American Indian Law Deskbook, Third Edition

Chapter 1 - Federal Indian Law Policy: Origins and Legal Development

1 Federal Indian Law Policy: Origins and Legal Development Article I, section 8, clause 3 of the United States Constitution empowers Congress “[t]o regulate commerce . . . with the Indian tribes.” The effect of the Indian Commerce Clause is to make “Indian relations . . . the exclusive province of federal law.”1 For much of the first century of the nation’s history, this law-making power was augmented by exercise of presidential treaty-making authority under Article II, section 2. “Indian law” has thus been said to “draw[] principally upon the treaties drawn and executed by the Executive Branch and legislation passed by Congress.”2 Indian law analysis most appropriately begins with a discussion of the unique legal status of tribes and their members within the American constitutional framework and the evolving approaches used by the judiciary and federal government to recognize and accommodate that status. I. JUDICIAL FOUNDATIONS OF FEDERAL INDIAN POLICY A. The Marshall Trilogy In Cherokee Nation v. Georgia,3 Chief Justice John Marshall articulated a view of Indian tribes’ legal status that has largely governed the development of modern Indian law. The issue there was whether the Cherokee Nation was a “foreign state” within the meaning of Article III, section 2 of the Constitution so as to create diversity jurisdiction over a claim against the State of Georgia that certain of its laws served “directly to annihilate the Cherokees as a political society, and to seize, for the use of Georgia, the lands of the nation which have been assured to them by the United States in solemn treaties repeatedly made and still in force.”4 Refusing to reach the merits of the tribe’s application, Justice Marshall held the Cherokee Nation was not a Chapter 1 Federal Indian Law Policy: Origins and Legal Development 1 1 Oneida County v. Oneida Indian Nation, 470 U.S. 226, 234 (1985). 2 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206 (1978). 3 30 U.S. (5 Pet.) 1 (1831). 4 Id. at 15. 1 Federal Indian Law Policy: Origins and Legal Development Article I, section 8, clause 3 of the United States Constitution empowers Congress “[t]o regulate commerce . . . with the Indian tribes.” The effect of the Indian Commerce Clause is to make “Indian relations . . . the exclusive province of federal law.”1 For much of the first century of the nation’s history, this law-making power was augmented by exercise of presidential treaty-making authority under Article II, section 2. “Indian law” has thus been said to “draw[] principally upon the treaties drawn and executed by the Executive Branch and legislation passed by Congress.”2 Indian law analysis most appropriately begins with a discussion of the unique legal status of tribes and their members within the American constitutional framework and the evolving approaches used by the judiciary and federal government to recognize and accommodate that status. I. JUDICIAL FOUNDATIONS OF FEDERAL INDIAN POLICY A. The Marshall Trilogy In Cherokee Nation v. Georgia,3 Chief Justice John Marshall articulated a view of Indian tribes’ legal status that has largely governed the development of modern Indian law. The issue there was whether the Cherokee Nation was a “foreign state” within the meaning of Article III, section 2 of the Constitution so as to create diversity jurisdiction over a claim against the State of Georgia that certain of its laws served “directly to annihilate the Cherokees as a political society, and to seize, for the use of Georgia, the lands of the nation which have been assured to them by the United States in solemn treaties repeatedly made and still in force.”4 Refusing to reach the merits of the tribe’s application, Justice Marshall held the Cherokee Nation was not a Chapter 1 Federal Indian Law Policy: Origins and Legal Development 1 1 Oneida County v. Oneida Indian Nation, 470 U.S. 226, 234 (1985). 2 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206 (1978). 3 30 U.S. (5 Pet.) 1 (1831). 4 Id. at 15. 2 American Indian Law Deskbook, Third Edition foreign state for jurisdictional purposes.5 In reaching this conclusion, he first observed that “[t]he condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence”—a “relation . . . marked by peculiar and cardinal distinctions which exist nowhere else.”6 Chief Justice Marshall then stated: Though the Indians are acknowledged to...