Law Outlines Federal Indian Law Outlines
Federal Indian Law outline explains statutory, common, and treatise law that impacts the limits to tribal self governance. Outline topics include: Constitutional and Canonical limits of interpretation, determining tribal and individual status, jurisdictional issues, federal takings, inherent sovereignty, land claims, and ICWA. Outline includes charts on jurisdiction to make navigating through the many tricky issues of criminal and civil jurisdiction easy. Also includes an attack outline and case ...
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Timeline of Eras of Indian Law
Trade and Intercourse period 1790s to 1820s or 1830s
Removal Period 1820s to 1840s
Tribes were removed from heavily populated areas in the east and the vast majority is moved west of the Mississippi
Reservation Period 1840s- 1880s
tribes were concentrated on reservations
under control of Federal Indian agents who would if necessary force the Indians toward civilization
Westward expansion ended the idea that there might be a large and permanent geographically distinct Indian Territory
Allotment and Assimilation Period 1880s – 1920s
Introduced forcible assimilation measures, including boarding schools for Indian children
Allotment reduced Indian land from 138 million acres to 48 million acres
Indian New Deal Period 1920s-1940s
Tried to end bureaucratic domination and abuse by strengthening tribal governments and economies
Termination Period 1940s – 1960s
ended special treatment of tribes
allowed state jurisdiction over Indians on reservations
Self Determination Period 1960s – present?
encouraging tribal control of governmental services and tribal resources economies
Origins of Federal Indian Law
The US initially implemented Federal Indian policy in 2 ways:
treaties with Indian nations
trade and intercourse acts
The federal government had a real interest in keeping its agreements with the tribes in good faith in order to keep the peace
Many of the old cases establishing the beginning of Indian law are racist but continue to have relevance today
Johnson v. M’intosh
Part of the Marshall Trilogy
He seems uncomfortable with this decision but seems to think its necessary
he uses language like savages to legitimize the decision
also discusses the incorrect concept used over and over again that the Indians aren’t using the land properly
But this case legitimizes the same history that he seems uncomfortable with
Marshall had interest in the outcome of this case, it was a test case brought without an actual controversy
the court goes through with this case because there was a need to establish the power of the court and the government
the issue of Indian lands was of grave national importance
also it needed to be established that British land passed to the US
Facts: Both parties had title to the land: One negotiated directly with the Native Americans, the other went through the US government
Issue: Which title is valid
Reasoning
The Doctrine of Discovery (the one we focused on in class)
A doctrine between the Europeans to keep the peace
if you are the first European sovereign to come upon land you get to have it
“Conquest gives title which the Courts of the conqueror cannot deny”
British proclamation that forbade British subjects from making any purchase or taking any land reserved to Indians
Acts of several colonial assemblies prohibiting such purchases
Holding: Only the United States government has the right to convey title of lands that the Indians occupy
the British got this right by conquest and it has passed to the US
Tribes do not have title to the land
tribes have the right to occupy the land (unless the US purchases it or conquers it)
it seems there is a preference for purchase but conquest is in the background
tribes may have some other right to the land
Recognitions of tribal sovereignty?
Marshall seems to recognize this by saying if you negotiate with tribes you would be subject to tribal law
Some scholars say this decision was positive in a sense bc the doctrine was about allocating power among the Europeans
but even if that is true the opinion was used as justification for seizing Indian lands
Treaty of Hopewell
1785 treaty between US and Cherokee Indians
Gives peace and protection to all Cherokees under certain conditions:
see p. 47
The Disappearing Indian
Even though the US government intended to make peace with Indians as it did in the Treaty of Hopewell, many, including Washington and Jefferson believed that the Indians would soon voluntarily give up their land (and conform to anglo ideas)
there was also talk that if they did not go on their own some would be fine with either “moralizing or exterminating” them
The Removal Era: 1817-1848
White population begins exploding, creating pressure for Indian lands
Southern “Five Civilized Tribes” with western courts and established governments were seen as an affront to state sovereignty
Georgia for example agreed with the US to have them removed as soon as peaceably possible
In the 1810s and 1820s treaty commissioners went to the tribes repeatedly to try and persuade the tribes to exchange lands for land west of the Mississippi
These tribes also created their own constitution which upset many
By the end of the 19th century almost every eastern state had passed laws extending jurisdiction for themselves onto the Indian lands
In 1830 then Jackson is elected President
he is super pro state
Congress passes Indian Removal Act
did not allow for forcible removal but instead allowed the President to give the Indians land west of the Mississippi
The Cherokee Cases
First cases tribes were actively involved in
pitted the court against the President and Georgia and questioned the role of states on tribal lands
Georgia showed its disregard for the federal court by not even showing up to the proceedings
Cherokee Nation v. Georgia
Georgia asserts jurisdiction over the Cherokee
The case leaned not on whether Georgia had the power to do this but whether the S. Ct. had power to hear the case
there was no federal question jurisdiction until 1875 so it had to lie in the courts original jurisdiction
the court had original jurisdiction over states and foreign nations but the question was did the tribes fall into these categories?
Hold:
Question 1: First Marshall says the tribes are nations
they have been treated like nations – they have exercised sovereignty
Question 2: Are they foreign...
Buy the full version of these notes or essay plans and more in our Federal Indian Law Outlines.
Federal Indian Law outline explains statutory, common, and treatise law that impacts the limits to tribal self governance. Outline topics include: Constitutional and Canonical limits of interpretation, determining tribal and individual status, jurisdictional issues, federal takings, inherent sovereignty, land claims, and ICWA. Outline includes charts on jurisdiction to make navigating through the many tricky issues of criminal and civil jurisdiction easy. Also includes an attack outline and case ...
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