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History Outline

Law Outlines > Federal Indian Law Outlines

This is an extract of our History document, which we sell as part of our Federal Indian Law Outlines collection written by the top tier of U.C. Berkeley School Of Law (Boalt Hall) students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Federal Indian Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

History I. Timeline of Eras of Indian Law a. Trade and Intercourse period 1790s to 1820s or 1830s b. Removal Period 1820s to 1840s i. Tribes were removed from heavily populated areas in the east and the vast majority is moved west of the Mississippi c. Reservation Period 1840s- 1880s i. tribes were concentrated on reservations ii. under control of Federal Indian agents who would if necessary force the Indians toward civilization iii. Westward expansion ended the idea that there might be a large and permanent geographically distinct Indian Territory d. Allotment and Assimilation Period 1880s - 1920s i. Introduced forcible assimilation measures, including boarding schools for Indian children ii. Allotment reduced Indian land from 138 million acres to 48 million acres e. Indian New Deal Period 1920s-1940s i. Tried to end bureaucratic domination and abuse by strengthening tribal governments and economies f. Termination Period 1940s - 1960s i. ended special treatment of tribes ii. allowed state jurisdiction over Indians on reservations g. Self Determination Period 1960s - present?
i. encouraging tribal control of governmental services and tribal resources economies II. Origins of Federal Indian Law a. The US initially implemented Federal Indian policy in 2 ways:

i. treaties with Indian nations ii. trade and intercourse acts b. The federal government had a real interest in keeping its agreements with the tribes in good faith in order to keep the peace c. Many of the old cases establishing the beginning of Indian law are racist but continue to have relevance today d. Johnson v. M'intosh i. Part of the Marshall Trilogy

1. He seems uncomfortable with this decision but seems to think its necessary a. he uses language like savages to legitimize the decision i. also discusses the incorrect concept used over and over again that the Indians aren't using the land properly

2. But this case legitimizes the same history that he seems uncomfortable with ii. Marshall had interest in the outcome of this case, it was a test case brought without an actual controversy

1. the court goes through with this case because there was a need to establish the power of the court and the government

2. the issue of Indian lands was of grave national importance

3. also it needed to be established that British land passed to the US iii. Facts: Both parties had title to the land: One negotiated directly with the Native Americans, the other went through the US government iv. Issue: Which title is valid v. Reasoning

1. The Doctrine of Discovery (the one we focused on in class) a. A doctrine between the Europeans to keep the peace b. if you are the first European sovereign to come upon land you get to have it c. "Conquest gives title which the Courts of the conqueror cannot deny"

2 2. British proclamation that forbade British subjects from making any purchase or taking any land reserved to Indians

3. Acts of several colonial assemblies prohibiting such purchases vi. Holding: Only the United States government has the right to convey title of lands that the Indians occupy

1. the British got this right by conquest and it has passed to the US

2. Tribes do not have title to the land a. tribes have the right to occupy the land (unless the US purchases it or conquers it) i. it seems there is a preference for purchase but conquest is in the background b. tribes may have some other right to the land vii. Recognitions of tribal sovereignty?

1. Marshall seems to recognize this by saying if you negotiate with tribes you would be subject to tribal law

2. Some scholars say this decision was positive in a sense bc the doctrine was about allocating power among the Europeans a. but even if that is true the opinion was used as justification for seizing Indian lands III. Treaty of Hopewell a. 1785 treaty between US and Cherokee Indians b. Gives peace and protection to all Cherokees under certain conditions: i. see p. 47 IV. The Disappearing Indian a. 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) i. there was also talk that if they did not go on their own some would be fine with either "moralizing or exterminating" them V. The Removal Era: 1817-1848 a. White population begins exploding, creating pressure for Indian lands

3 b. Southern "Five Civilized Tribes" with western courts and established governments were seen as an affront to state sovereignty i. Georgia for example agreed with the US to have them removed as soon as peaceably possible ii. 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 iii. These tribes also created their own constitution which upset many c. By the end of the 19th century almost every eastern state had passed laws extending jurisdiction for themselves onto the Indian lands d. In 1830 then Jackson is elected President i. he is super pro state e. Congress passes Indian Removal Act i. did not allow for forcible removal but instead allowed the President to give the Indians land west of the Mississippi VI. The Cherokee Cases a. First cases tribes were actively involved in b. pitted the court against the President and Georgia and questioned the role of states on tribal lands i. Georgia showed its disregard for the federal court by not even showing up to the proceedings VII. Cherokee Nation v. Georgia a. Georgia asserts jurisdiction over the Cherokee b. The case leaned not on whether Georgia had the power to do this but whether the S. Ct. had power to hear the case i. there was no federal question jurisdiction until 1875 so it had to lie in the courts original jurisdiction ii. the court had original jurisdiction over states and foreign nations but the question was did the tribes fall into these categories?
c. Hold: i. Question 1: First Marshall says the tribes are nations

1. they have been treated like nations - they have exercised sovereignty

4 ii. Question 2: Are they foreign nations?

1. The court said no - this is where we get domestic dependent nations a. the tribes are something special but they are not states or foreign governments iii. May have come out as it did for S. Ct. power/legitimacy reasons - Georgia was not going to listen to ruling d. Reasoning: i. the US asserts title independent of their will ii. ward - guardian relationship iii. if another tried to invade the tribal land it would be considered an invasion of the US iv. the Indians have accepted protection of US in their treaties e. Notably: i. Court stops talking of conquest in discovery doctrine and only talks about voluntary secession f. Dependent Domestic Nations i. in some ways gives the tribes more autonomy than states (not subject to supremacy) ii. but they had no choice in the relationship with the US like the states did VIII. Worcester v. Georgia a. Georgia makes a law that you need a license from the state to go onto Cherokee land - some missionaries refuse and are criminally charged and appeal to the S. Ct b. Same underlying law as other 2 cases but its rewritten and made more beneficial to Indians i. The discovery doctrine becomes something that did not take any rights away from the Indians but was just an agreement between European nations c. Holding: Georgia law is unconstitutional d. Reasoning: i. that the tribes are dependent domestic nations

5 1. they have sovereignty

2. and in areas they do not have sovereignty the federal government is the only one with power - under treaties e. Treaty of Hopewell i. Marshall must respond to idea that Cherokee gave up sovereignty in the treaty

1. he says you have to understand the treaty in the context of the circumstances

2. the canons are rooted in this opinion IX. Reservation Period 1840s - 1880s a. The plenary power begins to emerge as federal officials see themselves as molding Indian lives rather than just administering the boundaries between tribal and non tribal land b. Tribes are concentrated on reservations with the eventual goal of getting rid of tribal character by "civilizing" them c. Why Reservations?
i. It soon became clear that the US as part of manifest destiny was moving westward and tribes could no longer be promised their own land west of the Mississippi ii. Civilizing Tribes

1. removal had failed

2. a federal agent was placed in charge of an individual reservation a. he would lead the NAs to become civilized (with force if necessary)

3. There was a desire to move Indians from hunters to agricultural laborers

4. woman should be moved out of the farms (for their protection they claimed) a. but in reality this disempowered Indian women

5. if tribes were placed on small tracts of land they would be more dependent on the government for food and the tribes could literally be starved out if they did not comply

6. The idea of individualized property was also a big issue: belief that common property and civilization could not coexist d. There was no longer any attempt to recognize/respect tribal boundaries by the government

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