THE INDIAN NATIONS AND THE U'S' CONSTITUTION

1
THE INDIAN NATIONS AND THE U.S. CONSTITUTION

• Robert J. Miller
• Professor
• Lewis Clark Law School

2
TREATIES

• United States, England, France, Holland, Russia,
  Mexico, Texas, and Spain with Indian Nations
• 1608-1871

3
Royal Proclamation of 1763

• Defined Indian Country
• All lands west of the crest of the Appalachia
  Allegheny Mts
• British colonists could not enter or purchase
  lands without Royal permission

4
Colonial, State, and Federal Treaties with
Indian Nations 1620 - 1871

• 20 Colonial/Tribal treaties 1722-1779
• 53 State/Tribal treaties 1789-1862
• Continental Cong./Delaware Nation 1778
• Art. of Confederation Cong. 1784-1789 8
• 26 U.S./Tribal treaties by 6/1803

5
NW Ordinance of 1787

• The utmost good faith shall always be observed
  towards the Indians their lands property shall
  never be taken from them without their consent
  and in their property, rights liberty they
  never shall be invaded or disturbed, unless in
  just and lawful wars . . . .

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COMMERCE

• Art. I, Section 8
• The Congress shall have Power . . . to regulate
  Commerce with foreign Nations, and among the
  several States, and with the Indian tribes . . .
  .

7
Congressional Representation

• Article 1
• Representatives . . . shall be apportioned among
  the several States . . . according to their
  respective Numbers . . . excluding Indians not
  taxed, three fifths of all other Persons.
• (Changed by the 14th Amendment)

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14th AMENDMENT

• Representatives shall be apportioned among the
  several States according to their respective
  numbers, counting the whole number of persons in
  each State, excluding Indians not taxed.
  (1868)
• All Indians made U.S. citizens in 1924

9
Treaties

• Article VI
• This Constitution, and the Laws of the United
  States . . . and all Treaties made, or which
  shall be made . . . shall be the supreme Law of
  the Land and the Judges in every State shall be
  bound thereby, any Thing in the Constitution or
  Laws of any State to the Contrary
  notwithstanding.

10
Legislative Enforcement of the Treaty Promises

• The 1790 Act declared that no sale of lands made
  by any Indians, or any nation or tribe of Indians
  within the United States, shall be valid to any
  person or persons, or to any state . . . unless
  the same shall be made and duly executed at some
  public treaty, held under the authority of the
  United States.

11
Removal The Cherokee Cases

• - Georgia Compact 1802 Pres. Jefferson
• - Removal Act (1830) consent required
• - But Pres. Jackson Trail of Tears
• - Cherokee Nation v. Georgia (1831) tribes are
  states but domestic dependent nations tribes
  U.S. - guardian/ward relationship

12
Reservation Era 1850-1887

• Via new treaties treaty modifications, tribes
  are restricted to smaller smaller areas of
  land. Passports or federal agent permission to
  enter or leave reservation.
• Religious/cultural ceremonies and practices
  outlawed punished. BIA police courts
• Official tribal govts nearly nonexistent

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A CENTURY OF SHIFTING POLICY

• - Allotment and Assimilation Era 1887-1934
• The General (Dawes) Allotment Act - 1887
• - Indian Reorganization Act Era 1928-1945
• - The Termination Act Era 1945-1961
• - The Self-Determination Era 1961-present

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THEMES OF INDIAN LAW

• Congressional Plenary Power
• Diminished Tribal Sovereigns -Tribes retain all
  aspects of sovereignty not abrogated by a statute
  (Congress takes) or by a treaty (tribe
  voluntarily surrenders) or by implied
  divestiture (Oliphant (1978)
• Trust relationship fiduciary duty (U.S. Trustee
  and Guardian of Indian wards)