Federal Indian Law Reading Outline PDF

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Federal Indian Law Reading Outline 1. Chapter 1: Indians and Indian Law a. What is Federal Indian Law i. Acknowledges tribes as political entities with inherent rights to property and sovereignty, and set forth a structure in which the federal and tribal governments share in the administration of those rights ii. Many tribes are engaged in “nation building” meaning the revitalization of tribal institutions such that they are both grounded in the traditional norms and values of the community and capable of meeting contemporary political, economic, and social challenges iii. Result of Indian Law as it is: 1. Indians are subject to extensive legal regulation of their rights 2. Non-Indian people, lands, governments, and corporation are involved in Indian law cases 3. Indian law raises difficult questions that go to the very heart of what the rule of law means in the US iv. Means by which Indian tribes in the US will interact 1. Indian Commerce Clause provides that Congress has authority to regulate commerce with the Indian tribes 2. Federal governments treaty power provides an additional form by which the United States deals with Indian tribes 3. Relationship between sovereigns akin to a trust relationship with the federal government in the position of trustee in the Indian nations and Indian people in the position of trust beneficiary a. Federal government holds in administers billions of dollars in Indian tribal assets in the form of land, natural resources, & cash. v. Marshall Trilogy of Indian Law 1. Johnson v. McIntosh: fed government had exclusive dominion over affairs with Indian tribes 2. Cherokee Nation v. Georgia: Indian tribes were akin to “domestic dependent nations” 3. Worcester v. Georgia: laws of states have no force in Indian Country, & Supremacy Clause gave powerful effect to Indian treaties as the supreme law of the land

vi. Fundamental Principles of Fed Indian Laws (strongest force w/in Indian country) 1. First, congresses authority over Indian affairs is plenary and exclusive, the federal government holds obligations to Indian tribes and individual Indians known as trust responsibility. 2. Second, state governments have no authority to regulate Indian affairs absent express congressional delegation or granted in accordance with the federal government's trust obligations. 3. Third, the sovereign authority of Indian tribes is inherent, and not delicate delegated or granted by the United States, it can be limited or restricted by Congress in accordance with its trust responsibilities. vii. By tribal law we mean the specific laws each tribal nation such as the Navajo nation viii. Under current federal policy of tribal self-determination, Congress respects tribal jurisdiction and tribes are, in turn, rebuilding their institutions of government, consistent with both tribal traditions and contemporary expectations of legitimacy in fairness. Federal and state courts enforce tribal law according to legal principles of full faith and credit. ix. Declaration on the Rights of indigenous Peoples (2007): recognizes that indigenous peoples have rights, on an individual and collective basis, to self-determination, nondiscrimination, property, and equality, among other things. b. American Indians Today – An Overview i. Indian Tribes: Indians tend to think of themselves as members of a certain tribe first and as Indians second 1. 567 federally recognized tribes 2. 322 federally recognized Indian reservations ii. Expansion of gaming activities has led to an increase in economic situation iii. Health Conditions: 1. The formal health care system for American Indians, the Indian Health Service (IHS) services 60% of the entire Indian population . a. 29 hospitals b. 59 health centers iv. Education: 1. The situation for Indian education has been improving since the 70’s 2. Bureau of Indian Education oversees educational institutions across 23 states

3. Have been incorporation Indian culture into their schools v. Indian Land ownership 1. Approximately 56.2 million acres are held in trust by the US for various Indian tribes and individuals 2. Indian groups hold about 4.2% of the land in the US 3. Tribes usually have jurisdiction over “Indian country” which includes all land within the exterior boundaries of the reservation 4. Tribes are using gaming revenues and natural resources development revenues to restore ancestral lands to their reservations vi. Natural resources 1. 5.3 mil acres of timber land 2. 43 mil range land 3. Extensive water rights 4. 100,000 mineral leases 5. Oil & gas leases on 2.3 mil acres of land 6. Right to take fish vii. Financially 1. As Indians have succeeded in legislations establishing tribal governmental powers and limiting the reach of state tax and regulatory laws in Indian country, tribe have expanded both their sovereign and entrepreneurial functions 2. Gambling has been lucrative in Indian economies 3. Beginning to reverse central patterns of reservation development a. Better equipped to negotiate favorable contractual agreements b. Able to offer inducements for businesses to locate in Indian country because state taxes are often inapplicable c. Have begun to exercise the judicially validated right to tax reservation businesses as a source of revenue viii. Common theme of separatism and assimilation 1. Forced assimilation has faltered in favor of internal cultural evolution, even as triable people adapt and change to contemporary circumstances in various ways c. Perspectives on Indian Law i. Rehnquist Court’s perpetuation of European cultural racism against American Indian tribes 1. Three core fundamental principles in which all Supreme Court Indian law jurisprudence extends:

