Indian Law Outline
Professor Ricky Barnes
Chapter 1: Introduction: Indians and Indian Law
A. The Study of Indian Law
1. What is Federal Indian Law?
a. Three Central Sets of Concerns:
1. Tribal sovereignty and Indian property rights
a. Process of obtaining Indian lands and containing the
tribes was largely done by recognizing them as
sovereigns, then negotiating agreements with their representatives.
b. Sovereignty of tribes continues today as an important
principle for understanding Indian legal relations.
c. Congress and US SC has affirmed that tribes retain
important powers of self-government within Indian
d. Relationship of Indians and Federal Government is
described as “Dependent”, with tribes relying on the
US for protection.
e. Result of legal relationship of tribes with US is that
Indian people continue to be ruled by own laws on
f. Tribal governments exercise legislative, judicial and regulatory powers and it is clear that their basic authority is derived from aboriginal sovereignty, though additional powers can be delegated, or recognized and affirmed by Congress.
g. If sovereign tribal rights are not voluntarily ceded by the tribe in treaties or in other negotiations approved by Congress, they continue in existence.
h. Rights not specifically ceded in a treaty or agreement, or not regarded under principles of federal Indian law as inconsistent with the tribes’ status as dependent on the US, are considered to be reserved. And when cessions are made or rights are extinguished they are to be construed narrowly as affecting only matters specifically mentioned.
i. Doctrine of Reserved Rights: treaty/legislation silent on
rights should be read as implying continued existence of rights. Unless expressly stated, rights are not lost or taken away.
2. Federal power and obligations
a. treaties, agreements, and special legislation for Indians
have created a unique legal relationship between
tribes and US
b. One function of federal role in Indian affairs is to
preempt the exercise of state power over much of the area.
c. Another function is to carry out special obligations toward the tribes and their members.
d. Exercise of federal legislative power over Indian matters flows primarily from authority delegated to Congress by the Indian Commerce Clause of the US Constitution, which confers power “to regulate Commerce within the Indian Tribes.”
i. Trade and Intercourse Act, 1790: formalized the
role of the federal government as a
necessary participant in Indian land transactions.
e. Federal Government special programs for the Indians relate to protecting and developing Indian lands, assisting tribal governments, and addressing special educational and health needs.
f. Congress can abrogate treaty promises, alter tribal powers of self-government, and extinguish not only title to land, but even the special relationship of a tribe to the federal government.
i. SC will review such actions to assure that they are rationally tied to the fulfillment of Congress’ unique obligation toward Indians.
g. Federal Government has unique relationship of Trust to the Tribes
i. conduct dealings by the highest fiduciary standards
ii. official should not act to the Indians’ detriment
3. Jurisdiction over the reservation
a. Exercise of the federal government’s legislative power excludes most state jurisdiction within the boundaries of reservations.
b. The very establishment of a reservation for the “exclusive use and occupancy” of a tribe is an act that preempts state authority.
c. most state laws like zoning, environmental degradation, domestic relations, and child welfare do not extend to Indians in Indian country, and they cannot be taxed by states or counties.
d. The existence of reservations as jurisdictional islands within state boundaries is supported by the exercise
of federal authority.
e. Three separate sovereigns in Indian Country: tribal, federal, and state
B. American Indians Today: An Overview
1. Indian Tribes and Reservations
a. American Indians think of themselves are members of a particular tribe
a. Roman Catholic Church was the dominant political and legal institution
b. Pope in Rome was vested supreme spiritual jurisdiction over the souls of all humankind
i. Pope Innocent IV justified the extension of papal sovereignty over infidels on the basis of their divergence from Christian European norms of “natural law”
ii. His argument of natural law rights and obligations of infidels represented an important step in development of international law, and was often quoted in 16th century debate over rights of American Indians in face of Spanish conquest
2. The Crusading Legal Tradition and Europe’s “Age of Discovery”
a. same legal justifications for the holy wars against “heathen and infidel”
peoples were applied to the “discovery” of new territories by Christian Europeans.
3. Spanish Colonial Law and the Rights of American Indians
a. “Black Legend”: term used to describe Spain’s rapid colonization and resulting destruction of the indigenous cultures and peoples encountered by the Spanish
b. The Requerimiento (Requirement): charter of conquest, read aloud to Indians, telling them that God had given charge of “the whole human race” to the Pope in Rome
4. Spanish Legal Theory and Indian Rights
a. Indians should be placed under a civilized nation’s guardianship.
i. the civilized nation would then hold just title over the property of the Indians and undertake the responsibility for administering their affairs.
b. Crown’s mandated guardianship responsibilities under the Law of Nations would include the duty of bringing the message of the civilized Christian faith to the natives.
c. No legitimate law outside of the Christian Church.
B. The English North American Colonial Era Influence on United States Federal Indian Law and Policy
1. Early Precedents
a. King Henry VII of England issued charter of discovery.
b. With Reformation and fall of British Catholicism, King Henry VIII still continued ideas of CONQUEST…but extended rights of conquest
1. Doctrine of Conquest (1100-1300)
a. Conversion (kill them and take their land):
1) Indians are living in nature and not believing in God
2) Pope has the power to punish those living in nature and can grant right to war
b. Indians have no rights and can be killed
2. Early English Colonial Practice Respecting Indian Rights