⚖️Native American Law Unit 15 – Federal Indian Law: Current Issues & Policy

Historical Context

• Native American tribes were sovereign nations prior to European colonization governed by their own laws, customs, and traditions
• European colonization and westward expansion of the United States led to the displacement, forced relocation, and decimation of Native American populations
  • Indian Removal Act (1830) authorized the president to negotiate removal treaties
  • Trail of Tears (1838-1839) forced relocation of Cherokee, Muscogee, Seminole, Chickasaw, and Choctaw nations
• Treaties between the U.S. government and Native American tribes established a government-to-government relationship and trust responsibility
  • Over 500 treaties signed between 1778 and 1871
  • Treaties often involved cession of tribal lands in exchange for protection, services, and reserved rights
• Federal Indian policy has shifted over time from assimilation and termination to self-determination and tribal sovereignty
• Historical trauma, cultural suppression, and socioeconomic disparities continue to impact Native American communities today

Key Legal Concepts

• Tribal sovereignty refers to the inherent right of Native American tribes to govern themselves and manage their internal affairs
  • Sovereignty is not granted by the federal government but is an inherent right
  • Tribes have the authority to establish their own governments, laws, and court systems
• Trust responsibility is the legal obligation of the federal government to protect tribal treaty rights, lands, assets, and resources
  • Stems from the government-to-government relationship established through treaties
  • Includes the provision of services such as healthcare, education, and housing
• Plenary power doctrine asserts that Congress has ultimate authority over Native American affairs
  • Established through early Supreme Court decisions (Johnson v. M'Intosh, Cherokee Nation v. Georgia)
  • Allows Congress to unilaterally abrogate treaties and regulate tribal affairs
• Indian Country refers to the geographic areas over which tribal governments have jurisdiction
  • Includes reservations, dependent Indian communities, and allotments
  • Determines the applicability of tribal, state, and federal laws
• Aboriginal title recognizes Native American tribes' original ownership and use of lands prior to European colonization
  • Can be extinguished only by the federal government through purchase, treaty, or conquest

Federal Indian Policy Evolution

• Assimilation era (1870s-1930s) aimed to integrate Native Americans into mainstream society through policies such as allotment and boarding schools
  • Dawes Act (1887) divided tribal lands into individual allotments to encourage farming and private property ownership
  • Boarding schools removed children from their families and communities to suppress cultural practices and language
• Indian Reorganization Act (1934) marked a shift towards tribal self-governance and cultural preservation
  • Ended allotment, restored surplus lands to tribes, and encouraged the establishment of tribal constitutions and governments
• Termination era (1940s-1960s) sought to end the government-to-government relationship and federal trust responsibility
  • House Concurrent Resolution 108 (1953) called for the termination of federal supervision over certain tribes
  • Public Law 280 (1953) transferred jurisdiction over criminal and civil matters from federal to state governments in some states
• Self-determination era (1960s-present) emphasizes tribal sovereignty, self-governance, and economic development
  • Indian Self-Determination and Education Assistance Act (1975) allows tribes to contract with the federal government to administer programs and services
  • Indian Gaming Regulatory Act (1988) establishes the framework for tribal gaming operations and revenue sharing with states

Tribal Sovereignty Today

• Tribes have the authority to establish their own governments, laws, and court systems
  • Tribal constitutions and codes govern internal affairs such as membership, land use, and natural resources
  • Tribal courts have jurisdiction over civil and criminal matters involving tribal members on Indian Country
• Tribes engage in government-to-government relationships with federal, state, and local governments
  • Consultation policies require federal agencies to consult with tribes on actions that may affect their interests
  • Intergovernmental agreements and compacts address issues such as law enforcement, taxation, and gaming
• Tribal economic development initiatives aim to promote self-sufficiency and improve socioeconomic conditions
  • Gaming operations, natural resource management, and tourism are common sources of revenue
  • Tribes invest in infrastructure, healthcare, education, and cultural preservation programs
• Tribes assert their treaty rights and cultural practices in areas such as hunting, fishing, and sacred site protection
  • U.S. v. Washington (1974) upheld tribes' treaty-protected fishing rights in Washington state
  • Bears Ears National Monument designation (2016) recognized tribal cultural and historical connections to the landscape

