686Indian Law Outline - Summary Indian Law PDF

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Complete and brand new Indian Law course outline. Includes everything covered in the course. Use to study for exam. Very comprehensive and detailed. ...

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FEDERAL INDIAN LAW

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paradox at heart of indian law: "domestic dependent nations" a. tribes not bound by constitution i. didn't consent to be bound ii. sovereignty pre-exists (doesn't flow from) constitution b. US has property interest in tribal land c. US has trust relationship w/ tribes: guardians of tribes, but also implies level of control over tribes early origins a. contradiction in US law w/r/t indians emerges from historical context: took indian land --> reconcile w/ ideal consent (democracy, rule of law, fairness, etc.) i. good gov't as civilizing tribes? ii. indians never fully assimilate --> cling to tribal identity / self-gov't b. indian law is combination of constitutionalism & colonialism c. constitutional norms have uneasy relationship w/ indian law: i. laws don't apply equally (e.g.., membership & associated rights based on heritage) ii. indians affected by decisions of gov't that doesn't represent them d. spanish colonization: legal framework i. pope can authorize punishment againt people who violate "law of nature" (e.g., non-belief in christianity) ii. pope grants spanish ownership over new world --> source of valid legal rights iii. but still seek semblance of consent: requerimiento (choice to accept spanish dominion, but if reject authority or don't respond, grounds for armed conquest) --> not real choice 1. intersection of religion & law 2. establish "ownership" as against other conquering nations iv. enlightenment shift 1. pope's authority limited to spiritual realm, so can't be basis for legal ownership 2. consent impossible: not voluntary choice & no gov't to give it, so only individuals 3. new justifications: a. all peoples must observe law of nations (very euro-centric) i. allow trade w/ natives ii. allow religious missions iii. law of conquest: gives conqueror ownership over conquered land b. obligation to "civilize" / improve conquered people i. implies respect for natives as potential equals (in contrast to earlier barbarian-based views) e. british colonization: legal framework i. lockeian economic justifications: 1. need to mix labor w/ land in order to claim it

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2. indians have no sense of "property rights" --> only a "general residence" on the land a. questioned by some contemporaries (e.g., William Penn), noting farming & property rights among native communities ii. law of conquest: conquering nations allowed to assert ownership over conquered lands iii. initial relations inter-sovereign --> tradition of negotiation & treaty-making that would continue through 19th C 1. required that indian lands could only be taken w/ their "consent" 2. early treaties were alliance agreements, not territorial claims a. 1620 massasoit legal of peace (plymouth) i. mutual defense ii. jdx over wrongdoers b. note: early treaties reflect relative power of tribes before more colonist arrive i. in 1669 agreement "rewritten" to include both territorial grant & subjection of tribe to british sovereignty --> leads to king phillip's war iv. increasing war & disease make treaties less important 1. european diseases exterminate tribes --> seen as sign of divine right by colonists f. revolutionary war i. british imposes limits on who could buy / trade for indian property, asserting exclusive rights to negotiate w/ indian tribes 1. backlash from american land speculators (e.g., George Washington, Tom Paine) 2. interference w/ colonial economy created seeds for revolution constitutional framework a. articles of confederation: provided for both fed & state authority w/r/t relations w/ & over indian tribes when in state borders, though actual allocation of authority ambiguous i. US authority to regulate trade & indian affairs exclusive except when infringes on states' legislative rights ii. huge economic opportunity for states w/ no western borders iii. leads to frontier conflict w/ tribes as state land speculators sought more property 1. states create treaties w/ tribes 2. sought to abrogate fed treaties as violating states sovereign rights b. US constitution i. broad grant of fed power (indian commerce clause): "The Congess shall have power to regulate Commerce w/ foreign Nations, and among the several States, and with the Indian Tribes" (art. I, § 8, cl. 3) 1. explicit attempt to reserve authority to regulate interactions w/ tribes to fed gov't --> displaces state role under AOC framework & allows fed gov't o manage potential conflicts w/ tribes

