Class 1

Sept 5

American Indian LawFall 2013

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

Recognition of Tribes

Annual federal register listing of federally recognized tribes

But also: State recognition International recognition

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

CDIB

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)

In the beginning . . . .

BC Before Columbus

What was the starting point for tribes?What was the starting point for Europeans?

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?

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

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”

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?

New Constitution

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

Johnson v. M’Intosh 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 M’Intosh(?) (Defendants) Later How did these transactions occur?

General Property Law Rules

First in Time, First in Right Tempered by notice rules

You can only convey what you have

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?

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.”

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?

Choice of Law Issues

Who’s 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?

Tribal Rights

Were the rights of the tribes completely disregarded?

Were the rights of the tribes impaired?If so, how?

Marshall’s Doctrine of Discovery

Discovery gives rights against all other colonizing powers Right to acquire from Indians

Does it grant “exclusive title” to the discoverer?

Query

If US conveyed “all its interest in land” to A, what has the US conveyed, if anything?

Is A’s new right subject to any limitations?

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?

What was conveyed in this treaty?

Tribe United StatesWere 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?

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?

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?

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”?

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

US Constitution

Indians mentioned 3 times: Commerce Treaty powers apportionment

Trade & Intercourse Act (Goals)

Implement the policies embodied in Indian treatiesProvide 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?

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)

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

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)

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

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 a “foreign” state

Johnson? No, they are just “wandering hordes” with no law or government

Baldwin? Agrees with Johnson, no sovereignty whatsoever

Guardian/Ward Analogy

The Indian Commerce ClauseTreaty Status

What powers do Indians lose?

Feds won’t recognize a tribe’s rights to freely alienate lands to whomever they please (Johnson v McIntosh)

Feds won’t recognize a tribe’s 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

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

Worcester Interrelated Issues

Whether Cherokee Nation retains any right to self-government (within Cherokee territory) or can some other gov’t 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?

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

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

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

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

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?

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?

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

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

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.

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?

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?