⚖️Native American Law Unit 1 – Federal Indian Law: Historical Foundations

Key Historical Events

• European colonization of the Americas began in the late 15th century, leading to significant impacts on indigenous populations
• The Doctrine of Discovery, established by papal bulls in the 15th century, provided a legal justification for European claims to lands inhabited by indigenous peoples
  • Pope Nicholas V issued the papal bull Romanus Pontifex in 1455, granting Portugal the right to colonize and convert non-Christians in West Africa
  • Pope Alexander VI issued the papal bull Inter Caetera in 1493, granting Spain the right to colonize and convert non-Christians in the Americas
• The Royal Proclamation of 1763, issued by King George III, recognized indigenous land rights and established the principle of nation-to-nation relationships between the British Crown and indigenous nations
• The Indian Removal Act of 1830, signed by President Andrew Jackson, authorized the forced relocation of Native American tribes from their ancestral lands to designated areas west of the Mississippi River (Trail of Tears)
• The General Allotment Act of 1887, also known as the Dawes Act, aimed to assimilate Native Americans into mainstream American society by dividing tribal lands into individual allotments
  • The act resulted in the loss of millions of acres of tribal land and the fragmentation of Native American communities
• The Indian Reorganization Act of 1934, also known as the Wheeler-Howard Act, aimed to reverse the policies of the General Allotment Act and restore tribal sovereignty and self-governance
• The Termination Era, from the 1940s to the 1960s, involved federal policies aimed at ending the federal government's trust relationship with Native American tribes and assimilating Native Americans into mainstream society

Legal Foundations and Doctrines

• The Marshall Trilogy, a series of Supreme Court decisions in the early 19th century, established key legal principles that continue to shape federal Indian law
  • Johnson v. M'Intosh (1823) recognized the Doctrine of Discovery and the federal government's exclusive right to extinguish indigenous land titles
  • Cherokee Nation v. Georgia (1831) defined Native American tribes as "domestic dependent nations" under the protection of the federal government
  • Worcester v. Georgia (1832) affirmed tribal sovereignty and the federal government's authority over Native American affairs
• The trust doctrine, derived from the Marshall Trilogy, establishes the federal government's responsibility to protect tribal lands, resources, and interests
• The plenary power doctrine, also derived from the Marshall Trilogy, asserts that Congress has broad authority over Native American affairs, including the power to modify or terminate tribal rights
• The reserved rights doctrine, established in United States v. Winans (1905), holds that treaties between the federal government and Native American tribes reserve certain rights to the tribes, even if not explicitly stated in the treaty
• The canons of construction, a set of legal principles for interpreting treaties and statutes related to Native American rights, require that ambiguities be resolved in favor of the tribes

Tribal Sovereignty Concepts

• Inherent sovereignty refers to the idea that Native American tribes possess inherent powers of self-governance that predate European colonization and the formation of the United States
• Tribal sovereignty is the right of Native American tribes to govern themselves, manage their internal affairs, and engage in government-to-government relationships with federal and state governments
• The trust relationship between the federal government and Native American tribes obligates the federal government to protect tribal lands, resources, and interests
  • This includes the duty to consult with tribes on matters that may affect their rights or interests
• Tribal sovereign immunity protects Native American tribes from lawsuits in federal and state courts without their consent or congressional abrogation
• The power to tax is an essential aspect of tribal sovereignty, allowing tribes to generate revenue and fund governmental services within their jurisdictions
• Criminal jurisdiction in Indian Country is divided among federal, state, and tribal authorities, depending on the nature of the crime, the identity of the perpetrator, and the identity of the victim (Major Crimes Act, Public Law 280)
• Civil regulatory jurisdiction in Indian Country is generally exercised by tribal governments, subject to limitations imposed by federal law

Federal-Tribal Relationship

• The federal-tribal relationship is based on the principle of government-to-government interaction between the United States and Native American tribes
• Treaties between the federal government and Native American tribes are considered the supreme law of the land under the U.S. Constitution (Article VI, Clause 2)
  • Treaties often establish the boundaries of tribal lands, hunting and fishing rights, and other important provisions
• The trust responsibility obligates the federal government to act in the best interests of Native American tribes and their members
  • This includes the management of tribal trust lands, natural resources, and trust accounts
• The Bureau of Indian Affairs (BIA), established in 1824, is the primary federal agency responsible for administering and managing the federal government's trust responsibilities to Native American tribes
• The Indian Self-Determination and Education Assistance Act of 1975 allows tribes to assume control over programs and services previously administered by the federal government (self-governance compacts, 638 contracts)
• Executive Order 13175, issued in 2000, requires federal agencies to consult with Native American tribes on policies that have tribal implications
• The White House Council on Native American Affairs, established in 2013, coordinates the federal government's engagement with tribes and works to promote economic development, health, and education in Native American communities

