Classification Portal to Indigenous Law: Intelligent Access to Information

Jolande Goldberg

Policy & Standards Division(PSD)

The Library of Congress

July 2014

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Where is at LC Indigenous Law?

Most US Departments have by now Portals / Websites for Indigenous concerns. At LC, it still is buried in

* Class E (History. America) and * Class F (Local History. America)And with a few numbers in * Class KF (Law of the United States) and * Class KE (Law of Canada)

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KF8200-8228

KF8201+KF8210.A-Z

KF8220 KF8222 KF8224

KF8228.A-Z

What are the choices to class present-day Indian Law ?And Where to class such topics as:

Indian Sovereignty. Self - government Indian lands vs. Public property Land allotments (Dawes & Curtis Acts) Aboriginal/Indian title vs. land in federal trust

status – the trust system Where to class ”landgrabbing” Fractionated land and federal land-buy-back

program

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LC Classification for Indigenous Law

Tribal law is not common knowledge, and users and information providers (librarians) are frustrated for a long time about the gap between information available and information accessible, although Indigenous Peoples gained more presence in the media, particularly after the 2007 the UN Declaration on the Rights of Indigenous Peoples with a definitive catalog of Indigenous rights.

* At LC, Indigenous materials including law, are buried in the legacy collection Class E99, Indians A-Z* Class KF (Law of the United States), since 1967 the only place in the LC Classification with a minimal section on Federal Indian law and Tribal law (both mostly A-Z arrangements)

does not reflect the sovereign status and autonomy of the Indian nations residing on US soil, nor does it reflect current Indian government. Indian law was rather a subject ”for which any location in KF would have to be arbitrary” (Werner B. Ellinger) Indeed, the “Indians” appeared and disappeared throughout the various drafts of KF.

* LC took the lead with this classification, which was created following the current trend to provide for the first time a geopolitical and substantive arrangement for the Indigenous populations, in the US and Canada, their organization, and the complex body of legal sources.

* As a further step, broader access to such information should be provided in the electronic environment in form of a Portal.

LC Classification for Indigenous Law

(1) The new schedule KIA-KIK is for Aboriginal or Tribal law which refers to the customary law of Indigenous Peoples -

“integral to the distinct culture of a group,” and practiced by the group.

(2) Federal Indian law or Indian law is distinct from Tribal or Aboriginal law. It is federal statutory law and administrative regulations, setting limitations for Indian jurisdiction over broad areas of the substantive law.

This law will stay in KF and KE

(3) Tribal law classification follows the same principles as all other law schedules:

Regionalism and Jurisdictionality determine the hierarchy

But: Are Indigenous Peoples Jurisdictions? PSD policy: change of the MARC fields, and Authority work

(1) The term jurisdiction signals independence and self-governance of a corporate body or organization. Only if this character is determined, a classification for its law can be considered since law is tied to a jurisdiction.

For tribes in the US, it is also tied to the enrollment process at the Bureau of Indian Affairs/ Department of the Interior, a complex process based on proof of “Indian blood ancestry” and degrees of Blood-quantum (which may vary from tribe to tribe, and was only widely adopted after the Indian reorganization Act of 1934). The enrolled Tribe or Nation is recognized as autonomous/sovereign entity and on a one-to-one-relationship with the Federal Government. In the classification, it has a place in Constitutional law - under Indian citizenship and tribal membership.

(2) At the beginning of this project, the LC Policy and Standards Division (PSD) determined that the appropriate MARC 21 field is at present the 151 (Geographic name) field in name authority records for names of such Indian Tribes which are recognized by the US Government, instead of the previously used 110 (Corporate name) field. This was in keeping with the guidance provided in rule 21.35 of the Anglo-American Cataloguing Rules 2nd edition (AACR2).

(3) The authority work for names of Indian jurisdictions follows the file of officially recognized tribes, compiled and maintained by the Bureau of Indian Affairs, which is the principal document for name and legal status of Indian Entities

Regions of Class K-KZ: Law of the World (Section)

America. North AmericaKDZ General. ComparativeKE CanadaKF United States of AmericaKG-KGH Mexico & Central AmericaKGJ-KGZ West Indies & Caribbean

South AmericaKH General (Comparative)KHA-KHW JurisdictionsKIA-KIX Law of Indigenous Peoples in the Americas

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Confidential - Internal Distribution

KIA North America http://www.loc.gov/loc/classwebdemo/mapdemo.html

KIA Arctic and sub-Arctic Greenland, see KDZ Northern Canada Alaska

KIB-KID Canada KIC Eastern Canada KID Western Canada KIE-KIK United States KIF Northeast Atlantic KIG South KIH North Central KIJ Pacific Northwest KIK New Southwest

Regions for Law of Indigenous Peoples in the Americas

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Regions for Law of Indigenous Peoples in the Americas

North America KIE United States (General /

Comparative American Indian law) KIG 1-30 South

KIG101 – 5350 Indian jurisdictions

KIB Canada (General /comparative Aboriginal Law)

