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Indian Law
University of Oklahoma College of Law
Robertson, Lindsay G.

FEDERAL INDIAN LAW
 
 
History
 
3 views on ownership of Indian Land:
Religious Rules
o   Puritan: to own the land you have to use it. (Biblical “subdue the earth”).
×          Lockean Labor Theory
o   Legal views discarded because too wide open.
 
Military Conquest
o   If you conquer land, you own it.
o   Tribes fought back, so conquest theory was repudiated.
 
Contract
o   Government and tribe would work out agreement, enter into a treaty and government would pay consideration for the land.
o   Indians own their own land and government has to buy it. 
o   If Colonists tried to buy it, they may rip them off resulting in attacks.
o   Changed in 1823. 
o   Proclamation of 1763 made all land west of Appalachians Indian land protected by King, would need a license to get it. Illegal purchases would be subject of Johnson v. MacIntosh.
 
Marshall Trilogy:
Johnson v. McIntosh:
o   1823
o   Was Proclamation of 1763 constitutional? No, Says US owns the land and the tribes have a right of occupancy.
o   Discovery Doctrine: upon discovery, the discovering European sovereign acquired fee title to all discovered lands and the indigenous people retained only an occupancy right (part 1: vesting of fee title). Occupancy right is alienable only to the same discovering sovereign (part 2: restriction on alienation). 
o   Result: Government owns underlying fee title, Indians retain occupancy right which is only alienable to the federal government.
o   Still law today. 
 
Cherokee Nation v. Georgia:
o   Georgia tried to impose its state laws in Indian country.
o   USSC: no jurisdiction to hear the case.
o   Indian tribes are not foreign states, but are “domestic dependent nations.” (This relationship resembles that of ward-guardian.
o   Beneficiary—trustee relationship as a matter of law. Aka Trust Relationship Doctrine.
 
Worcester v. Georgia:
o   Same issue as Cherokee Nation.
o   GA imposing state law in Indian country.
o   NO! State law does not apply in Indian country.
o   Later modified by Williams v. Lee.
o   Court undoes the vesting of fee title portion of Johnson by re-explaining the opinion.
×          GA laws are invalid in Cherokee nation because of treaty with federal government guaranteeing the lands and right to self-government—federal treaty supersedes state laws (federal preemption).
×          Even if it hadn’t been preempted,

meant they could buy a license like anyone else
Stepped away from the cannons, used an anthropologist
Used the dictionary to determine what the words meant—tribe wins. 
The court avoided saying that it was ambiguous to limit backlash.
State v. Tinno
Does a right to hunt include a right to fish?
Using anthropologists, they concluded Indians would understand it to mean fish too.
 
Reserved Rights Doctrine
Treaties are grants of rights from a tribe (not to a tribe) so whatever isn’t mentioned (treaty is silent), is presumed to be reserved by the tribes. (Winans)
US v. Winans
Can the tribe cross to get to their usually fishing rights places?
Yes, they did not grant that right away
Removal Act of 1831
If tribes want to leave, land will be provided for them
Policy: There is nothing out there, they are away from being a govt problem, they would guard the boarders.
Indians left because they did not want to be subject to GA law.