⚖️Native American Law Unit 8 – Indian Land Rights and Resource Management

Historical Context

• Native American tribes inhabited and managed lands across North America prior to European colonization
• European settlers and the U.S. government gradually displaced Native Americans from their ancestral lands through treaties, forced relocation, and military action
• The Doctrine of Discovery, a legal principle derived from papal bulls and European royal charters, was used to justify the acquisition of Native American lands by European powers
• The Marshall Trilogy, a series of Supreme Court decisions in the early 19th century, established the legal framework for the relationship between the U.S. government and Native American tribes
  • Johnson v. M'Intosh (1823) recognized the U.S. government's authority to grant land titles and established the principle of aboriginal title
  • Cherokee Nation v. Georgia (1831) defined Native American tribes as "domestic dependent nations" under the protection of the U.S. government
  • Worcester v. Georgia (1832) affirmed tribal sovereignty and the exclusive authority of the federal government in dealing with Native American tribes
• The Indian Removal Act of 1830 authorized the President to negotiate the removal of Native American tribes from their ancestral lands to territories west of the Mississippi River
• The General Allotment Act of 1887 (Dawes Act) aimed to break up tribal lands into individual allotments, leading to significant land loss and the erosion of tribal sovereignty

Legal Framework

• The U.S. Constitution grants Congress plenary power over Native American affairs through the Indian Commerce Clause (Article I, Section 8, Clause 3)
• The trust relationship between the federal government and Native American tribes obligates the government to protect tribal lands, resources, and interests
• The doctrine of reserved rights holds that Native American tribes retain all rights not explicitly ceded in treaties or extinguished by Congress
• The canons of construction for Indian law require that treaties, statutes, and executive orders be interpreted in favor of Native American tribes and as the tribes would have understood them
• The Indian Reorganization Act of 1934 (Wheeler-Howard Act) ended the allotment policy, encouraged tribal self-government, and provided for the reacquisition of tribal lands
• The Indian Self-Determination and Education Assistance Act of 1975 promoted tribal self-governance by allowing tribes to assume control over federal programs and services
• The Indian Gaming Regulatory Act of 1988 established the legal framework for tribal gaming operations and the distribution of gaming revenues

Key Treaties and Acts

• The Treaty of Fort Laramie (1851) recognized tribal territories and established peace between the U.S. government and various Plains Indian tribes
• The Treaty of Medicine Lodge (1867) aimed to relocate Southern Plains tribes to reservations in present-day Oklahoma
• The Treaty of Fort Bridger (1868) established the Great Sioux Reservation and recognized the Black Hills as sacred to the Sioux Nation
• The Indian Appropriations Act of 1871 ended the practice of treaty-making with Native American tribes, asserting that tribes were not independent nations
• The Major Crimes Act of 1885 extended federal jurisdiction over certain serious crimes committed by Native Americans on tribal lands
• The Indian Mineral Leasing Act of 1938 regulated the leasing of tribal lands for mineral exploration and development
• The Alaska Native Claims Settlement Act of 1971 resolved aboriginal land claims in Alaska and established Native regional and village corporations

Tribal Sovereignty

• Tribal sovereignty is the inherent right of Native American tribes to govern themselves and manage their internal affairs
• Tribes possess inherent powers of self-government, including the authority to establish tribal governments, enact laws, and maintain law enforcement and judicial systems
• Tribal sovereignty is not an absolute right and can be limited by treaties, federal legislation, or the overriding interests of the U.S. government
• The U.S. government has a trust responsibility to protect tribal sovereignty and act in the best interests of Native American tribes
  • This trust responsibility arises from the unique historical relationship between the federal government and tribes, as well as treaties and legal obligations
• Tribal sovereign immunity protects tribes from lawsuits in federal and state courts without their consent or congressional abrogation
• The Indian Civil Rights Act of 1968 extended many of the protections of the Bill of Rights to tribal governments, balancing individual rights with tribal sovereignty
• The recognition of tribal sovereignty has led to the development of government-to-government relationships between tribes and federal, state, and local governments

