Toolkit · Federal Indian Law

The Federal Indian Law Toolkit

18 U.S.C. § 1151

Type: Toolkit
Jurisdiction: National
Date: 2026-11-10
Topic: Federal Indian Law

Federal Indian law is a distinct sovereign system, not a subspecialty of state law, and lawyers who approach it with state-law instincts get it wrong in expensive ways. This toolkit is a resource map: fourteen pillars covering the foundational doctrines and the trust relationship, tribal self-government, the definition and boundaries of Indian country, the criminal jurisdiction matrix, civil and regulatory power over nonmembers under Montana, tribal courts and exhaustion, sovereign immunity and contracting, taxation, land and natural resources, gaming under IGRA, the Indian Child Welfare Act, cultural property and NAGPRA, environmental and energy regulation, and economic development. Each pillar gives you the plain-English doctrine, the anchor authority, and links into the UpLaw guides and checklists that go deep. A running hypothetical — a solar developer negotiating with a fictional tribe — carries the analysis from first contact to closing. The single most important thing to remember: tribes are separate sovereigns with their own constitutions, codes, and courts, and no federal case tells you what a particular tribe's law says.

The Federal Indian Law Toolkit

Federal Indian Law > Tribal Sovereignty | Published 10 November 2026 - Updated 8 December 2026 | UpLaw - uplaw.us

Federal Indian law is the law of a third sovereign. Tribes are not federal agencies, not state subdivisions, and not private clubs — they are, in Chief Justice Marshall's phrase, "domestic dependent nations," and almost every hard question in this field is a question about which of three sovereigns may act, where, and against whom.

Keywords: federal Indian law, tribal sovereignty, Indian country, tribal jurisdiction, Montana v. United States, McGirt, Castro-Huerta, tribal sovereign immunity, IGRA, ICWA, NAGPRA, trust land, Public Law 280, tribal courts, Bracker balancing

How to read this toolkit

This is a map, not a treatise. It is organized into fourteen pillars, each of which answers a question that recurs in real matters: Who is the sovereign here? Where is the land? Who is the person? What is the subject matter? Under each pillar you get the doctrine in plain English, the anchor authority you would actually cite, and links to the UpLaw documents that go deeper.

Three habits will keep you out of trouble.

First, always ask the four questions in order. (1) Is the conduct in Indian country as defined by 18 U.S.C. § 1151? (2) Is the actor an Indian or a non-Indian, and is the victim or counterparty an Indian or a non-Indian? (3) Is the land trust land, allotted land, or fee land — and who owns it? (4) Has Congress spoken to this subject? Nearly every jurisdictional puzzle in this field resolves into some combination of those four variables. Skip one and you will reach a confident, wrong answer.

Second, never treat federal case law as a substitute for tribal law. The Supreme Court tells you the outer limits of tribal authority. It does not tell you what the Willow Creek Band's constitution says about who may bind the tribe, what its tribal code requires of a lessee, or whether its tribal council has waived immunity. Tribes are separate sovereigns with their own constitutions, statutes, regulations, and courts. Read them. Ask for them in writing.

Third, respect the moving parts. McGirt v. Oklahoma, 591 U.S. 894 (2020), reshaped the eastern half of Oklahoma. Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022), reshaped the criminal-jurisdiction matrix two years later. The Violence Against Women Act reauthorizations expanded tribal criminal jurisdiction over non-Indians in stages. Federal land-into-trust practice has been in flux since Carcieri v. Salazar, 555 U.S. 379 (2009). Anything you learned about this field more than five years ago deserves a re-check.

For the full doctrinal treatment behind every pillar below, start with the companion guide: Federal Indian Law: A Comprehensive Guide to Tribal Sovereignty and Jurisdiction.

A note on terminology

"Indian" is a legal term of art. It is the word Congress used in the Constitution's Indian Commerce Clause, in Title 25 of the United States Code, and in the criminal statutes at 18 U.S.C. §§ 1151–1153, and it carries specific legal consequences — most importantly, that classifications based on tribal membership are political, not racial, classifications reviewed under rational-basis scrutiny. Morton v. Mancari, 417 U.S. 535 (1974). This toolkit uses the statutory term where the statute controls and "Native" or "tribal citizen" where ordinary usage is clearer. In practice, use the name the nation uses for itself.

The federal Indian law landscape at a glance

Pillar 1 — Foundations. The Marshall Trilogy, congressional plenary power, and the federal trust relationship.
Pillar 2 — Tribal sovereignty. Inherent, retained, and pre-constitutional; limited by treaty, by Congress, and by implicit divestiture.
Pillar 3 — Indian country. 18 U.S.C. § 1151: reservations, dependent Indian communities, allotments. Diminishment, disestablishment, and McGirt.
Pillar 4 — Criminal jurisdiction. The matrix: General Crimes Act, Major Crimes Act, Oliphant, Public Law 280, VAWA, and Castro-Huerta.
Pillar 5 — Civil and regulatory jurisdiction over nonmembers. Montana v. United States and its two exceptions.
Pillar 6 — Tribal courts and exhaustion. National Farmers Union, Iowa Mutual, the Indian Civil Rights Act, and recognition of tribal judgments.
Pillar 7 — Sovereign immunity and contracting. Kiowa, Bay Mills, C&L Enterprises, Lewis v. Clarke, and how a waiver is actually drafted.
Pillar 8 — Taxation. McClanahan, Bracker balancing, Colville, and the fee-land cases.
Pillar 9 — Land and natural resources. Trust status, the Nonintercourse Act, 25 U.S.C. § 81, leasing, water, and treaty hunting and fishing rights.
Pillar 10 — Gaming. Cabazon, IGRA's three classes, compacting, and Seminole Tribe.
Pillar 11 — ICWA and family law. Placement preferences, transfer, Holyfield, Adoptive Couple, and Brackeen.
Pillar 12 — Cultural property. NAGPRA, the National Historic Preservation Act § 106, ARPA, and sacred sites.
Pillar 13 — Environment and energy. Treatment-as-a-State, tribal environmental codes, and the energy-project stack.
Pillar 14 — Economic development. Section 17 corporations, the HEARTH Act, TERO, and the employment-law overlay.

The running example

Throughout, we will follow Redstone Grid Partners LLC, a non-Indian renewable-energy developer, as it negotiates a 200-megawatt solar project with the Willow Creek Band of the Tanaqua Nation, a fictional federally recognized tribe whose reservation straddles trust land, tribally owned fee land, and a checkerboard of allotments and non-Indian fee parcels. Redstone's general counsel does commercial real estate. She is about to learn that almost none of her instincts transfer.

Pillar 1 — Foundations: the Marshall Trilogy, plenary power, and the trust relationship

The field rests on three opinions by Chief Justice Marshall. Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823), adopted the discovery doctrine and held that tribes hold a right of occupancy while the federal government holds the underlying fee — a holding widely criticized today but never overruled, and still the root of title in Indian land. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831), described tribes as "domestic dependent nations" whose relation to the United States "resembles that of a ward to his guardian." Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), held that state law has no force within tribal territory absent congressional authorization — the single most important sentence ever written in this field, and one that later cases have narrowed without discarding.

