⚖️Native American Legal Studies Unit 1 – Critical Native American Law & Policy Intro

Historical Context

• Native American tribes inhabited North America long before European colonization, developing diverse cultures, languages, and legal systems
• European colonization and westward expansion led to the displacement, forced relocation, and decimation of Native American populations (Trail of Tears)
• Treaties were signed between the U.S. government and Native American tribes, often under duress or with misunderstandings, leading to land cessions and the establishment of reservations
  • These treaties were often violated or ignored by the U.S. government, resulting in further loss of land and resources for Native American tribes
• The Indian Removal Act of 1830 authorized the forced relocation of Native American tribes from their ancestral lands to designated areas west of the Mississippi River
• The Dawes Act of 1887 aimed to assimilate Native Americans into mainstream society by breaking up tribal lands into individual allotments and encouraging private land ownership
  • This act resulted in the loss of millions of acres of tribal land and the erosion of traditional Native American cultural practices and social structures
• The Indian Reorganization Act of 1934 marked a shift in federal policy, aiming to restore tribal sovereignty and promote self-governance among Native American tribes

Key Legal Concepts

• Tribal sovereignty refers to the inherent right of Native American tribes to govern themselves and manage their internal affairs without interference from external authorities
• The trust relationship between the U.S. government and Native American tribes obligates the federal government to protect tribal lands, resources, and the well-being of tribal members
• Plenary power doctrine asserts that Congress has complete and absolute authority over Native American affairs, including the ability to modify or terminate treaties and tribal rights
• The reserved rights doctrine holds that Native American tribes retain all rights not explicitly ceded in treaties or taken away by federal legislation
  • This includes rights to hunt, fish, and gather on traditional lands, as well as water rights and other resources
• The Indian Canons of Construction are a set of legal principles that require courts to interpret treaties, statutes, and other legal documents in favor of Native American tribes when ambiguities arise
• The doctrine of discovery, a controversial legal concept, was used to justify European claims to Native American lands based on the notion that the "discovering" nation had superior rights to the land

Landmark Cases

• Johnson v. M'Intosh (1823) established the doctrine of discovery, asserting that European nations had the right to acquire title to Native American lands through "discovery" and that Native Americans had only a right of occupancy
• Cherokee Nation v. Georgia (1831) defined Native American tribes as "domestic dependent nations," recognizing their sovereignty but also their relationship with the U.S. government as that of a ward to a guardian
• Worcester v. Georgia (1832) affirmed tribal sovereignty, ruling that states had no authority over Native American tribes and that only the federal government could regulate interactions with tribes
  • This case also established the principle that treaties between the U.S. government and Native American tribes should be interpreted in favor of the tribes
• Ex parte Crow Dog (1883) recognized tribal jurisdiction over crimes committed by Native Americans against other Native Americans on tribal lands, upholding tribal sovereignty in criminal matters
• United States v. Winans (1905) affirmed the reserved rights doctrine, holding that treaties should be interpreted to preserve Native American rights to hunt, fish, and gather on traditional lands, even if those rights were not explicitly mentioned in the treaty
• Oliphant v. Suquamish Indian Tribe (1978) limited tribal sovereignty by ruling that Native American tribes do not have inherent criminal jurisdiction over non-Indians who commit crimes on tribal lands

Federal Indian Policy

• The trust relationship between the U.S. government and Native American tribes is a fundamental principle of federal Indian policy, obligating the government to protect tribal interests and act in the best interest of tribes
• The Self-Determination Era, beginning in the 1960s, marked a shift in federal policy towards promoting tribal self-governance and economic development
  • This era saw the passage of legislation such as the Indian Self-Determination and Education Assistance Act of 1975, which allowed tribes to contract with the federal government to manage their own programs and services
• The Indian Gaming Regulatory Act of 1988 established a regulatory framework for tribal gaming operations, providing a means for economic development and revenue generation for Native American tribes
• The Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 requires federal agencies and institutions that receive federal funding to return Native American cultural items, including human remains and sacred objects, to lineal descendants or culturally affiliated tribes
• Executive Order 13175, issued in 2000, requires federal agencies to consult with Native American tribes when developing policies or regulations that have tribal implications, promoting government-to-government relationships and respect for tribal sovereignty
• The Violence Against Women Reauthorization Act of 2013 included provisions that restored tribal criminal jurisdiction over non-Indians who commit domestic violence, dating violence, or violate protection orders on tribal lands

