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CLASS 1 SEPT 5 American Indian Law Fall 2013. American Indian Law Three levels Tribal law Tribal constitutions, case, statutes, regs & customary law Federal.

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Presentation on theme: "CLASS 1 SEPT 5 American Indian Law Fall 2013. American Indian Law Three levels Tribal law Tribal constitutions, case, statutes, regs & customary law Federal."— Presentation transcript:

1 CLASS 1 SEPT 5 American Indian Law Fall 2013

2 American Indian Law Three levels Tribal law Tribal constitutions, case, statutes, regs & customary law Federal law Title 25 Treaties/caselaw International Law Relationships Domestic: Tribal-federal; state-tribal; state-federal as it relates to tribes International: recognition and interaction with other countries

3 Recognition of Tribes Annual federal register listing of federally recognized tribes But also: State recognition International recognition

4 Who is an Indian? Tribal citizenship determination for tribal and federal purposes Federal determination for federal purposes Ex. Tribal blood quantum debate v. Native Hawaiian Legally Indian is not necessarily racial Indian and vice versa Morton v. Mancari


6 US Indian Policy Eras Sovereign to Sovereign (1778-mid 1800s) Removal Era (1800s) Reservation Era (1800s) Allotment and Assimilation Era (late 1800s -1900s) Indian self-government (1930s-1940s) Termination Era (1940s to 1960s) Indian self-determination (late 1960s to present)

7 In the beginning.... BC Before Columbus What was the starting point for tribes? What was the starting point for Europeans?

8 Origins of FIL Early theories How to justify colonization What is the source of power? What is the source of any property rights? Secular (international law) v. papal (law of nature) Are they separate?

9 North America Early assumptions Do the Indians have any property rights? If so, to what? How do we know? How does one create a new or superior right in property? (Winthrop/Locke) Law on books v. practical realities

10 Articles of Confederation Consolidated federal power debate v. local control advocates Congress sole and exclusive right and power to regulate the trade and manage all affairs with Indian not members of any of the states; provided that the legislative right of any state within its own limits be not infringed or violated

11 Early Treaties with GB and others Property rights retained from tribes and individuals With revolution What property rights pass? What property rights do not pass?

12 New Constitution Purports to resolve Articles of Confederacy issue and consolidate power with feds But what about prior conveyances?

13 Johnson v. MIntosh Chains of Title Was there a cloud on the title the tribe purportedly passed to Murray/Illinois Co/Wabash Co? Tribe Johnson Successors (Plaintiffs) 1773 and 1775 How did these transactions occur? Tribe United States MIntosh(?) (Defendants) Later How did these transactions occur?

14 General Property Law Rules First in Time, First in Right Tempered by notice rules You can only convey what you have

15 Issue whether US Courts recognize the title conveyed to Johnson by the tribe? What general property law is applicable? What about competing claims? What about possessory interests? What about relativity of title issues?

16 Rule of European Nations What law governs acquisition? Who had to abide by it? What does it mean for ownership of land? Thus, all nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognised in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians.

17 Translating to Property Conveyance Language (from European Perspective) While the different nations of Europe respected the rights of natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy. Translate this into conveyance terms Ex. O A Ex. O A for life, remainder to B from Property class What is the conveyance and when?

18 Choice of Law Issues Whos law applies to make property law decisions? Is there a purely tribal law component to this case? Is there a purely federal law component to this case? Who defines relationship between European nation and the tribe or tribal individuals?

19 Tribal Rights Were the rights of the tribes completely disregarded? Were the rights of the tribes impaired? If so, how?

20 Marshalls Doctrine of Discovery Discovery gives rights against all other colonizing powers Right to acquire from Indians Does it grant exclusive title to the discoverer?

21 Query If US conveyed all its interest in land to A, what has the US conveyed, if anything? Is As new right subject to any limitations?

22 Indian Occupancy – How extinguished? Purchase or conquest Gets ownership over the land How does US sovereign right over a territory originate? Has this happened in the present cases? Has this happened with all tribes at this time?

23 What was conveyed in this treaty? Tribe United States Were there any reservations of tribal property rights? What about the general property law principle, one can only convey what they have? After the tribe conveyed to individuals, what did they have left to convey to US A new rule articulated? Why?

24 Meaning and Effect of J v. M As a case that says something about tribal sovereignty? As a case that says something about property rights? Individuals? Feds? Tribes?

25 What About Tribal Conveyances? What does the tribe have in its bundle of sticks Right to possess? Right to use/profit? Right to convey? What else? What does an individual or state/colony who acquires property from tribe have? What does US or successor in interest sovereign have?

26 So? What did the United States purchase in the Louisiana Purchase? What is the status of land in what would become Nevada after the purchase?

27 The New United States Confederation Congress shall have exclusive power to regulate trade and managing Indian affairs Provided no infringement on State w/in its own limits Constitution Art I, § 8 commerce clause Congress shall have power to regulate commerce with foreign Nations, among the States, and with the Indian tribes

28 US Constitution Indians mentioned 3 times: Commerce Treaty powers apportionment

29 Trade & Intercourse Act (Goals) Implement the policies embodied in Indian treaties Provide means to enforce those policies against non-Indians Silent as to what Indians can or cannot do Who is the audience? Who is bound by Constitution?