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2. construed to allow US gov't broad powers over indians (though early on limited to "commerce" – i.e., interactions w/ tribes) c. johnson v. m'intosh (1823) (35) – whether investors in indian-owned lands who purchased them directly from the indians had valid title over investors who purchased same lands from US gov't after it negotiated treaty w/ indians subsequent to the earlier purchase i. principle of discovery: discovery get title to land as against all other sovereign nations & private claimants 1. conqueror title subject to native right of occupancy a. right to use land & exclude others from using it, but conqueror has sole authority to transfer property & to extinguish occupancy rights b. indians may transfer right of occupancy, but not absolute title to land 2. conqueror title claimed by britain, passed to US --> long recognition of law of discovery means it can't be questioned (accepts as valid legal doctrine) a. 1763 proclamation reserving right of british crown to control all indian lands expressly prevented private subjects from purchasing or possessing indian land 3. multiple sovereigns can't hold title to same land at same time --> one must be superior to the other ii. note: background assumption that tribes never really "owned" land b/c they were "savages 1. omitted discussion of female cultivation practices, b/c would legitimate indian land claims iii. note: unclear how Marshall viewed tribes: 1. (1) could have been motivated by idea that "savages" could be denied equal rights & status pursuant to civilized nations, thereby embedding inequality in fed inidan law or 2. (2) could have protected tribes through right of occupancy – essentially fee simple title, subject only to minimal limits by sovereign (can still transfer interest w/o sovereign permission) trade & intercourse era, 1785-1817 a. regulate interactions w/ tribes primarily through treaties & trade / intercourse acts to implement treaties i. policy goals: design / enforce boundary lines b/t americans & indian nations 1. prevent expensive wars w/ tribes, esp. on frontier 2. avoid tribal alliances w/ european nations 3. conform to american ideal as just & lawful ii. 1791 trade & intercourse act 1. require fed license to trade w/ indians 2. if no license, then will forfeit goods for sale 3. no sale of lands may be made by indians to non-indians unless provided for in treaty

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4. crimes committed by non-indians against indians on indian land punishable per laws of state / territory where located iii. 1875 treaty of hopewell (b/t US gov't & cherokee nation) 1. recognized boundaries of cherokee territory 2. allocate jdx over indians & non-indians in cherokee nation a. indians can punish non-indians on lands not owned by them b. crimes committed by indians against US citizens punished by US gov't c. US citizens commit crime against indians punished per US law [who has actual jdx?] 3. US gov't has sole right to regulate commerce w/ indians & to "manage all their affairs" 4. defensive alliance w/ US against adverse interests b. note: assumption that US could purchase indians lands & drive them westward, creating space for americans i. assume game will disappear & indians must leave too ii. indians die from disease iii. encroaching US settlements will drive them away or assimilate them removal era, 1817-1848 a. policy of removal --> drive indians westward i. negotiate treaties w/ tribes, so they relocate beyond frontier ii. 1830 indian removal act: authorized president to provide lands for indians west of mississippi in exchange for eastern lands then occupied by tribes --> supposed to be voluntary exchange b. five civilized tribes (chicksaw, creek, choctaw, cherokee & seminole) an affront to perceived Ga. sovereignty due to developed indian gov'ts, including elaborate ct systems i. under 1802 compact w/ US, fed gov't supposed to relocate tribes, but unsuccessful ii. cherokees advanced, achieving high degree of "civilization" & drafting own constitution asserting sovereign powers over their territory --> appeared to be act of independence iii. Ga. & other states passed law declaring sovereignty / jdx over tribal lands --> 1830 removal act passed in response to show of aggression by states c. note: johnson didn't involve tribes directly, only discussed them, so didn't directly resolve impending crisis: whether states can exert sovereign rights over indian territories d. note: state v. tassels showed difficult in getting case to SCOTUS – indian in area annexed by Ga. found guilty of murder, but unable to appeal b/c executed before cert granted e. [note: did we read fletcher v. peck?] f. cherokee nation v. georgia (1831) (54) – whether cherokee nation itself can bring action against Ga. under constitution's provision invoking original jdx for SCOTUS for suits b/t states & foreign nations, seeking to enjoin enforcement of Ga's laws on indian territory i. indian tribes don't constitute "foreign state," so can invoke constitutional jdx 4

