Federal Indian Law – Zug Fall 2010
I. Chapter One: Introduction: Indians and Indian Law
A. The Study of Indian Law
a. What is Federal Indian Law?
i. The field of Federal Indian law involves a distinct body of law that regulates the legal relationships between Indian tribes and the United States.
1. The tribes, their members, and the lands held by both are dramatically affected by federal Indian law.
ii. Tribal law, as found in modern-day tribal constitutions and codes, and in tradition and custom as interpreted by tribal courts, affects and in turn is affected by federal Indian law.
b. Why Study Indian Law?
B. American Indians Today- An Overview
a. Indian Tribes and Reservations
b. Indian Population
c. Economic Conditions
d. Health Conditions
f. Indian Lad and Resources
g. Economic Development
h. Assimilation of Indians
C. Perspectives on Indian Law
a. Charles F. Wilkinson, American Indians, Time and the Law
b. David H. Geches, A Philosophy of Permanence: The Indians’ Legacy for the West
c. Robert A. Williams Jr., Columbus’s Legacy: the Rehnquist Court’s Perpetuation of European Cultural Racism against American Indian Tribes
D. Part I: The History of Federal Indian Law and Policy
II. Chapter Two: The European Doctrine of Discovery and American Indian Rights
a. Medieval and renaissance Origins
i. The Crusading Legal Tradition
ii. The Crusading Legal Tradition and Europe’s “Age of Discovery”
iii. Spanish Colonial Law and the Rights of American Indians
iv. Spanish Legal Theory and Indian Rights
1. Franciscus de Victoria, a Dominican priest and scholar who taught at the University of Salamanca.
2. Victoria’s lectures on Indian rights are widely recognized as a primary source of the basic principles of post-sixteenth century Spanish colonial legal theory as well as of the treatment of indigenous colonized peoples under modern international and United States law
b. The English North American Colonial Era Influence on United States Federal Indian Law and Policy
i. Early Precedents
ii. Early English Colonial Practice Respecting Indian Rights
iii. British Imperial Policy and Indian Lands
iv. The Founders’ Debates on Indian Lands
a. Much easier to buy the land from the Indians in the beginning than to fight for it.
b. Impact of the Doctrine of Discovery
i. Derived from European conquest traditions
1. Racially skewed and bigoted.
2. United States Colonizing Legal Theory
a. In 1832, the Supreme Court considered the validity of Indian land transfers made before the Revolution.
i. Fighting over Western land also led to the Revolutionary war, settlers afraid England would honor treaties with Indians.
b. Daniel Webster argued for the validity of earlier transfers from the tribes, pointing out that both the English and the French had treated the tribes as sovereigns and as such they should have the power to sell.
3. Case: Johnson v. McIntosh
a. Facts: At issue were two purported grants of land by Indian tribes to private individuals, one in 1773 and the other 1775. The lands constituted the Illinois and Piankeshaw nations. Here, the Plaintiff sought to have the United States government recognize the Plaintiff’s title to the lands, which were alleged to have passed under the grants.
b. Issue: May Indian tribes give a legally recognizable title in land to private individuals, such that the title may be received by the private person and upheld against any claims by courts of the United States?
c. Holding: No. The judgment of the District Court of Illinois denying the Plaintiff’s right to assert title to lands purportedly granted is affirmed.
The rules of property must be drawn from and decided by the nation in which the property which is the subject matter of the lawsuit lies. Due to the historical precedents established by the European discovery of this North America and the subsequent conquest and division thereof, the rule was that among the nations of Europe, title properly belonged to the nation which discovered the new land.
1. Have lost the right of fee title (can’t alienate or transfer property) but retain the right of occupancy (easement).
2. First in the lost of sovereignty-> can’t sell their land.
a. Murray only had an easement (right of occupancy) form the Indians, which he sold to McIntosh not he fee title of the land.
ii. Marshall justifies the conquering by the India
ation Act 1975.
2. The plaintiffs sought declarations, inter alia, that the Meriam people were entitled to the Murray Islands “as owners; as possessors; as occupiers; or as persons entitled to use and enjoy the said islands”.
a. Plaintiff’s arguments: The plaintiff argued for a possessory title by reason of long possession.
b. Defendant’s arguments: The Queensland government argued that when the territory of a settled colony became part of the Crown’s dominions, the law of England became the law of the colony and, by that law the Crown acquired the “absolute beneficial ownership” of all land in the territory.
i. Doctrine of Discovery: As soon as the conquering country sees a land they have a right to it
ii. Doctrine of Conquests: Right to the land once a conquered people has been established.
ii. Holding: The decision was based on the findings of fact made by Justice Moynihan of the Supreme Court of Queensland: that the Murray Islanders had a strong sense of relationship to the islands and regarded the land as theirs. All of the judges, except Justice Dawson, agreed that:
a. there was a concept of native title at common law;
b. the source of native title was the traditional connection to or occupation of the land;
c. the nature and content of native title was determined by the character of the connection or occupation under traditional laws or customs; and
d. native title could be extinguished by the valid exercise of governmental powers provided a clear and plain intention to do so was manifest.
i. Only where the historic connection remains do they have title, if you were not kicked off of the land.
Rejection of terra nullius: The decision recognized that the indigenous population had a pre-existing system of law, which, along with all rights