30 T & I Act (Subjects Covered) Trade with Indians (licensing Indian traders & penalties for violations Punishment of whites committing aggressions w/in Indian territories (now the General Crimes Act) Federal control of acquisition of Indian lands (25 USC §177)

31 T & I Today Indian lands cannot be alienated or sold except to the fed govt or with federal permission No adverse possession No state eminent domain No inherent state taxing authority to lands Modern Land Claims

32 Consequences of Treaty Making Recognizes tribes as sovereign (or at least as possessing sufficient sovereignty to enter treaties) Recognizes tribes as holders of property rights with authority to convey or cede And reserved rights as the grantor Established federal power to the exclusion of states from process Treaties carry the force of law (supremacy clause)

33 Federal Court Jurisdiction Article III, § 2, cl. 1, limited to controversies between: 2 or more states A state and a citizen of another state A state and a foreign state

34 Is Cherokee Nation a state in the sovereign sense? Marshall and McLean? Yes, but a domestic dependent one Thompson and Story? Yes, since they think CN is aforeign state Johnson? No, they are just wandering hordes with no law or government Baldwin? Agrees with Johnson, no sovereignty whatsoever

35 Guardian/Ward Analogy The Indian Commerce Clause Treaty Status

36 What powers do Indians lose? Feds wont recognize a tribes rights to freely alienate lands to whomever they please (Johnson v McIntosh) Feds wont recognize a tribes right to form political connections with another nation -- enter into foreign relations (CN) Only if they treat that right away or across the boards? And, as domestic dependent nations, they have no right to sue in federal court

37 Worcester Foreshadowed in CN v. GA if courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined… before we can look into the merits of the case, a preliminary inquiry presents itself Cherokee nation was an improper plaintiff in CN v. GA

38 Worcester Interrelated Issues Whether Cherokee Nation retains any right to self- government (within Cherokee territory) or can some other govt take jurisdiction over the internal workings? Inside tribal territory? Outside tribal territory? To the extent that any American government may govern the Cherokee Nation, which one: federal or state?

39 The Treaty Provisions (Worcester Interpretation) Art.III - Cherokees under protection of US Marshall says no interference with self-government, only relates to tribes ability to enter into foreign relations

40 The Treaty Provisions (Worcester Interpretations) Art. IX - US has sole/exclusive right to regulate trade and managing their affairs Is not read to cede internal government to US Means trade is federal matter inconceivable that the Cherokees thought they were ceded their internal control general treaty purposes was to protect Cherokees, not annihilate existence

41 What Worcester Establishes as to Federal Power Over Indians federal law (treaties/statutes) takes states out of equation Cherokee Nation retains self-govt powers inside its territory no federal law (text) says otherwise right to self-govern recognized and reaffirmed in federal law

42 Worcester Establishes Basic Principles of Indian Law Tribes retain inherent (and treaty protected) right to self-government (ie control own territory) All dealings between US Citizens and Indian tribe are vested in the federal government to the exclusions of states

43 Why? Is it because state laws interfere with Cherokee right to self-govern, or Is it because the state law interferes with federal law (constitution, statute, treaties) Is it both?

44 When Can State Law Apply If the tribe and the federal government have given that power to the states by treaty (in conformity with treaties) If the tribe itself consents to the assertion of state authority (with the assent of the Cherokees themselves) If the federal government gives that power to the states through acts of Congress On what authority?

45 Marshall states... (genesis of plenary power) Cherokee Nation has inherent power of self- government which it has never ceded The Constitution, laws, treaties of the US do not divest, but recognize and affirm it Assertion of state authority in Indian country would violate both tribal self-government and federal law Nonetheless, the states might assert jurisdiction in tribal territories pursuant to acts of congress

46 Marshall Trilogy: Foundations of Federal Indian Law tribes are not foreign nations; but domestic dependent sovereigns. Cherokee Nation Tribes have lost certain powers: the power of entering into foreign relations or freely alienating their lands. Cherokee Nation; McIntosh Tribes retain all rights which are not inconsistent with their dependent status, particularly, inherent self-governance. Worcester Exclusive power of dealing with Indians is vested in the federal government. Worcester The federal government serves as a trustee/fiduciary to tribe, the responsibility of the guardian to the ward as a protectorate. Cherokee Nation States have no independent power to act in Indian Country. Worcester

47 Hypothetical Tribe was relocated from their homelands in the Arkansas pursuant to treaty and now live in Oklahoma within the boundaries set forth in the treaty Tribe re-established their govt and starting issuing tribal license plates for boats/vehicles in 1980 The state of OK arrests a tribal citizen for driving with improper tags You are Assistant AG for the state of Oklahoma. Discuss enforcement and potential defenses.

48 Hypothetical Individual in Hot Springs seeks to convey interest, by Warranty Deed to a new buyer You are hired to title update and prepare contract and deed In the course of research, you find that two conveyances prior to your client, the grantee purchased lands from John Berry, Chief of the Wyandotte Nation as grantor. Does this land have cloud on title? What do you do?

49 Hypothetical Today, Lower Brule Sioux tribe is the primary producer for Orville Redenbacher popcorn. You are the attorney for the tribal corporate entity that owns the farm, and with growing popcorn capacity, they are looking for international markets. Any issue with them signing a trade agreement with Brazil for sales directly to the state government? Any issues with a free trade agreement with sales directed only at private entities Any issues with just marketing directly to the private entity within the other country with no tax breaks?

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