1. Class 05 American Indian Law Today
Professor Sarah Krakoff

2. Experiments in Indian Policy
Treaty Making:
Trade, Intercourse, Treaty Making: ’s
Removal: 1820’s-1840’s
Marshall Trilogy (1823, 1831,1832)
Reservation Period: 1840’s-1880’s
Allotment and Assimilation-1880’s-1920’s
Indian New Deal: 1920’s-1940’s
Termination: 1940’s-1960’s
Self Determination: 1960’s-Present
Go over the periods.
Review the Trilogy and the principles distilled from the cases: Indian title is right of possession with power to use and exclude; only the federal government can purchase or extinguish Indian title; Tribes are domestic dependent nations lacking power of international relations, with a unique relationship to the federal government (guardian/ward, evolves into trust relationship,) that excludes state power; tribes retain inherent power to govern their members and their territory and state laws have no force and effect. Interpretive principles: Indian treaties (and legislation) are to be interpreted liberally and as the Indians would have understood them, with ambiguities construed in their favor; tribal property and rights are reserved unless Congress’s intent to the contrary is clear.
REVIEW: Crow Dog: Upshot is that the Court will not interpret laws as conferring jurisdiction in Indian Country when the legislation is not clear. Also, treaty w/ Sioux should not be read to have a single provision undermine the larger spirit– which is to allow for tribal autonomy and self-government.
Kagama: D’s are murder defendants from Klamath (Hoopa Valley) tribe; they challenge the Major Crimes Act, passed in 1885 in response to Crow Dog. SEE NOTES re: Kagama analysis. Start with the quesiton: What is the source of Congressional power to pass the MCA?? (Note that this is the same question in the Health Care legislation… what is the source of Congressional power?)

3. Indian New Deal: 1928-1947 Failures of allotment and assimilation
Extreme poverty on Indian reservations
Failure to convert Indians to Anglo-American farmers
Terrible conditions of Indian boarding schools
Indian New Deal Reforms (see pages )
Indian Reorganization Act
Felix S. Cohen’s Handbook of Federal Indian law

4. Cohen’s summary of Indian law principles as of 1941
(1) An Indian tribe possesses all the powers of any sovereign state
(2) ”Conquest” renders tribes subject to the legislated power of the United States and terminates the external sovereign powers of the tribe (for example the power to enter into treaties with foreign nations) but does not affect its internal sovereignty (powers of local self-government)
(3) Tribes’ powers are subject to qualification by treaties and express legislation by Congress

5. Termination (1947-1961) Motivations for Termination
Tribes terminated from federal relationship (Menominee, Klamath, and more: 109 tribes affected)
Adoption programs
Urban Relocation Program

6. Self-Determination: 1961-present
Nixon Special Message: Self determination without Termination
Congress passes many laws furthering tribal government control
Indian Self-Determination Act
Environmental Laws and Economic Development Laws
Indian Child Welfare Act

7. Tribal Sovereignty in the Era of Self-Determination
State laws do not apply in Indian Country
Williams v. Lee (1959): State courts cannot hear a case brought against tribal members for actions on tribal lands
McClanahan v. Arizona State Tax Commission (1973): States cannot tax tribal members working and living on tribal lands

8. Tribal Sovereignty in the Era of Self-Determination (cont.)
Tribes cannot impose their laws on non-Indians on non-Indian lands within the reservation
Montana v. United States (1981); BUT…
Tribes can impose their laws on non-Indians on Indian lands
Merrion v. Jicarilla Apache Tribe (1982)

9. Indian law principles today?
(1) An Indian tribe possesses all the powers of any sovereign state
(2) ”Conquest” renders tribes subject to the legislated power of the United States and terminates the external sovereign powers of the tribe (for example the power to enter into treaties with foreign nations) but does not affect its internal sovereignty (powers of local self-government) STILL TRUE???
Yes, but with some limitations
(3) Tribes’ powers are subject to qualification by treaties and express legislation by Congress
Did Congress ”qualify” (meaning diminish) tribes powers for all time with allotment?