⚖️Native American Legal Studies Unit 2 – Federal Indian Law: Historical Foundations

Key Historical Events

• European colonization of the Americas began in the late 15th century, leading to the displacement and decimation of indigenous populations
• The Doctrine of Discovery, a legal principle established by the Catholic Church in the 15th century, was used to justify European claims to lands inhabited by indigenous peoples
• The Royal Proclamation of 1763 issued by King George III recognized Native American land rights and established the principle of tribal sovereignty
• 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 (Trail of Tears)
• The Dawes Act of 1887 aimed to assimilate Native Americans into mainstream American society by breaking up tribal lands into individual allotments and encouraging private land ownership
  • The act resulted in the loss of millions of acres of tribal land and the erosion of traditional cultural practices
• The Indian Reorganization Act of 1934 marked a shift in federal policy towards Native American tribes, promoting tribal self-government and the restoration of tribal lands
• The Termination Era of the 1950s and 1960s saw the federal government attempt to end its trust relationship with Native American tribes and assimilate them into mainstream society
• The Indian Self-Determination and Education Assistance Act of 1975 recognized the right of Native American tribes to self-govern and manage their own affairs, marking a new era of tribal sovereignty and self-determination

Legal Foundations and Treaties

• The U.S. Constitution, specifically the Commerce Clause and the Treaty Clause, establishes the federal government's authority to regulate relations with Native American tribes
• The Marshall Trilogy, a series of Supreme Court decisions in the early 19th century, established the legal framework for federal-tribal relations and the concept of tribal sovereignty
  • Johnson v. M'Intosh (1823) recognized the Doctrine of Discovery and the federal government's exclusive right to extinguish Native American land titles
  • Cherokee Nation v. Georgia (1831) defined Native American tribes as "domestic dependent nations" with a trust relationship with the federal government
  • Worcester v. Georgia (1832) affirmed tribal sovereignty and the federal government's exclusive authority over Native American affairs
• Treaties between the U.S. government and Native American tribes are considered the "supreme law of the land" under the Supremacy Clause of the Constitution
• The Indian Appropriations Act of 1871 ended the practice of treaty-making with Native American tribes, but existing treaties remained in force
• The trust relationship between the federal government and Native American tribes obligates the government to protect tribal lands, resources, and the well-being of tribal members
• The canons of construction, a set of legal principles, require that treaties and statutes be interpreted in favor of Native American tribes and any ambiguities resolved in their favor
• The reserved rights doctrine holds that Native American tribes retain all rights not explicitly ceded in treaties or extinguished by federal legislation

Federal Indian Policy Eras

• The Colonial Era (1492-1776) was characterized by European colonization, the establishment of the Doctrine of Discovery, and early treaties between colonial powers and Native American tribes
• The Treaty-Making Era (1776-1871) involved the U.S. government entering into hundreds of treaties with Native American tribes, establishing tribal sovereignty and reserving lands for tribal use
• The Removal Era (1830-1850s) saw the forced relocation of Native American tribes from their ancestral lands to designated areas west of the Mississippi River, often under harsh conditions
• The Reservation Era (1850s-1887) involved the creation of reservations to confine Native American tribes to specific areas and the imposition of assimilation policies
• The Allotment and Assimilation Era (1887-1934) was marked by the Dawes Act, which aimed to break up tribal lands into individual allotments and encourage Native American assimilation into mainstream society
• The Indian Reorganization Era (1934-1953) saw a shift towards tribal self-government and the restoration of tribal lands under the Indian Reorganization Act
• The Termination Era (1953-1968) involved attempts by the federal government to end its trust relationship with Native American tribes and assimilate them into mainstream society
• The Self-Determination Era (1968-present) is characterized by the recognition of tribal sovereignty, the promotion of tribal self-governance, and the government-to-government relationship between the U.S. and Native American tribes

Tribal Sovereignty Concepts

• Tribal sovereignty refers to the inherent right of Native American tribes to govern themselves and manage their internal affairs
• The Marshall Trilogy established the legal framework for tribal sovereignty, defining tribes as "domestic dependent nations" with a trust relationship with the federal government
• Tribal sovereignty is not granted by the federal government but is an inherent right that predates the U.S. Constitution
• The trust relationship between the federal government and Native American tribes obligates the government to protect tribal lands, resources, and the well-being of tribal members
• Tribal sovereignty includes the right to establish tribal governments, create and enforce laws, and maintain tribal courts
  • Tribal governments have the authority to regulate activities on tribal lands, including taxation, land use, and environmental protection
• The extent of tribal sovereignty is subject to limitations imposed by the federal government through legislation and Supreme Court decisions
• The doctrine of plenary power holds that Congress has the ultimate authority to limit or modify tribal sovereignty
• The doctrine of implicit divestiture, established in Oliphant v. Suquamish Indian Tribe (1978), holds that tribes have lost certain aspects of sovereignty by virtue of their dependent status

