[pp. 13-21]

The following is an annotated listing of the various statutes and cases that are key to understanding the federal-Indian relationship and that are therefore frequently referred to by the contributors to this book. The table is provided both to serve as a handy reference guide for readers and to prevent

cumbersome formal citations from cluttering up the main texts. These should be considered in the context of Article IX of the Articles of Confederation (1781), which vested the Continental Congress with "the sole and exclusive right and power"of regulating the trade and managing all affairs with "ndians not members of the states,"and of the so-called Commerce Clause of the Constitution, which stipulated that the federal government alone would be responsible for regulating trade with "ndian Tribes"in the same fashion it does so with foreign nations and between "the various states" of the union. Also at issue is Article I, Section 2 of the Constitution, which defines "Indians not taxed" as comprising a polity (or polities) separate from that of the United States, and Article I, Section 10, which precludes the federal government from entering into treaty agreements with any entity other than another fully sovereign national entity.

 

 

- The Northwest Ordinance (1789): The Ordinance (1 Stat.  50), promulgated in the context of the threat of Tecumseh's incipient confederation, essentially disavowed U.S. intent to exercise the doctrine of "Rights of Conquest" in its affairs with Indians, pledging the nation instead to conduct its Indian affairs on the basis "of utmost good faith." The U.S., of course, was comporting itself otherwise, even as the Ordinance went into effect.

 

- Trade and Intercourse Acts  (1790-1834): This series of statutes, beginning with ch. 33, 1 Stat.  137 (now codified at 25 U.S.C. 177), served to codify the constitutional Commerce Clause, providing the federal government with tools to enforce its regulatory authority over its citizens in their interactions with native peoples. The 1790 Act was succeeded by other statutes in 1793, 1796, 1799, 1802, and 1834. Supplemental legislation, elaborating federal authority to punish U.S. citizens guilty of non-commercial crimes "in Indian Country," was enacted in 1802 and 1834. Over time, interpretation of these laws by federal courts came to be seen as binding upon the conduct of Indians as well as U.S. nationals. No basis in juridical logic for this latter interpretation exists.

 

- The Indian Removal Act  (1830): This Act (ch. 148, 4 Stat.  411), passed on May 28, 1830, provided for "an exchange of lands with any of the Indians residing in any of the states and territories, and for their removal west of the river Mississippi." It was used as a basis by Andrew Jackson, in defiance of a

Supreme Court opinion that the U.S. had no legal basis to do so, to set in motion the mass forced relocations of the Creek, Cherokee, Choctaw, Chickasaw, Seminole and scores of other American Indian nations located east of the Mississippi during the 1830s. The idea was to ìclearî the native population from the entire region east of the Mississippi, opening it up for the exclusive use and occupancy of Euroamericans and their Black slaves. By and large, the survivors of these forced relocations were dumped in the "Permanent Indian Territory" of Oklahoma, an area belonging to other indigenous nations.

 

- Suspension of Treaty-Making  (1871): The suspension was a rider attached to the annual Indian Appropriations Act - by which Congress purported to meet its existing treaty obligations and other responsibilities to the indigenous nations whose land it was occupying - for 1871 (ch. 120, 16 Stat. 

544, 566 now codified at 25 U.S.C. 71): "[N]o Indian nation or tribe within the territory of the United States shall [henceforth] be recognized as an independent nation, tribe, or power with whom the United States may contract by treat: Provided further, That nothing herein contained shall be construed to

invalidate or impair the obligation of any treaty heretofore lawfully made with any such Indian nation or tribe." The recognition at issue, of course, had already occurred in at least 371 instances in which treaties had been ratified, and could thus not be invalidated or impaired by provision of the rider.

Further, the law notwithstanding, the United States continued to mount treaty commissions to negotiate with native nations until at least 1905.

 

-  The Major Crimes Act  (1885): Under this statute (ch. 341, 24 Stat.  362, 385 now codified at 18 U.S.C. 1153), enacted on March 3, 1885, the United States unilaterally extended its jurisdiction for "the first time over American Indian national territories falling within its own claimed boundaries. Prior to the Act, exercise of their own jurisdiction within their borders was an expression of the sovereignty of indigenous nations understood and accepted by both the United States and American Indian peoples.