Major Court Cases and Decisions

• Ex parte Crow Dog (1883) affirmed tribal jurisdiction over crimes committed by Native Americans against other Native Americans on tribal lands
  • This decision led to the passage of the Major Crimes Act in 1885, which extended federal jurisdiction over certain serious crimes in Indian Country
• United States v. Kagama (1886) upheld the constitutionality of the Major Crimes Act and affirmed Congress's plenary power over Native American affairs
• Lone Wolf v. Hitchcock (1903) reaffirmed Congress's plenary power over Native American affairs and held that Congress could unilaterally abrogate treaties with Native American tribes
• Williams v. Lee (1959) established the infringement test, which limits state jurisdiction in Indian Country to cases where it does not infringe upon tribal self-governance
• McClanahan v. Arizona State Tax Commission (1973) held that states generally lack the authority to tax the income of Native Americans residing and working on their tribe's reservation
• Oliphant v. Suquamish Indian Tribe (1978) held that tribal courts do not have inherent criminal jurisdiction over non-Indians who commit crimes on tribal lands
• Montana v. United States (1981) established the general rule that tribes do not have civil regulatory jurisdiction over non-members on non-Indian fee land within reservations, subject to two exceptions (consensual relationships, direct effect on tribal interests)

Treaty Rights and Obligations

• Treaties between the federal government and Native American tribes are binding legal agreements that establish the rights and obligations of both parties
• Hunting and fishing rights are often guaranteed to tribes through treaties, ensuring their access to traditional food sources and cultural practices
  • These rights may extend beyond the boundaries of the reservation and are subject to reasonable conservation regulations
• Water rights, including the right to use and manage water resources within reservation boundaries, are often addressed in treaties (Winters doctrine)
• Mineral rights, including the right to exploit oil, gas, and other mineral resources on tribal lands, may be reserved to the tribe or allotted to individual Native Americans through treaties or federal legislation
• The federal government has a trust responsibility to protect and manage treaty-guaranteed resources for the benefit of Native American tribes and their members
• The canons of construction require that treaties be interpreted as the Native American signatories would have understood them at the time of signing, with ambiguities resolved in favor of the tribes
• The reserved rights doctrine holds that Native American tribes retain all rights not expressly ceded in treaties, including the right to self-governance and the use of natural resources

Land Rights and Reservations

• Native American reservations are lands set aside by the federal government for the use and occupation of specific Native American tribes
  • Reservations were often established through treaties, executive orders, or congressional acts
• The General Allotment Act of 1887 divided reservation lands into individual allotments, with the goal of assimilating Native Americans into mainstream American society
  • This policy resulted in the loss of millions of acres of tribal land and the fragmentation of Native American communities (checkerboarding)
• The Indian Reorganization Act of 1934 ended the allotment policy and sought to restore tribal land bases by allowing the Secretary of the Interior to acquire lands in trust for Native American tribes
• Tribal trust land is owned by the federal government in trust for the benefit of a Native American tribe or individual Native American
  • Trust land is exempt from state and local taxation and is subject to federal restrictions on alienation
• Native American tribes have the authority to regulate land use and zoning within the boundaries of their reservations, subject to federal oversight
• The process of land into trust allows Native American tribes to acquire land and have it placed into trust status by the federal government, expanding tribal jurisdiction and control over the land
• Fractionation of Native American land ownership, resulting from the General Allotment Act and inheritance practices, has led to complex ownership patterns and challenges for land management and economic development

Contemporary Issues and Challenges

• Economic development remains a significant challenge for many Native American communities, with high rates of poverty, unemployment, and limited access to capital
  • Tribes are pursuing various strategies to promote economic growth, including gaming, natural resource development, and tourism
• Health disparities between Native Americans and the general U.S. population persist, with higher rates of chronic diseases, mental health issues, and substance abuse
  • The Indian Health Service (IHS), a federal agency, provides healthcare services to Native Americans, but faces challenges related to funding, staffing, and infrastructure
• Education outcomes for Native American students often lag behind those of their non-Native peers, with lower graduation rates and limited access to culturally relevant curricula
  • The Bureau of Indian Education (BIE) operates schools on reservations, while tribes and states also play a role in the education of Native American students
• Environmental issues, such as climate change, pollution, and resource extraction, pose threats to Native American communities and their traditional ways of life
  • Tribes are asserting their sovereignty and treaty rights to protect their lands, waters, and cultural resources
• The Missing and Murdered Indigenous Women (MMIW) crisis has gained increased attention, highlighting the disproportionate rates of violence against Native American women and the need for improved law enforcement and support services
• Cultural preservation and revitalization efforts aim to maintain and strengthen Native American languages, traditions, and knowledge systems in the face of ongoing assimilation pressures
• Consultation and collaboration between the federal government and Native American tribes remain essential for addressing the complex issues affecting tribal communities and ensuring the protection of tribal sovereignty and rights