not be found here and an encyclopedia is a source to check sooner rather than later.

41 Am. Jur. 2nd Indians §§ 16-18.

  • Membership in a tribe.
41 Am. Jur. 2nd Indians § 31-33.
  • ICRA generally, and the habeas corpus remedy for ICRA actions.
42 C.J.S. Indians § 29.
  • Membership in a tribe; section “c” deals with enrollment.
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NEWSLETTERS

SEARCH VEHICLES

Legal Newsletters in Print 2005. (Eis, Arlene L. InforSources Publishing, 2004).

  • Comments: The compiler of this pathfinder did not have access to this publication during writing. The directory indexes over 2,200 legal newsletters printed in the United States and is updated annually. More information, as well as ordering information, can be found at http://www.infosourcespub.com/book6.cfm.
  • Recommendations: The author of this pathfinder recommends checking index listing of Indians or Native Americans, but the lack of actual access makes this inconclusive.
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SOURCES

As Indian Law is frequently a very emotionally-charged topic and newsletters are frequently published by Indian groups that have a personal stake in the outcome of litigation, the researcher should pay particular attention to the potential for bias in reporting of this area of law. As such, the most reliable newsletters on Indian Law will come from the researcher’s state bar association. Many states maintain them with free subscription, and a subscriber need not be a member of that state’s bar for the subscription. Subscription can be obtained through the state bar’s website. Below is an example of such a newsletter.

Washington State Bar Association Indian Law Section Newsletter. (Wash. State Bar Association, 2002-).

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OTHER SOURCES

ORGANIZATIONS

There are a number of legal and lay organizations throughout the United States that specialize in Indian Law. Many of these organizations maintain websites that can be found through larger clearinghouses and databases, a few of which are mentioned in this section’s Internet heading, infra. A paper search vehicle for finding such organizations is listed below.

Encyclopedia of Associations, 41st Ed. Hunt, Kimberly Gale Research Inc., 2004.

  • Comments: Comprehensive listing of over 22,000 organizations in the United States.
  • Name and Keyword Index: Indian and Native American. Particularly large and influential organizations are listed in bold-face type and it is these that a researcher is encouraged to contact first.
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INTERNET

The internet is becoming more and more of a relevant and effective tool for gathering information with each passing year. Since this trend shows no sign of slowing down, the researcher should pay attention to it and spend some time looking at what free online resources have to offer. The following sources are listed in order of general effectiveness.

Tribal Court Clearinghouse (http://www.tribal-institute.org)
  • This is truly an excellent resource. It contains detailed analysis of all aspects of Indian Law, including ICRA and current trends in enrollment issues. Highly recommended for all levels of research into any aspect of Indian Law.
National Indian Law Library (http://www.narf.org/nill/Nillindex.html)
  • Maintained by the Native American Rights Fund. The NILL maintains over 10,000 legal documents and cases involving Indian Law, as well as bulletins and periodicals commenting on the same.
The Falmouth Institute (http://www.falmouthinst.com)
  • The Falmouth Institute is a consulting firm specializing in aiding tribes and individual Indians in tackling complex legal challenges. Their website offers a number of publications and legal articles regarding this aim.
  • A little difficult to navigate, since their search engine uses a localized Google search for their own site without attempting to categorize the information.
Indian Law Resource Center (http://www.indianlaw.org)
  • Smaller than the TCC and has a stronger “lay” bent. However, the ILRC has a number of documents that may be relevant or simply interesting to the Indian advocate, including UN Resolutions on the rights of indigenous peoples and persuasive papers by members of the organization.

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STATISTICS AND EXPERTS

Statistics and expert testimony are an important factor in litigating many types of claims. However, if case law is to be believed, enrollment challenges are not one of them. As such, a general listing of search vehicles for finding statistics and experts is irrelevant and beyond the scope of this pathfinder.

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KEEPING CURRENT ON ISSUES OF INDIAN ENROLLMENT

INTRODUCTION

As mentioned in the introduction to this pathfinder, enrollment challenges are emerging as a relevant and dynamic area of Indian Law. As such, it behooves the researcher to stay abreast of changing trends in the courts and beyond. This section will deal with means of doing so. When using these tools, the researcher should take a “where there’s smoke, there’s fire” approach; enrollment issues tend to arise over property disputes and casino profit-sharing among tribal members, so the researcher would do well to check such controversies.


LEGISLATION

Congressional Universe (http://web.lexis-nexis.com/congcomp/)
Congressional Information Services is a company that maintains a definitive index of all materials arising from the United States Congress. Congressional Universe, their online database, offers up-to-date reports on current legislation, legislative history, and more. “Hot Bills” offers analysis and reporting of particularly important legislation currently in Congress; the researcher would do well to periodically check it for updates on Indian Law.

LEXIS and WestLaw
LEXIS and WestLaw maintain several databases for the research of recent bills passing through state and federal legislatures.

Legislative History (LEXIS: CISNX; WestLaw: LH)

  • These databases included Congressional Committee reports shedding light on the legislative history and intent of bills currently passing through Congress.

Bill Tracking (LEXIS: BLTRCK; WestLaw: BILLTRK)

  • These files report summaries/current status of bills currently passing through Congress.
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CASE LAW

LEXIS AND WESTLAW

LEXIS and WestLaw are both quick and easy ways to check on the current status of case law in virtually any area. Aside from the Boolean search strings recommended throughout this pathfinder, a very effective way to stay up to date is to Shepardize or KeyCite a previous case. Doing so will point the researcher to new law in a way that is both relevant and easy to apply.

REPORTERS

Reporters are a regularly-updated and cost-effective way to stay current on the law if the researcher has access to the most recent update of the Reporter. For Indian Law, the Indian Law Reporter, mentioned supra under Looseleafs and Reporters, is recommended.

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NEWS

Various news outlets provide a means of staying current on social trends of Indian Law, and can be used to identify emerging issues as well as discover high profile cases currently being decided. LEXIS and WestLaw both allow Boolean searches of news databases (LEXIS: ALLNWS; WestLaw: ALLNEWS), but a cheaper way is a simple Google search on the topic in question. Indian organizations on the internet do an excellent job of staying current on issues and their pages frequently link to relevant news articles; the Google search algorithm will key in to the frequency of linking a particular page and bring up that page in a search with little difficulty.

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