 

- The General Allotment Act  (1887): By this measure (ch. 119, 24 Stat. 388, now codified as amended at 25 U.S.C. 331 et seq.; also known as the "Dawes Act" or "Dawes Severalty Act"), the U.S. intervened unilaterally in the internal affairs of native nations to break up their traditional systems of

collective land tenure. In order to retain any land at all, native people - legally defined for the first time on the basis of a racist "blood quantum" code employed for identification purposes by the federal government - were compelled to accept individually deeded land parcels. "Full Blood Indians"

were deeded with "trust patents," over which the government exercised complete control for a minimum of twenty-five years; "Mixed Blood Indians" were deeded with "patents in fee simple," over which they exercised rights, but were forced to accept U.S. citizenship in the process. Once each "federally

recognized Indian" had received his or her allotment of land, the balance of reserved Indian land was opened up to non-Indian homesteading, corporate utilization, or incorporation into national parks and forests. Between 1887 and 1934, approximately two-thirds (100 million acres) of all Indian-reserved land

was appropriated by the government through the mechanism.

 

- The Indian Citizenship Act  (1924): Passed as a "clean-up measure," picking up all those missed or excluded by the General Allotment Act, the law (ch. 233, 43 Stat.  25), unilaterally conferred U.S. citizenship on "all non-citizen Indians born within the territorial limits of the United States." A number of indigenous nations, notably the Hopi and Onondaga, have refused to acknowledge that the Citizenship Act is in any way binding upon them, and continue to engage in such expressions of sovereignty as issuing their own passports.

 

- The Indian Reorganization Act  (1934): The IRA (ch. 576, 48 Stat.  948, now codified at 25 U.S.C. 461-279; also known as the "Wheeler-Howard Act") was imposed by the United States to supplant traditional forms of indigenous governance in favor of a tribal council structure modeled after

corporate boards. In order to put a "democratic face" on the maneuver, it was stipulated that each native nation to be reorganized agree to the process by referendum. The referenda were then systematically rigged by Commissioner of Indian Affairs John Collier. One result has been a deep division between "traditionals" and "progressives" (who endorse the IRA form of government) on many reservations to this day.

 

-  The  Indian Claims Commission Act  (1946): The Claims Commission was established under the provision of a law (60 Stat.  1049) ostensibly designed to insure that indigenous nations which historically suffered illegal expropriation of their lands at the hands of the United States "receive justice." The gesture was probably provoked in large part by the fact that the U.S. was preparing to hang nazis at Nuremberg for having engaged, among other things, in "wars of aggression and conquest." In actuality, the Commission was not empowered to return land to any Indian nation, no matter how illegally it was

adjudged to have been taken. To the contrary, it was required to assign an award of monetary compensation to such Indians - whether or not the Indians wished to sell their homelands - in each instance where an illegal taking was determined to have occurred. Awards were usually established on the

basis of the estimated "price per acre" of the land at the time it was taken  (often a century or more earlier), a practice which minimized the amounts of awards paid. The whole exercise was said to "quiet title" to all illegally taken Indian lands in favor of the United States. In sum, the U.S. was busily

casting a veneer - but not the reality - of legitimacy over many of its land acquisitions in North America.

 

- The Termination Act  (1953): The "Act" is actually House Concurrent Resolution 108, pronounced on August 1, 1953, which articulated a federal policy of unilaterally dissolving specific native nations. What followed was the "termination" - suspension of federal services to and recognition of the existence of the Menominee on June 17, 1954 (ch. 303, 68 Stat.  250); the Klamath on August 13, 1954 (ch. 732, 68 Stat.  718, codified at 25 U.S.C. 564 et seq. ); the "Tribes of Western Oregon) on August 13, 1954 (ch.

733, 68 Stat.  724, codified at 25 U.S.C. 691 et seq.); and so on. In all, 109 native nations, or elements of native nations, were terminated by congressional action during the late 1950s. A handful were "restored" to federal recognition during the 1970s.

 

- Public Law 280  (1954): Enacted on August 14, 1954, P.L. 280 (ch. 505, 67 Stat.  588, codified in part at 18 U.S.C. 1162 and 28 U.S.C. 1360), reduced the number of unterminated indigenous nations in California, Minnesota, Nebraska, Oregon, Washington, and Alaska by placing them under varying degrees of state jurisdictional authority. Partial reductions, embedded in attendant legislation, also affected the sovereignty of all other native nations with the U.S. The law was amended in 1968, after it had seen

broad application, to require native consent prior to its being expanded further.

