⚖️Native American Legal Studies Unit 4 – Treaties and Trust: Native American Law

Historical Context

• Native American tribes were sovereign nations prior to European colonization with their own systems of governance, culture, and land management
• European colonizers and later the U.S. government entered into treaties with Native American tribes, recognizing them as independent political entities
• Treaties were used as a means to acquire Native American lands and resources, often through coercion, deception, or force
• The Doctrine of Discovery, a legal concept used by European colonizers, asserted that Christian nations had the right to claim and acquire lands inhabited by non-Christians
• The Marshall Trilogy, a series of Supreme Court decisions in the early 19th century, established the legal framework for federal-tribal relations and the trust relationship
  • Johnson v. M'Intosh (1823) recognized the Doctrine of Discovery and established that Native American tribes had a right of occupancy but not ownership of their lands
  • Cherokee Nation v. Georgia (1831) defined Native American tribes as "domestic dependent nations" and wards of the federal government
  • Worcester v. Georgia (1832) affirmed tribal sovereignty and established that states had no authority over Native American affairs

Key Treaties and Agreements

• The Treaty of Fort Pitt (1778) was the first treaty between the United States and a Native American tribe (the Lenape or Delaware Nation)
• The Treaty of Hopewell (1785-1786) established peace and friendship between the U.S. and the Cherokee, Choctaw, and Chickasaw Nations
• The Treaty of Greenville (1795) ceded large portions of Native American lands in the Ohio Valley to the U.S. following the Battle of Fallen Timbers
• The Treaty of Fort Laramie (1851) recognized tribal territories and established peace between the U.S. and various Plains Indian tribes
• The Treaty of Medicine Lodge (1867) resulted in the forced relocation of Southern Plains tribes to reservations in present-day Oklahoma
• The General Allotment Act (Dawes Act) of 1887 divided tribal lands into individual allotments, leading to significant land loss and the erosion of tribal sovereignty
  • Surplus lands not allotted were sold to non-Native settlers, resulting in the loss of over 90 million acres of tribal lands by 1934

Legal Foundations of Trust Relationship

• The trust relationship between the federal government and Native American tribes is a legal and moral obligation rooted in treaties, laws, and court decisions
• Under the trust doctrine, the federal government has a fiduciary duty to protect tribal lands, resources, and the well-being of Native American communities
• The trust responsibility includes the management of tribal assets, the provision of essential services (healthcare, education, housing), and the protection of tribal sovereignty
• The Bureau of Indian Affairs (BIA), established in 1824, is the primary federal agency responsible for carrying out the trust responsibility
• The Indian Reorganization Act (IRA) of 1934 aimed to strengthen tribal governments, restore tribal lands, and promote economic development on reservations
  • The IRA encouraged tribes to adopt constitutions and establish tribal business councils, marking a shift towards greater tribal self-governance

Tribal Sovereignty and Self-Governance

• Tribal sovereignty refers to the inherent right of Native American tribes to govern themselves, manage their internal affairs, and maintain their distinct political, cultural, and economic systems
• Tribes possess inherent powers of self-government, including the authority to establish their own form of government, enact laws, and maintain law enforcement and judicial systems
• The Indian Self-Determination and Education Assistance Act (ISDEAA) of 1975 allowed tribes to contract with the federal government to administer programs and services previously managed by the BIA
• The Tribal Self-Governance Act of 1994 expanded the ISDEAA, enabling tribes to enter into self-governance compacts and assume greater control over federal funding and programs
• Tribal sovereign immunity protects tribes from lawsuits in federal, state, or tribal courts without their consent or congressional abrogation
  • This immunity extends to tribal government agencies and enterprises but may be limited in certain contexts (e.g., commercial activities)

Federal Indian Law and Policy

• Federal Indian law encompasses the body of treaties, statutes, court decisions, and executive orders that define the relationship between the federal government and Native American tribes
• The U.S. Constitution grants Congress plenary power over Indian affairs through the Indian Commerce Clause (Article I, Section 8, Clause 3)
• The federal government's trust responsibility is a key principle in federal Indian law, obligating the government to act in the best interests of tribes and their members
• The Indian Civil Rights Act (ICRA) of 1968 extended many of the protections of the Bill of Rights to tribal governments, while recognizing the importance of tribal sovereignty and cultural practices
• The Indian Child Welfare Act (ICWA) of 1978 established standards for the placement of Native American children in foster and adoptive homes, prioritizing placement with tribal families and communities
• The Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 requires federal agencies and institutions receiving federal funding to return Native American cultural items and human remains to lineal descendants or culturally affiliated tribes

Land Rights and Resource Management

• Native American tribes have a deep spiritual and cultural connection to their ancestral lands and natural resources
• Treaties often established reservations as permanent homelands for tribes, but many reservations were later reduced in size or allotted through federal policies
• The trust responsibility includes the federal government's obligation to manage tribal lands and resources for the benefit of tribes and their members
• Tribal water rights, often based on the Winters Doctrine (1908), entitle tribes to sufficient water to fulfill the purposes of their reservations
• Tribal hunting, fishing, and gathering rights, often protected by treaties, are essential for maintaining traditional subsistence practices and cultural identity
• The Indian Mineral Leasing Act of 1938 and the Indian Mineral Development Act of 1982 regulate the leasing and development of mineral resources on tribal lands
  • These acts aim to balance tribal economic development with environmental protection and cultural preservation

Contemporary Issues and Challenges

• Native American communities continue to face significant challenges, including poverty, health disparities, limited access to education and employment, and the erosion of tribal sovereignty
• The federal government's trust responsibility has often been inadequately fulfilled, leading to underfunded programs, mismanagement of tribal resources, and infringement on tribal rights
• Jurisdictional conflicts between tribal, state, and federal authorities can hinder effective law enforcement and the administration of justice in Native American communities
• The recognition of tribal sovereignty and the protection of tribal lands and resources remain ongoing struggles, particularly in the face of competing interests (e.g., energy development, land disputes)
• Native American tribes are increasingly asserting their rights and advocating for greater self-determination, cultural preservation, and economic development
• The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007, affirms the rights of indigenous peoples to self-determination, land, resources, and cultural identity
  • The U.S. initially voted against UNDRIP but later endorsed the declaration in 2010

Case Studies and Landmark Decisions

• Ex Parte Crow Dog (1883) affirmed tribal jurisdiction over crimes committed by Native Americans on reservations, leading to the Major Crimes Act of 1885
• United States v. Winans (1905) upheld tribal fishing rights under the Yakama Treaty of 1855, recognizing that treaties are not grants of rights to tribes but reservations of pre-existing rights
• Williams v. Lee (1959) established the infringement test, limiting state jurisdiction over Native Americans on reservations unless Congress expressly grants such authority
• McClanahan v. Arizona State Tax Commission (1973) held that states cannot impose income taxes on Native Americans living and working on their tribe's reservation
• United States v. Wheeler (1978) recognized the inherent sovereign power of tribes to prosecute their members for criminal offenses, distinct from federal prosecutorial authority
• California v. Cabazon Band of Mission Indians (1987) affirmed tribal sovereignty in the context of gaming, leading to the Indian Gaming Regulatory Act of 1988
• McGirt v. Oklahoma (2020) held that much of eastern Oklahoma remains Native American reservation land, reaffirming the importance of honoring treaty obligations and tribal sovereignty