Two structural principles follow.

Congressional plenary power. Congress has broad, though not unlimited, authority over Indian affairs, grounded in the Indian Commerce Clause and the treaty power. United States v. Kagama, 118 U.S. 375 (1886) (upholding the Major Crimes Act); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) (treating the power as largely nonjusticiable). Modern doctrine has softened Lone Wolf — plenary power is now understood to be subject to judicial review — but Congress remains the sovereign that can, and does, redraw the jurisdictional map. Practical consequence: when a Supreme Court decision seems to produce an absurd result, the Court's answer is usually "tell Congress," and Congress has in fact responded (the "Duro fix," the Tribal Law and Order Act, the VAWA reauthorizations).

The trust relationship. The United States holds land and resources in trust for tribes and individual Indians and owes fiduciary duties in managing them. But the duty is only as enforceable as the statute or regulation that creates it. United States v. Mitchell, 463 U.S. 206 (1983) (Mitchell II), allowed money damages where the statutory scheme established comprehensive federal management of timber; United States v. Navajo Nation, 537 U.S. 488 (2003), refused damages where no specific fiduciary duty was imposed; United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011), held the trust relationship is not a common-law private trust for all purposes; and Arizona v. Navajo Nation, 599 U.S. 555 (2023), held that the 1868 treaty did not impose an affirmative federal duty to take steps to secure water for the Nation. The lesson for litigators is the same one you would draw from any suit against the United States: find the money-mandating statute. The general framework for damages actions against sovereigns is developed in Suing the Government: A Guide to Damages in Administrative and Public-Entity Litigation, and the review-of-agency-action machinery you will use against the Bureau of Indian Affairs is the ordinary APA machinery covered in Administrative Law: A Comprehensive Guide to Agency Action and Judicial Review.

Anchor authority: Worcester v. Georgia, 31 U.S. 515 (1832); Morton v. Mancari, 417 U.S. 535 (1974); United States v. Mitchell, 463 U.S. 206 (1983); 25 U.S.C. §§ 5301 et seq. (Indian Self-Determination and Education Assistance Act).

Pillar 2 — Tribal sovereignty and self-government

Tribal sovereignty is inherent and retained, not delegated. Tribes possessed governmental authority before the Constitution; what they have today is what they have not lost by treaty, by act of Congress, or by "implicit divestiture" — the judge-made doctrine that tribes lost some powers by virtue of their dependent status. United States v. Wheeler, 435 U.S. 313 (1978), is the cleanest statement: tribal prosecution and federal prosecution do not offend double jeopardy because they proceed from separate sovereigns. Denezpi v. United States, 596 U.S. 591 (2022), applied the same logic to a prosecution in a Court of Indian Offenses.

What sovereignty gets you, practically: tribes write their own constitutions and codes, run their own courts, set their own membership criteria, tax within their territory, regulate conduct on their lands, and are immune from suit absent waiver or congressional abrogation. What it does not get you: the federal Bill of Rights does not apply of its own force to tribal governments, Talton v. Mayes, 163 U.S. 376 (1896), and tribes are not bound by the Fourteenth Amendment. Congress supplied a statutory analogue in the Indian Civil Rights Act, 25 U.S.C. §§ 1301–1304 — but ICRA's only federal remedy is habeas corpus under § 1303. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), held that ICRA creates no implied federal cause of action for declaratory or injunctive relief; the forum for an equal-protection-style challenge to a tribal membership rule is tribal court.

Membership is the sovereign core. Each tribe defines its own citizenship, and federal courts will not second-guess that determination.

Anchor authority: Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); United States v. Wheeler, 435 U.S. 313 (1978); 25 U.S.C. §§ 1301–1304.

Pillar 3 — Indian country: definition and boundaries (and McGirt)

Everything turns on geography, and geography is defined by statute. 18 U.S.C. § 1151 defines "Indian country" as: (a) all land within the limits of any Indian reservation under federal jurisdiction, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation; (b) all dependent Indian communities; and (c) all Indian allotments to which the titles have not been extinguished. Although § 1151 sits in the criminal code, courts apply it to civil jurisdiction as well.

Three refinements matter.

Fee land inside a reservation is still Indian country under § 1151(a) — "notwithstanding the issuance of any patent." That surprises people. It does not mean the tribe has full regulatory power there (see Pillar 5), but the land has not left Indian country.

Dependent Indian communities require federal set-aside and federal superintendence. Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998), held that land conveyed in fee under the Alaska Native Claims Settlement Act fails both tests — which is why Alaska is, jurisdictionally, its own world.

Diminishment and disestablishment. Only Congress can shrink a reservation, and it must do so clearly. Solem v. Bartlett, 465 U.S. 463 (1984), gave a three-factor test that leaned heavily on subsequent demographic history. Nebraska v. Parker, 577 U.S. 481 (2016), narrowed the role of that history. Then McGirt v. Oklahoma, 591 U.S. 894 (2020), held that the Muscogee (Creek) Reservation was never disestablished, because Congress never said so — and that allotment, state assumption of jurisdiction, and a century of contrary assumptions do not add up to disestablishment. McGirt is a statement about statutory text, and its logic has since been extended to other historic reservations in eastern Oklahoma.

Redstone's first move. Before anything else, Redstone's counsel orders a title and jurisdictional status report on every parcel in the project footprint: trust land held by the United States for the Willow Creek Band; individual trust allotments; tribally owned fee land; and non-Indian fee land within the reservation boundary. The transmission corridor crosses two of them. That single map will drive taxation, permitting, leasing, and litigation risk. This is a diligence step with no analogue in ordinary practice, but the surrounding discipline is the same as in The Real Estate Transactions Toolkit.

Anchor authority: 18 U.S.C. § 1151; McGirt v. Oklahoma, 591 U.S. 894 (2020); Solem v. Bartlett, 465 U.S. 463 (1984); Alaska v. Native Village of Venetie, 522 U.S. 520 (1998).

Pillar 4 — Criminal jurisdiction: the matrix

Build the matrix on two axes — the status of the defendant and the status of the victim — and one geographic predicate (Indian country).

Indian defendant, Indian victim. Tribal jurisdiction, always. Federal jurisdiction for the enumerated offenses under the Major Crimes Act, 18 U.S.C. § 1153 (murder, manslaughter, kidnapping, felony sexual abuse, arson, burglary, robbery, felony assault, and others). Tribal and federal prosecution may both proceed; Wheeler forecloses a double-jeopardy objection. United States v. Antelope, 430 U.S. 641 (1977), rejected an equal-protection attack on the Major Crimes Act.