 

- The Relocation Act  (1956): P.L. 959 provided funding to establish "job training centers" for American Indians in various urban centers, and to finance the relocation of individual Indians and Indian families to these locales.  It was coupled to a denial of funds for similar programs and economic development on the reservations themselves. Those who availed themselves of the "opportunity" for jobs, etc., represented by the federal relocation programs were usually required to sign agreements that they would not return to their respective reservations to live. The result, by 1980, was a diaspora of Native

Americans, with more than half of the 1.6 million Indians in the U.S. having been scattered to cities across the country.

 

- The Indian Civil Rights Act  (1968): While it negated many of the worst potentialities of termination policy, the Indian Civil Rights Act (P.L. 90-284; 82 Stat.  77, codified in part at 25 U.S.C. 1301 et seq. ) served to bind the forms assumed by indigenous governments even more tightly to federal

preferences than had the IRA. In effect, it made native governments a functional part of the federal system itself. Such incorporation, however, afforded Indian people only constraints upon their sovereignty rather than any of the constitutional protections of basic rights and other benefits supposedly accruing to members of the U.S. polity. In 1978, in Santa Clara Pueblo v. Martinez  (436 U.S. 49), the Act was interpreted to provide relief in federal court against tribal government action in matters pertaining to habeas corpus. The Act was then amended in 1986, under provision of the federal Anti-Drug Abuse Act (P.L. 99-570, 100 Stat.  3207) to allow tribal courts greater powers of penalization - up to one year imprisonment and $5,000 fines - on certain types of criminal offenses.

 

- The Alaska Native Claims Settlement Act  (1971): ANSCA (P.L. 92-203; 85 Stat.  688, codified at 43 U.S.C. 1601 et seq.), as the Act is known, converted the native nations of Alaska into thirteen regional and an assortment of individuated village corporations, all accommodated under Alaskan rather than federal charters, "without establishing any racially defined institutions, rights, privileges, or obligations, without creating a reservation system or lengthy wardship or trusteeship, and without adding to the categories of property and institutions engaging in tax privileges." In other words, Alaska's native nations were dissolved by congressional fiat, incorporated into the U.S. polity, and their approximately 44 million acres of property (as well as the timber on it and massive amounts of oil beneath it) were turned into U.S. "domestic assets." This has remained the case despite partial amendment of ANSCA in the Alaska National Interest Conservation Act (16 U.S.C. 3102) and the ANSCA Amendments of 1987 (P.L. 100-241; 101 Stat.  1788, codified at 43 U.S.C. 1601)

 

- The Indian Self-Determination and Educational Assistance Act  (1975): This oddly titled statute (P.L. 93-638; 88 Stat.  2203, codified at 25 U.S.C. 450a and elsewhere in titles 25, 42 and 50, U.S.C.A.) does nothing at all to afford American Indians the internationally recognized right to determine for

themselves their social, political, and economic relationships to the U.S. and other foreign powers. Rather, it requires that they be included more fully in staffing the various programs aimed at them by federal policymakers, who - the Act makes clear -continue to hold preeminent authority over Indian affairs. The statute would thus have been more accurately titled the "Indian Self-Administration Act."  This is particularly true of "education," which the government has always viewed as the ideal vehicle by which to condition Native Americans to accept the values, and thus the domination, of Euroamerica.

 

- The Indian Child Welfare Act  (1978): Through this law (P.L. 95-608; 92 Stat. 3069, codified at 25 U.S.C. 1901 et seq.) the federal government finally renounced its century-old policy of forcibly and systematically transferring the care of native children to non-Indians through maintenance of a compulsory boarding school system and wholesale adoptions. The Act established for the first time specific procedures for the adoptive or foster-care placement of native children. In some part this was probably because there was increasing discussion of ratifying the 1948 Convention of Punishment and Prevention of the Crime of Genocide (such child transfer policies are a patent violation of Article IIe of the Convention). Also, it is probable that the government felt its child transfer policies had already accomplished their assimilative objectives and could thus be replaced by more sophisticated mechanisms such as the Indian Self-Determination and Educational Assistance Act. At present, application and interpretation of the Act remain unclear.

