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Indian Law
University of Mississippi School of Law
Barnes, Richard L.

              I.      The European Doctrine of Discovery and American Indian Rights
a.      United States Colonizing Legal Theory
                                                               i.      Doctrine of Discovery- viewed non-Christian peoples as ‘infidels’ who have no real rights.  Furthermore, the Europeans viewed land as free and uninhabited if it was not regularly used for agricultural, industrial, or residential purposes.  These beliefs led to the taking of legal title from the Indians and leaving them with possessory rights only.
                                                             ii.      Johnson v. McIntosh (first of the Trilogy Cases)- two individuals claimed title to the land, one receiving a grant in the land from the federal government while the other obtained it through purchase from the Indians before the Revolution.
1.      Issue: who holds title to the lands?
2.      Holding: Marshall applied the ‘Doctrine of Discovery’ which holds that the nation that “discovers” so-called uninhabited lands have the ownership rights to it.  The Court held that “discovery” of the lands alone gave title. Or the right of possession and economic use to the discoverer.  The Court also found that Indian tribes had originally held possession of the land through Indian, or aboriginal, title.  Marshall defined the Indian inhabitants as the “rightful occupants of the soil, with a legal and well as just claim to retain possession of it.”
a.       Marshall reasoned that the tribes retained the right of possession of the land, subject to legal title in the discoverer (US), where the tribes could not transfer lands without the approval of the government. 
3.      Conclusion- there is a split by Marshall as to who owns the land, there is legal title in the discoverer (US) and a possessory right in the Indians.
a.       Note: Marshall states that only legal title claims maybe contested in court thus precluding Indians from having jurisdiction to challenge title claims.
b.      Three Key Concepts of Discovery (from last class discussion) covering the time period from 1609 to 1835 and the Trail of Tears removal to lands west of the Mississippi River.
                                                               i.      Conquest doctrine- Discovery Doctrine- basis of which to deal with Indians and Indian law, discovery and conquest together give title to the sovereign holder.
                                                             ii.      Treaty- early treaties were an easy way of establishing control over the Indians while furthering federal interests.
                                                            iii.      Sovereignty- sovereignty still grants title which is federal title (fee simple title that is in possession of the federal government).  This eventually leads to the Northwest Territory to be used for the Revolutionary Solider Relief Act granting lands to Revolutionary Soldiers.  By claiming that the title lies with the federal government pushes federalism and lays the ground work for greater federal support.
           II.      The Federal-Tribal Treaty Relationship: The Formative Years (1789-1871)
a.      Treaties- the belief among Indians concerning a treaty is that once a treaty is made, that individual/government is considered a part of the tribe.  Hence, the factions between Indians, even of the same tribe, during the early wars can be explained by their respective treaties with European nations.
b.      Canons of Construction- apply only to Indian law which are used to correct possible alternative clauses of treaties.  These canons hold that treaties are beneficial and therefore should be read as protecting Indian rights and in a manner favorable to Indians.  The general principles are as follows:
                                                               i.      Treaties should be construed liberally in favor of the Indians.
                                                             ii.      Ambiguities should be resolved in favor of the Indians.
                                                            iii.      Treaties should be interpreted as the Indians of their day would have understood them.
                                                           iv.      Before a treaty or law will be interpreted as extinguishing or eliminating the rights of the Indians, it must be shown that Congress had a “clear and plain” intent to eliminate Indian treaty rights.
c.      Founders’ First Indian Policy- believed by George Washington that simply purchasing the lands from the Indians would be more efficient than a war.  Another common belief was that through the process of assimilation, the Indians would be ‘pushed’ off of their lands.
                                                               i.      Assimilation- policy of absorbing Native Americans into the mainstream of American life and culture.  The notion of assimilation would begin the establishment of reservations, allotments of lands to individual Indians, and the teaching of their children in state schools (will be discussed later).
d.      Trade and Intercourse Acts- first enacted in 1790, regulate non-Indian conduct in Indian Country and trade and land transactions with Indians and their tribal governments.  To stabilize relationships and to provide for orderly settlement of the West and to prevent non-Indian trespass and violence against Indians, Congress enacted Indian Non-Intercourse laws to regulate both non-Indian trade with and land purchases form Indian tribes. (88-93)
                                                               i.      Declared the purchase of land from the Indians invalid unless made by a public treaty with the United States.
                                                             ii.      Provision for the punishment of murder and other crimes committed by whites against the Indians in the Indian Country.
e.      Removal-
                                                               i.      Cherokee Nation v. Georgia (second of the Trilogy of Cases)-(numbers in red are the key issues discussed by Barnes)
1.      Constitutional question: (1) “Can the Cherokee Nation sue the state?” 
a.       Article III permitted federal jurisdiction to suits among states, foreign nations suing states and diverse citizens suing one another.  Key is “foreign nation,” is the Cherokee Nation a foreign nation.
2.      F

rules that the Treaty of Hopewell’s “allotment” language actually means “reserved by”; the Reserved Rights Doctrine states that the tribe isn’t getting rights from the government – it already has them, and reserves everything not explicitly ceded.  There is also a subjective component – Indian treaties are interpreted based on how the tribe understands them.  States have no power over Indian affairs – only federal government.
                                                            iii.      United States v. Washington- through the Canons of Construction (see above), Indian treaties are to be construed, or interpreted, as the Indians would have understood them when they were made.
1.      One element of the Canons of Construction holds that ambiguities in words or phrases of treaties are to be construed to favor Indian rights.
2.      In the present case, the Indians when signing the original treaty could not have possibly consented to restrictions upon their fishing rights considering that fishing constituted such an integral part of their survival.
a.       By definition and intention (in the treaty) “in common with” means sharing equally the opportunity to take fish at “usual and accustomed grounds and stations.”
                                                           iv.      United States v. Winans- at issue was the use of the Indians rights to fish lands off the reservation that were there “usual and accustomed places.”  Mr. Winans who owned the land in fee sought to exclude the Indians from fishing these lands.
1.      The S.C. reasoned that treaties are not grants of rights to Indians but, rather, a grant of rights from them.  In other words, the treaty process meant that in exchange for certain things from the U.S., the Indians had given the government some of their authority over their lands and had reserved to themselves all other rights and privileges not given up (receiving an easement essentially to cross onto lands to fish).
2.      The decision reaffirmed the Canons of Construction, in that unless expressly stated by Congress to take away such rights than those rights remain.
f.        The time period from 1820 -1871 and later is marked by the following key concepts concerning Reservations and Separation are:
                                                               i.      Sovereignty
                                                             ii.      Treaty
                                                            iii.      Trade and Commerce
                                                           iv.