National Academies Press: OpenBook
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Suggested Citation:"O. CONCLUSION." National Academies of Sciences, Engineering, and Medicine. 2019. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law. Washington, DC: The National Academies Press. doi: 10.17226/25514.
Page 84

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84 NCHRP LRD 76 ter v. Georgia,912 prohibiting states from asserting power over Indian affairs. As late as 1959, in the unanimous decision in Williams v. Lee,913 the U.S. Supreme Court noted that Essentially, absent governing acts of Congress, the question has always been whether the state action infringed on the right of res- ervation Indians to make their own laws and be ruled by them… 914this Court [has] consistently guarded the authority of Indian governments over their reservations…. If this power is to be taken away from them, it is for Congress to do it.915 But, in 1973, the Court would recognize that Chief Justice Marshall’s view had given way to more individualized treat- ment of particular treaties and specific federal statutes, includ- ing statehood enabling legislation, as they, taken together affect the respective rights of State, Indians, and the Federal Govern- ment…[and that] even on reservations, state laws may be ap- plied unless such application would interfere with reservation self-government or would impair a right granted or reserved by federal law.916 Supreme Court decisions in subsequent years further limited tribal jurisdiction, particularly over non-Indians.917 Some com- mentators have even referred to the modern-era as the era of ju- dicial termination.918 Nevertheless, there are instances in which tribes can exercise jurisdiction over non-Indians and there are many instances where state laws cannot be enforced in Indian country, particularly upon enrolled members of a tribe. The ju- risdictional complexities involved in Indian law require a care- ful reading of case law and a background understanding of land ownership in Indian country and history. Even a careful reading of the case law will leave many unanswered questions. In light of this, many states, local governments, and tribes have tried to resolve the complexities with cooperative agreements rather than costly and time-consuming litigation that leaves decision- making authority to the courts. 912 31 U.S. 515, 8 L. Ed. 483 (1832). 913 358 U.S. 217, 79 S. Ct. 269, 3 L. Ed. 2d 251 (1959). 914 Id. at 220, 79 S. Ct. at 271, 3 L. ED. at 256. 915 358 U.S. at 223, 79 S. Ct. at 272 3 L. Ed. 2d at 255. 916 Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S. Ct. 1267, 1270, 36 L. Ed. 2d 114, 119 (1973). 917 See section C.4. 918 Richard Guess, Motherhood and Apple Pie” Judicial Termination and the Roberts Court, 56 Fed. Law., Mar./Apr. 2009, available at: http:// The%20Federal%20Lawyer%20-%20MarchApril%202009/Columns/ Focus-On-Chapter-7-Trustee-Removal.aspx?FT=.pdf (accessed July 1, 2018). state or public agency and a sovereign tribal government in mutually beneficial activities and services.”909 • Nebraska enacted its State-Tribal Cooperative Agree- ments Act in 1989.910 O. CONCLUSION Indian law is best understood in historical perspective be- cause it reflects national Indian policy, which has been con- stantly changing. Federal policy has shifted from regarding tribes as sovereign equals, to relocating tribes, to attempts to exterminate or assimilate tribes, to encouraging tribal self- determination. Running on a parallel track with the legisla- tive and executive policies, but not always consistent with such policies, are the opinions of the federal judiciary. Chief Justice John Marshall’s Indian trilogy established the foun- dational principles of American Indian law. The enduring principles of the Marshall Trilogy are three-fold: (1) Indian tribes, because of their original political/territorial status, re- tain incidents of preexisting sovereignty; (2) this sovereignty may be diminished or dissolved by the United States, but not by the states; (3) because of this limited sovereignty and tribes’ dependence on the United States, the federal govern- ment has a trust responsibility relative to Indians and their lands.911 For over 100 years, the federal judiciary held close to the principles of Chief Justice Marshall’s opinion in Worces- 909 Mont. Code Ann. 18-11-101 through 121. Section 103 pro- vides as follows: (1) Any one or more public agencies may enter into an agreement with any one or more tribal governments to: (a) perform any administrative service, activity, or undertaking that a public agency or a tribal government entering into the contract is authorized by law to perform; and (b) assess and collect or refund any tax or license or permit fee lawfully imposed by the state or a public agency and a tribal government and to share or refund the revenue from the assessment and collection. (2) The agreement must be authorized and approved by the governing body of each party to the agreement. If a state agency is a party to an agreement, the governor or the governor›s designee is the governing body. (3) The agreement must set forth fully the powers, rights, obligations, and responsibilities of the parties to the agreement. (4) (a) Prior to entering into an agreement on taxation with a tribal government, a public agency shall provide public notice and hold a public meeting on the reservation whose government is a party to the proposed agreement for the purpose of receiving comments from and providing written and other information to interested persons with respect to the proposed agreement. (b) At least 14 days but not more than 30 days prior to the date scheduled for the public meeting, a notice of the proposed agreement and public meeting must be published in a newspaper of general circulation in the county or counties in which the reservation is located. (c) At the time the notice of the meeting is published, a synopsis of the proposed agreement must be made available to interested persons. 910 Neb. Rev. Stat. §§ 13-1501-09. 911 Deskbook, supra note 15, at 8.

Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law Get This Book
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TRB’s National Cooperative Highway Research Program (NCHRP) Legal Research Digest (LRD) 76 examines the intersection of transportation law and Indian law as it relates to federal, state, and local transportation agencies.

The LRD provides background information on Indians, tribes, and the history of the federal government’s Indian policy and Indian law and explores jurisdiction in Indian country beginning with three basic concepts (inherent tribal sovereignty, Indians and tribal membership, and Indian country).

The LRD examines basic terms for land ownership on reservations and in Indian country more generally; provides an overview of criminal jurisdiction in Indian country; explores the law related to reservation boundary disputes; the fee-to-trust process and reservation proclamations; state sovereign immunity in suits involving Indian tribes; contracting with Indian tribes and tribal entities; acquisitions of Indian lands for public transportation purposes; and federal highway and transit programs involving Indian tribes.

In addition, the LRD explores planning and project development activities, construction activities, and operation and maintenance of highways in Indian country followed by a final section on government-to-government cooperation between states and Indian tribes.

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