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 nations?
The court said no – this is where we get domestic dependent nations
the tribes are something special but they are not states or foreign governments
May have come out as it did for S. Ct. power/legitimacy reasons – Georgia was not going to listen to ruling
Reasoning:
the US asserts title independent of their will
ward - guardian relationship
if another tried to invade the tribal land it would be considered an invasion of the US
the Indians have accepted protection of US in their treaties
Notably:
Court stops talking of conquest in discovery doctrine and only talks about voluntary secession
Dependent Domestic Nations
in some ways gives the tribes more autonomy than states (not subject to supremacy)
but they had no choice in the relationship with the US like the states did
Worcester v. Georgia
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
Same underlying law as other 2 cases but its rewritten and made more beneficial to Indians
The discovery doctrine becomes something that did not take any rights away from the Indians but was just an agreement between European nations
Holding: Georgia law is unconstitutional
Reasoning:
that the tribes are dependent domestic nations
they have sovereignty
and in areas they do not have sovereignty the federal government is the only one with power – under treaties
Treaty of Hopewell
Marshall must respond to idea that Cherokee gave up sovereignty in the treaty
he says you have to understand the treaty in the context of the circumstances
the canons are rooted in this opinion
Reservation Period 1840s – 1880s
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
Tribes are concentrated on reservations with the eventual goal of getting rid of tribal character by “civilizing” them
Why Reservations?
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
Civilizing Tribes
removal had failed
a federal agent was placed in charge of an individual reservation
he would lead the NAs to become civilized (with force if necessary)
There was a desire to move Indians from hunters to agricultural laborers
woman should be moved out of the farms (for their protection they claimed)
but in reality this disempowered Indian women
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
The idea of individualized property was also a big issue: belief that common property and civilization could not coexist
There was no longer any attempt to recognize/respect tribal boundaries by the government
Treaty with the Navajo
Much less like a government to government treaty than Hopewell
agent given huge amounts of power here, there was no agent in Hopewell
no longer dealing with Federal government but instead an individual agent – much lower on the totem pole
The End of Treaty Making
A law ending treaty making with the tribes passed in 1871
The House was annoyed with the use of treaties b/c the Senate would use it to appropriate spending etc
Its constitutionally suspect bc the const. gives the Senate this power
It may not have meant much
The US was still making agreements with tribes creating reservations and courts...