⚖️Native American Legal Studies Unit 12 – Native American Law: Current Challenges

Historical Context

• Native American tribes were sovereign nations prior to European colonization, with their own systems of governance, laws, and customs
• European settlers and the U.S. government made treaties with Native American tribes, which were supposed to be binding agreements between sovereign nations
  • However, the U.S. government often violated or ignored these treaties when it was convenient or profitable to do so
• The Marshall Trilogy of Supreme Court cases in the early 19th century established the legal framework for Native American tribes as "domestic dependent nations" with limited sovereignty
• The Indian Removal Act of 1830 forced many Native American tribes to relocate from their ancestral lands to designated Indian Territory (present-day Oklahoma)
• The Dawes Act of 1887 broke up tribal lands into individual allotments, leading to significant loss of Native American land and erosion of tribal authority
• The Indian Reorganization Act of 1934 aimed to restore some tribal sovereignty and encourage self-governance, but its impact was limited

Key Legal Concepts

• Tribal sovereignty refers to the inherent right of Native American tribes to govern themselves and manage their internal affairs
  • This includes the power to make and enforce laws, establish courts, and regulate activities within tribal lands
• The trust responsibility is the legal obligation of the federal government to protect Native American tribes and their resources, based on treaties and the historical relationship between tribes and the U.S.
• Plenary power is the doctrine that gives Congress broad authority over Native American affairs, including the ability to modify or abrogate treaties
• The reserved rights doctrine holds that Native American tribes retain all rights not explicitly ceded in treaties or taken away by Congress
  • This includes rights to hunt, fish, and gather on traditional lands, even if those lands are no longer under tribal control
• The Indian canons of construction are a set of legal principles that require courts to interpret treaties and laws in favor of Native American tribes when there is ambiguity

Current Legal Framework

• The Indian Self-Determination and Education Assistance Act of 1975 allows tribes to contract with the federal government to administer their own programs and services
• The Indian Child Welfare Act of 1978 gives tribes jurisdiction over child custody cases involving Native American children and sets standards for placement of those children
• The Indian Gaming Regulatory Act of 1988 establishes the framework for tribal gaming operations and requires tribes to negotiate compacts with states
• The Native American Graves Protection and Repatriation Act of 1990 requires federal agencies and institutions that receive federal funding to return Native American cultural items and human remains to their respective tribes
• The Tribal Law and Order Act of 2010 aims to improve public safety on tribal lands by increasing tribal court authority and enhancing coordination between tribal, state, and federal law enforcement agencies
• Executive Order 13175, issued in 2000, requires federal agencies to consult with tribes on policies that have tribal implications and to respect tribal sovereignty

Major Court Cases

• Johnson v. M'Intosh (1823) established the doctrine of discovery, which held that European nations acquired title to lands they "discovered" and that Native American tribes had only a right of occupancy
• Cherokee Nation v. Georgia (1831) defined Native American tribes as "domestic dependent nations" with a relationship to the U.S. government resembling that of a ward to its guardian
• Worcester v. Georgia (1832) affirmed tribal sovereignty and held that states have no authority over tribal lands or affairs
  • However, this decision was not enforced by President Andrew Jackson, leading to the Trail of Tears
• Ex parte Crow Dog (1883) recognized tribal criminal jurisdiction over crimes committed by Native Americans on tribal lands
• Lone Wolf v. Hitchcock (1903) upheld Congress's plenary power over Native American affairs, including the ability to abrogate treaties
• Oliphant v. Suquamish Indian Tribe (1978) held that tribes do not have criminal jurisdiction over non-Native Americans who commit crimes on tribal lands

