Indian Law
Class Notes 2006
General Themes in Indian Law
1. Marshall Trilogy
a. the foundational principals
b. Notice how they either change or stay the same
Relationships
What is the relationship of the federal government to tribes and tribal government
3 sovereigns
i. Status and interaction btwn federal sovereign and tribal sovereign
ii. Status and interaction btwn tribal sovereign and state sovereign
iii. Status and interaction in tribal itself
What is the relationship of tribes to states?
International
Rights of indigenous people on an international scale
Normative
Sense of right and wrong
Is this the right way for Congress or the Supreme Ct to think about and deal with Indian people
Always ask yourself this – whether there is a normative issue
History
Many of the cases looked at are the contemporary Sup. Ct. evaluating events that have taken place hundreds of years ago
How should a Ct today, evaluating events that took place so long ago, evaluate those events today?
What is the narrative that you think Indian law should try to take on.
i. Ex. McIntosh – bad narrative for Indians because it looks to them in a negative way
Constitution
What are the constitutional benchmarks that happen in Indian law?
Does Indian law have anything really to do with the Constitution? How could that be?
Diversity in Pluralism
Streams in American law are due process and equal protection, but, in Indian law there is another stream – the stream of difference.
There is a tension about differences and equal protection because both Indian people and tribes and societies want to be different. That is part of their sovereignty. So, how should the legal system balance fairness and EP as we generally understand it and the right to sovereignty.
Chapter 2: European Doctrine of Discovery
U.S. Colonizing Legal Theory
Marshall Trilogy—What are the primary teachings that come from the following 3 cases?
Foundational principals – three or four
Johnson v. McIntosh, US Supreme Ct, 1823
Facts: When Europeans acquired the grants of land from the US, the Indians already had possession. Plaintiffs claim land under 2 grants from the Illinois and Piankeshaw Nations; Defendants claim land under grants from the United States.
Procedural: Action in ejectment brought by Johnson; Johnson’s goal is to eject McIntosh from land that he thinks he and others own and that McIntosh illegally has obtained. Based on diversity in federal court. Defendant McIntosh prevails at trial, Johnson appeals directly to the Supreme Ct.
Issue: Whether title by grants from the Illinois and Piankeshaw Nations can be recognized in the Cts of the United States. In other words, can Indian tribes convey real property to private citizens?
Holding: No. Only the Federal Government can acquire land from Indian tribes.
Rationale:
i. Court stated that the rights of the original inhabitants, the Indians, were in no instances entirely disregarded, but were impaired. They are the rightful occupants of the soil to retain possession of it and use to their discretion, but their rights to complete sovereignty, as independent nations, were necessarily diminished and their power to dispose of the soil at their own will was denied that discovery gave exclusive title to those who made it.
ii. Ct adopted the Doctrine of Discovery:
1. Adopted the doctrine of discove
a party to this case! Premier case about Indian law involves no Indians.
a. Remember—always ask: Is there an Indian voice?
iii. Ordinary property law NOT applied
1. If this were an ordinary property dispute, bona fide purchaser first in time, first in right would apply. If applied, Johnson would have won and the Indians would have had good title to sell.
a. This was not followed; ordinary property rules do not apply.
iv. Key Issue – Can tribes convey the premier property right of title?
v. Holding – No, Indian tribes don’t have the property right of title.
vi. Doctrine of Discovery
1. 2 parts:
a. External Element:
i. First International Law Principle/Custom of European Family of Nations—goal to minimize conflict and strife btwn European Nations
ii. Create order/minimize conflict
iii. Exterior doctrine which describes it among the Nations – whatever European Nation gets there first, they would have claim over any other European Nation
b. Internal Element:
i. Relationship btwn. discoverers and the Indigenous people
ii. It is up to the discoverer what the relationship will be btwn the Nations and the Indigenous people
iii. In this case, what is the discoverer’s relationship (US) and the Indigenous people (in the context of land)?
iv. Title is in the discoverer
1. How is the US going to deal with this? Because Indians, even though they don’t own the land, they have use and occupancy.
Purchase or Conquest