 

- The American Indian Religious Freedom Act  (1978): It may seem curious that American Indians, who had mandatorily become U.S. citizens by 1924, should "need" a special statute passed in the late 1970s (P.L. 95-341; 92 Stat.  469, codified at 42 U.S.C. 1996) to be able to utilize the Free Exercise Clause of the First Amendment to the Constitution. A number of statutes and regulations promulgated during the late 19th and early 20th centuries, however, effectively criminalized a range of indigenous spiritual practices extending from the Lakota Sun Dance to the Potlatch ceremonies of the nations of the Pacific Northwest. Further, given that many native traditions embody a concept of sacred geography, loss of lands had by the late 20th century seriously curtailed site-specific practices of Indian spirituality.

The 1978 Act pronounced that "it shall be the policy of the United States to protect and preserve [the] inherent right of the freedom to believe, express, and exercise the traditional religions" of American Indians, Alaskan Natives, and Native Hawaiians. It lacks any sort of enforcement provisions, however,

and should therefore be viewed as a gesture (or perhaps a "policy aspiration") rather than as a law, per se. In addition, the federal courts have ruled in ten consecutive cases during the 1980s and early '90s denying any practical content to indigenous spiritual rights.

 

- The Indian Mineral Development Act  (1982): At the outset of the Reagan administrationís concerted "cost cutting" with regard to meeting its obligations to Indians, the Congress passed this Act (P.L. 97-382; codified at 25 U.S.C. 2101-2108) to "encourage" native nations to engage in wholesale mining of

their residual land base - often with waivers of environmental protection safeguards and in arid or semi-arid locales that are not subject to reclamation once mined - in order to become "economically self-sufficient." The fact that such endeavors are both transient and capital intensive, thus requiring

"participation" by major non-Indian corporations, which carry away most of the profits while leaving the ecological consequences behind, seems to have been precisely the point. 
  
 

 

- Fletcher v. Peck  (1810): In Fletcher (1 U.S. 87), Chief Justice of the U.S. Supreme Court John Marshall held that states claiming lands west of a line of demarcation declared by King George III in 1763 along the Allegheny and Appalachian mountain chains "owned" these areas even though Indian consent

to cede them had never been obtained. Marshall for the first time referred to Indian lands as being "vacant."

 

- Johnson v . McIntosh (1823): In this case (21 U.S. 98 Wheat. 543), Chief Justice Marshall opined that the United States enjoyed preeminent sovereignty over its claimed territoriality by virtue of the "Doctrine of Discovery" and its subset, the "Rights of Conquest." In actuality, the Doctrine conveyed rights only to the various Crowns of Europe, not to outlaw republics that had violated the existing Laws of Nations by breaking away from their Crowns. Moreover, it acknowledged preeminent sovereignty as resting with indigenous nations rather than "discovering powers." What the latter legally obtained by

virtue of "discovery" was a monopolistic right vis-á-vis other European states - a "sphere of influence," as it were -to go about acquiring (through purchase or agreement) territory within the discovered area from its rightful native owners. Rights of Conquest applied only in instances when it was necessary to fight a "Just War." Circumstances for the latter existed only when a) the natives

engaged in unprovoked attacks upon discoverers, b) the natives refused to trade with the discoverers, or c) the natives refused to allow Christian missionaries to travel among them. None of these conditions were ever met within the context of U.S.-Indian relations.

 

- The Cherokee Cases  (1831-1832): In Cherokee Nation v. Georgia (30 U.S. (5 Pet.) 1 (1831)) and Worcester v. Georgia (31 U.S. (6 Pet.) 551 (1832)), Chief Justice Marshall proceeded on the basis of his unfounded conclusions in Fletcher  and McIntosh  to argue that American Indian peoples comprised nations domestic to and dependent upon the United States. They occupied a status of "quasi-sovereignty," he asserted, being sovereign enough to engage in treaty-making with the U.S. (for purposes of conveying

legal title to their lands), but not sovereign enough to manage their other affairs as fully independent political entities. The construction of this blatantly opportunistic monstrosity - which has been called "the equivalent of a woman's being part-pregnant" - laid the groundwork for the "Plenary Power Doctrine," holding that the federal government holds full and inherent power over Indian affairs and a concomitant "trust responsibility" over all Indian assets.
 