Tribal Sovereignty Issues

• Tribal sovereignty is often in tension with state and federal authority, leading to jurisdictional disputes and conflicts over issues such as taxation, regulation, and law enforcement
• The extent of tribal sovereignty varies depending on the specific tribe, treaty provisions, and congressional actions
  • Some tribes have more extensive powers of self-governance than others
• Tribes generally have the authority to make and enforce laws, establish courts, and regulate activities within their lands, but this authority is subject to limitations imposed by Congress
• Tribal sovereign immunity protects tribes from being sued in federal or state court without their consent or congressional abrogation
  • However, this immunity has been limited by the Supreme Court in recent years
• The recognition of Native American tribes by the federal government is a key aspect of tribal sovereignty, as it establishes the government-to-government relationship and triggers the trust responsibility
  • The federal recognition process has been criticized as slow, inconsistent, and politicized

Land and Resource Rights

• Native American tribes have long struggled to protect their land and natural resources from encroachment, exploitation, and environmental degradation
• Many treaties guaranteed tribes the right to hunt, fish, and gather on their traditional lands, but these rights have often been violated or limited by state and federal actions
  • For example, the construction of dams and other projects has disrupted tribal access to sacred sites and subsistence resources
• The allotment of tribal lands under the Dawes Act led to significant loss of Native American land, as much of it was sold to non-Native buyers or lost through tax foreclosures
• Tribes have used various legal strategies to assert their land and resource rights, such as filing land claims, challenging federal agency decisions, and negotiating settlements
  • For example, the Penobscot Nation and Passamaquoddy Tribe successfully sued the state of Maine in the 1970s to recover millions of acres of land that had been illegally taken
• The development of natural resources on tribal lands, such as oil, gas, and minerals, has been a source of both economic opportunity and environmental concern for tribes
  • Tribes have the right to lease their lands for resource development, but they also have the responsibility to ensure that such development is sustainable and consistent with tribal values

Contemporary Challenges

• Native American communities continue to face significant disparities in health, education, employment, and other socioeconomic indicators compared to the general U.S. population
  • These disparities are rooted in a long history of discrimination, marginalization, and underfunding of tribal programs and services
• The opioid epidemic has had a disproportionate impact on Native American communities, exacerbating existing public health challenges and straining tribal resources
• Climate change poses significant threats to Native American communities, particularly those that rely on traditional subsistence practices and natural resources
  • Rising sea levels, more frequent and intense wildfires, and changes in plant and animal species are among the impacts that tribes are grappling with
• The protection of sacred sites and cultural resources remains a major challenge for tribes, as these sites are often located on federal or private lands and subject to competing uses and interests
  • For example, the construction of the Dakota Access Pipeline near the Standing Rock Sioux Reservation sparked months of protests and legal battles over the potential impact on tribal water sources and sacred sites
• Ensuring adequate funding for tribal programs and services is an ongoing challenge, as tribes often rely on a combination of federal, state, and tribal funds to meet the needs of their communities
  • The chronic underfunding of the Indian Health Service, for example, has contributed to significant health disparities and limited access to care for many Native Americans

Future Outlook

• The future of Native American law and policy will depend on a variety of factors, including the priorities of Congress and the executive branch, the composition of the Supreme Court, and the activism and advocacy of Native American communities
• There is growing recognition of the need to address the legacy of historical trauma and injustice experienced by Native American communities, as well as the ongoing disparities and challenges they face
  • This has led to increased support for initiatives such as the Indian Child Welfare Act, the Violence Against Women Act, and the reauthorization of the Native American Housing Assistance and Self-Determination Act
• The development of renewable energy projects on tribal lands, such as solar and wind power, offers the potential for economic development and environmental sustainability
  • However, tribes will need to balance these opportunities with the protection of their cultural and natural resources
• The ongoing efforts to strengthen tribal self-governance and self-determination will be critical to the future of Native American communities
  • This includes initiatives to enhance tribal court systems, expand tribal control over education and social services, and build tribal capacity for economic development and natural resource management
• Collaborative partnerships between tribes, states, and the federal government will be essential to address complex challenges such as climate change, public health, and infrastructure needs
  • The COVID-19 pandemic has highlighted the importance of these partnerships, as well as the need for greater investment in tribal public health and emergency response capabilities
• Ultimately, the future of Native American law and policy will require a sustained commitment to upholding tribal sovereignty, honoring treaty obligations, and working towards a more just and equitable relationship between the United States and Native American nations