Indian defendant, non-Indian victim. Tribal jurisdiction, plus federal jurisdiction under the General Crimes Act (Indian Country Crimes Act), 18 U.S.C. § 1152, which extends federal enclave law to Indian country but excepts offenses by an Indian against another Indian and offenses already punished by the tribe.

Non-Indian defendant, Indian victim. Here is where the ground moved. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), held that tribes lack inherent criminal jurisdiction over non-Indians. Federal jurisdiction exists under § 1152. And Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022), held that States have concurrent jurisdiction over crimes committed by non-Indians against Indians in Indian country — a significant retrenchment from Worcester's premise, and the case that most changed practice in this decade.

Non-Indian defendant, non-Indian victim. State jurisdiction, exclusively. United States v. McBratney (1882) established this long ago.

Victimless offenses and the rest are allocated by the same logic, with the Assimilative Crimes Act, 18 U.S.C. § 13, filling gaps through § 1152.

Two overlays.

Public Law 280 (18 U.S.C. § 1162; 25 U.S.C. §§ 1321–1326) transferred broad criminal jurisdiction to six mandatory States (California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska, with specific reservation exceptions) and allowed other States to opt in. Crucially, Bryan v. Itasca County, 426 U.S. 373 (1976), held that PL 280 did not confer general civil regulatory or taxing authority — only civil adjudicatory jurisdiction. Whether your matter arises in a PL 280 State is one of the first questions to ask.

Tribal criminal jurisdiction over non-Indians has been restored in slices. Congress reversed Duro v. Reina, 495 U.S. 676 (1990), by amending ICRA to recognize tribal jurisdiction over all Indians, and the Supreme Court upheld that "Duro fix" as a restoration of inherent power in United States v. Lara, 541 U.S. 193 (2004). The Violence Against Women Act's 2013 reauthorization created special domestic violence criminal jurisdiction over non-Indians, codified at 25 U.S.C. § 1304; the 2022 reauthorization expanded it into "special Tribal criminal jurisdiction" reaching additional covered crimes including sexual violence, stalking, sex trafficking, child violence, obstruction of justice, and assaults on tribal justice personnel. Exercising it requires the tribe to guarantee specified defendant protections. Separately, the Tribal Law and Order Act of 2010 permits enhanced tribal sentences — up to three years per offense and nine years stacked — if the tribe provides licensed defense counsel, a law-trained judge, published laws, and a recorded proceeding. 25 U.S.C. § 1302(b)–(c). And United States v. Cooley, 593 U.S. 345 (2021), confirmed that tribal officers may stop and briefly detain non-Indians on a public right-of-way through a reservation pending transfer to the proper authorities.

Verify current law before you advise. This matrix has changed materially three times since 2020. Confirm the current status of Castro-Huerta's application in your circuit, whether the tribe has implemented special Tribal criminal jurisdiction, and whether your State is a PL 280 State.

Anchor authority: 18 U.S.C. §§ 1151, 1152, 1153; Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978); Oklahoma v. Castro-Huerta, 597 U.S. 629 (2022); 25 U.S.C. §§ 1302, 1304.

Pillar 5 — Civil and regulatory jurisdiction over nonmembers (Montana)

If you remember one case, remember this one. Montana v. United States, 450 U.S. 544 (1981), announced the general rule that a tribe's inherent sovereign powers do not extend to the activities of nonmembers on non-Indian fee land within the reservation, subject to two exceptions:

The consensual-relationship exception. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter into consensual relationships with the tribe or its members — through commercial dealing, contracts, leases, or other arrangements. The regulation must have a nexus to the consensual relationship.
The direct-effects exception. A tribe may exercise civil authority over conduct that threatens or has some direct effect on the political integrity, economic security, or health or welfare of the tribe. The Court has read this narrowly: the conduct must "imperil the subsistence" of the tribal community.

The follow-on cases mostly narrow. Strate v. A-1 Contractors, 520 U.S. 438 (1997), treated a state-maintained right-of-way as the equivalent of non-Indian fee land and found no tribal adjudicative jurisdiction over an accident between two nonmembers. Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001), struck a tribal hotel occupancy tax imposed on a nonmember-owned hotel on fee land. Nevada v. Hicks, 533 U.S. 353 (2001), held that a tribe lacked jurisdiction over state officers executing a search warrant on trust land for an off-reservation crime — and cast doubt on whether land status alone is dispositive. Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008), held that the consensual-relationship exception did not extend to the bank's sale of fee land to nonmembers, even though the bank had a long commercial relationship with tribal members.

The practical rule. On trust land and tribal land, the tribe's regulatory authority is at its zenith and Montana is often not even the starting point. On non-Indian fee land, Montana controls, the exceptions are construed narrowly, and the burden is on the party asserting tribal jurisdiction.

Redstone's exposure. Redstone will lease trust land — a consensual relationship with the tribe in the paradigm sense. Its employees will drive tribal roads, its substation will sit on tribal fee land, and its transmission line will cross two non-Indian fee parcels. Tribal regulatory authority over the lease is secure. Tribal authority over a tort claim arising from a collision on the fee-land segment between two of Redstone's non-Indian employees is, under Strate, doubtful. The contract should not leave that to chance — which brings us to forum selection.

Anchor authority: Montana v. United States, 450 U.S. 544 (1981); Strate v. A-1 Contractors, 520 U.S. 438 (1997); Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008).

Pillar 6 — Tribal courts and exhaustion

Tribal courts are real courts. They have their own rules of procedure and evidence, their own appellate courts, and their own body of precedent, and they are not bound by federal or state decisions except where federal law supplies the rule.

Exhaustion. Where a colorable claim of tribal jurisdiction exists, a federal court will ordinarily stay or dismiss so that the tribal court may determine its own jurisdiction in the first instance. National Farmers Union Insurance Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985) (federal-question case); Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987) (extending the rule to diversity). Exhaustion is prudential, not jurisdictional, and the Court has recognized exceptions — bad-faith or harassing assertions of jurisdiction, patent violations of express jurisdictional prohibitions, futility, and (per Strate and Hicks) cases where tribal jurisdiction is plainly lacking. Do not treat the exception as the rule: removing a case to federal court to escape tribal court usually just buys you a stay and a lecture.

Recognition of tribal judgments. Full faith and credit does not automatically apply to tribal judgments as a constitutional matter; recognition is generally a question of comity, and it is state-specific. Some States recognize tribal judgments by statute or court rule (several have adopted versions of the Uniform Enforcement of Foreign Judgments framework or dedicated tribal-court recognition rules); others apply case-by-case comity. Certain federal statutes command full faith and credit for particular tribal orders — ICWA does so for tribal-court child-custody proceedings, 25 U.S.C. § 1911(d), and VAWA does so for tribal protection orders. Check your State's rule before you promise a client that a tribal judgment is enforceable down the road.

