1.4 The U.S. Constitution and Early Federal Indian Law

The U.S. Constitution laid the groundwork for federal Indian law. It gave Congress power over Indian affairs through the Commerce Clause and allowed treaties with tribes. The Marshall Trilogy cases then shaped early Indian law principles.

These foundational elements established key concepts like the federal-tribal trust relationship and tribal sovereignty. They also limited state authority in Indian affairs, setting the stage for the complex legal landscape of federal Indian law we see today.

Constitutional Provisions

Congressional Authority Over Indian Affairs

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• Commerce Clause grants Congress the power to regulate commerce with foreign nations, among the states, and with Indian tribes
• Treaty Clause gives the President the power to make treaties with the advice and consent of the Senate, including treaties with Indian tribes
• Supremacy Clause establishes that the Constitution, federal laws, and treaties are the supreme law of the land, preempting conflicting state laws

Marshall Trilogy Cases

Johnson v. M'Intosh (1823)

• Established the Doctrine of Discovery, which asserted that European nations acquired title to lands they "discovered" and indigenous inhabitants only had a right of occupancy
• Held that private citizens could not purchase lands directly from Native Americans, as the U.S. government held the exclusive right to acquire Indian lands
• Recognized Indian tribes' rights to occupy and use their lands, subject to the ultimate title of the U.S. government

Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832)

• In Cherokee Nation v. Georgia, the Supreme Court held that Indian tribes were not foreign nations but "domestic dependent nations," with a relationship to the U.S. resembling that of a ward to its guardian
• Worcester v. Georgia affirmed tribal sovereignty, holding that states had no authority over Indian affairs within tribal territories and that only the federal government could regulate relations with tribes
• These cases established the foundational principles of federal Indian law, including the federal government's exclusive authority over Indian affairs and the recognition of inherent tribal sovereignty

Federal Indian Law Principles

Plenary Power and Trust Responsibility

• The Plenary Power doctrine holds that Congress has broad, virtually unlimited authority over Indian affairs, derived from the Commerce Clause, Treaty Clause, and the federal government's guardian-ward relationship with tribes
• The Trust Responsibility is the federal government's obligation to protect tribal sovereignty, lands, assets, and resources, and to carry out the mandates of federal law with respect to American Indian and Alaska Native tribes and villages
• These principles underscore the federal government's exclusive and comprehensive authority over Indian affairs, as well as its duties and obligations towards Indian tribes

Indian Trade and Intercourse Acts

• A series of laws passed by Congress between 1790 and 1834 to regulate trade and other interactions between Native Americans and non-Indians
• These acts prohibited the sale of Indian lands to individuals or states without federal approval, required a federal license to trade with Indians, and established federal jurisdiction over crimes committed by non-Indians against Indians in Indian Country
• The Indian Trade and Intercourse Acts exemplify early congressional efforts to assert federal control over Indian affairs and protect tribal lands and resources from encroachment by states and individuals