1. cherokee nation = state a. can make treaties & regulate / manage internal affairs in their community ("distinct political society") b. affirmed by US gov't acts w/r/t tribes 2. not foreign state a. US has ultimate title to all indian land (it's part of US) i. indian right of occupancy can be extinguished b. treaties acknowledge themselves to be under protection of US, giving it exclusive right to regulate trade w/ them & manage their affairs as it thinks proper c. permitted per hopewell treaty to send representative to congress 3. "domestic dependent nations": US title independent of tribal will, which underlies indian right of possession a. indians' "relation to US resembles that of ward to his guardian" 4. textual analysis: indian tribes distinguished from "foreign nation" in ICC, indicating they should be treated differently ii. political question doctrine: avoids answering whether Ga's assertion of sovereignty over tribes legal iii. CON (Johnson) 1. tribes unable to constitute "state" b/c "wondering hordes" 2. improper for ct to recognize independent sovereigns 3. tribes not sovereign b/c don't have right to sell land --> land ownership fundamental to sovereignty 4. read hopewell treaty to renounce tribal sovereignty, subject to limited self-gov't rights a. treaty not concession from tribes, but from US to tribes --> US reserves all sovereignty but what's granted to tribes iv. CON (Baldwin) 1. hopewell treaty is arrangement of servitude --> subverts any claims of independence / being a foreign state 2. Ga's jdx supreme in its borders --> can't have multiple sovereigns in same place v. DIS (Thompson) 1. hobbesian, lockian perspective: tribes govern themselves by own authority & laws --> attributes of state 2. if can make treaties, then should have collective right to enforce treaties a. treaties don't diminish sovereignty --> protection of weaker state by stronger one (alliance-based relationship) vi. note: case is origins of trust relationship in fed indian law 1. US is trustee of indian tribes g. worcester v. georgia (1832) (63) – whether Ga law requiring license & oath of loyalty for non-indians going into indian country could be enforced – i.e., whether Ga. could

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exert jdx over indian territory (case brought by missionaries convicted of violating law) i. Ga laws unconstitutional b/c they interfere w/ fed gov'ts exclusive right to regulate relations w/ indian tribes & are inconsistent w/ fed law (i.e., hopewell treaty) ii. characterizes historical relations b/t colonial gov't & tribes as b/t sovereigns: "distinct political communities" 1. tribes have self-gov't 2. manage external relations & make treaties 3. british & US sought to make peace w/ powerful native tribes iii. law of discovery gave US sole right to purchase lands from natives, but didn't deprive them of their ownership interest or sovereign character --> read treaties as negotiated b/t sovereigns 1. treaties = contracts b/t sovereigns a. construe treaty as would have been understood by tribes (seems to be equitable principle b/c tribes couldn't read them; burden placed on treaty negotiators to show less favorable interpretation) b. tribes presumably thought they granted lands to US, not US giving lands to them i. e.g., "hunting grounds" had significant meaning to tribes --> signified complete control over lands ii. long 2. inconceivable that sovereign would give up total sovereignty in exchange for protection --> treaty about strategic alliance & trade, not domination over tribe & extinction of tribal national character a. law of nations: weaker power doesn't surrender its sovereignty when making treaties iv. power to deal w/ tribes vested absolutely in fed gov't: power of war & peace, foreign commerce power, ICC & supremacy clause v. jdx outcomes: 1. state power void over indian country 2. state power over non-indians in indian country contrary to fed power 3. fed power over indian tribes a. can't sell land w/o consent b. can't make treaties w/ foreign nations i. fed gov't ultimate title to land: can keep foreign powers out ii. indians generally have control over law (self-gov't) in indian territory except where provided otherwise in treaties (consent) c. outside indian country commerce regulated by fed gov't, not states vi. CON (McLean) 1. tribes may lose power of self-gov't when become "degraded" & then local law may apply 6

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a. tribal exercise in self-gov't likely to be temporary vii. note: US gov't didn't enforce decision, but later supported bill allowing enforcement of fed laws against states viii. note: ultimately, under color of unlawfully negotiated treaty, fed soldiers relocated most cherokees to oklahoma territory along trail of tears h. indian canons of construction, cohen's handbook of fed indian law i. treaties, agreements, statutes & EOs ust be liberally construed in favor of indians ii. all ambiguities are to be resolved in indians' favor iii. treaties & agreements are to be construed as indians would have understood them iv. tribal property rights & sovereignty are preserved unless congress' contrary intent is clear & unambiguous i. note: michigan indian treaties controversial i. provided for indian territory, subject to federal removal of indians, which option was never exercised ii. but during allotment period, non-members moved in to take land, leading to contemporary legal disputes re: ownership reservation period, 1848-1886 a. expansionary pressures lead to reservation policy through treaty-making: concentrate tribes on reservations, so they can be groomed for civilization under control of fed indian agents i. but westward expansion obliterated hope for large, permanent & geographically distinct indian territory b. early policy: i. reservation = school for civilization ii. confine to small area of land, compelling them to resort to agriculture, abandon hunting & develop private property rights (key to civilization) iii. fed-provided supplies, education & other in-kind goods but often paid for w/ $$ indians rec'd for land (annuities) 1. corruption meant most payments often not rec'd iv. based on misunderstood gender roles: assume women "enslaved" while men played, rather than recognizing that domestic & agricultural duties empowered women (e.g., c. later policy: i. no fundamental change in how indians treated, but increasingly sympathetic, compassionate views w/r/t prejudice toward indians --> trust obligations as benevolent duties ii. indian land often marginal --> best land already claimed iii. US promises often not kept (e.g., ten bears skepticism b/c fed gov't wants commanches to keep moving; yankton sioux never rec'd education, employment, etc.) d. 1868 navajo treaty i. change in treaty content --> increasing micromanagement of indian affairs ii. e.g., intimate role of agent in overseeing tribal operations: resolve disputes, select land for farming, run school, furnish supplies; provide for ROWs for 7