Tribal Sovereignty

• Tribal sovereignty is the inherent right of Native American tribes to govern themselves, manage their internal affairs, and maintain their distinct political, cultural, and economic systems
• Tribes have the authority to establish their own form of government, create laws, and enforce those laws within their jurisdictional boundaries
  • This includes the power to tax, regulate commerce, and provide essential services to tribal members
• Tribal sovereignty is not granted by the U.S. government but is an inherent right that predates the formation of the United States
• The U.S. Constitution recognizes Native American tribes as distinct political entities, separate from states and foreign nations (Commerce Clause, Treaty Clause)
• Tribal sovereignty is not absolute and can be limited by federal law or treaty, but any abrogation of tribal sovereignty must be clearly expressed by Congress
• The exercise of tribal sovereignty has been crucial for the preservation of Native American cultures, languages, and traditions, as well as for the economic development and well-being of tribal communities
  • Examples include the establishment of tribal courts, the management of natural resources, and the operation of tribal businesses and enterprises

Contemporary Issues

• Native American tribes continue to face significant challenges in asserting their sovereignty and protecting their rights, resources, and cultural heritage
• The ongoing struggle for the recognition of tribal water rights, particularly in the face of climate change and competing demands for water resources, remains a pressing issue for many Native American communities
• The disproportionate impact of climate change on Native American tribes, including the loss of traditional lands, resources, and cultural sites, poses significant threats to tribal well-being and cultural continuity
• The epidemic of missing and murdered Indigenous women and girls (MMIWG) has gained increased attention in recent years, highlighting the need for improved law enforcement response, data collection, and support services in Native American communities
• The ongoing fight for the protection of sacred sites and cultural landscapes, such as Bears Ears National Monument and the Dakota Access Pipeline, demonstrates the ongoing struggle to balance tribal cultural and spiritual values with resource extraction and development interests
• The COVID-19 pandemic has had a disproportionate impact on Native American communities, exacerbating existing health disparities and highlighting the need for improved healthcare infrastructure and resources in tribal areas
• Efforts to revitalize Native American languages and cultural practices continue to gain momentum, with tribes and organizations working to preserve and promote traditional knowledge, arts, and ways of life

Cultural Considerations

• Native American tribes have diverse cultural practices, beliefs, and values that shape their relationships with the land, natural resources, and each other
• Traditional knowledge, including ecological knowledge, medicinal practices, and cultural traditions, plays a vital role in Native American life and decision-making
  • The protection and preservation of traditional knowledge is essential for the continuity of Native American cultures and the well-being of tribal communities
• Native American spirituality often emphasizes the interconnectedness of all living things and the importance of maintaining balance and harmony with the natural world
  • Sacred sites, such as mountains, rivers, and burial grounds, hold deep spiritual and cultural significance for many Native American tribes
• The concept of collective rights and communal ownership of land and resources is central to many Native American cultures, contrasting with Western notions of individual property rights
• The legacy of historical trauma, including the impact of forced assimilation, boarding schools, and the suppression of Native American cultures and languages, continues to affect Native American communities today
  • Efforts to promote cultural revitalization, healing, and resilience are ongoing in many tribal communities
• The use of traditional dispute resolution methods, such as peacemaking and talking circles, reflects Native American values of restorative justice, community harmony, and the importance of relationships
  • These methods often prioritize the restoration of balance and the healing of relationships over punitive measures

Impact on Native Communities

• The erosion of tribal sovereignty and the loss of land and resources have had profound and lasting impacts on Native American communities
• Poverty, unemployment, and limited economic opportunities continue to affect many Native American tribes, stemming from a history of land dispossession, forced relocation, and marginalization
  • The lack of adequate infrastructure, including housing, healthcare facilities, and educational resources, exacerbates these challenges
• Native American communities experience disproportionately high rates of health disparities, including diabetes, heart disease, and substance abuse, often linked to the legacy of historical trauma and the disruption of traditional lifeways
• The breakdown of traditional social structures and the loss of cultural identity have contributed to high rates of mental health issues, including depression, anxiety, and suicide, in Native American communities
  • Efforts to promote cultural revitalization, community healing, and the strengthening of social support networks are critical for addressing these challenges
• The impact of environmental degradation, including the contamination of water sources, the depletion of natural resources, and the loss of biodiversity, has disproportionately affected Native American tribes, undermining their traditional subsistence practices and cultural connections to the land
• The ongoing struggle for the recognition and protection of Native American rights, including the right to self-determination, cultural preservation, and access to traditional lands and resources, continues to shape the experiences and resilience of Native American communities today
  • The empowerment of Native American voices, the strengthening of tribal institutions, and the promotion of cross-cultural understanding and respect are essential for addressing the ongoing challenges faced by Native American tribes and ensuring a more just and equitable future for all.