Major Supreme Court Cases

• Johnson v. M'Intosh (1823) recognized the Doctrine of Discovery and the federal government's exclusive right to extinguish Native American land titles
• Cherokee Nation v. Georgia (1831) defined Native American tribes as "domestic dependent nations" with a trust relationship with the federal government
• Worcester v. Georgia (1832) affirmed tribal sovereignty and the federal government's exclusive authority over Native American affairs
• Ex parte Crow Dog (1883) recognized tribal jurisdiction over crimes committed by Native Americans on tribal lands
• United States v. Kagama (1886) upheld the constitutionality of the Major Crimes Act, which extended federal jurisdiction over certain crimes committed by Native Americans on tribal lands
• Lone Wolf v. Hitchcock (1903) affirmed Congress's plenary power over Native American affairs and the abrogation of treaties
• Williams v. Lee (1959) recognized tribal court jurisdiction over civil disputes involving non-Native Americans on tribal lands
• McClanahan v. Arizona State Tax Commission (1973) held that states cannot impose income taxes on Native Americans living and working on tribal lands
• Oliphant v. Suquamish Indian Tribe (1978) limited tribal criminal jurisdiction over non-Native Americans on tribal lands
• California v. Cabazon Band of Mission Indians (1987) affirmed tribal sovereignty in the context of gaming and the regulation of economic activities on tribal lands

Contemporary Issues and Challenges

• The ongoing struggle for the recognition of tribal sovereignty and the protection of tribal rights in the face of federal and state encroachment
• The impact of historical trauma and the legacy of colonization on the health, well-being, and socioeconomic status of Native American communities
• The need for improved access to healthcare, education, and social services in Native American communities
• The protection of sacred sites and the repatriation of cultural artifacts and human remains under the Native American Graves Protection and Repatriation Act (NAGPRA)
• The development of tribal economies and the exercise of tribal sovereignty in the context of gaming, natural resource management, and other economic activities
  • The Indian Gaming Regulatory Act (IGRA) of 1988 established the framework for the regulation of gaming on tribal lands
• The challenges of jurisdiction and the provision of law enforcement and judicial services in Indian Country
• The impact of climate change on tribal lands and resources and the role of traditional ecological knowledge in adaptation and mitigation strategies
• The ongoing efforts to revitalize and preserve Native American languages, cultures, and traditional practices

Key Terms and Definitions

• Aboriginal title: The inherent right of Native American tribes to occupy and use their ancestral lands
• Allotment: The division of tribal lands into individual parcels under the Dawes Act of 1887
• Doctrine of Discovery: A legal principle used to justify European claims to lands inhabited by indigenous peoples
• Domestic dependent nations: The legal status of Native American tribes as defined in Cherokee Nation v. Georgia (1831)
• Indian Country: Lands within the boundaries of Native American reservations, dependent Indian communities, and Indian allotments
• Inherent sovereignty: The pre-existing right of Native American tribes to govern themselves and manage their internal affairs
• Plenary power: The ultimate authority of Congress to limit or modify tribal sovereignty
• Reserved rights: The rights retained by Native American tribes that are not explicitly ceded in treaties or extinguished by federal legislation
• Tribal sovereignty: The inherent right of Native American tribes to govern themselves and manage their internal affairs
• Trust relationship: The obligation of the federal government to protect tribal lands, resources, and the well-being of tribal members

Further Reading and Resources

• "American Indian Law in a Nutshell" by William C. Canby Jr.
• "Cohen's Handbook of Federal Indian Law" by Nell Jessup Newton
• "Indian Country: Essays on Contemporary Native Culture" by Gail Guthrie Valaskakis
• "Native American Sovereignty" by John R. Wunder
• "The Rights of Indians and Tribes" by Stephen L. Pevar
• The National Congress of American Indians (NCAI) website: https://www.ncai.org/
• The Native American Rights Fund (NARF) website: https://www.narf.org/
• The U.S. Department of the Interior, Indian Affairs website: https://www.bia.gov/