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OVERVIEW OF FEDERAL INDIAN LAW Georgeie Reynolds Senior Tribal Liaison March 2013 Portland Oregon Federal Indian Policy April 2013 1

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Page 1: OVERVIEW OF FEDERAL INDIAN LAWEarly U.S.-Indian Relations (1776 -1830) U.S. Constitution Commerce Clause, Art. I, Sec. 8 Treaty Clause, Art. II, Sec. 2 Supremacy Clause, Art. VI Trade

OVERVIEW OF FEDERAL INDIAN LAW

Georgeie Reynolds Senior Tribal Liaison

March 2013 Portland Oregon

Federal Indian Policy April 2013 1

Page 2: OVERVIEW OF FEDERAL INDIAN LAWEarly U.S.-Indian Relations (1776 -1830) U.S. Constitution Commerce Clause, Art. I, Sec. 8 Treaty Clause, Art. II, Sec. 2 Supremacy Clause, Art. VI Trade

Prior to European Contact

Indigenous peoples inhabited the Americas for thousands of years Population estimates vary – at least 12 million w/

> 500 different languages, many complex cultures Different concept of the land Spirituality intertwined with governance and

daily lives Spiritual beliefs varied but some common themes

were shared Earth, land, air, water sacred All things have spirits and are to be respected

Federal Indian Policy April 2013 2

Page 3: OVERVIEW OF FEDERAL INDIAN LAWEarly U.S.-Indian Relations (1776 -1830) U.S. Constitution Commerce Clause, Art. I, Sec. 8 Treaty Clause, Art. II, Sec. 2 Supremacy Clause, Art. VI Trade

1492-The Big Picture

Federal Indian Policy April 2013 3

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Major Themes of Federal Indian Law

Trust responsibility Sovereignty Self Determination Pre-decisional Consultation Government-to-Government Relationships Treaty Rights (on and off Tribal lands) Plenary power of Congress

Federal Indian Policy April 2013 4

Page 5: OVERVIEW OF FEDERAL INDIAN LAWEarly U.S.-Indian Relations (1776 -1830) U.S. Constitution Commerce Clause, Art. I, Sec. 8 Treaty Clause, Art. II, Sec. 2 Supremacy Clause, Art. VI Trade

Colonial Period (1492 – 1776)

Acquiring Indian Land Doctrine of Discovery

Indians possessed “aboriginal title” Right of occupancy only

“Discovering” nation obtained pre-emptive right to extinguish aboriginal title by treaty, purchase, or conquest

Settlers Exploitation of land and resources Make the Indians more like “us”

Federal Indian Policy April 2013 5

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Treaties

Both parties are sovereign powers Indian nation or Tribe has a transferable “title” Acquisition of Indian lands controlled by the

government, not the states Note: 390 treaties with tribes between 1778

and 1871 were made and broken or abrogated Treaties are still the supreme law of the land

Federal Indian Policy April 2013 6

Page 7: OVERVIEW OF FEDERAL INDIAN LAWEarly U.S.-Indian Relations (1776 -1830) U.S. Constitution Commerce Clause, Art. I, Sec. 8 Treaty Clause, Art. II, Sec. 2 Supremacy Clause, Art. VI Trade

Early U.S.-Indian Relations (1776 -1830)

U.S. Constitution Commerce Clause, Art. I, Sec. 8 Treaty Clause, Art. II, Sec. 2 Supremacy Clause, Art. VI

Trade and (non) Intercourse Acts Forbade purchase of land directly from Tribal Nations

by states Forbade non-Indians from settlement, hunting or

grazing on Indian lands Trade w/Indians subject to regulation & license Basically, Indians and non-Indians treated

differently.

Federal Indian Policy April 2013

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1492 1790

Page 9: OVERVIEW OF FEDERAL INDIAN LAWEarly U.S.-Indian Relations (1776 -1830) U.S. Constitution Commerce Clause, Art. I, Sec. 8 Treaty Clause, Art. II, Sec. 2 Supremacy Clause, Art. VI Trade

Removal Era (1820 -1850)

Cherokee Cases (Marshall Trilogy) *Chief Justice Marshall v President Jackson* Johnson v. McIntosh (1823)

Doctrine of discovery endorsed

Cherokee Nation v. Georgia (1831) Tribes “domestic dependent nations”

Worcester v. Georgia (1832) Tribal sovereignty recognized State jurisdiction denied Applied to all tribes-conquered, treaty dependent or not yet

encountered

Federal Indian Policy April 2013 9

Page 10: OVERVIEW OF FEDERAL INDIAN LAWEarly U.S.-Indian Relations (1776 -1830) U.S. Constitution Commerce Clause, Art. I, Sec. 8 Treaty Clause, Art. II, Sec. 2 Supremacy Clause, Art. VI Trade

