American Indian Law Leshy Spring 2014
Questions to Ask
§ History- when was statute enacted- what was prevailing policy then?
§ Land- Is it in Indian country? Is the land held in trust? In fee simple? An allotment?
§ People involved? Indian? Non-Indian? Non-member Indian?
§ Is it a PL 280 state?
§ Is transaction/conduct civil or criminal? If criminal, regulatory or prohibitive? If civil, does it fit into one of the MT exceptions? Is it something that potentially falls under ICRA and thus tribal jurisdiction?
§ Is there a statute specific to this are? For example, does the issue involve gaming (IGRA), child welfare (ICWA) or religious practices (RFRA)?
§ Is there a treaty on point?
§ If involves trust responsibility, does the Sec. have a statutory duty and directly involved in/controlling the transaction?
Definitions
Indian tribe (no clear definition): A group of Indians recognized as constitution a distinct & historically continuous political entity for at least some governmental purposes.
Indian: someone who (1) has some Indian blood, & be regarded as an Indian as his or her community (membership rules vary among tribes).
Indian Country: “[T]he term ‘Indian country’, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-ways running through the same.” (from Indian Country Crimes Act) (see Sandoval for more on “dependent communities”
Outline
I. History
A. Marshall Trilogy
1.Johnson v. McIntosh (1823)(pg. 4)
Facts: Johnson had purchased land from the tribe directly, while McIntosh had purchased the land from the US government, who received it through conquest/treaty.
Holding: McIntosh wins b/c discovery doctrine. US has title to land. Tribe has exclusive right of occupancy w/ 2 limitations: (1) Can’t alienate the l and; (2) Right can be extinguished by conquest or treaty.
2. Intercourse Acts (pg. 90)- purpose
· To encourage separation btw Indians and non-Indians,
· To enforce the federal monopoly over transactions involving Indian land,
· To regulate commercial rel. btw Indians & non-Indians,
· To control liquor traffic in Indian country
· Requires federal approval for transactions w/ Indian tribes
· HOWEVER, many states illegal dealt w/ tribes directly, leading to significant legal challenges later on.
3. Cherokee Nation v. Georgia (1831) (pg. 105)
Holding: tribes are separate nations, but not equivalent to foreign nations. They are domestic dependent nations, except to the extent that the US affirmatively acts to restrict them. However, their sovereignty exists independently of US gov (except to the extent that they cannot deal w/ foreign gov similar to states)
ALSO, concept of the guardian-ward relationship à concept of trust doctrine later on!
4. Worcester v. Georgia (1932) (pg. 113)
Facts: Plaintiff white missionary on Cherokee land & refused to register w/ state.
Holding: State law does not apply on reservations
5. SUMMARY OF MARSHALL TRILOGY PRINCIPLES
· Tribes are sovereign
· Tribes have sovereignty over their territories and their members (very strong territorial aspect to tribal sovereignty). HOWEVER, if a tribal member leaves the reservation, they usually lose the protection of Indian law
· All federal law, state law does not apply to tribes except if granted power by Congress or the tribe
· There is a guardian-ward relationship between the federal government and tribes (which is the root of the trust relationship)
· Indian tribes have a unique legal status.
B. Treaty-Making Era
1. Indian Canons of Construction (pg. 128)
· When ambiguity or silence, construe in favor of the Indian b/c of historical power inequality, language (b/c Indians usually weaker party, trust responsibility, language barrier)
· Terms should be interpreted as Indians would have understood them.
· Binds the court only to extent court decides to apply canon
2. US v. Washington (1976) (pg. 133)
Rule: To enjoy treaty rights, however, the group must have maintained itself as a distinct community with some defining characteristic that permits it to be identified as the group named in the treaty.
Holding: A tribe that was denied treaty fishing rights for a lack of such of a showing was held to be entitled to a reopening of the denial when the fed gov later recognized the tribe.
3. Winans (1905) (pg. 137)
Holding: When a treaty reserves the right to fish at “all unusual and accustomed places,” the state may not preclude access to those places.
C. Move to reservations and expanding federal power
1. Crow Dog (1883) (pg. 153)
Facts: Murder of an Indian by another Indian in Indian country
Holding: Tribal law, not federal law, applies in this circumstances
(NOTE: Congress responded to this case by passing the Major Crimes Act)
2. Kagama (1886) (pg. 158)
Facts: plaintiff challenges Major Crimes Act as conflicting w/ idea of tribal sovereignty.
Holding: Major Crimes Act not unconstitutional, tribes are dependent nation, Congress has plenary power to deal w/ Indian tribes, doesn’t need to be an enumerated power in Constitution.
NOTE: This is was major turning point in Indian p
ive Hawaiians, whom Congress have been reluctant to consider Indians.
II. Tribal Property Interests
A. Generally
1. Shoshone (1938) (pg. 245)
NOTE: Both Shoshone and Sioux decided in period of revitalization after termination (1938-42)
Facts: In 1868, tribe gets 3 million acre reservation. In 1878, the gov puts another tribe on the reservation, so there are 2 conflicting tribes on the reservation. The Shoshone wants compensation for their half of the reservation. The fed gov says will only pay for grazing rights but not timber & mineral resources.
Holding: Shoshone tribe should be compensate for loss of timber & mineral rights
2. Sioux (1942) (pg. 249)
Facts: The president withdrew tracts of land for 8 years or so but then returned them to the public domain. Issue was whether the President’s withdrawal of the land created a compensable interest.
Holding: President’s withdrawal of the land created a compensable interest does NOT create a compensable interested UNLESS Congress says so. Decision draws distinction between “recognized” & “unrecognized” interest, with Congressional recognition vesting a compensable interest in the land.
3. Montana (1981) (pg. 253)
Facts: Crow tribe is contesting ownership of the riverbed flowing through the reservation. The treaty language gave the tribe “undisturbed use” of the river. However, beds of navigable river don’t usually come in bundle of property rights (i.e. fed gov holds riverbed in trust for states that would be created out of territories later with the presumption that US has titles)
Holding: No compensation because there is no federal recognition of use of the riverbed.
NOTE: Perhaps if tribe had had stronger fishing history, there could be an implied presumption that the US intended to give the riverbed to the Indians.
4. Tee-Hit-Ton (1955) (pg. 259)
Facts: termination era case, U.S. acquires Alaska in 1867. The US gov got the title to land, while the Natives retaining right to occupancy. There was no treaty. The US came in to try to cut & sell timber.
Holding: U.S. can cut timber w/o compensating the tribes since Congress did not recognize the timber rights through statute or treaty
5. Key Point: Aboriginal title (non-compensable) vs. recognized title (compensable)