Current Legal Challenges

• Jurisdictional conflicts arise between tribal, state, and federal authorities
  • Criminal jurisdiction in Indian Country is complex and depends on the nature of the crime, the identity of the perpetrator and victim, and the location
  • Public Law 280 and other statutes have created a patchwork of jurisdictional arrangements
• Treaty rights and tribal resources are often threatened by development projects and environmental degradation
  • Dakota Access Pipeline (DAPL) controversy highlighted the tension between tribal sovereignty, treaty rights, and energy development
  • Tribes have challenged federal actions that impact sacred sites, such as the construction of the Border Wall on the Tohono O'odham Nation
• Child welfare and adoption practices have disproportionately affected Native American families
  • Indian Child Welfare Act (ICWA) seeks to keep Native American children with their families and communities whenever possible
  • Brackeen v. Haaland challenges the constitutionality of ICWA as a race-based classification
• Voting rights and political representation remain ongoing struggles for Native American communities
  • Redistricting, voter ID laws, and lack of language assistance can create barriers to voting
  • Native American Voting Rights Act (NAVRA) aims to address these issues and protect Native American voting rights

Policy Debates and Reforms

• Federal recognition process is complex, time-consuming, and often politicized
  • Tribes must meet seven mandatory criteria to be federally recognized and eligible for services
  • Some argue the process is too burdensome and that Congress should have the authority to recognize tribes
• Land into trust process allows tribes to acquire land and have it placed into trust status by the federal government
  • Trust land is exempt from state and local taxation and jurisdiction
  • Opponents argue the process removes land from local tax rolls and can create jurisdictional conflicts
• Criminal justice reform efforts aim to address the disproportionate incarceration rates and lack of resources in Indian Country
  • Tribal Law and Order Act (2010) increases tribal sentencing authority and enhances cooperation between tribal and federal law enforcement
  • Violence Against Women Reauthorization Act (2013) restores tribal jurisdiction over non-Native perpetrators of domestic violence
• Healthcare and education disparities persist in many Native American communities
  • Indian Health Service (IHS) is chronically underfunded and faces challenges in providing adequate care
  • Bureau of Indian Education (BIE) schools often have lower graduation rates and test scores compared to other schools

Case Studies and Landmark Decisions

• Johnson v. M'Intosh (1823) established the doctrine of discovery and the federal government's ultimate title to Native American lands
  • Recognized Native American tribes' right of occupancy but not ownership of lands
  • Laid the foundation for the trust relationship between the federal government and tribes
• Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832) defined the legal status of Native American tribes as "domestic dependent nations"
  • Tribes are not foreign nations but retain inherent sovereignty subject to the overriding power of the federal government
  • States have no authority over tribal affairs within their borders
• Ex parte Crow Dog (1883) and the Major Crimes Act (1885) established federal jurisdiction over certain crimes committed by Native Americans in Indian Country
  • Crow Dog case held that tribes had exclusive jurisdiction over crimes committed by Native Americans against each other on reservations
  • Major Crimes Act extended federal jurisdiction to seven (later expanded) major crimes, regardless of the identity of the perpetrator or victim
• United States v. Wheeler (1978) and Oliphant v. Suquamish Indian Tribe (1978) clarified the extent of tribal criminal jurisdiction
  • Wheeler upheld tribes' inherent sovereign power to prosecute tribal members for crimes committed on reservations
  • Oliphant held that tribes do not have inherent jurisdiction to prosecute non-Native individuals for crimes committed on reservations

Future Outlook

• Strengthening tribal self-governance and economic development will be crucial for improving the well-being of Native American communities
  • Tribes are pursuing innovative strategies such as renewable energy projects, sustainable resource management, and cultural tourism
  • Partnerships with federal, state, and local governments can support infrastructure development and service delivery
• Addressing the legacy of historical trauma and cultural suppression will require ongoing efforts in education, language revitalization, and healing
  • Incorporating Native American history and perspectives into school curricula can promote understanding and respect for tribal cultures
  • Language immersion programs and cultural events can help preserve and transmit traditional knowledge to younger generations
• Protecting tribal sovereignty and treaty rights will remain a central focus of Native American advocacy and legal efforts
  • Tribes will continue to assert their rights in areas such as water resources, hunting and fishing, and sacred site protection
  • Consultation and collaboration between tribes and government agencies will be essential for resolving conflicts and achieving mutually beneficial outcomes
• Advancing social justice and equity for Native American communities will require sustained attention and action from policymakers, advocates, and allies
  • Addressing disparities in health, education, housing, and economic opportunities will be critical for breaking cycles of poverty and marginalization
  • Supporting Native American leadership, representation, and decision-making at all levels of government can ensure that tribal voices are heard and respected