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Indian Law Principles Indian Law Principles 2020 Edition LawPracticeCLE Unlimited All Courses. All Formats. All Year. ABOUT US LawPracticeCLE is a national continuing legal education company designed to provide education on current, trending issues in the legal world to judges, attorneys, paralegals, and other interested business professionals. New to the playing eld, LawPracticeCLE is a major contender with its oerings of Live Webinars, On-Demand Videos, and In-per- son Seminars. LawPracticeCLE believes in quality education, exceptional customer service, long-lasting relationships, and networking beyond the classroom. We cater to the needs of three divisions within the legal realm: pre-law and law students, paralegals and other support sta, and attorneys. WHY WORK WITH US? At LawPracticeCLE, we partner with experienced attorneys and legal professionals from all over the country to bring hot topics and current content that are relevant in legal practice. 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COURSE CATEGORIES A View From The Bench Estate Planning Paralegal Studies Animal Law Ethics, Bias, and Professionalism Personal Injury Law Bankruptcy Law Family Law Practice Management & Trial Prep Business Law Federal Law Real Estate Law Cannabis Law Food and Beverage Law Religious Law Construction Law Gun Law Social Security Law Criminal Law Health Law Specialized Topics Cybersecurity Law Immigration Law Tax Law Education Law Intellectual Property Law Technology Law Employment Law Insurance Law Transportation Law Entertainment Law Nonprot Law Tribal Law More Coming Soon ... ACCREDITATION LawPracticeCLE will seek approval of any CLE program where the registering attorney is primarily licensed and a single alternate state. The application is submitted at the time an attorney registers for a course, therefore approval may not be received at the time of broadcasting. In the event a course is denied credit, a full refund or credit for another Law- PracticeCLE course will be provided. LawPracticeCLE does not seek approval in Illinois or Virginia, however the necessary documentation to seek CLE credit in such states will be provided to the registrant upon request. ADVERTISING WITH LAWPRACTICECLE At LawPracticeCLE, we not only believe in quality education, but providing as many tools as possible to increase success. LawPracticeCLE has several advertising options to meet your needs. For advertising and co-sponsorship information, please contact the Director of Operations, Jennifer L. Hamm, [email protected]. CHECK US OUT ON SOCIAL MEDIA Facebook: www.facebook.com/LawPracticeCLE lnstagram: www.instagram.com/lawpracticecle Linkedln: www.linkedin.com/company/lawpracticecle Twitter: www.twitter.com/LawPracticeCLE INDIAN LAW PRINCIPLES Prepared by Kennis M. Bellmard [email protected] 405-365-8900 1 1. Pre-European Invasion (to 1492) 2. Colonial Period 3. Treaty Period (1789-1871) 4. Post Treaty Period after 1871 5. Indian Reorganization (1880s-1930s) 6. Termination Period (1953-1968) 7. Indian Self-Governance (from 1968) 8. Indian Gaming Regulatory Act (IGRA) (from 1988) 9. Tribal Nation Development (from 1989 to present) 2 3 NORTHWEST ORDINANCE 1787 An ordinance of the Congress of the Confederation, or the Confederation Congress, formally referred to as the United States in Congress Assembled, outlined areas which Indian tribes had lost or relinquished. It also mentioned how the law of the government was to be used in such areas, and that the general behavior of the Americans towards the tribes was to be friendly in nature and of good faith. However, many Native Indians rejected this ordinance, which led to warfare between the Tribes and American military forces. On the 7th of August 1789, The U.S. Congress reconfirmed the ordinance, with a few amendments under the provisions of the newly effective Constitution of the United States. 4 Article 1, Section 8, Clause 3 of the U.S. Constitution (Indian Commerce Clause) The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States; (sentence 2)To regulate commerce with foreign nations, and among the several states, and with the Indian tribes; 5 MARSHALL TRILOGY Three Supreme Court cases, collectively known as the “Marshall Trilogy” in reference to their author, Chief Justice John Marshall, relying in part on international law concepts, established the legal foundation for the relationship that exists between the US federal government and Indian tribes. 6 Johnson v. M'Intosh 21 U.S. 543 (1823). Johnson v. M'Intosh 21 U.S. 543 (1823). In a land dispute Marshall found, based on the Doctrine of Discovery first established by the Spanish to justify taking of Aboriginal lands, that the title to Indian lands belonged to the US Government and that Indians enjoyed only a right of occupancy. Indians were held to only have a claim to “aboriginal title.” Aboriginal title gives Indian tribes the right to occupy their lands but gives the Indians no ownership of that land. Thus, aboriginal title is similar to a lease: the lessee does not own the property but has the right to occupy and use the property. Aboriginal title is also subject to the U.S. government’s ability to “extinguish” that title. This means that Indians have a right to live on and use their homelands until the federal government removes, or extinguishes, that right. Cherokee Nation v. Georgia 30 U.S. 1 (1831). Cherokee Nation v. Georgia 30 U.S. 1 (1831). Based on the Commerce Clause, the Supreme Court determined that Indian nations were not quite states but not foreign nations either. The Supreme Court found that the Cherokee Nation is not a foreign nation, because of the U.S. Constitution’s “Indian Commerce Clause.” The Indian Commerce Clause gives Congress the power to manage the United States’ affairs with the Indian tribes. Marshall made a textual argument in support of this finding under the Indian Commerce Clause: “foreign nations” and “Indian tribes” appear separately in the Indian Commerce Clause. Because the Founding Fathers wrote “Indian tribes” and “foreign nations” separately, Marshall reasoned that the Founding Fathers did not intend Indian tribes to be foreign nations. Marshall explained that, if Indians are not foreign nations, they are more properly referred to as “domestic dependant nations.” Furthermore, Marshall considered the Indians to be “savage,” and in need of receiving the gift of civilization from the white man. Thus, the Indians are in a “state of pupilage” and the U.S. acts as a guardian to a ward. This means that the U.S. government is in a position of authority similar to a parent managing the affairs of a child. The Indians are “pupils,” or students, of the European way of life and civilization. Worcester v. Georgia 31 U.S. 515 (1832). Worcester v. Georgia 31 U.S. 515 (1832). The Court found that state law was inoperative within reservation boundaries. The issue in Worcester v. Georgia, was whether Georgia could rightfully incarcerate a non-Indian residing on Cherokee land for violating Georgia laws. The Court held that the Indian Commerce Clause reserved management of all Indian affairs exclusively for Congress. Justice Marshall interpreted this to mean that the states had no right to impose their laws on the Indians. Furthermore, because the U.S. government owed a duty of protection to the Indians, and the States had no such duty, federal Indian law “pre-empted” state laws. The result is that state law generally does not apply within Indian Country. Bureau of Indian Affairs (BIA) was established in 1824 as the agency within the War Department for dealing with Native Americans until 1849, when Congress transferred it to the newly founded Department of the Interior. On May 28, 1830, the Indian Removal Act was passed. 10 The Cherokee Tobacco, 78 U.S. 616 (1870) This case involved ,1) the question of the intent of Congress, and 2) the question of assuming the intention to exist, the question of its power, to tax certain tobacco in the Territory of the Cherokee nation in the face of a prior treaty between that nation and the United States that such tobacco should be exempt from taxation.
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