Practicing in tribal court. Admission is a matter of tribal law. Many tribal courts require separate admission to a tribal bar, some require a tribal-law examination or sponsorship by an admitted practitioner, some admit lay advocates who are not licensed attorneys anywhere, and some have their own codes of professional conduct enforced by their own disciplinary bodies. Do not assume your state license admits you, and do not assume the rules you were trained on apply. On the ethics side, remember two things that lawyers routinely get wrong: the ABA Model Rules of Professional Conduct are a model — they bind no lawyer anywhere until a jurisdiction adopts them, and adopting jurisdictions vary (California's rules are numbered and worded differently from the Model Rules on several points, and its conflicts and confidentiality provisions diverge in substance). There is no national rule of legal ethics. Check the rules of every jurisdiction where you are admitted, the rules of the tribal court you are appearing in, and the multijurisdictional-practice provision (the analogue of Model Rule 5.5) in each. The framework — not the binding law — is laid out in Legal Ethics and Professional Responsibility: A Comprehensive Guide to the Model Rules and The Legal Ethics and Law Practice Management Toolkit.

Arbitration as the pragmatic answer. In commercial matters, sophisticated parties frequently agree to arbitrate, with a limited waiver of immunity for enforcement in a named federal or state court. That drafting exercise is covered in Drafting an Arbitration Clause: A Practical Checklist and in Arbitration and ADR: A Toolkit for Choosing a Forum, Drafting Clauses, and Running a Case — but read Pillar 7 first, because in Indian country an arbitration clause does more than pick a forum.

Anchor authority: National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985); Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987); 25 U.S.C. § 1911(d).

Pillar 7 — Sovereign immunity and contracting with tribes

The rule is absolute until it isn't. Indian tribes possess common-law sovereign immunity from suit. It applies to commercial as well as governmental activity, and to conduct off the reservation as well as on it. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998). The Court reaffirmed Kiowa — over a vigorous dissent, and while openly inviting Congress to change the rule — in Michigan v. Bay Mills Indian Community, 572 U.S. 782 (2014), holding that Michigan could not sue the tribe over a casino operated outside Indian country because neither IGRA nor anything else abrogated immunity.

Immunity is waived only by an unequivocal expression. Santa Clara Pueblo. A waiver in a contract must be clear, must be made by an officer or body with actual authority under tribal law to make it, and should specify its scope: which claims, which forum, which remedies, whether the waiver reaches tribal assets or only project assets, and whether it survives.

The C&L trap — and gift. In C&L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 532 U.S. 411 (2001), the tribe signed a standard-form construction contract containing an AAA arbitration clause and an Oklahoma choice-of-law clause providing that judgment on the award could be entered in any court with jurisdiction. That was enough: the Court held the tribe had clearly waived immunity from the suit to enforce the award. The lesson runs both ways. For a counterparty, a well-drafted arbitration-plus-enforcement clause is a functioning waiver. For a tribe, boilerplate is dangerous.

Officers, employees, and entities. Lewis v. Clarke, 581 U.S. 155 (2017), held that tribal sovereign immunity does not bar a damages suit against a tribal employee in his individual capacity, even where the tribe has agreed to indemnify him — the remedy runs against the individual, so the tribe is not the real party in interest. Whether an economic-development arm shares the tribe's immunity is an "arm-of-the-tribe" question that turns on multi-factor tests articulated by the circuits: the entity's method of creation, its purpose, its structure and control, the tribe's intent to share immunity, and the financial relationship between the entity and the tribe.

Federal abrogation happens. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 599 U.S. 382 (2023), held that the Bankruptcy Code's abrogation of the sovereign immunity of "governmental units" unequivocally reaches Indian tribes — so the automatic stay binds a tribal lender. That intersects directly with Bankruptcy Law: A Comprehensive Guide to Chapters 7, 11, and 13.

Redstone's waiver clause. Redstone will not sign without (a) a limited, express waiver of immunity by tribal council resolution, adopted under the Band's constitution, and certified with a copy of the enabling authority; (b) binding arbitration under named rules, seated off-reservation; (c) consent to entry of judgment on the award in a named federal district court, with an express consent to that court's jurisdiction and to enforcement against identified project revenues and assets; (d) an express waiver of the tribal-court exhaustion requirement; and (e) a statement that the waiver survives termination. Anything less and its lenders will not fund. Work through the mechanics in Contracting With a Tribal Entity: A Sovereign Immunity Checklist, and use the general drafting discipline in The Commercial Contracts Toolkit: Drafting, Reviewing, and Enforcing Business Agreements.

Anchor authority: Kiowa Tribe v. Manufacturing Technologies, 523 U.S. 751 (1998); Michigan v. Bay Mills Indian Community, 572 U.S. 782 (2014); C&L Enterprises v. Citizen Band Potawatomi, 532 U.S. 411 (2001); Lewis v. Clarke, 581 U.S. 155 (2017).

Pillar 8 — Taxation in Indian country

Four rules, in order of confidence.

1. States may not tax tribes or tribal members for income earned in Indian country. McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973). Residence and the source of the income both matter; Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450 (1995), held that a State may tax the income of tribal members who reside outside Indian country.

2. States may tax nonmembers in Indian country unless preempted. Washington v. Confederated Tribes of the Colville Reservation, 447 U.S. 134 (1980), upheld a state cigarette tax on sales to nonmembers at tribal smokeshops, and the tribes may be required to collect it. The preemption analysis for state taxation of nonmember activity on tribal land is the Bracker balancing test: weigh the federal, tribal, and state interests in light of the comprehensiveness of the federal regulatory scheme. White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980). Where federal regulation is pervasive — as with timber, and often with mineral and energy leasing — state taxes on the nonmember contractor are frequently preempted. Where the State provides real services and the federal scheme is thin, they often are not. This is a genuinely fact-intensive test and the outcomes are not predictable from the case names.

3. Tribes may tax. A tribe's power to tax activity on its lands is an inherent incident of sovereignty. On non-Indian fee land, Atkinson limits that power to the Montana exceptions.

4. Fee land is different. Land held in fee by a tribe or an Indian is generally subject to state ad valorem property tax, even inside a reservation. County of Yakima v. Confederated Tribes & Bands of the Yakima Nation, 502 U.S. 251 (1992); Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998). Land held in trust by the United States is not. This is the sharpest practical reason tribes pursue fee-to-trust acquisition. And note the flip side: City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005), held that a tribe's open-market repurchase of historic reservation land does not revive tribal sovereign authority over it — equitable doctrines of laches, acquiescence, and impossibility bar that result.

Federal income taxation of tribes and tribal entities is its own subject; a federally chartered Section 17 corporation is generally treated as an instrumentality of the tribe. For the general framework of entity taxation you would compare against, see Business Taxation: A Comprehensive Guide to Entity Choice and Federal Income Tax and Choosing a Tax Entity: A Practical Checklist.

Anchor authority: McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 (1973); White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); County of Yakima v. Confederated Tribes, 502 U.S. 251 (1992).

