Topics in Indian Law Amdur-Clark Spring 2018
Doctrine of Discovery
Johnson v. McIntosh
Facts: A land speculator bought land before the Revolutionary War from the Indians. After the war, the U.S. govt. acquired the land and gave it away. Plaintiff sued for ownership claiming better title.
Issue: Did Indians have better title?
Holding: Not really. Court could have said that Indians have no property rights or that they were there first and had fee simple absolute. But they did not say that. Indians don’t have title, but only Fed. Govt. can give their land away. Indians can sell the land to Fed. Govt.
Essentially, the tribes retain title until they cede it to the Fed. Govt. Could sign the land over to prevent war. But the land can’t just be taken away.
Treaties
Treaty Making Era – Ends 1871
Tribes did not get sovereignty from treaties, they were/are able to make treaties b/c they are sovereign.
Treaties can only exist between nations/two sovereigns.
Treaties should be read as constitutions
They are not self-actualizing. Must be ratified by the Senate.
County of Oneida v. Oneida Nation
Facts: Tribe’s ancestors sold land to state of New York under a 1795 agreement after the 1793 Trade and Intercourse Act. State was required to request appointment of federal commissioner to supervise any land transactions with the tribe, but failed to do so. Tribe sought damages in 1985 for the previous two years. Sought fair rental value for the land.
Issue: Did the tribe still have any right to the land?
Holding: Yes. There was a Federal common law right to ejectment. When states act against Fed. Law, Fed. Law WILL trump state law.
Cherokee Nation v. Georgia
Facts: This action was brought seeking an injunction to restrain state of Georgia from using state law to seize Indian lands. Tribe asserted standing b/c they are a foreign nation.
Issue: Can the Court gain jurisdiction on the basis that the Tribe is a foreign nation?
Holding: No. Cherokee were not foreign nation under U.S. Constitution. Essentially b/c in the Commerce Clause it mentions both Indian nations and foreign states which indicates that the two are different. Whatever the Cherokee are here, applies to the other tribes as well.
Worcester v. Georgia
Facts: Georgia wouldn’t let traders engage in commerce or any activity w/Cherokees. △ in this case was allowed onto Tribal lands, but Georgia arrested the △. There was also a Fed. Govt. restriction in place as well.
Issue: Did the arrest violate the U.S. Constitution?
Holding: This arrest was unconstitutional b/c there was a treaty which recognized the Cherokee’s right to self govt. Also under the treaty, the U.S. Govt. could handle illegal acts. So Georgia here was stopping on the rights of the Fed. Govt.
Cannons of Construction
3 Primary Rules – Cannons of Construction
Ambiguous expressions must be resolved in favor of Indian parties concerned.
Indian treaties must be interpreted as the Indians themselves would have understood them.
Indian treaties must be liberally construed in favor of the Indians.
In negotiations, Indians reserve rights unless Fed. Govt. expressly took them.
U.S. v. Washington
Facts: This case involved the extent of off-reservation treaty fishing rights. The state argued that the Tribe needed a state fishing permit to fish. The Tribe argued that they could fish “at all unusual and accustomed grounds and stations in common with all citizens in the territory.”
Issue: What were the tribe’s rights here?
Holding: Apply the cannons of construction here. There was a debate over what “usual and accustomed” meant and the Court declared these phrases to be ambiguous. Court looked to historical context as much as possible in running through the Cannons of Construction here.
U.S. v. Winans
Facts: A treaty allowed Indians to have off-reservation fishing rights at all usual and accustomed places, in common with citizens of the territory. Respondents operated fish wheels pursuant to state license which was so effective that they effectively gained “exclusive possession of the fishing places.
Holding: B/c the basis for the right originated in the shrinking of the reservation, this isn’t the granting of a right. This is the reservation of a previous right. Also court gave reservation to Tribe before area was a state. So Fed. was definitely able to grant the Tribe water rights.
Allotment and Assimilation
Allotment and Assimilation – 1871-1928
This was a failed attempt to help Indians and give settlers land.
Allotments were used to give individual Indians land and allow extra reservation land to be sold off as surplus.
Fed. Govt. would hold title to this land until the Indians were declared competent. Once declared “competent”, the Indians had to pay taxes on the land. As soon as they couldn’t keep up, the land would be sold.
Expansion of Fed. Power Over Reservations
Ex Parte Crow Dog
Facts: One Indian murdered another Indian on Tribal land. Tribal reparations had been made in accordance w/tribal custom. Govt. of territory sentenced the murderer to death.
Issue: Was there Fed. jurisdiction in this case?
Holding: No. Congress did not clearly expre
w 280. PL280 said that nothing in the law “shall deprive any Indian or any Indian tribe, band or community of any right, privilege, or immunity offered under Fed. treaty with respect to hunting, trapping, or fishing.” Furthermore, though the ITA terminated Fed. supervision, the intend was not to terminate any treaties with the Tribe.
Era of Self-Determination (1961-Present)
Morton v. Mancari p. 257
Facts: The Indian Rights Act specified that in the Indian Office, preference for hiring and promotion should be granted to Indians. Non-Indian workers at the office were upset by this and sued claiming that the Equal Opportunity Act repealed the Indian Preference Statutes.
Issue: Did the EOA repeal the Indian hiring preferences?
Holding: No it did not. Here, where preference is reasonable and rationally designed to further Indian self-government, Congress’ classification is not a violation of due process.
Federal – Tribal Relationships
Tribes can gain land through:
Executive Orders (land is non-compensable)
Treaties (Compensable)
Statues (Compensable
Generally aboriginal title is meaningless. It is just what a tribe had when others met them. No recognized title.
U.S. v. Shoshone Tribe
Facts: The tribe had a treaty which gave it resource rich reservation lands. Eventually U.S. took Tribe’s land for another tribe and the Shoshone Tribe was compensated. The compensation amount was disputed b/c govt. argued that the treaty did not grant the tribe rights to the timber and minerals on the land. Thus compensation should only be for the Tribe’s ability to use and occupy the land.
Issue: Did the Tribe retain the right to resources on the reservation lands through the treaty?
Holding: Yes. The treaty was entered w/o knowledge of minerals and trees on the land. There was no indication that the U.S. govt. intended to retain the rights to those benefits. Without express language indicating otherwise, the U.S. could not retain the benefits. Tribal land ownership would also encourage independence. Treaty specified that the land was for “absolute and undisturbed use and occupation” by the Tribe.
