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1: Federal Indian Law Policy: Origins and Legal Development
- University Press of Colorado
- Chapter
- Additional Information
Federal Indian Law Policy: Origins and Legal Development Article I, section 8, clause 3 of the United States Constitution empowers Con‑ gress “[t]o regulate commerce . . . with the Indian tribes.” The Indian Com‑ merce Clause’s purpose was, and its effect has been, to make “Indian relations . . . the exclusive province of federal law.” For much of the first century of the nation’s history, this lawmaking power was augmented by exercise of presi‑ dential 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.” 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, 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 Constitu‑ tion, 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 na‑ tion which have been assured to them by the United States in solemn treaties repeatedly made and still in force.” Refusing to reach the merits of the tribe’s application, Justice Marshall held the Cherokee Nation was not a foreign state Oneida County v. Oneida Indian Nation, 470 U.S. 226, 234 (1985). Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206 (1978). 30 U.S. (5 Pet.) 1 (1831). Id. at 15. Chapter 1 Federal Indian Law Policy: Origins and Legal Development American Indian Law Deskbook, Fourth Edition for jurisdictional purposes. In reaching that 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.” Chief Justice Marshall then stated: Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the ac‑ knowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be de‑ nominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect at 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. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their great father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them, would be considered by all as an invasion of our territory, and an act of hostility. The “anomalous” position of tribes and their members within the federal‑state governmental structure established under the Constitution distinguished them from other racial groups and has led to markedly complex legal and policy questions. See art. III, § 2, cl. 1. Although the issue raised by the tribe—whether state law was preempted from application to its lands—presented a question of federal law, Congress did not extend the subject matter jurisdiction of federal courts to such questions until 1875. Act of Mar. 3, 1875, § 1, 18 Stat. 470. 30 U.S. (5 Pet.) at 16. Id. at 17–18. One commentator thus has attributed the source of the wardship status of Indians, and the attendant federal responsibility, to the bifurcated nature of the rights to aboriginal tribal lands. Derek C. Haskew, Federal Consultation with Indian Tribes: The Foundation of the Enlightened Policy Decisions, or Another Badge of Shame?, 24 Am...