Pillar 9 — Land, trust status, and natural resources

Restraints on alienation. The Nonintercourse Act, 25 U.S.C. § 177, voids any conveyance of land from an Indian tribe without federal approval — a statute that has been on the books in some form since 1790 and that has generated major eastern land-claims litigation. Separately, 25 U.S.C. § 81 requires Secretarial approval of contracts that "encumber Indian lands" for seven years or more. Get the § 81 analysis wrong and your lease is void, not voidable. This is the single most common transactional error non-specialists make.

Fee-to-trust. Section 5 of the Indian Reorganization Act, now 25 U.S.C. § 5108, authorizes the Secretary to acquire land in trust for Indians; the process runs through 25 C.F.R. Part 151. Carcieri v. Salazar, 555 U.S. 379 (2009), held that the authority extends only to tribes "under federal jurisdiction" when the IRA was enacted in 1934 — a holding that has generated a great deal of litigation, administrative interpretation, and legislative proposal. Verify the current administrative framework and any Carcieri fix legislation before relying on a fee-to-trust pathway.

Leasing. Leases of trust land generally require Secretarial approval under 25 U.S.C. § 415 and 25 C.F.R. Part 162. The HEARTH Act, 25 U.S.C. § 415(h), lets a tribe adopt its own leasing regulations, obtain a one-time Secretarial approval of those regulations, and thereafter lease its own trust land for business, residential, and renewable-energy purposes without parcel-by-parcel federal approval. If the Willow Creek Band has HEARTH Act regulations in place, Redstone's timeline shortens by a year or more. Ask on day one.

Minerals and energy. The Indian Mineral Leasing Act of 1938, 25 U.S.C. §§ 396a–396g, and the Indian Mineral Development Act of 1982, 25 U.S.C. §§ 2101–2108, govern mineral development; the latter allows tribes to negotiate development agreements rather than take standard-form leases. Compare the private-lands framework in Oil and Gas Leasing: A Practical Checklist, then discard the parts that assume a private lessor — and note the deeper mismatch: on private lands, oil and gas is fundamentally state property law, and it varies enormously (ownership-in-place versus non-ownership theories, the rule of capture and its statutory modifications, pooling and unitization, implied covenants, and the treatment of the royalty all differ state to state). There is no nationwide oil and gas law. On Indian trust and restricted lands, that state-law overlay is displaced by the federal statutory and regulatory scheme and by tribal law. Do not carry a Texas or Oklahoma habit onto trust land, and do not carry a trust-land habit onto a fee tract.

Water. The reserved rights doctrine of Winters v. United States, 207 U.S. 564 (1908), holds that the creation of a reservation impliedly reserved water sufficient to fulfill its purposes, with a priority date of the reservation's creation — a senior right in a prior-appropriation world. Arizona v. California, 373 U.S. 546 (1963), quantified such rights by the "practicably irrigable acreage" standard. Most quantification today happens in negotiated settlements ratified by Congress. But Arizona v. Navajo Nation, 599 U.S. 555 (2023), made clear that a reserved right is not a federal promise to deliver the water.

Treaty hunting and fishing rights. Reserved rights survive statehood and can bind States. United States v. Winans, 198 U.S. 371 (1905); Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979) (affirming an allocation of up to fifty percent of the harvestable fish); Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999); Herrera v. Wyoming, 139 S. Ct. 1686 (2019) (treaty hunting rights not extinguished by Wyoming's statehood). Treaties are construed liberally in favor of the tribes, as the tribes would have understood them — the Indian canons of construction, which also require that ambiguous statutes be read in the tribes' favor and that abrogation of treaty rights be clear.

Descent and distribution of trust allotments runs through the American Indian Probate Reform Act and tribal probate codes, not state intestacy law — a point worth flagging to any estate planner who reaches for the framework in Wills, Trusts, and Probate: A Comprehensive Estate Planning Guide or The Estate Planning and Wealth Transfer Toolkit without checking whether the asset is trust property.

Anchor authority: 25 U.S.C. §§ 81, 177, 415, 5108; Carcieri v. Salazar, 555 U.S. 379 (2009); Winters v. United States, 207 U.S. 564 (1908).

Pillar 10 — Gaming and IGRA

California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), held that a PL 280 State's gambling laws were civil/regulatory rather than criminal/prohibitory, and therefore did not apply of their own force to tribal bingo. Congress responded within a year with the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701–2721.

IGRA's architecture:

Class I (traditional and social gaming): exclusive tribal jurisdiction.
Class II (bingo, certain non-banked card games): tribal regulation with National Indian Gaming Commission oversight; permitted if the State permits such gaming for any purpose by any person.
Class III (everything else — slots, banked card games, roulette): permitted only if (a) authorized by tribal ordinance, (b) located in a State that permits such gaming for any purpose by any person, and (c) conducted under a Tribal-State compact. 25 U.S.C. § 2710(d).

The compacting problem. IGRA gave tribes a cause of action against a State that fails to negotiate in good faith, 25 U.S.C. § 2710(d)(7). Then Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), held that Congress could not abrogate State Eleventh Amendment immunity under the Indian Commerce Clause — leaving the remedy hollow where a State asserts immunity and pushing tribes toward the Secretary's alternative procedures. Compacts routinely include revenue-sharing in exchange for exclusivity, and the Ninth Circuit has held that a State does not negotiate in good faith when it insists on compact terms outside IGRA's enumerated subjects. Compacting practice is highly State-specific: verify current law and the current status of any Secretarial-procedures pathway.

Land eligibility. IGRA generally prohibits gaming on land acquired in trust after October 17, 1988, subject to enumerated exceptions (restored lands, initial reservations, settlements of land claims, and a two-part Secretarial determination with gubernatorial concurrence). 25 U.S.C. § 2719. Off-reservation gaming projects live or die on this section.

Immunity persists. Bay Mills confirms that IGRA does not abrogate tribal immunity for gaming conducted outside Indian country. A State's remedies against an off-reservation tribal casino are, in the Court's own words, suits against individual officers and criminal prosecution of individuals — not a suit against the tribe.

Industry revenue figures change every year; do not quote a number without a current source.

Anchor authority: California v. Cabazon Band, 480 U.S. 202 (1987); 25 U.S.C. §§ 2701–2721, esp. §§ 2710, 2719; Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); Michigan v. Bay Mills Indian Community, 572 U.S. 782 (2014).

Pillar 11 — ICWA and family law

The Indian Child Welfare Act, 25 U.S.C. §§ 1901–1963, was enacted in 1978 in response to the wholesale removal of Native children from their families and placement in non-Native homes. It applies to state-court "child custody proceedings" involving an "Indian child" — an unmarried person under 18 who is either a member of a tribe or eligible for membership and the biological child of a member.

