By King County Law Library (with gratitude to Kelly Kunsch)
At the outset it is important to distinguish between what is meant by Indian law versus tribal law:
One of the most fundamental concepts is the distinction between federal Indian law and tribal law. When attorneys use the phrase “Indian law,” they usually mean any laws concerning Indian tribes or Indians (where an Indian is treated differently than other United States citizens). It is an all-encompassing phrase that suffices because usually it is an area of law not covered by other topical areas. (There are definitely areas of overlap. For example, the Indian Child Welfare Act might be considered part of Indian law but it is also a part of family law. Similarly, the Indian Gaming Regulatory Act lies within both Indian law and gaming law.) Particularly with research, it is better to understand the difference between two distinct facets of Indian law: (1) federal Indian law, dealing with the relationship between a tribal government and the federal government (and, by implication, the limited dealings with state government); and (2) tribal law, dealing with the domestic law of any particular tribe; or more generically, the domestic laws of various tribes.
See: Kelly Kunsch, “A Legal Practitioner’s Guide to Indian and Tribal Law Research,” 5 Am Indian L. J. 101, 102-103 (2017).
Anyone unfamiliar with Indian and tribal law research will be well served to read Kelly Kunsch’s law review article “A Legal Practitioner’s Guide to Indian and Tribal Law.” Kunsch covers not only the prominent Indian and tribal law resources but also discusses useful research strategies.
FEDERAL INDIAN LAW
- Cohen’s Handbook of Federal Indian Law by Felix S. Cohen (2012). (First published in 1941 and subsequently republished several times, but the original is still considered a seminal treatise and has historical significance.) Original is available for free from the University of OK: https://thorpe.law.ou.edu/cohen.html.
- Indian Law in a Nutshell by William C. Canby Jr. (2020). Not your average nutshell. A well-regarded, often-cited primer on Indian law by a senior judge for the Ninth Circuit.
- American Indian Law Deskbook by Conference of Western Attys. General (2008 – updates).
- Federal Indian Law (Hornbook Series) by Matthew Fletcher (2016).
- Restatement of the Law, The Law of American Indians by American Law Institute (2022).
- American Indian Law Journal: www.law.ou.edu/faculty-and-scholarship/journals/american-indian-law-review.
- American Indian Law Review: https://digitalcommons.law.ou.edu/ailr/.
The treaty-making period between the federal government and Indian tribes was from 1778 to 1871.
- United States Statutes at Large – Volume 7 has treaties entered into between 1778-1845. After 1845, treaties are found in Volumes 9-16. Historical volumes of the Statutes at Large can be found at the Library of Congress American Memory Project website: http://memory.loc.gov/ammem/amlaw/lwsllink.html.
- Indian Affairs: Laws and Treaties by Charles J. Kappler (Seven-volume set. Volume 2 contains treaties). Kappler is available for digital download via OSU: https://library.okstate.edu/search-and-find/collections/digital-collections/indian-affairs-laws-and-treaties/.
Statutes, Regulations & Executive Orders
U.S.C. Title 25; C.F.R. Title 25
- Executive Orders Relating to Indian Reservations 1855-1902 by GPO (1902) Available from the Library of Congress: www.loc.gov/item/34008449/.
- Library of Congress Research Guide: American Indian Law: A Beginner’s Guide: Legislation. https://guides.loc.gov/american-indian-law/Legislation.
- Library of Congress Research Guide: American Indian Law: A Beginner’s Guide: Regulations. https://guides.loc.gov/american-indian-law/Regulations.
Westlaw and Lexis will be your best bet for searching court opinions. Take advantage of the West Digest System. The main topic is Indians. Kelly Kunsch has very good tips for searching for case law. See: Kelly Kunsch, “A Legal Practitioner’s Guide to Indian and Tribal Law Research,” 5 Am Indian L. J. 101, 114-118 (2017).
- Library of Congress Research Guide: American Indian Law: A Beginner’s Guide: Court Cases. https://guides.loc.gov/american-indian-law/Cases.
- Indian Law Reporter (1974-2013) Index available at https://narf.org/nill/ilr/.
- American Indian Tribal Law by Mathew L Fletcher (2020).
- The Encyclopedia of Native American Legal Tradition by Bruce Johansen & Charles Cloud (1998).
- Introduction to Tribal Legal Studies by Justin Richland & Sarah Deer (2016).
- Tribal Criminal Law and Procedure by Sara Deer & Carrie Garrow (2015).
- Labor and Employment in Indian Country by Kaighn Smith & Richard Guest (2011).
- National Indian Law Library: Tribal Law Gateway. www.narf.org/nill/triballaw/index.html.
- Structuring Sovereignty: Constitutions of Native Nations by Melissa Tatum (2014).
- Tribal constitutions will be found with the tribal codes using the National Indian Law Library: Tribal Law Gateway. www.narf.org/nill/triballaw/index.html.
- Library of Congress Digital Collection: Native American Constitutions and Legal Materials. www.loc.gov/collections/native-american-constitutions-and-legal-materials/about-this-collection/.
- Tribal Court Clearinghouse: www.tribal-institute.org/lists/decision.htm.
- A Guide for Tribal Court Law Clerks and Judges by Massey Mayo Case and Jill Tompkins. www.tribal-institute.org/download/Final_version_Guide.pdf.
Washington Tribal Law
- UW’s Gallagher Law Library has an excellent research guide for information on tribal codes for tribes located within Washington state. https://liblawuw.libguides.com/c.php?g=1239321&p=9069750.
- American Indians, American Justice by Vine Deloria Jr. & Clifford M. Lytle (University of Texas Press 1983).
- Dismembered: Native Disenrollment and the Battle for Human Rights by David E. Wilkins & Shelly Hulse Wilkins (University of Washington Press 2017).
National Indian Law Library > Law library devoted to federal Indian and tribal law. Unique resources, research guides, and research assistance available at www.narf.org/nill/.