- Ex Parte Crow Dog  (1883): The decision rendered in this case (109 U.S. 556) was that the U.S. had no jurisdictional authority to prosecute one Indian for killing another on an Indian reservation. The court's (correct) determination in this instance led to the extension of federal jurisdiction over Indian Country via the 1885 Major Crimes Act.

 

- United States v. Kagama  (1886): Justice Samuel F. Miller rendered an opinion in this case (118 U.S. 375) which consolidated and extended Marshall's earlier assertion of federal plenary power over Indians.

The Congress, Miller stated, had an "incontrovertible right" to exercise its authority over Indians as it saw fit - for "their own well-being," of course- and Indians lacked any legal recourse in the matter. This cleared the way for Congress to pass some 5,000 laws pertaining to the regulation of American

Indians without the consent of, and often without so much as consulting with, the Indians themselves.

 

- Lonewolf v. Hitchcock  (1903): In this case (187 U.S. 553), Justice Edward D. White reached the novel conclusion that the United States, as part of its plenary power over Indian affairs, could abrogate inconvenient sections of treaties with Indians at any time it chose, with or without Indian consent, and without disturbing the force of the treaty itself. In other words, the aspects of the treaties that vested land title in the U.S. would remain inviolate, while inconvenient obligations to pay for the land ceded - or preserve reservation areas - could be dispensed with at will. As always, this was couched in

terms of its being "for the Indians' own good."

 

- The Reserved Rights Cases  (1905-1908): In United States v. Winans  (198 U.S. 371 (1905)) and Winters v. United States  (207 U.S. 564 (1908)), the Supreme Court ruled that indigenous nations continued to

enjoy the full range ìof sovereign rights and prerogatives characterizing any other nation, not expressly removed from them by Act of Congress.î Hence, the aboriginal and/or treaty rights of Indians outweighed the claims of the various states and individual citizens in such matters as off-reservation

fishing and water usage. In adopting this posture, the court provided Congress with a perfect tool for centralized developmental planning in the West: Indian rights could be used as a "higher principle" with which to fend off unwanted initiatives by states, and then simply canceled by Congress at any moment it

was deemed appropriate for federal purposes.

 

- Tee-Hit-Ton v. United States (1955): Extending the rationalizations offered in Johnson v. McIntosh, Justice Reed delivered the opinion in this case (348 U.S. 272) that the Tee-Hit-Ton band of the Tlingit Nation (in Alaska) could not establish aboriginal title to some 350,000 acres of territory the court

acknowledged they had used and occupied since "time immemorial," there being no treaty by which Congress recognized their title. Hence, in the court's view, the Tee-Hit-Tons were not entitled to the land nor the resources upon it. The decision neatly finished the U.S. reversal of the "Discovery Doctrine"

principle concerning who conveys title to whom in North America and effectively gutted whatever was left of aboriginal rights in U.S. jurisprudence.

 

- McClanahan v. Arizona Tax Commission  (1973): In McClanahan  (411 U.S. 164), the Supreme Court articulated for the first time the notion that Indian sovereignty was a mere "legal fiction" conveying no real legal entitlements, but which might serve instead as a convenient "backdrop" against which the meaning of treaties and other agreements might be read. This argument was used as a mainstay by attorney Allan van Gestel in his unsuccessful assertion of non-Indian interests in County of Oneida v. Oneida

Indian Nation  (470 U.S. 226 (1985)) and has subsequently attracted increasing interest on the part of anti-Indian litigators.

 

- Oliphant v. Suquamish Tribe (1978): In this case (435 U.S. 191), marked by wildly inaccurate revisions of the historical record, Justice William Rehnquist opined that indigenous nations held no jurisdictional prerogatives whatsoever - whether criminal or civil - over non-Indians living on their

reservations. Rehnquist's thinking should not be construed to mean that residual Indian jurisdiction is restricted on a nation-by-nation basis to cover only their respective members. In the original formulation, non-member Indians living on reservations (a Crow, say, living on the Northern Cheyenne

Reservation) were left subject to each nation's residual jurisdiction. The opinion was thus profoundly and objectively racist and drastically undercut what few jurisdiction prerogatives remained available to native nations. In the 1990 case Duro v. Reine  (110 S.Ct. 2053), however, it was ruled that tribal

jurisdiction pertained only to member Indians on each reservation. Hence, while certain of the most racist implications of the initial Oliphant  opinion were negated, native national sovereignty was even further eroded.