The machinery:

Notice to the parent, Indian custodian, and tribe. § 1912(a). Notice failures are the most common reversible error.
Exclusive tribal jurisdiction where the child is domiciled or resides on the reservation, or is a ward of a tribal court. § 1911(a). Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989), held that "domicile" is a matter of federal, not state, definition — and that parents could not defeat exclusive tribal jurisdiction by giving birth off-reservation.
Transfer to tribal court from state court on petition, absent good cause or parental objection. § 1911(b).
Tribal right to intervene at any point. § 1911(c).
Heightened standards: active efforts to prevent breakup of the family; qualified expert witness testimony; clear and convincing evidence for foster placement, beyond a reasonable doubt for termination. § 1912(d)–(f).
Placement preferences: for adoption, extended family, other tribal members, other Indian families. § 1915.

The two cases everyone asks about. Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013), held that § 1912(f)'s "continued custody" standard did not apply to a biological father who had never had custody, and that § 1915's placement preferences were not triggered where no preferred party had formally sought placement — a narrowing decision that many read as more limited than its rhetoric. Haaland v. Brackeen, 599 U.S. 255 (2023), rejected facial constitutional challenges: ICWA is within Congress's Article I power over Indian affairs, and its commands to state courts and agencies do not violate the anticommandeering doctrine. The Court dismissed the equal-protection and nondelegation claims for lack of standing, so those questions remain formally open. ICWA is good law; do not let a litigant tell you otherwise.

State law fills the rest. Many States have enacted their own ICWA statutes that go further than the federal floor. Family law is otherwise state law all the way down; see Divorce: A Comprehensive Guide to Dissolution, Property Division, Support, and Custody and The Family Law Toolkit, and then check both the tribe's code and your State's ICWA analogue.

Anchor authority: 25 U.S.C. §§ 1901–1963, esp. §§ 1911, 1912, 1915; Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989); Haaland v. Brackeen, 599 U.S. 255 (2023).

Pillar 12 — Cultural property, NAGPRA, and repatriation

The Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001–3013, does two things. Prospectively, it governs the discovery of Native human remains and cultural items on federal and tribal lands and gives priority of ownership to lineal descendants and affiliated tribes. Retrospectively, it required federal agencies and museums receiving federal funds to inventory their holdings of human remains, funerary objects, sacred objects, and objects of cultural patrimony, and to repatriate them on request. Implementing regulations are at 43 C.F.R. Part 10; those regulations were substantially revised in a rule that took effect in January 2024, tightening timelines and strengthening deference to tribal traditional knowledge. Institutions with collections should verify their compliance posture against the current rule, not the old one.

Related regimes:

National Historic Preservation Act § 106, 54 U.S.C. § 306108, requires federal agencies to consider effects on historic properties — including properties of religious and cultural significance to tribes — and to consult with affected tribes. This is the tribal consultation hook that appears in nearly every federal permitting matter.
Archaeological Resources Protection Act, 16 U.S.C. §§ 470aa–470mm, criminalizes unauthorized excavation and trafficking.
American Indian Religious Freedom Act, 42 U.S.C. § 1996, is a policy statement without a private cause of action; Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988), rejected a Free Exercise challenge to federal land management affecting sacred sites. The Religious Freedom Restoration Act supplies a stronger, though contested, framework against federal action.

Redstone's project sits on a ridge. Its § 106 consultation obligations arise the moment a federal permit or approval is in play — which, for a lease of trust land or an interconnection crossing federal land, it will be.

Anchor authority: 25 U.S.C. §§ 3001–3013; 43 C.F.R. Part 10; 54 U.S.C. § 306108; 16 U.S.C. §§ 470aa–470mm.

Pillar 13 — Environmental and energy regulation in Indian country

The major federal environmental statutes contemplate a treatment-as-a-State ("TAS") pathway under which EPA may authorize a tribe to administer a program on its reservation: Clean Air Act § 301(d), 42 U.S.C. § 7601(d); Clean Water Act § 518(e), 33 U.S.C. § 1377(e) (including § 401 certification and water-quality standards); Safe Drinking Water Act § 1451, 42 U.S.C. § 300j-11. Tribal water-quality standards, once approved, can have real downstream consequences for upstream non-tribal dischargers — the Tenth Circuit upheld EPA's approval of Isleta Pueblo's standards over a city's objection in City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996). Where a tribe has not obtained TAS, EPA generally implements the program directly; States generally do not, absent express congressional authorization.

CERCLA treats tribes substantially as States for many purposes, including natural resource damage trusteeship. RCRA, NEPA, and the Endangered Species Act all appear in Indian country project work, with NEPA triggered by the federal approval (the lease, the right-of-way, the loan guarantee). The substantive content of those statutes is the same content covered in Environmental Law: A Comprehensive Guide to CERCLA, RCRA, the Clean Air Act, and the Clean Water Act and The Environmental Law Toolkit; what changes in Indian country is which sovereign administers it. Site-condition diligence still runs the ordinary path — see Phase I Environmental Site Assessment and All Appropriate Inquiries: A Practical Checklist.

On the energy side, the project-development stack — interconnection, offtake, permitting, tax credits, financing — is the same stack described in Energy Law: A Comprehensive Guide to Regulation, Markets, and Project Development and The Energy and Utilities Toolkit, with four Indian-country modifications: (1) the lease requires § 415 / Part 162 or HEARTH Act treatment; (2) the right-of-way requires a separate federal approval under 25 C.F.R. Part 169 and, critically, landowner consent — which on a fractionated allotment can mean tracking down dozens of owners; (3) tribal law, not state law, governs siting and land use on trust land, so the entitlement path in Land Use and Zoning Law: A Comprehensive Guide, The Land Use and Development Toolkit, and Securing Land Use Entitlements for a Development Project: A Practical Checklist tells you the shape of the problem but not the governing code; and (4) Bracker preemption may knock out state taxes on the project — an assumption worth an opinion letter, not a hope.

Anchor authority: 42 U.S.C. § 7601(d); 33 U.S.C. § 1377(e); 25 C.F.R. Parts 162, 169; White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980).

Pillar 14 — Economic development and tribal enterprises

Entity choice is the whole ballgame. A tribe can act through (a) the tribal government itself; (b) a Section 17 corporation federally chartered under 25 U.S.C. § 5124, which is an instrumentality of the tribe and generally shares its immunity and its federal tax treatment while allowing a charter-level waiver that does not expose the tribe's other assets; (c) a tribally chartered corporation or LLC under the tribe's own code; or (d) a state-law entity, which will generally not enjoy immunity. Lenders and counterparties care enormously about which one they are facing, because the entity determines whether there is an enforceable remedy. The general entity-choice logic in Choosing a Tax Entity: A Practical Checklist applies — but the immunity overlay dominates it.

The employment-law overlay is genuinely unsettled. Title VII expressly excludes Indian tribes from the definition of "employer," 42 U.S.C. § 2000e(b), as does the ADA, 42 U.S.C. § 12111(5)(B)(i). Other statutes of general applicability may or may not reach tribal employers, and the circuits have divided — the D.C. Circuit held in San Manuel Indian Bingo & Casino v. NLRB, 475 F.3d 1306 (D.C. Cir. 2007), that the National Labor Relations Act applies to a tribal casino employing largely non-Indian workers and serving largely non-Indian patrons, and the Board's position has itself shifted over time. Do not assume either way; research the statute, the circuit, and the current agency position, and cross-check the substantive standards in Employment Discrimination Law: A Comprehensive Guide and Wage and Hour Law Under the FLSA: A Comprehensive Guide before advising a tribal employer.

