⚖️Native American Legal Studies Unit 6 – Native Land Rights & Resource Management

Historical Context

• Native American tribes have inhabited North America for thousands of years prior to European colonization
• European settlers claimed land under the Doctrine of Discovery, disregarding indigenous land rights
• Manifest Destiny ideology fueled westward expansion and displacement of Native American tribes in the 19th century
• Indian Removal Act of 1830 authorized the forced relocation of Native American tribes to designated Indian Territory (present-day Oklahoma)
  • Trail of Tears resulted in the deaths of thousands of Cherokee, Chickasaw, Choctaw, Muscogee Creek, and Seminole people during forced removal
• Reservation system established through treaties and executive orders, confining tribes to limited land areas
• Dawes Act of 1887 (General Allotment Act) aimed to break up tribal land holdings and assimilate Native Americans into mainstream society
  • Resulted in significant loss of tribal land and erosion of traditional cultural practices
• Indian Reorganization Act of 1934 aimed to restore tribal sovereignty and land rights, but with limited success

Key Legal Concepts

• Tribal sovereignty recognizes the inherent right of Native American tribes to self-govern and manage their internal affairs
• Trust responsibility obligates the federal government to protect tribal resources, lands, and interests
• Plenary power doctrine asserts that Congress has ultimate authority over Native American affairs
• Reserved rights doctrine holds that tribes retain all rights not explicitly ceded in treaties or taken away by Congress
  • Includes rights to hunt, fish, and gather on traditional lands, even if outside current reservation boundaries
• Aboriginal title acknowledges Native American tribes' original ownership and use of land prior to European colonization
• Winters doctrine (1908) established tribal water rights, granting tribes sufficient water to fulfill the purposes of their reservations
• Canons of construction require that ambiguities in treaties and agreements be interpreted in favor of Native American tribes

Major Land Rights Cases

• Johnson v. M'Intosh (1823) established the Doctrine of Discovery, recognizing European nations' claims to land discovered and limiting Native American land rights
• Cherokee Nation v. Georgia (1831) defined Native American tribes as "domestic dependent nations" under the protection of the federal government
• Worcester v. Georgia (1832) affirmed tribal sovereignty and the federal government's exclusive authority over Native American affairs
• United States v. Winans (1905) upheld tribal fishing rights on traditional lands, even if outside reservation boundaries
• Lone Wolf v. Hitchcock (1903) affirmed Congress's plenary power over Native American affairs, allowing for the abrogation of treaties
• Tee-Hit-Ton Indians v. United States (1955) denied compensation for the taking of aboriginal title lands without a recognized property right
• County of Oneida v. Oneida Indian Nation (1985) recognized tribes' right to sue for the return of illegally taken lands
• McGirt v. Oklahoma (2020) affirmed the continued existence of the Muscogee Creek Nation reservation, despite Oklahoma statehood

Treaties and Agreements

• Treaties are formal agreements between sovereign nations, recognizing tribal sovereignty and establishing rights and obligations
  • Over 500 treaties were signed between the U.S. government and Native American tribes between 1778 and 1871
• Treaty of Hopewell (1785) established peace and friendship between the U.S. and Cherokee Nation, recognizing tribal sovereignty
• Treaty of New Echota (1835) led to the forced removal of the Cherokee Nation along the Trail of Tears
• Treaty of Fort Laramie (1851) recognized tribal territories and promised federal protection for tribes of the Great Plains
• Treaty of Medicine Lodge (1867) established reservations for the Kiowa, Comanche, and Apache tribes in present-day Oklahoma
• Indian Appropriations Act of 1871 ended the practice of treaty-making with Native American tribes, but existing treaties remained in force
• Executive orders and congressional acts continued to shape Native American land rights and policies after the end of treaty-making

Resource Management Policies

• Native American tribes have traditional ecological knowledge and practices for sustainable resource management
• General Mining Act of 1872 allowed for mining claims on public lands, often conflicting with tribal land rights and environmental concerns
• Indian Mineral Leasing Act of 1938 authorized tribes to lease their lands for mineral development, with federal approval
• Indian Self-Determination and Education Assistance Act of 1975 promoted tribal self-governance and control over federal programs and services
  • Allows tribes to enter into contracts and compacts with the federal government to manage their own resources and programs
• National Environmental Policy Act (NEPA) of 1969 requires federal agencies to assess the environmental impact of proposed actions, including those affecting tribal lands
• Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 requires the return of Native American cultural items and human remains to their respective tribes
• Tribal Energy Resource Agreements (TERAs) allow tribes to enter into energy development agreements without federal approval, promoting tribal self-determination

Contemporary Challenges

• Continued encroachment on tribal lands by non-Native interests, such as energy development and resource extraction
• Environmental degradation and climate change impacts on tribal lands and resources
  • Rising sea levels threaten coastal tribes, while drought and wildfires affect inland tribes
• Inadequate federal funding for tribal programs and services, despite trust responsibility obligations
• Jurisdictional conflicts between tribal, state, and federal authorities, particularly in criminal justice matters
• Ongoing efforts to protect sacred sites and cultural resources from development and desecration (Standing Rock Sioux Tribe opposition to Dakota Access Pipeline)
• Challenges in exercising off-reservation treaty rights, such as hunting and fishing, due to state regulations and land use changes
• Disproportionate impacts of COVID-19 pandemic on Native American communities, exacerbating existing health and economic disparities

Indigenous Sovereignty

• Inherent sovereignty of Native American tribes predates European colonization and the formation of the United States
• Tribal sovereignty is not granted by the federal government but is an inherent right of self-governance
• Tribes have the authority to establish their own governments, laws, and court systems
  • Tribal courts have jurisdiction over civil and criminal matters involving tribal members on reservation lands
• Tribes can enter into contracts, compacts, and agreements with federal, state, and local governments as sovereign entities
• Tribal sovereign immunity protects tribes from lawsuits in federal and state courts, unless waived by the tribe or abrogated by Congress
• United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) affirms the rights of indigenous peoples to self-determination, land, and resources
  • U.S. endorsed UNDRIP in 2010, but it is not legally binding
• Ongoing efforts to strengthen and assert tribal sovereignty in the face of federal and state encroachment

Future Directions

• Continued advocacy for the protection of tribal land rights, natural resources, and cultural heritage
• Expansion of tribal self-governance and economic development opportunities through partnerships and agreements
• Strengthening of tribal court systems and jurisdiction over criminal and civil matters on reservation lands
• Increased federal funding and support for tribal programs and services, in fulfillment of trust responsibility obligations
• Collaborative management of natural resources and public lands, incorporating traditional ecological knowledge
  • Co-management agreements between tribes and federal agencies for national parks and forests
• Ongoing efforts to address the crisis of missing and murdered Indigenous women and girls (MMIWG)
• Revitalization of Native American languages, cultures, and traditional practices through education and community-based initiatives
• Continued assertion of treaty rights and off-reservation land rights through legal challenges and negotiations
• Advocacy for the recognition of indigenous land rights and self-determination in international forums and agreements