INDIAN LAW
HELTON
FALL 2011
Chapter 1: Indians and Indian Law
A. The Study of Indian Law
1. Three central sets of concerns:
a. Tribal sovereignty and Indian property rights
b. Federal power and obligations
c. Jurisdiction over the reservation
B. American Indians Today: An Overview
1. Indian tribes and reservations
a. Courts have justified special laws for Indians on the ground that they are not dealing with a racial minority but with political entities
b. 562 fed recognized tribes, 322 fed recognized reservations
2. Economic Conditions
a. American Indians are the most impoverished minority in the U.S. (but on the rise)
3. Education
a. Indian Self Determination and Education Assistance Act
PART 1: THE HISTORY OF FEDERAL INDIAN LAW AND POLICY
Chapter 2: The European Doctrine of Discovery and American Indian Rights
A. Doctrine of Discovery
1. idea based on territorial rights that one was the discoverer of the land, and that sharply diminished the rights of sovereignty and ownership that tribes could assert over their territories.
B. Medieval and Renaissance Origins
1. The Crusading Legal Tradition
a. Roman Catholic Church was the dominant political and legal institution and Pope in Rome was vested supreme spiritual jurisdiction over the souls of all humankind
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 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: 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
B. The English North American Colonial Era Influence on U.S. Fed Indian Law and Policy
1. Early Precedents
a. King Henry VII of Englahd issued charter of discovery in 1606
i. Doctrine of Conquest (1100-1300)
-Indians are living in nature and not believing in God
-Pope has the power to punish those living in nature and can grant right to war
2. Early English Colonial Practice Respecting Indian Rights
a. Colonies frequently obtained consent of the tribes through treaties
i. treaty (1609-1835)
3. British Imperial Policy and Indian Lands
a. England decided to prohibit settlement by English subjects on the land and hunting grounds belonging to the Indians and beyond the eastern mountain ranges in the Proclamation of 1763
C. United States Colonizing Legal Theory
1. JOHNSON V. MCINTOSH
a. Issue:
-validity of Indian land transfers made before the Revolution
b. Holding:
-Created a new form of title: Aboriginal title (right of occupancy)
-via right of discovery, Indians only have the right to occupy (extinguishable by the U.S.) while America inherits fee simple from England.
-aboriginal title can be taken by conquest, voluntary purchase & abandonment
-Marshall merges the doctrines of discovery and conquest
Chapter 3: The Federal-Tribal Treaty Relationship: The Formative Years (1789-1871)
A. Colonial Era Origins
1. Choosing to interact with tribes through land transactions, trade and military partnerships showed the recognition of the tribes as self-governing peoples.
2. Early treaties established the initial framework of U.S. Indian policy, and represented the exercise of fed political power over Indians to exclusion of the states
3. BROAD PRINCIPLES DERIVED FROM MARSHALL TRILOGY
a. Congress exercises plenary power over Indian affairs
b. Indian tribes retain sovereign, though diminished inherent powers over the internal affairs and reservation territory
c. U.S. possesses a trust responsibility toward Indian tribes
4. Virginia Colony’s Treaty Relations with Powhatan’s Confederacy
a. first treaty
B. “The Savage as Wolf: The Founders’ First Indian Policy”
1. U.S.’s first Indian policy responded to the immediate demands of seeking peace and avoiding costly Indian war w/ frontier tribes
C. Legislative Enforcement of the Treaty Policy
1. Indian Trade and Intercourse Acts, 1790-1834
a. provide solution to basic problems of determining aut
quality
-treated treaties like adhesion contracts
-hunting, fishing and water rights are considered implicitly included
a. ambiguous expressions must be resolved in favor of the Indian parties concerned
b. Indian treaties must be interpreted as the Indians would have understood them at the time.
c. Indian treaties must be liberally construed in favor of the Indians
d. United States v. Washington
1. Facts
-suit involving the extent of off reservation treaty fishing rights from six treaties with provisions securing to the Indians certain off-reservation fishing rights
2. Issue
-Are the tribal members subject to state regulations of game and fish?
3. Holding
-No. The Indians would have understood the treaty to include fishing rights b/c their primary concern would have been fishing in accustomed, common and usual places/ways.
-They get 50% of all take
2. Treaties and Reserved Rights: Reservation has a legal meaning broader than the popular use of the term to describe an area of land set aside for a specific purpose; a reservation is also any property right or power retained by a party to a bilateral agreement.
a. UNITED STATES V. WINANS
1. Facts
-U.S. brought case on behalf of the Yakima Nation to stop Winans and other non-Indians from obstructing off reservation fishing at usual and accustomed fishing sites. The respondents attempted to exclude tribal members from fishing sites and refused to allow them to pass over non- Indian fee land to reach the sites.
2. Issue
-Do Indians have the right to cross private property and then fish on property once they get there?
3. Holding
-Yes, Fed gov’t reserved rights for the Indians (reservation of rights, not property). The Indians retained a profit to continue to go on the land. Court announced substantial tribal rserved rights in an area traditionally claimed to be w/in state authority-hunting and fishing regs.
