The purpose of this guide is to provide an overview of resources available to start research in American Indian and Indigenous Law. This guide focuses on researching federal Indian law and American Indian Tribal law. Many of the resources used in federal Indian law are the same used in researching other areas of federal law.
If you need additional assistance finding Tribal law resources please contact a Reference Librarian.
Federal Indian Law covers the relationships between federal, state, and tribal governments. It also covers the federal statutes and case law that relates to American Indians.
Tribal Law is the Tribes' and Tribal nations' exercise of their self-governance powers by development of the laws which apply within their territories and to their own members and residents on their sovereign lands.
Indian Country is a term of art and includes all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation. It also includes all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. Additionally, lands held by the federal government in trust for Indian tribes that exist outside of formal reservations are informal reservations and, thus, are Indian country. 18 U.S.C. § 1151 and 40 C.F.R. § 171.3
The United States has three systems of government, federal, state, and tribal, "Each of the three sovereigns has its own judicial system, and each plays an important role in the administration of justice in this country." Sandra Day O’Connor, Lessons from the Third Sovereign: Indian Tribal Courts, 33 Tulsa L.J. 1, 1 (1997); See also, Elizabeth Reese. The Other American Law. 73 Stan.L.Rev. 555 (2021).
Tribal powers are inherent rather than derived from the federal government and Tribal nations possess all powers of a sovereign government except as limited by lawful federal authority. See, Worcester v Georgia, 31 U.S. (6 Pet.) 515, 559 (1832) The federal government has limited inherent tribal authority by the Constitution, by treaty, by statute, and in some instances, by judge-made federal common law. Cohen's Handbook of Federal Indian Law. § 4.02. (Neil Jessup, ed, 2019).
There are 574 federally recognized Tribes in the 48 contiguous states and Alaska. Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 89 Fed. Reg. 2112 (Jan. 8, 2024). One of those tribes is in South Carolina - the Catawba Nation.
In addition to the federally recognized Tribes, there are about 60 state recognized Tribes or tribal entities. Alexa Koenig and Jonathan Stein, Federalism and the State Recognition of Native American Tribes: A Survey of State-Recognized Tribes and State Recognition Processes across the United States, Santa Clara Law Review, Vol. 48, November 2007 (The National Conference of State Legislatures used to keep a list on their website but it hadn’t been updated since about 2016 and has since been removed.) These Tribes do not have reservations, nor the government-to-government relationship with the federal government. Most of the state recognized tribes are in the eastern U.S., the largest being the Lumbee Tribe of North Carolina, Echota Cherokee Tribe of Alabama, and the United Houma Nation of Louisiana.
Tribal Nations in the United States are political entities. Both the British government, and after 1776 the United States, conducted business with the Tribes as a function of political diplomacy, entering into treaties with many Tribal governing bodies. This status was recognized by the U.S. Supreme Court in Morton v. Mancari, 417 U.S. 535, 553–54 (1974) (the American Indian hiring and promotion employment preference in the Bureau of Indian Affairs (a federal agency) was a preference based on political status, not racial classification.) and Santa Clara Pueblo v. Martinez, 436 U.S. 49, 71–72 (1978) (The Court upheld the ability of Tribal Nations to govern and determine their own membership or citizenship requirements as political entities.).
The Indigenous Peoples who inhabited what is now the United States prior to contact with European colonizers called themselves by many names. When Christopher Columbus landed on islands in the Caribbean Ocean and the northern coast of South America, he called the Indigenous people he met ‘Indians’, believing wrongly that he had landed in India.
All of these terms - American Indian, Native American, Indigenous or Native - are acceptable when speaking generally. The term Indian is used in the U.S. Constitution and federal statutes. Native American has been widely used but is falling out of favor with some groups, and the terms American Indian or Indigenous American are preferred by many Native people. When talking about Native groups or people, use the terminology the members of the community use to describe themselves. Whenever possible, Native people prefer to be called by their specific tribal name: the Catawba, the Dine instead of Navajo The Inuit, Yup'ik, and Aleut Peoples in the Arctic see themselves as culturally separate from Indians. And remember, there is no one single American Indian culture or language. Smithsonian, The Impact of Words and Tips for Using Appropriate Terminology: Am I Using the Right Word? Native Knowledge 360° Education Initiative. (no date) https://americanindian.si.edu/nk360/informational/impact-words-tips
Tribal Nations in the United States are political entities. "Yet, the terms and conventions employed in the English language continue to embed language of colonization for Tribal Nations, Tribes, and Tribal entities, rather than recognizing the nationality of the collective Tribes." Angelique EagleWoman, The Capitalization of "Tribal Nations" and the Decolonization of Citation, Nomenclature, and Terminology in the United States, 49 Mitchell Hamline Law Review: 623, 627 (2023). So, just as it is important to use the proper names and terms, we much also write those names and terms properly, with proper capitalization. "Tribe" or "Tribes" will almost always be capitalized, as is "Indian." We also capitalize "Indigenous" when talking about aboriginal people. When using these words to refer to a specific Tribe or people, or using it as a proper noun then it is capitalized.