Removal Era Indian Removal Act of 1830

Indians can move peacefully, or be forced out of eastern homelands

Massive disruption of territories, homelands Trail of tears-not just Cherokee

Seminole, Choctaw, Chickasaw, Creek, etc Delaware

Signed first Treaty in 1778 Moved from Delaware, to Ohio, Indiana, Missouri,

and, finally, Indian Territory (Oklahoma) Two bands fled into Canada during time of

greatest “persecution” Federal Indian Policy April 2013 10

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1492 1790 1830

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The Reservation Era (1850 -1887) Further removal became difficult

Solution: reservations Goal: acculturate, assimilate & Christianize Causing further erosion of Tribal sovereignty, identity

1871: Congress ended treaty-making with tribes Senate no longer ratified treaties Tribes no longer considered independent sovereign

nations Rights could be limited by simple act of Congress

The Major Crimes Act (1884)

Federal Indian Policy April 2013 12

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Federal Indian Policy December 2012 13

1492 1790 1830 1860

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Allotment and Assimilation (1887 – 1934)

Land greed and belief in benefits of assimilation combine in…

General Allotment Act of 1887 (Dawes Act) Mechanism to divide communally held lands Result:

90M acres of tribal lands lost Poverty, ill health, unemployment, illiteracy Disruption of family structures Boarding schools

Meriam Report (1928)

Federal Indian Policy April 2013 14

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Federal Indian Policy December 2012 15

1890

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Indian Reorganization (1934 – 1953)

Indian Reorganization Act (1934) Assumption: tribes not only would be in

existence indefinitely, but should be Ended practice of allotment (FDR) Recognized tribes inherent right to adopt

constitutions Subject to approval of the Secretary of Interior Model followed non-Indian pattern

Act provided framework for self-governance that set the stage for future legislation

Federal Indian Policy April 2013 16

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Indian Reorganization Period– Corps of Engineers Actions

Beginning of MO River Basin development 1945 Act - Condemned Osage rights for Hulah Dam

& Reservoir Project Pick-Sloan program – 6 dams; displaced many tribes

War Department Civil Appropriations Acts -- 1945 Thru 1952 Various authorizations for Secretary of War to

condemn Tribal lands for Corps of Engineers dam and reservoir projects

Federal Indian Policy April 2013 17

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Termination & Relocation (1953 – 1968)

House Concurrent Resolution 108 (1953) Adopted official policy of “termination” Tribal Nations subjected to state laws, lands sold Trust relationship with 109 Tribal Nations terminated

Pub. L. No. 280 extended state civil and criminal jurisdiction to Indian country in 6 states (1953)

BIA encouraged reservation Indians to relocate to metropolitan centers

Act of August 13, 1954—Western Oregon Indian Termination Terminated 67 tribes; more tribes than all other termination

Acts

Federal Indian Policy April 2013 18

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Termination Era: Corps Activities

Public Works Appropriations Acts – 1954 - 1962 1954 – Corps authorized to compensate Tribes from

having flooded the Columbia River; 1956 – relocated Indians living in The Dalles Dam Project Area; lost most important gathering place, Celilo, in the Pacific NW

1957 -- Seneca Nation hired engineers to prove to Corps that Kinzua Dam could be built more effectively 30 miles downstream, keeping them from losing 10,000 acres of land; Corps would not consider the alternative

1958 -- Miccosukee opposed the Everglades Project, citing negative impacts; Corps proceeded In 1994 the Everglades and Kissimmee River

Restoration Projects implemented to reverse the effects of 1958 project

Federal Indian Policy April 2013 19

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Self-Governance Where Tribes are Today

Self-Governance is fundamentally designed to provide Tribal governments with more control and decision-making authority over the Federal financial resources provided for the benefit of Indian people.

More importantly, it fosters the shaping of new partnerships between Indian Tribes and the U.S. in their government-to-government relationships.

Self-Governance provides the opportunity for Tribal governments to exercise their sovereignty with minimal Federal intrusion and involvement.

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Tribal Self-Determination (1968 to Present)

Indian Civil Rights Act of 1968 Amended Pub. L. No. 280 to require tribal consent Imposed Bill of Rights upon tribes Tribal court system

President Nixon declared termination a failure Stressed importance of trust responsibility Urged legislation to promote tribal self-determination

Indian Self-Determination and Education Assistance Act (Pub. L. No. 93-638) of 1975

Federal Indian Policy April 2013 21

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Tribal Self-Determination (cont.) **Recent Presidential documents**

President Clinton

E.O. 13007 (1996): Indian Sacred Sites E.O. 13175 (2000): Consultation with Tribal Gov’ts

President Obama Memorandum for the Heads of Executive

Departments and Agencies, Tribal Consultation, November 5, 2009

Federal Indian Policy April 2013

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Indian Country Today is about 55 million acres, or 2% of US land 23

1492 1790 1830 1860 1890 Present Day-Reservation Lands

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It’s Complicated Contact us: Georgeie Reynolds [email protected] 202 761-5855

Roberta Hayworth [email protected] 314 331-8833

Mark Gilfillan [email protected] 970 243-1199 x15

Jen Richman [email protected] 503 808-4538

Federal Indian Policy April 2013 24

mailto:[email protected]
mailto:[email protected]
mailto:[email protected]
mailto:[email protected]

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