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American Indian Law
University of Connecticut School of Law
Berger, Bethany

I. Development of Federal Indian Law & Policy

The Paradox of Federal Indian Law; Early Origins

Johnson v. M’Intosh
32, SCOTUS, (1823)

Plaintiffs bought title to land from Indians; defense later bought same land from US Govt. SCOTUS (Marshall) held that only European Nation could have extinguishable “title” under the doctrine of discovery. Thus, McIntosh had superior title (from US) and Johnson only received the possessory right that Indians had at the time of disposition.

Discovery by “Christian people” gives title to discovery nation
Discovery gives title to discovering nation, including the power to extinguish title by (1) conquest or (2) purchase
Anyone who wants title must receive it from the discovering nation

Indians cannot alienate title, because they only have occupancy rights, not full ownership rights

Trade and Intercourse Acts & Treaties
44 (1790)

No trade with Indians unless you have a license
Crimes by non-Indians punished under state law

Treaty of Hopewell
46 (1785)

Any US citizen trying to settle in Cherokee territory forfeits US protection
Indian who commits crime against non-Indian punished by US
Non-Indian shall be punished by US, with same penalty as if the victim was non-Indian

Indian Removal Act
52 (1830)

Move Indians west where they can be protected from intrusion by whites

Cherokee Nation v. Georgia
54, SCOTUS, (1831)

GA laws “annihilate” Cherokee Govt. Cherokee bring suit in SCOTUS, seeking original jurisdiction in SCOTUS as a “foreign nation.” Marshall held Indians are a “domestic dependent nation” part of the Marshall Trilogy (federal-state-DDN).

Strict construction of Indian Commerce Clause of Article III, which discusses “states, foreign nations, and Indians,” so that Indians cannot possibly also be foreign nations
Establishes “guardian to ward” relationship
Practical problem: too many different tribes with different governments to make each a foreign nation
Breakdown of Decision

Johnson & Baldwin: not political states
Thompson & Story: foreign nations

Views Treaty of Hopewell as eliminating Indian property rights in toto

McLead: joins Marshall
Sovereign state: yes 4-2; Foreign nation: no 4-2

Marshall/McLead: yes, then no

First case brought by a tribe

Worcester v. Georgia
62, SCOTUS (1832)

VT man moved to Indian Country without a license in defiance of GA law; GA arrested him for violating state law. Marshall wrote opinion invalidating GA laws on two grounds: (1) federal preemption in affairs with Indians and (2) Indian sovereignty over their lands.

These two rationales continue to this day, but PREEMPTION is the more vital one, per a 1976 SCOTUS opinion in which preemption is considered “on the backdrop of Indian sovereignty.”
Desire for peace was bilateral in Treaty of Hopewell – indicating that Cherokee were a separate political power.
Cession of right to manage affairs doesn’t cede sovereignty, only ability to trade with other nations

Canons of Statutory Construction at Work in Worcester

Ambiguities are resolved in favor on Indians
Interpret the language would be interpreted by Indians
Indians are not responsible for the nuances of terms in treaties
Liberal construction of treaties in favor of Indians

Lasting Principles in Worcester

Trust responsibility to tribes (guardian and ward)
Federal preemption as a bar to state jurisdiction
Indian sovereignty/self-government firmly established

Reservation Policy, End of Treatymaking & the Emergence of Federal Plenary Power:

Ex Parte Crow Dog
92, SCOTUS (1883)

Crow Dog murdered Spotted Tail on Reservation. Crow Dog’s family pays restitution, per tradition, to Spotted Tail’s family. Federal court convicted Crow Dog of murder and SCOTUS reversed.

Treaty said US authority in “bad men” clauses

Self-governance of Indians required.

Indians can’t understand superior laws of US.

Indians have right of self-governance, to justify a departure from settled custom would require a much stronger statement of intent from Congress

U.S. v. McBratney
100, SCOTUS (1882)

Colorado has exclusive jurisdiction over non-Indian v. non-Indian crime on Ute reservation, because feds had not reserved this power on admitting CO to the union

Utah & N. Ry. Co.v. Fisher
100, SCOTUS (1885)

Idaho can tax RR on track that goes over Indian land

Major Crimes Act
96, US (1885)

Reaction to Crow Dog

Regulated seven serious crimes under federal law
US demands pushing law into “lawless” Indian Country
Worried about revenge killings if it was left to tribal justice

U.S. v. Kagama
96, SCOTUS (1886)

Indian kills another Indian on Reservation (same facts as Crow Dog). SCOTUS affirmed Congress’ authority to pass MCA and punish Indians for on-reservation activity.

Guardian/ward relationship was the “trust shield” which SCOTUS turned into a sword.
SCOTUS rejected that Indian Commerce Clause authorized Congress to pass MCA. Instead, it was the trust shield that allowed Congress to pass MCA.
US and States are the only “sovereigns” within the borders of the US.

Allotment & Assimilation

Dawes Act (Allotment Act)
103, US (1887-1934)

General Allotment Act allows President to divide up and sell reservation land when he determines that it “is advantageous:

Parcels allocated to individuals. 160 acres for family, 80 acres for singletons. People supposed to choose which land they get
Held in trust for 25 years

After which restrictions removed
Could be removed early if tribe says competent

Inheritance governed by state law but administered by BIA
Lands not all

and Canonical Limits

Background on Canons

Linguistic/Textual – based on language/text

Inclusio unios exclusio alteris – if one is listed, the others not listed are excluded

Quasi-structural – informed by societal values

Chevron deference – trust agencies to do their jobs


Need clear intent to find that treaty has been abrogated
Interpret treaties as Indians would have at the time

Constitutional Background – 164

Standard constitutional challenges

Lone Wolf, though that conclusion has been repudiated

Beyond Congressional Power

Argued in Kagama, Lara

Transgressing Limits on Congressional Power


States Rights

Seminole Tribe of Florida v. Florida (SCOTUS, 1996) – provision of IGRA allowing tribes to sue states for failing to negotiate violates 11th amendment

Menominee Tribe of Indians v. United States
171, SCOTUS (1968)

Menominee terminated by an act that did not speak to hunting and fishing rights.

Does tribal termination also terminate hunting and fishing rights to reservation area?

Hunting and fishing free of state control

SCOTUS held that those rights were reserved because the same committee passed PL 280, which provides for the preservation of those rights.

Rely on canon of in pari materia – the read them together
Congress may only abrogate treaty rights when it explicitly says it is doing so

This is kind of a crazy case

After termination, does Indian Country even EXIST anymore in any meaningful sense?
They had two bills that would have preserved treaty rights explicitly and didn’t pass them
BUT this can be seen as a really extreme example of the idea that treaty rights can’t be abrogated without a clear statement.

United States v. Dion
174, SCOTUS (1986)

SCOTUS held that Congress invalidated treaty rights to hunt Bald and Golden Eagles, because Congress considered the conflict and resolved the issue in favor of abrogating those treaty rights.

In the Eagle Protection Act, the statute sets up a permit system whereby Indians can hunt some eagles; such a system would be superfluous if the treaty rights were not abrogated.

Congress must