KID 1-30 Western Canada KID 101 – 8820 Aboriginal

jurisdictions13

American Indian Jurisdictions. By Region (US)

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Where in the LCC does

* Doctrine of Discovery & Occupation

fit in? And what is the enduring impact of this doctrine and the

* International Principle of terra nullius

KZ Law of Nations

The Narrative

of this international doctrine together with the legal concept of Terra nullius determined:

* Common law doctrine: Aboriginal or Indian Title over the last 200 years – and further

* is background of the related issue of the Federal-Indian Trust Relationship and Trust System

(Aboriginal) Original Indian Title: Time Line Indian title is recognized. “Discovery” gives the discovering nation only “pre-emption rights” Extinguishment by purchase, treaty, congressional acts (e.g., claims settlement acts)

(1) British North America before Independence (a) Before 1763 ( Royal Proclamation): Private purchases of Indian lands

(b) Royal Proclamation reserves for the Crown the exclusive right of “Pre-emption” (meaning Royal approval for all purchases)(2) US is successor nation. Confederation Congress Proclamation of 1783 prohibits extinguishment of aboriginal title without consent of Congress

Post Constitution: With ratification in 1788 of the Constitution, US States lost the ability to extinguish aboriginal title. The Nonintercourse Acts beginning1790-1833 codify this prohibition.

Removal Act 1830 Policy resulted in complete extinguishment of aboriginal title in Southern States, Indiana, and Ohio;

1871 Congress banned Indian treaties by Statute By 1886 Tribal lands were largely either ceded to the Fed or designated as reservations Dawes Act 1887 (General Allotment Act)

Communal reservation lands were broken up into parcels held in fee simple (alienable) by Indians (and others). Checkerboard starts. Assimilation policy

Curtis Act 1898: allotment for the Five Civilized Tribes, abolished tribal government Indian Reorganization Act (Indian New Deal) 1934

Slowed the practice of allotment of communal tribal lands to individuals. The act also allowed the US purchase of fee lands to restore it to “land in trust status”Land-Buy-Back Program (current)

Definitions and Facts: Aboriginal Title/Native Title

Original Indian Title established by actual, continuous, and exclusive use for a long timeCould be also held by individuals (from ancestors)

No alienation (legally) except to federal Government or with Congressional approval

“Exclusive and plenary” power of Congress to extinguish title by purchase or conquest(without compensation)

“Federal sovereign immunity” bars possessory claims against government(compensatory claims by statute)

Eleventh Amendment bars both possessory and compensatory claims against states

Unextinguished aboriginal title provides cause of action for ejectment or trespass(federal subject-matter jurisdiction)

Tribal law suites settled by Congressional legislation (Land settlement acts)(extinguishment of title & monetary compensation)

Trust Theory and Practice (Trust Doctrine) Trust relationship and Trust obligations by the US Government vs. Indian title

Creation of trust status for Indian land (Indian land is not held in trust by the US unless legal conditions are met):

Treaties and agreements: US Constitution (treaty making power, including Indians; commerce and peace) US Court decisions (early Supreme Court cases) (guardianship=Indians are wards=Marshall) Fed. statutes or Executive order ( designating land as reservation) By conversion of “public land” to Indian reservation by the Secretary of the Interior

Land in “trust status” or “Trust land” (ca. 51 mio. acres Indian-owned land):neither the trustee (US Gov) nor Indian owner can dispose withoutconsent of the other

US Gov. responsibilities:Protection of Indian trust Property (all natural resources: minerals, water, timber,fishing and hunting rightsProtection of right to Self-GovernmentProvisions of Social, medical, and educational benefitsAdministration of Indian trust funds. Trust land consolidation fundSale or lease of resources (mineral, gas, timber, etc.)Funds from land-buy-back program (land consolidation of fractionated interests as result of allotment)

Comparative Content:

How is the Relationshipresolved between

* KIE: US (Comparative Indian Tribal law)&

* KF: Indians (Comparative Federal Law)

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KIE United States (Indian Tribal Law)

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KF American Indians (Federal Law)

KIE United States (Indian Tribal Law)

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KF American Indians (Federal Law)

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KF American Indians (Federal Law)

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KF American Indians (Federal Law)

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Maps for the

Electronic Portal:Guide to Law - Online

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North America – Clickable Diagramhttp://www.loc.gov/loc/classwebdemo/mapdemo.html

Select a region byclicking on the

map

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United States – Clickable Diagram

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ANCSA Regional MapAS

The twelve Regions:

AS = Arctic SlopeNA = NANADY = DoyonBS = Bering StraitsCA = CalistaCO = Cook InletAHT = AhtnaBB = Bristol BayAL = AleutKO = KoniagCHU = ChugachSEAL = Sealaska

NA

DYBS

CA COAHT

BB

AL

KO

CHU

SEAL

http://ancsaregional.com/ancsa-map

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http://www.loc.gov/ABA

NEWS