TERO. Many tribes have Tribal Employment Rights Ordinances requiring contractors to give hiring preference to tribal members and to pay a TERO fee. Morton v. Mancari supplies the constitutional footing: tribal-membership preferences are political classifications. Redstone's construction contract will include a TERO compliance schedule, and its subcontractors will need to be flowed down.

Federal contracting and self-determination. Tribes contract with the United States to run federal programs under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 5301 et seq., and tribally owned firms participate in SBA programs, including the 8(a) program, on favorable terms. Those are federal procurement matters; see The Government Contracts Toolkit.

Cannabis, specifically. Marijuana remains a Schedule I controlled substance under the federal Controlled Substances Act, and tribal lands are subject to federal criminal law. Tribal sovereignty is not a shield against federal prohibition, and rescheduling has been under active federal consideration — verify the current federal status before advising anyone. The state-federal-tribal conflict, and the banking, tax, bankruptcy, and professional-responsibility consequences that flow from it, are mapped in The Cannabis Law Toolkit.

When things go wrong, remember that the recovery you can actually obtain is bounded by the waiver you negotiated. Valuation and proof of damages proceed on ordinary principles — see The Litigation Damages Toolkit: Valuing and Proving Money Awards — but a perfect damages model against an unwaived sovereign is worth nothing.

Anchor authority: 25 U.S.C. §§ 5124, 5301 et seq.; 42 U.S.C. § 2000e(b); Morton v. Mancari, 417 U.S. 535 (1974).

The landscape as a working checklist

Run this before you open a matter in Indian country.

Geography and status

[ ] Determine whether the conduct or land is in Indian country under 18 U.S.C. § 1151(a), (b), or (c).
[ ] Pull the land status for every parcel: trust, restricted fee, tribal fee, allotted, or non-Indian fee.
[ ] Confirm whether the reservation has been diminished or disestablished — and whether McGirt has changed the answer in your State.
[ ] Identify whether you are in a Public Law 280 State (and whether the specific reservation is excepted).

Parties and status

[ ] Determine the Indian/non-Indian status of every relevant party (defendant, victim, contracting party, landowner).
[ ] Identify the tribal entity you are dealing with: the tribe, a Section 17 corporation, a tribally chartered entity, or a state-law entity — and get the charter.
[ ] Confirm who has authority to bind the tribe under its constitution and code, and get the enabling resolution.

Tribal law

[ ] Obtain and read the tribe's constitution, code, and relevant ordinances (leasing, TERO, tax, environmental, land use).
[ ] Identify the tribal court and its rules, and whether an appellate court exists.
[ ] Determine whether tribal-court exhaustion will apply and whether it has been waived.

Federal approvals

[ ] Screen for 25 U.S.C. § 81 (encumbrance of Indian land for seven years or more) — void if unapproved.
[ ] Screen for 25 U.S.C. § 177 (Nonintercourse Act) on any conveyance.
[ ] Determine the leasing pathway: § 415 / 25 C.F.R. Part 162 Secretarial approval, or HEARTH Act tribal regulations.
[ ] Determine the rights-of-way pathway under 25 C.F.R. Part 169 and identify all consenting landowners.
[ ] Identify the federal action triggering NEPA and NHPA § 106 consultation.

Jurisdiction and immunity

[ ] Run the criminal matrix (defendant status × victim status × land status × PL 280 × VAWA), and check Castro-Huerta concurrent state jurisdiction.
[ ] Run Montana for any assertion of tribal civil or regulatory authority over a nonmember.
[ ] Negotiate an express, limited waiver of sovereign immunity by the authorized body, specifying claims, forum, remedies, and assets.
[ ] Pair the waiver with an arbitration clause and consent to entry of judgment in a named court (C&L Enterprises).
[ ] Confirm whether the entity is an arm of the tribe under the governing circuit's test.

Taxes and regulation

[ ] Run Bracker balancing on any state tax asserted against a nonmember operating on tribal land.
[ ] Confirm ad valorem exposure by land status (fee vs. trust).
[ ] Determine whether the tribe has TAS status under the CAA, CWA, or SDWA, or whether EPA implements directly.
[ ] Check for a tribal tax (possessory interest, severance, sales, TERO fee) and build it into the model.

Specialty triggers

[ ] Child in a custody proceeding? Run ICWA notice, jurisdiction, transfer, standards, and placement preferences — and your State's ICWA analogue.
[ ] Gaming? Class I/II/III, compact status, § 2719 land eligibility.
[ ] Human remains or cultural items? NAGPRA, current 43 C.F.R. Part 10, ARPA.
[ ] Cannabis? Marijuana remains a Schedule I controlled substance under the federal Controlled Substances Act, 21 U.S.C. § 812, even where a State has legalized it and even where a tribe has legalized it on its own lands. Tribal sovereignty is not a defense to federal prohibition. Do not counsel anyone to violate federal law; verify the current federal status, which has been in flux.

Worked example: Redstone Grid Partners, first contact to closing

Pull the pillars together on one matter.

Month 1 — Map the sovereigns and the dirt. Redstone's general counsel, Alina Vasquez, stops treating this as a real estate deal. She commissions a parcel-by-parcel jurisdictional status report. Result: the 900-acre array footprint is trust land held by the United States for the Willow Creek Band; the substation pad is tribally owned fee land inside the reservation; the 4.2-mile gen-tie corridor crosses one individual trust allotment with 31 fractional owners and two non-Indian fee parcels; and the interconnection point is on land the Band bought on the open market in 2019 outside the historic reservation boundary. Four legal regimes, one project. Under 18 U.S.C. § 1151, the first three are Indian country; the fourth almost certainly is not, and under City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005), buying it back did not restore sovereign authority over it.

Month 2 — Read the tribe's law, not the Supreme Court's. Alina requests, in writing: the Band's constitution, its business-leasing code, its TERO ordinance, its tax code, its environmental code, its land-use code, its court rules, and the resolutions establishing its economic-development corporation. She learns the Band has HEARTH Act leasing regulations approved by the Secretary, which removes parcel-by-parcel Secretarial approval of the array lease and takes roughly a year out of the schedule — but that the rights-of-way over the allotment still run through 25 C.F.R. Part 169, which means federal approval and consent from a majority interest of those 31 fractional owners. The gen-tie, not the array, is now the critical path. This is the step no federal case can do for her: tribes are separate sovereigns, and the Band's code is the governing law.

