This paper summarizes the topics and trends in Indian law confronted by courts in 2017. Designed as an update that will be useful to practitioners as well as scholars, the paper breaks the discussion down into more than forty topics and subtopics. For this paper, I tracked and read all 646 judicial opinions issued by state and federal courts that squarely decided questions of federal Indian law. From those cases I have distilled this update. Ideally the first in an annual collection.

The paper includes an empirical discussion of Indian law looking at which circuits and districts are presented with the most Indian law questions. It also examines what topics receive the most coverage providing a summary of more than 200 ICWA opinions as well as capturing obscure topics like the 4 cases decided on the Navajo-Hopi Rehabilitation Act. It captures important moments in Indian law like Justice Thomas dissenting from denial of cert. in a land into trust case but also highlights the return of Leonard Peltier to federal court.

I hope the user finds this comprehensive update a useful survey of Indian law in 2017.

Indian defendants appearing before tribal courts are not protected by the Bill of Rights. Instead, Congress enacted the Indian Civil Rights Act in 1968 to extend some, but not all, constitutional protections unto Indian reservations. Fifty years later and there continues to be extensive litigation surrounding ICRA.

This paper looks at all of the ICRA cases decided in 2017 to attempt to evaluate the merits of ICRA’s protections of tribal rights. The picture is decidedly mixed. From these cases the paper calls for three changes that directly respond to trends in civil rights litigation. 1) The paper suggests that courts expand the understanding of habeas jurisdiction to extend when an individual has been banished. It argues that banishment is a form of confinement and a restriction of liberty – albeit one where the jail cell is large, essentially the world minus the reservation. 2) Tribes must adopt codes that provide for a trial by jury and rules for determining who constitutes the jury and how it may be empaneled. While ICRA provides for a trial by jury, tribal courts have an affirmative duty to inform defendants of their right to request a jury trial. It is a violation of ICRA if the tribe does not make provisions for a jury when requested. 3) Finally tribal court judgments, when used in other forums, may be ambiguous because tribal law and tribal procedures are distinct from those followed by states or the federal system. Accordingly, any ambiguity that arises in response to a tribal court judgment should be resolved with a reference to the doctrine of lenity.