American Indian Law Outline

 
Federal Indian Law Outline (Professor Ragsdale Fall 2016)
 
Chapter 1: Indians and Indian Law
 
A.      Defining Indian Law
 
Federal Common Law:
–          Supreme Court case law
–          You can break it down to three core areas: (1) to what extent are Indian tribes still sovereign; (2) Fed gov power over tribes; (3) jurisdiction
–          The nature of Fed gov’s obligations: Federal trust responsibility – founded on biased notion that Europeans are Superior
 
B.      Sovereignty
–          Tribal Sovereignty today: Complicated – because of fed crts. Before if a crime was committed on Indian land feds/state had no jurisdiction. Then non-Indians started trouble. Then they started limiting sovereignty on their own lands.
–          Tribes are domestic dependent nations not foreign nations
–          While tribes have sovereignty it is only to the extent that Congress allows
 
C.      Indians Today
–          500+ tribes in the US, 200 in Alaska
–          Since 1970s Congress has allowed for more recognition of tribes
–          Cherokee and Navajo are the largest but most tribes have about 150 members
–          Tribal members decide who is in the tribe – most of them have done this via blood based criteria. Tribes are trying to move back to the old norm which relies on ties with the communities rather than the blood line. Supreme Court: rule is that it is up to the tribe.
–          Economic Conditions and Health: grim, impacts of casinos limited in preventing this. Indian tribes do not unite è they are separate tribes first, Indians second.
–          Defining what a tribe is can be difficult – some are not recognized – If they can show enough continuity in their history they might be able to get recognized but it is a difficult task.
Natural Resources
–          Indians w/ treaties reserved water rights – including fishing and hunting
–          In 1970s a bunch of Indians were arrested for fishing without a license but the Supreme Court said the only way you can restrict their use of usual and accustomed places is for environmental conservation – Indians can even use your backyard
–          When tribes don’t have this in their treaty the issue is whether they have an aboriginal right?
–          Hunting and gathering issues – pesticides in gathering and extent to which areas are traditional hunting grounds
 
D.      Perspectives of Indian Law P.29
Common perspective:
–          Felix Cohen: argued that Native Americans were the canary in the coal mine when you look at American democracy – he compared them to Jews in Nazi Germany. How do you deal with the concept of tribalism in a multi-cultural democracy? Tribes don’t vibe with the melting pot idea.
–          Wilkinson: History of racism and cultural bias. Thinks a new base needs to be developed and the old doctrines thrown out.
 
 
 
 
Chapter 2: The European Doctrine of Discovery and American Indian Rights
 
A.      English Framework
–          Primary goal = economic – competition w/ Spanish crown. Secondary Goal: Legal and Religious enterprise 
–          Oxford Treatise: it was ok to take land from Indians because they were “hideous” and “ate human flesh”
–          Calvin’s case: Scotsman who was considered foreign wanted to be heard in English court – in Dicta they say if you are not Christian your land can be taken by Christians
–          English outnumbered: engage in practice of treating Indians as if they owned the land è they make treaties.
–          Winthrop: 2 Rights: (1) natural and civil. Both are god given. 2 Justifications: Indians possessed land that was vacuum domicilium and so they possessed it only by natural right which is not valid. Christians (1) occupy the Earth, increase and multiply; (2) God must have meant for us to do this since the Natives are all dying off – Book suggestion: “How the Natives Lost their Land”
–          Who can buy land? Before the revolution land speculators were told to buy land from Indians – after the Articles of Confederation, only the US can sell to the Indians unless it is within one of the Colonies’ territory – Dec of Independence puts an end to this
–          French-Indian War – England strikes a deal and says that they won’t settle past Appalachians
 
B.      US Colonizing Legal Theory
 
Johnson v. McIntosh – 1823
–          Washington and others were going out and speculating on lands disobeying the Proclamation
–          Dude purchases a huge size of land – The US later decides they should own the land and they decide to sell it to someone else
–          Facts of the Case: It was a scam. The attorney hired by the plaintiffs went out and handpicked the plaintiffs and defendants and drafted an agreed upon statement of facts – etc.
–          Marshall’s moral justification: “superior genius of Europeans bestowing on Indians” benefits of Christianity – basically manifest destiny
–          Indians only have the right to occupy – the US gets this power from (1) the Crown (British and French) and (2) Conquest (keep in mind that a vast majority of native lands were not acquired by conquest – either unoccupied or treaties).
–          Other justifications: (1) Leaving land to Indians means to leave it to wilderness; (2) for native Americans their occupation was war – they were fierce savages
–          Effects of this decision: Indians lose their sovereignty: US is a settler state – (1) they create myths about natives; (2) they don’t adapt to homeland – leaves no room for natives The Natives did get rid of competing settlers but were then obliged to deal with US government
–          Key aspect is the transfer of Indian title and concept of diminished sov. The concept of Indian right of occupancy – you can only sell to discovering sovereigns; unless the sov recognizes your title they can take them –Right to occupy has no legal definition and is super ambiguous. Basically the Indians had no right to sell the lands in the first place
 
Mabo v. Queensland – Australia
–          Issue same as McIntosh
–          Aus high Court on the nature of native title: They go in a different direction –To conserve title the Natives had to conserve their laws and customs
–          Difference w/ aborigines = The crown had taken active steps to extinguish title of aborigines
–          1st: they say that the old cases were racist and that by mere discovery common law title was not obtained – they have to do something affirmative with the land – give it to farmers, build schools, build other public buildings
–          They say native title still exists out of their original sov and is not extinguished unless it is clear that the Aus state has done so. 
 
Chapter 3: The Federal-Tribal Treaty Relationship: the Formative Years
 
A.      Colonial Era Origins
 
Broad Principles of the Marshall Trilogy:
–          (1) Congress exercises plenary power over Indian Affairs; (2) Indians tribes retain inherent sovereign powers (though diminished) over their internal affairs and reservation territory; (3) the US possesses a trust responsibility toward Indian Tribes; and (4) Courts should interpret treaties liberally in favor of the tribes
 
Dorothy v. Jones – British Colonial Indian Treatise: p.75
–          Dvlpmt of new body of diplomacy
–          In 1822: conversation b/w head chief of Pawnee Tribe w/ President James Monroe saying they had all they needed as long as they keep their people off their land. Then 50 years later they are kicked off their land
–          Native Americans did not view these diplomatic treaty relationships the same was USA did – they were a ritual act – It was sacred and was a trust and if you broke it you had the wrath of god falling on you – you became relatives – These kinds of treaties existed b/w tribes and were used as a form of survival. Europeans didn’t view them the same way. When Europeans became to dominate the Europeans began using the treaties to avoid bloodshed
–          There are two key symbols that flowed from this – the peace pipe and wampum (bell on the collar?)
 
B.      The Founders’ First Indian Policy: The Savage as the Wolf
 
Question: Do they uphold the 1763 proclamation the Brits did?
 
1.        Establishing Federal Policy: George Washington to James Duane: 1783 –  p.87 (on exam)
–          In these early docs you see the beginning of using state power to wage war against native inhabitants – ethnic cleansing driven by the state
–          View of colonist: they couldn’t afford war with tribes – far more effective to use peaceful means
–          They also knew from the past 100 years’ experience that time was on their s