 

- Badoni v. Higginson  (1980): In what is usually known as the "Rainbow Bridge Case" (638 F.2d 172 (10th Cir. 1980), cert. denied , 452 U.S. 954 (1981)), the Supreme Court let stand a lower court decision that a joint Navajo-Hopi effort under the American Indian Religious Freedom Act to preserve a site of particular spiritual significance at the Rainbow Bridge geological formation was outweighed by the government's interest in flooding the area by building the Glen Canyon Dam. The high court's decision not to review the case effectively gutted whatever utility the 1978 congressional Indian religious freedom guidelines might have offered.

 

- Montana v. United States  (1981): In this case (450 U.S. 544), the Supreme Court held - despite a ratified 1868 treaty by which the Crow Nation permanently reserved a portion of its original territory for its own "absolute and undisturbed use and occupancy" - that non-Indians who subsequently purchased land on the Crow Reservation were not subject to Crow hunting and fishing regulations on or near the Big Horn River, which runs through the reserved area. The ability of native nations to control the behavior

of those residing within their boundaries was thus further diminished, even beyond the level imposed by Oliphant.

 

- Merrion v. Jicarilla Apache Tribe  (1982):  Heralded as a "major gain in the reassertion of tribal sovereignty" because it acknowledged native rights to levy severance taxes upon minerals extracted from their reserved lands, Merrion  (102 S.Ct. 894) actually fit within the Reagan administration's campaign to diminish federal funding to Indians, ìprivatizeî former areas of governmental operation, and "encourage economic development of federal trust lands." Key to understanding the meaning of the case is the court's language concerning the taxes at issue being used to defray the costs of "tribal

self-government... and other programs." In effect, the decision provided an incentive for Indians to "cooperate" with transient extractive industries doing (or wishing to do) business on their land.

 

- United States v. Dann  (1985): Justice William J. Brennan stated in this case (470 U.S. 39) that payment of federal monies into a U.S. Treasury account, over which Indians had no control, constituted "compensation" for "lost lands" even though the Indians - in this instance, two Western Shoshone sisters named Mary and Carrie Dann - were still living on it. The decision cleared the way for eviction of Indians from family plots even though they had never received a cent for their property.

 

- Lyng v. Northwest Indian Cemetery Protective Association (1988): Otherwise known as "The G-O Road Decision," this case (485 U.S. 439) resulted in an opinion, drafted by Justice Sandra Day OíConnor, that

Indian religious rights were outweighed by society's "broader interest" in destroying their sacred sites for economic reasons, even if such interests were merely speculative, and even if such "development" had the effect of destroying the native spiritual tradition(s) at issue altogether.

 

- Brendale v. Confederated Tribes and Bands of the Yakima Nation (1989): The Brendale  decision (109 S.Ct. 2994) limits the inherent sovereign ability of indigenous nations to control the use to which particular portions of their territory may be put. The question raised was whether the Yakima Tribal

Government possessed a right to create zoning ordinances that would restrict land use by non-Indians living within reservation boundaries. The high court opined that it did not. Such control is thus restricted to the activities of member Indians residing on each reservation.

 

- Employment Division, Department of Human Resources of Oregon v. Smith  (1990): In Smith  (110 S.Ct. 1595), usually referred to as "The Peyote Case," Justice Antonin Scalia argued for the Supreme Court that ingestion of the mild hallucinogenic substance, peyote, by members of the Native American Church is not an activity deserving of protection under the Free Exercise Clause of the First Amendment of the Constitution, thus upending earlier precedents established in People v. Woody (61 Cal. 2d 716, 394 P.2d

813, 40 Cal Rptr. 69 (1969)), Native American Church of New York v. United States  (468 F. Supp. 1247 (S.D.N.Y. 1979), and elsewhere. Rather than outlawing the practice, however, the high court simply passed the buck, opining that indigenous spiritual practices would henceforth be subject to supervision under the legal codes of individual states.