Foundations of Indian Law Policy A Federal Preservation Workshop

1. Foundations of Indian Law & PolicyA Federal Preservation Workshop Dr. Patricia Parker, Chief American Indian Liaison Office National Park Service February 14, 2006

2. Foundations of Indian Law & Policy ��.the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else." Chief Justice John Marshall, 1831

3. Workshop ObjectivesProvide an Overview of Early definitions in law of tribal sovereignty which articulate the foundations of the government-to-government relationship Expressions in law and policy of the United States� trust responsibility to Indian nations Overview of the Modern Indian Sovereignty Movement circa 1950-2006

4. Historical Context  Initial recognition of tribal sovereignty by European powers Intention to provide exclusive rights of an European sovereign to �treaty� with tribal governments thus assuring secure title to land

5. Historical Context To Settle the Country �This was the settled state of things when the war of our revolution commenced...Far from advancing a claim to their lands, or asserting any right of dominion over them, congress resolved "that the securing and preserving the friendship of the Indian nations appears to be a subject of the utmost moment to these colonies.� John Marshall, Worcester v. Georgia 1832

6. Historical Context Articles of Confederation and U.S. Constitution New Supreme Court--Relations between Federal, State, and Tribal jurisdictions being worked out Lewis and Clark Expedition

7. �The Marshall Trilogy� Johnson v. M'Intosh 1823 Cherokee Nation v. Georgia 1831 Worcester v. Georgia 1832

8. Johnson v. M�Intosh 1823 Defines aboriginal title Concludes that only the U.S. can extinguish "aboriginal" or "Indian" title Articulates "Doctrine of Discovery"

9. Doctrine of Discovery "In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion�

10. Doctrine of Discovery �but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it."

11. Law of the Land "However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterward sustained....it becomes the law of the land.....�

12. Law of the Land �However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled.....it may, perhaps, be supported by reason, and certainly cannot be rejected by the Courts of justice.� John Marshall 1823

13. Cherokee Nation v. Georgia 1831What are Indian Nations? �A question of more difficulty remains. Do the Cherokees constitute a foreign state in the sense of the constitution?�

14. Cherokee Nation v. Georgia 1831 �The peculiar relations between the United States and the Indians occupying our territory are such, that we should feel much difficulty in considering them as designated by the term foreign state....But we think that in construing them, considerable aid is furnished by that clause in the eighth section of the third article; which empowers congress to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.�

15. Cherokee Nation v. Georgia 1831 �They may, more correctly, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will.... Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.�

16. Worcester v. Georgia 1832 "The issue raised was whether, under the United States Constitution, the state of Georgia has the authority to impose its laws "within the limits of the Cherokee nation.� Legislature of Georgia attempts to abolish all Cherokee political institutions (legislature, courts, newspaper, etc.)

17. Worcester v. Georgia The Cherokee nation is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties and with the acts of Congress.

18. Worcester v. Georgia �The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the union.�

19. Trail of Tears

20. 5 Key Principles 1. The Trust Relationship Articulated in Cherokee v. Georgia Recognized Indian nations as distinct political entities, but not foreign nations Described foundations of trust relationships Defended by Department of Justice �Canons of Construction� Obligations articulated in treaties, executive orders, statutes Special programs �for Indians because of their status as Indians� (or �primary beneficiaries�) Indian preference�hiring (BIA and HIS) also by statute Fiduciary responsibilities for trust resources by Federal Government

21. 5 Key Principles 2. Tribal sovereignty � restrictions against non-tribal jurisdiction 3. Doctrine of Reserved Rights

22. 5 Key Principles 4. Congressional plenary powers Lone Wolf v. Hitchcock 1903 5. Off-reservation treaty rights United States v. Winans 1905

23. Modern Indian Sovereignty Movement 1950-2006