a. Congressional Plenary Power Doctrine: Congress exercises plenary authority in Indian affairs b. Diminished Tribal Sovereignty Doctrine: Indian tribes still retain those aspects of their inherent sovereignty not expressly divested by treaty or statute c. Trust Doctrine: exercising its broad discretionary authority in Indian affairs, Congress and the Executive are charges with the responsibilities of a guardian acting on behalf of its dependent Indian wards 2. US court in Johnson, relied exclusively on the medieval-derived legal tradition of Christian European crusading conquest and denial of nonChristian infidel people’s rights brought to the New World by Columbus a. Institutionalized cultural racism against normatively divergent and non-Christian peoples ii. Charles F. Wilkinson, American Indians, Time and the Law 1. Four great occurrences dominate Indian law, history, and policy: a. Existence of aboriginal culture and sovereignty during pre-Columbian times b. Location of separate Indian societies on reservation c. Imposition of assimilationist policies, including opening of most reservations to settlement by non-Indians d. Efforts of Indians during the last quarter century to reverse the press of assimilation 2. Indian policy has been cyclic 3. Many of the basic rights of Indian tribes depend upon constructions of treaties, statutes, and executive orders promulgated during the 19 century or even in the 18th century. 4. From 1970 to 1981 Indian laws constituted close to 1/4 of the courts interpretations of laws enacted during the nation's 1st century. 5. While the central thrust of old laws were to create a measured separatism, modern cases and mainstream opinions have built a number of rules that prevent state powers and private rights from expanding to encroach upon tribal prerogatives except by express congressional permission.

iii. David H. Getches: The Indian’s Legacy for the West 1. Acceptance of the Indian philosophy means understanding how all human activity relates to the natural world and requires us to recognize that survival, cultural and physical, demands that we modify and limit human activity when it is not in harmony with the natural world. iv. Matthew Fletcher, Looking East: Modern Indian people and development of tribal law: 1. An observer of modern federal Indian law can see that the mere invocation of tribal sovereignty is no longer sufficient to persuade 2. Due to centuries of treaty making, federal Indian legislation, and policy culminating in the new Indian deal the dominant and exclusive Indian governance structure has become the Indian tribe. v. Kristen A. Carpenter and Angela R. Riley: Human Right Law 1. International human rights law now serves as a basis for indigenous peoples claims against States and even influences indigenous groups internal processes of revitalization. Indigenous people are increasingly recognized in international human rights law is possessing the right to have rights. 2. The History of Federal Indian Law and Policy a. Congress is a trustee for American Indian tribes and has nearly unfettered power over Indian affairs. b. The study of Indian law is essentially a study of what Congress did or did not do. c. In enacting social programs for Indians, Congress is usually based its judgments on trends and conditions of the reservations. 3. Chapter 2: The European Doctrine of Discovery and American Indian Rights a. Foundation of the doctrine of discovery i. Great Britain based its territorial rights on the fact that it was the first European discoverer of the lands occupied with the colonies the United States, intern found it convenient to step into Britain shoes ipon its Declaration of Independence. The result that follows from the doctrine of discovery. The doctrine of discovery was affirmed by the Supreme Court in the United States law in Johnson V Mackintosh. It's underlying normative assumption that infidels’ heathens and savages as indigenous people were like the Indian tribes of North America were racially and culturally inferior to the Europeans and possessed therefore lesser rights to the lands they occupied. In the courts view, the limitations on American Indian legal rights

