American Indian Law Outline

Torres
Indian Law
Fall 2010
 
 
ORIGINS OF FEDERAL INDIAN LAW
 
1.      Overview and Demographics, Colonia Influences and Early Practices pp. 1-28
2.      Revolutionary Era, Constitutional Framing. Johnson v. M’Intosh pp. 28-44
3.      Treaty Making and Removal. Cherokee Nation v. Georgia, pp. 44-62
4.      The Coda on the Trilogy: Worcester v. Georgia, pp. 63-77
 
·         Johnson v. M’Intosh
o   Question: whether Indians had power to give title that would be valid in US courts
§  What title did they have to give away?
§  What title is superior: title from the tribes or title from the US govt?
o   Marshall: federalist motives, want to assert the primacy of the fed govt
§  1823 Monroe doctrine – W hemisphere is closed to colonization, Europe cannot colonize through the Indians either, will be considered an act of war
§  ALSO setting up the relationship of the fed govt to the states – power of the states is derived from the federal govt, power of dealing with the tribes comes from the fed govt/is a federal action
o   Discovery doctrine: discovery of the lands gives the right to acquire the land to the exclusion of other colonial governments (therefore, US is telling Europe that right to acquire land belongs to them alone)
§  P. 41, Note 2 – Indians retain ownership claims over ceded land, belongs in fee to the tribes but US has the right to acquire it (no US ownership interest yet)
§  Europeans have the exclusive right to trade with the Indians (discoverers)
§  US is the successor to the Indian relationship with the crown
o   Conquest: discovery gives you the right of first refusal, conquest gives you title
§  Tribes can still occupy, US has title (like a LL) – have all rights but the fee simple
§  US has the right to sell the land out from under the tribes (not have to purchase)
§  Sweeps away residual colonial claims, not need royal proclamation to obtain fee
§  Court won’t look at the moral/ethics of it, only applying the legal rule
§  P.8 – title by conquest is acquired and maintained by force, gives fee simple to federal govt
§  P.9 – integration/assimilation was impossible, two equal parties are making treaties
o   Discovery is the initial doctrine (rooted in international law), converts to the doctrine of conquest (leaving tribes with the right of occupancy only)
§  Discovery and conquest are legal categories, not empirical ones
§  Explains why can exclude them from the political community of the US
·         Articles of Confederation
o   1776-1781 – big issues: trade, borders, self-defense, peace within US, Indians
o   P.31 – Congress has exclusive power to mange trade with the tribes not members of any states, provided that the legislative right of any state within its own limits are not infringed/violated
§  Fed has treaty power with the tribes
§  States can legislate over the tribes in the state
§  Fed authority exists only when state hasn’t acted
§  No supremacy clause yet, unstable
·         Constitution
o   Commerce Clause – Congress has power to regulate commerce with foreign nations, among the states, and with the Indian tribes
o   Treaty power – President has power to make treaties with foreign nations, (tribes?), senate ratifies
§  Missouri v. Holland: treaties create extraconstitutional powers for congress to enact laws pursuant to the negotiated treaty obligations
o   Indians not taxed
o   *only three mentions of Indians in the Constitution
·         Trade and Intercourse Act
o   Land transactions with the tribes are federalized, invalid unless ratified by Congress
o   Indians only have a right of occupancy to give, until you get a federal patent for the land (and get fee simple), all you can get is a similar right of occupancy
o   1976 – a lot of land went back to the Indians (paid for the land that should have been theirs) because of illegal land transfers, the illegally obtained land had been “owned” when really only had right to occupy it
o   Indian country – legal definition, not an anthropological one
·         Treaty of Hopewell (1785)
o   Treaty with US, Choctaw, Cherokee
o   Clear demarcation of boundaries to Indian territories
o   Cherokee cede land, in return get peace, security in their land, exchange of prisoners, restore some property, Indians acknowledge superior sovereignty of the US
o   VI – extradition of Indians to US for crimes against Non-Indians (creating fed crim jurisd by treaty)
o   VII – US has crim jurisd over non-Indians committing crimes against Indians
§  *US has fed criminal jurisd IF a white person is involved as perpetrator or victim
§  Not know the jurisd for Indian on Indian crimes yet
o   XII – Cherokee can send non-voting representative to Congress
·         Cherokee v. Georgia (1831)
o   Excluded from political community, but they’re still in the US – who are they in the US?
§  Not citizens, not foreign, not under the jurisdiction
o   Marshall’s motives: trying to preserve the power of the SC, build the federal system
o   Rather than confront a state, declares that there is no jurisdiction
o   Cherokee have  a treaty with the federal govt, GA is regulating activity in Indian territory, arguing for contractual enforcement of treaty rights
§  If Marshall finds for Indians, must use fed authority to enjoin legislative power of the state
o   Marshall finds that the Indians have no power to come to SC to seek enforcement of the treaty
§  No federal