Land Ownership and Use

• Native American land ownership and use are governed by a complex system of federal, tribal, and individual property rights
• Tribal trust lands are held in trust by the federal government for the benefit of Native American tribes and are managed according to tribal laws and customs
• Individual trust allotments are parcels of land held in trust for individual Native Americans, often as a result of the General Allotment Act of 1887
• Fee lands are owned by Native Americans or non-Indians within reservation boundaries and are subject to state and local jurisdiction
• The Nonintercourse Act of 1790 prohibits the sale or transfer of Native American lands without congressional approval
• The Indian Land Consolidation Act of 1983 aimed to address the problem of fractionated ownership of individual trust allotments through land consolidation and inheritance reforms
• Tribes have the authority to regulate land use and zoning on tribal lands, subject to federal oversight and limitations

Resource Management

• Native American tribes have inherent rights to manage and develop natural resources on their lands, including water, minerals, timber, and wildlife
• The doctrine of reserved water rights, established in Winters v. United States (1908), holds that tribes have implied rights to sufficient water to fulfill the purposes of their reservations
• Tribal water rights are often quantified through negotiated settlements or adjudication in state or federal courts
• The Indian Mineral Leasing Act of 1938 and the Indian Mineral Development Act of 1982 provide frameworks for tribes to lease and develop mineral resources on their lands
• Tribes have the authority to regulate hunting, fishing, and gathering activities on their lands, subject to treaty rights and federal conservation laws
• The National Indian Forest Resources Management Act of 1990 requires the development of forest management plans for tribal lands and promotes tribal participation in forest management decisions
• Tribes are increasingly involved in renewable energy development, such as wind and solar projects, on their lands as a means of economic development and environmental stewardship

Contemporary Challenges

• Native American tribes continue to face challenges in asserting their land rights and managing their resources in the face of competing interests and jurisdictional conflicts
• The Oliphant v. Suquamish Indian Tribe (1978) decision limited tribal criminal jurisdiction over non-Indians on tribal lands, creating a jurisdictional gap in law enforcement
• The patchwork of land ownership and jurisdiction within reservations can lead to disputes over regulatory authority and the provision of services
• Tribes often struggle with the legacy of past federal policies, such as allotment and termination, which have resulted in the fragmentation and loss of tribal lands
• The development of natural resources on tribal lands can create tensions between economic development, environmental protection, and cultural preservation
• Climate change poses significant risks to tribal lands and resources, including impacts on water availability, ecosystem health, and traditional subsistence practices
• Tribes continue to seek greater control over the management of their lands and resources through the exercise of tribal sovereignty and the development of tribal institutions and capacities

Case Studies and Landmark Decisions

• United States v. Winans (1905) affirmed the reserved fishing rights of the Yakama Nation under the Treaty of 1855, establishing the principle of reserved treaty rights
• United States v. Shoshone Tribe (1938) recognized tribal ownership of mineral resources on the Wind River Reservation and the right to compensation for their taking
• Arizona v. California (1963) adjudicated water rights in the Lower Colorado River Basin and recognized the reserved water rights of five Native American tribes
• United States v. Washington (1974) (Boldt Decision) upheld the treaty fishing rights of Washington tribes and established their right to co-manage fisheries with the state
• County of Oneida v. Oneida Indian Nation (1985) recognized the Oneida Nation's right to assert land claims based on the Nonintercourse Act and the doctrine of aboriginal title
• Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation (1989) addressed the extent of tribal authority to regulate land use and zoning on fee lands within reservation boundaries
• Minnesota v. Mille Lacs Band of Chippewa Indians (1999) upheld the treaty hunting, fishing, and gathering rights of the Mille Lacs Band on ceded lands in Minnesota
• McGirt v. Oklahoma (2020) affirmed the continued existence of the Muscogee (Creek) Nation's reservation in eastern Oklahoma for purposes of federal criminal jurisdiction