Month 3 — Screen the void-makers. Two statutes can destroy the deal outright. 25 U.S.C. § 81: does any instrument "encumber Indian lands" for seven years or more without Secretarial approval? The lease is 30 years; the HEARTH regulations answer it. But the collateral assignment to the lenders and the O&M agreement need their own § 81 analysis, and the answer is not obvious. 25 U.S.C. § 177 (Nonintercourse Act): nothing here conveys tribal land, so it is clear — but Alina documents the conclusion rather than assuming it. An unapproved § 81 encumbrance is void, not voidable, and no amount of good faith cures it.

Month 4 — Identify the counterparty, then get the waiver. The Band proposes that Redstone contract with Willow Creek Development Authority. Alina asks the only question that matters: what is it? A tribally chartered entity under the Band's code. It therefore presumptively shares the Band's immunity as an arm of the tribe under the multi-factor tests the circuits apply. So the contract gets: an express, limited waiver of sovereign immunity adopted by tribal council resolution under the Band's constitution, with a certified copy of the enabling authority attached; binding arbitration under named rules, seated off-reservation; consent to entry of judgment in a named federal district court and to that court's jurisdiction (C&L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe, 532 U.S. 411 (2001)); an express waiver of tribal-court exhaustion; recourse limited to identified project revenues and assets and expressly not to the Band's other assets; and survival of termination. See Contracting With a Tribal Entity: A Sovereign Immunity Checklist.

Month 6 — Federal process. The HEARTH lease and the Part 169 rights-of-way are federal-adjacent enough that NEPA and NHPA § 106 consultation attach to the federal approvals. The array sits below a ridge the Band identifies as culturally significant. Section 106 consultation is not a formality here; it is the schedule. Redstone reroutes 600 meters of fence line and gains a year of goodwill for a week of engineering.

Month 9 — Tax the model, honestly. The state revenue department asserts a possessory-interest tax and a use tax on construction materials. Redstone's answer is Bracker balancing, and it is genuinely uncertain: pervasive federal regulation of trust-land leasing and a strong tribal interest in project revenue point one way; the State's provision of highway and emergency services points the other. Alina models both outcomes and buys a tax opinion rather than an assumption. Meanwhile the tribal possessory-interest tax and TERO fee are real, owed, and belong in the pro forma. And the substation on fee land is exposed to county ad valorem tax under County of Yakima, 502 U.S. 251 (1992) — a line item the developer had not budgeted.

Month 12 — What broke. A subcontractor's non-Indian driver rear-ends another non-Indian on the fee-parcel segment of the corridor. Under Strate v. A-1 Contractors, 520 U.S. 438 (1997), tribal adjudicative jurisdiction over that tort is doubtful. But a wage dispute brought by a tribal-member employee against the Development Authority under the Band's employment code is squarely tribal-court business, and the exhaustion doctrine means Redstone's instinct to remove will buy a stay, not an escape. The two disputes look similar and are governed by entirely different sovereigns. That, in one sentence, is federal Indian law.

Verify before you rely

This field moves. Treat the following as expressly unsettled or in motion, and confirm current law before you advise:

The criminal-jurisdiction matrix. Castro-Huerta's scope, its application in your circuit, and whether the tribe has implemented special Tribal criminal jurisdiction under 25 U.S.C. § 1304.
Reservation boundaries after McGirt. The downstream litigation continues; do not assume a boundary answer that predates 2020.
Fee-to-trust. Carcieri v. Salazar fixes, Department of the Interior regulatory revisions to 25 C.F.R. Part 151, and the current administrative posture.
NAGPRA. The 43 C.F.R. Part 10 regulations were substantially revised effective in 2024; compliance posture must be checked against the current rule.
Gaming compacts and Secretarial procedures. Highly State-specific and litigated continuously.
Cannabis. Marijuana is Schedule I under the federal Controlled Substances Act. Rescheduling has been under active federal consideration; verify the current status. No state or tribal legalization changes federal law.
Legal ethics. Governed by each adopting jurisdiction's rules, plus tribal court rules. The ABA Model Rules bind no one on their own.
Anything you learned about this field more than five years ago.

Primary Authority

Statutes and rules

18 U.S.C. § 1151 (definition of Indian country); § 1152 (General Crimes Act); § 1153 (Major Crimes Act); § 1162 (Public Law 280 criminal jurisdiction); § 13 (Assimilative Crimes Act)
25 U.S.C. §§ 1301–1304 (Indian Civil Rights Act; § 1302 sentencing limits; § 1303 habeas; § 1304 special Tribal criminal jurisdiction)
25 U.S.C. §§ 1321–1326 (state assumption and retrocession of jurisdiction)
25 U.S.C. §§ 1901–1963 (Indian Child Welfare Act)
25 U.S.C. §§ 2701–2721 (Indian Gaming Regulatory Act)
25 U.S.C. §§ 3001–3013 (NAGPRA); 43 C.F.R. Part 10
25 U.S.C. § 81 (contracts encumbering Indian lands); § 177 (Nonintercourse Act); § 415 and 25 C.F.R. Part 162 (leasing); § 415(h) (HEARTH Act); 25 C.F.R. Part 169 (rights-of-way); 25 C.F.R. Part 151 (land acquisitions)
25 U.S.C. §§ 396a–396g (Indian Mineral Leasing Act); §§ 2101–2108 (Indian Mineral Development Act)
25 U.S.C. § 5108 (fee-to-trust); § 5124 (Section 17 corporations); §§ 5301 et seq. (Indian Self-Determination and Education Assistance Act)
42 U.S.C. § 7601(d) (CAA treatment as a State); 33 U.S.C. § 1377(e) (CWA); 42 U.S.C. § 300j-11 (SDWA)
54 U.S.C. § 306108 (NHPA § 106); 16 U.S.C. §§ 470aa–470mm (ARPA); 42 U.S.C. § 1996 (AIRFA)
42 U.S.C. § 2000e(b) (Title VII tribal exclusion); 42 U.S.C. § 12111(5)(B)(i) (ADA)
21 U.S.C. § 812 (Controlled Substances Act schedules — marijuana remains Schedule I under federal law)

Cases

Secondary Sources

Cohen's Handbook of Federal Indian Law — the field's standard treatise and the first thing to reach for on any question in this toolkit.
Felix S. Cohen, Handbook of Federal Indian Law (1942) — the original, still cited for the foundational structure of retained sovereignty.
Restatement (Third) of Property; Powell on Real Property — for the underlying property concepts that trust status modifies but does not replace.
The tribe's own constitution, code, and court decisions. In this field, that is not secondary authority — it is the governing law, and no treatise substitutes for it.

Related UpLaw Resources

Related Guides & Articles

Related Checklists

Related Toolkits

This toolkit is general legal information from UpLaw (uplaw.us), not legal advice, and does not create an attorney-client relationship. Federal Indian law changes rapidly, and every federally recognized tribe is a separate sovereign with its own constitution, code, and courts — no federal decision tells you what a particular tribe's law provides. Laws vary by jurisdiction and change over time; verify current requirements and consult qualified counsel before acting.