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RR expansion & white travel through indian country; jdx over criminal matters on reservation e. 1871 congress passes provision in indian appropriations act purporting to restrict US fed gov't's ability to make treaties w/ indian tribes i. law recognized existing treaties ii. fed gov't continued to make reservations via executive agreements & statutes that have been treated as legal equivalent of treaty reservations iii. note: u.s. v. lara (Thomas, J. CON): 1871 act is constitutionally suspect (treaty-making power vested in exec + senate), but may have implicitly deprived tribes of sovereign status by treating them as entities subject to fed law-making authority iv. note: law product of power fight w/in congress (treaties impose unfunded mandates on gov't, but house has no input) f. pressure from fed indian agencies for fed gov't to assert more control over tribes --> shift from managing relationship b/t indians & whites to actively shaping indian lives i. congress hesitated, believing it didn't have authority to regulate exclusively tribal affairs ii. administrative agencies seek test cases to challenge proposition federal plenary power a. ex parte crow dog (1883) (94) – whether US can apply general fed criminal law to murder on indian reservation involving two tribal members i. statutes & treaties read not to extent US law over indian tribes, so issue not explicitly decided 1. 1834 trade & intercourse act: provides application of US law over tribes except for crimes b/t indians & when indian committing offense in indian country punished by tribal law 2. 1868 treaty ("bad men" clause): doesn't explicitly repeal jdx exception in US statute, b/c crime was b/t indians of same tribe a. 1868 treaty extends US jdx over crimes committed against indians or by indians against people outside the tribe (including indians) 3. 1877 treaty ("they shall be subject to US laws" & have individual rights protected): general statement doesn't repeal specific rule a. agreement b/t gov'ts, not w/r/t individuals ii. unfair to apply US law to tribes when historically they've been left to manage own affairs according to their own customs iii. doctrinal shifts: 1. cong must make clear statement of intent to exercise jdx over tribes 2. emphasis on "dependence" & "state of pupilage" of indian tribes & US as "guardian" --> need help to become "self-governed society" b. 1885 major crimes act (MCA): extends fed jdx over serious crimes committed by indians against anyone in indian country, e.g., murder, rape, serious assault c. united states v. kagama (1886) (98) – whether MCA constitutional and whether fed gov't could exercise jdx under statute to indian murder on klamath reservation i. ICC doesn't provide support of MCA b/c criminal acts b/t indians in indian country not "commerce" 8

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1. inconsistent w/ trade & intercourse acts enacted under ICC, which omitted jdx over tribes ii. ultimate title in land gives fed gov't sovereign regulatory power 1. tribes w/in US borders 2. tribes are "communities dependent" on the fed gov't (see cherokee nation & worcester) a. US had duty to protect "weak" tribes iii. indian sovereignty must be protected by fed gov't (esp. against statue incursions), but in return may encroach on tribal sovereignty 1. dramatic reduction in tribal sovereignty 2. domestic dependent nations --> "local dependent communities" (implies lower status) iv. note: fed jdx over crimes in indian country doesn't interfere w/ state authority, which still retain power to prosecute crimes b/t non-indians & to tax nonindians in indian country 1. state jdx over crimes would also interfere w/ fed trust obligations d. courts of indian offenses i. intent to destroy tribal culture (e.g., indian dances, polygamous marriages, medicine men, immorality, intoxication, property destruc...