in property established by the doctrine or two well entrenched and positive law to allow departure. b. Medieval and Renaissance Origins i. The great 13th century lawyer dash po justified the extension of papal sovereignty over infidels on the basis of their divergent from Christian European norms of natural law , are you that the infidel rulers could not govern lawfully because only a ruler who believed in the true Christian God in received his power directly from the Pope in Rome had legitimate power. 1. We were so fucking racist. A racial project can be defined as racist if it creates a reproduces structures of domination based on racial significations and identities. 2. A racist attitude has the following essential elements: a. stressing the real or imaginary differences between the racist and his victim b. assigning values to these differences, to the advantage of the racist in the detriment of his victim c. trying to make them absolutes by generalizing from them and claiming that they are final d. justifying any present or possible aggression or privilege c. Spanish Colonial Law and the Rights of American Indians i. The term black legend is used to describe spain's rapid colonization an resulting destruction of the indigenous cultures and peoples encountered by the spot Spanish conquistadors in the new world. They brought with them enslavement, European diseases, and superior European military technology that resulted in thousands of Indian deaths and the diaspora of hundreds of tribal groups. Threatened if they did not comply. ii. Spanish legal theorist franciscus de Victoria on rights of American Indians under Spanish law: Created a new system of natural law administered by a secular sovereign. Developed three arguments that were later reflected in the European law of nations: 1. the inhabitants of the Americas possessed natural legal rights as free and rational people 2. any Spanish claims to title to the Americas on the basis of discovery or Pebble grit were illegitimate and could not affect the inherent rights of the Indian inhabitants 3. transgressions of the universally binding norms of the law of nations by the Indians might serve to

justify a Christian nation's conquest in colonial empire of the Americas a. In common words a complete lack of reason on their part is the only thing that could justify dispossess dispossessing the Indians of their lordship or property. b. To compensate for their lack of capacity Victoria tentatively suggested that the Indians should be placed under a civilized nation's guardianship who looked will undertake the responsibility for administering their affairs. This included the duty of bringing the message of the civil of a civilized Christian faith to the natives. c. Victoria was principally responsible for providing a Humane and rational basis for the American law of Indian affairs. iii. Now the rule of the law of nations is that what belongs to nobody is granted to the first occupant, as is expressly laid down in the Roman institutes. iv. Indians of the Americas, although free according to the natural law, were nonetheless subject to the binding norms of the law of nations 4. The English north American Colonial Era Influence on US Federal Indian Law and Policy a. While theoretical influences on federal Indian law & policy is traced to the Spanish colonial era, the general framework defining the legal and political relationship between American Indian tribes and he US emerged out of the English North American colonizing experience. i. Following Queen Elizabeth’s death, a group of English merchants and investors organized the Virginia Company as a joint stock company to establish colonies in North America, which created the first permanent English colony in NA, Jamestown. 1. Puritans reasons for occupying the land: a. American land was vacuum domicilium (vacant because they lacked fixed habitations and fenced fields) b. Word of bible: ordaining man to occupy the earth, increase, and multiply 2. Obviously, the Indians thought they owned the land, and that it was not vacuum domicilium a. But the puritans thought that being white and Christian were enough to authorize occupation

