- Felix Cohen, Handbook of Federal Indian Law (1941)
1775-1819
1820-1864
1865-1894
TODAY
* “[The Congress shall have Power] To regulate Commerce
with foreign Nations, and among the several States, and
with the Indian Tribes.” – Article I, Section 8
* “Representatives shall be apportioned among the several
States according to their respective numbers, counting
the whole number of persons in each State, excluding
Indians not taxed.” – 14th Amendment
* “This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” – Article VI, Section 2
“And it is further agreed on between the
contracting parties should it for the future be
found conducive for the mutual interest of both
parties to invite any other tribes who have been
friends to the interest of the United States, to
join the present confederation, and to form a
state whereof the Delaware nation shall be the
head, and have a representation in Congress:
Provided, nothing contained in this article to be
considered as conclusive until it meets with the
approbation of Congress.”
“From this day forward all war between the
parties to this agreement shall forever cease.
The Government of the United States desires
peace, and its honor is hereby pledged to keep
it. The Indians desire peace, and they now
pledge their honor to maintain it.”
“The said tribes or bands hereby jointly and
severally relinquish, cede, and forever quit
claim to the United States, all their rights, title,
claim, or interest of any kind which they or
either of them have to lands or soil in
California.”
“"No purchase, grant, lease, or other
conveyance of lands, or of any title or claim
thereto, from any Indian nation or tribe of
Indians, shall be of any validity in law or equity,
unless the same be made by treaty or
convention entered into pursuant to the
Constitution."
*
* Johnson v. McIntosh (1823): Property rights
* Cherokee Nation v. Georgia (1831): Domestic
dependent nations
* Worcester v. Georgia (1832): No state control
* War and Treaty-Making (1776-1888)
* Allotment (1888)
* Reorganization (1934)
* Termination (1950’s)
* Self-Determination (1974)
* Today?
* Judicial Termination vs. Restoration
“They may, more correctly, perhaps, be
denominated domestic dependent nations. They
occupy a territory to which we assert a title
independent of their will, which must take
effect in point of possession when their right of
possession ceases. Meanwhile they are in a state
of pupilage. Their relation to the United
States resembles that of a ward to his
guardian.”
- Cherokee v. Marshall
* Anishnaabek – Self-Identity
* Ojibwe (Chippewa)
* Odawa (Ottawa)
* Bood’awadomii (Potawatomi)
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Bay Mills Indian Community
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Gun Lake Tribe of Pottawatomi Indians
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Keweenaw Bay Indian Community
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Little River Band of Ottawa Indians
Grand Traverse Band of Ottawa and Chippewa
Indians
Hannahville Indian Community
Nottawaseppi Huron Band of Potawatomi
Indians
Lac Vieux Desert Band of Lake Superior
Chippewa Indians
Little Traverse Bay Bands of Odawa Indians
Pokagon Band of Potawatomi Indians
Saginaw Chippewa Indian Tribe
Sault Ste. Marie Tribe of Chippewa Indians
* 1795 Treaty of Greenville (Southeast Michigan)
* 1821 Treaty of Chicago
* 1836 Treaty of Washington
* 1842 Treaty of LaPointe
“Article thirteenth. The
Indians stipulate for the
right of hunting on the
lands ceded, with the other
usual privileges of
occupancy, until the land is
required for settlement.”
- 1836 Treaty of Washington
* United States v. Winans (1905)
* “In other words, the treaty was not a grant of
rights to the Indians, but a grant of right from
them -- a reservation of those not granted.”
* Indian Canons of Construction
* Interpret the treaties as the Indians would have
understood them at the time
* Resolve ambiguities in favor of Indians
* Liberal construction of treaties in favor of
Indians
* People v. LeBlanc (1976) Michigan Supreme
Court recognized tribal treaty rights in criminal
case against Albert “Big Abe” LeBlanc
* United States v. Michigan
* Gaming must be conducted on “Indian lands”
* What are Indian lands?
* Trust lands
* Lands within Reservation
* Not allowed on Indian lands acquired after
1988, BUT…there are exceptions
* Must have tribal-state gaming compacts
LUNCHTIME!
* Remember the Winans case – treaties are a
grant of rights FROM tribes
* In the beginning, Indian tribes had full and
complete sovereignty over themselves
* Power has been whittled away from tribes, but
not vanquished completely
* Tribes retain what hasn’t been given or taken –
their powers are not delegated by the federal
government
* Congress has passed laws allowing tribes to
operate federal programs on their lands
* “Self-Determination” Contracts
* Take the power (and the funding) from the Feds
* NOTE!! This isn’t a true “delegation” > These
powers of self-government are inherent, but the
scope of tribal control over federal programs is
limited by the trust relationship
* Urban Cooperation Act
* Law Enforcement Agreements
* Road Maintenance Agreements
* Other agreements to share power and resources
“These Indian tribes are the wards of the nation.
They are communities dependent on the United
States -- dependent largely for their daily food;
dependent for their political rights. They owe no
allegiance to the States, and receive from them
no protection. Because of the local ill feeling,
the people of the States where they are found
are often their deadliest enemies.”
- United States v. Kagama (1886)
* It’s the land, stupid!
* Fee-to-Trust Process
* Control over tribal lands (development and
zoning)
* Taxes
* Regulations
* Criminal Law