ii. Hen tribes were numerous and relatively powerful, European colonies and colonizing nations found it to their advantage and safety to seek Indian consent to settlement. Meaning that Europeans during the North American encounter era dealt with Indian tribes in practice and in theory, as possessing the degree of sovereignty needed to transfer title to their claimed lands and manage their own affairs. Since both the English and the Dutch colonial governments obtained most of their land from Indians they regarded as being willing to sell, so that for all practical purposes, the tribes were treated as possessing rights of ownership and occupancy over their claimed lands. 5. British Imperial Policy and Indian Lands a. Indian land sales provided each colonial government with a means of raising capital b. because of widespread discontent and anger among the tribes over their treatment by the British colonies, most of the Indians on the western frontier were poised to side with France in what became known as the French and Indian war. c. By the Treaty of Paris concluding the war in 1763, France ceded its colonial claims and Canada in the western territories between the Mississippi River in the eastern mountain ranges to Great Britain. d. King George the third's Royal proclamation of 1763 declared the territory beyond the eastern mountain range is off limits to settlement and reserved the tribes of the region. e. William Murray purchased from the Illinois Indians for $24,000, two prime tracts of land on the frontier for a large colonial land speculation syndicate. These purchases were among Indian grants involved in the 1823 support Supreme Court decision of Johnson v. McIntosh. 6. The Founder’s Debates on Indian Lands a. Debates over who would control the sale of Indian lands on the frontier- states that seceded to the rights of the colonies or a newly formed central sovereign government- intensified during the revolution. b. The final compromise on Indian lands agreed to by the Continental Congress and eventually ratified by the individual states is contained in Article 4: i. The United States and Congress assembled shall also have the sole exclusive right and power of - regulating the trade and managing all affairs with the Indians, not members of any of the states provided that the legislative right of any state within its own limits be not infringed or violated. 1. Was generally understood to guarantee the landed states the right to purchase Indian lands contained

within the limits of their boundaries as defined by their original charter defined boundaries. c. Northwest ordinance of 1787 promised the utmost good faith towards the Indians, their land, and property. By the United States to forestall growing fears of wars with the Indians that could inhibit white settlement in the region. d. The Commerce Clause of the constitution for the new nation vested exclusive authority in Congress to regulate trading Commerce and to make treaties with the Indian tribes. i. Vested Congress with the unquestioned authority over the acquisition of lands on the frontier beyond the borders of the states. 7. US Colonizing legal theory: a. Johnson v. McIntosh i. Johnson had bought the tract of land from the Indians; the question is: Do Indians have the power to give, and of private individuals to receive, a title which can be sustained in the Courts of the US? ii. M’intosh bought it from the US iii. The US grant was found to be Superior 1. Rule of discovery: when you discover the inhabited lands, you have dominion over the natives, they can have right of possession but only the US has the right to deed it away 2. Rule of conquest: Conquest gives title which the courts of the conqueror cannot Acquired and maintained by force, asserts superior title iv. Embraces the medievally-originated doctrine of discovery, and applied it to invalidate titles and debase investments 1. Concluded that it gave US the exclusive right to extinguish the original tribal right of possession “by purchase or by conquest” a. Avoided two logical extremes: i. That discovery erased all Indian title ii. Indians held fee title unaffected by discovery v. Natural rights of human beings to dispose of property that they held by virtue of possession doesn’t apply to Indians vi. The original legal rules and principles of federal Indian law set down by Marshall in Johnson V McIntosh and its discourse of conquest ensured that future acts of genocide would proceed on a rationalized legal basis vii. it rationalized and girded a legal framework for extinguishing Indian title under the principles of European colonial era doctrine of discovery

viii. Soon as treaties and other purchases were negotiated with foreign powers claiming the lands to the West, the US would begin extinguishing Indian titles using its exclusive prerogatives validated in Johnson b. Johnson v. M’Intosh handout i. Set forth the basic rules on land acquisition and property rights ii. Addressed the fundamental land question: what real property rights did Europeans acquire, and indigenous people lose, by virtue of the European “discovery” of America? 1. To answer this, introduced the “discovery doctrine”, which states: upon Europeans discovery of the new world, the indigenous peoples of North America lost to the discovering European sovereign the underling title to their lands, retaining only a right to occupy those lands a. Can only be transferred to the same sovereign nation or with the permission of that nation iii. This is law today, and many reservations are set up with this principle still iv. The case was set up Chapter 3: The federal-tribal treaty relationship: the formative years (17891871) 1. The colonial era origins a. Since the earliest colonial encounters, formal dealings with Indian tribes over issues of trade, alliance, and land were conducted almost exclusively by treaty-making. The colonists required the creation of legal and political relationships with the tribes in order to legitimate land transactions, trade, and military partnerships with them, exclusive of other European powers. Choosing this method of dealing itself implies recognition i=of tribe as self-governing principles. i. Recognized by the Suprem...