Basic Indian Law principles

Indian law is a complicated body of federal and tribal laws.  It impacts life and the activities of Indians and non-Indians on the millions of acres of land within the United States that today make up “Indian country.” 

Please click on the links in this blog to American Indians and the United States Constitution and The History of Federal Indian Policies to learn about many basic principles of Indian law.  You can also refer, for example, to William Canby, American Indian Law in a Nutshell (4th ed. 2004) for a useful synopsis of this subject.

One of the most important facets of Indian law to remember is that the United States’ relationship with Indian nations and tribes and Indian people is based on a political, government-to-government status and is not based on the race or ethnicity of Indian people.  United States v. Antelope, 430 U.S. 641, 645-46 (1977); Morton v. Mancari, 417 U.S. 535, 551-54 (1974). Thus, federal legislation that benefits or injures Indian nations and Indian peoples does not violate the Equal Protection clause of the U.S. Constitution.  Regents of the University of California v. Bakke, 438 U.S. 265, 304 n.42 (1978); Fisher v. District Court, 424 U.S. 382, 390 (1976).  At first glance this might appear to be a legal fiction; however, most legislation that benefits individual Indians depends upon the individual being an enrolled citizen of a federally recognized Indian tribe and thus the federal statutes are based on the governmental and federally recognized political status of Indian tribes and their citizens.

The importance of treaty making between Indian nations and the United States cannot be overstated.  The fact that today Indian tribes have a government-to-government relationship with the United States is largely based on the history of treaty making.  Furthermore, the modern day status of Indian tribes as sovereigns residing within the borders of the United States, and many tribal and individual Indian rights are also largely based on the historical practice of the United States dealing with tribes politically through the constitutional treaty process.

Many specific tribal and individual Indian rights are based on the particular treaty signed by a tribe.  II Kappler, Indian Affairs Laws & Treaties (1904) (containing the majority of U.S. tribal treaties); Francis Paul Prucha, American Indian Treaties: The History of a Political Anomaly (1994).  Fishing rights in particular rivers or for a particular species, or the right to gather berries and wild rice in certain defined areas, for example, are rights owned by the individual tribe and its members as defined by the specific treaty signed by the tribe; these rights do not belong to all Indians in general just because they are Indians. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) (treaty signatory tribe and members retained rights to hunt and fish and gather wild rice on ceded lands); United States v. Winans, 198 U.S. 371, 381 (1905) (tribal members whose tribes signed treaties with the U.S. possessed easement rights over private property to reach their usual and accustomed fishing spots).  These treaties were contracts between the United States and the tribes for an exchange of rights.  Washington v. Washington Fishing Vessel Ass’n, 443 U.S. 658, 675 (1979) (“A treaty, including one between the United States and an Indian tribe, is essentially a contract between two sovereign nations.”).

The federal courts have developed well established judicial “canons of construction” for interpreting Indian treaties.  The canons are favorable to tribes and help fulfill the federal trust responsibility to Indian nations and peoples.  In reality, however, they are a recognition of the historical situation regarding treaties that were negotiated in English with interpreters provided by the United States; with “tribes” and “chiefs” selected by the United States; with threats, coercion and alcohol involved; and not conducted by “arm’s length bargaining.” Wilkinson & Volkman, 63 Calif. L. Rev. at 610; Robert J. Miller & Maril Hazlett, The ”Drunken Indian” — Myth Distelled Into Reality Through Federal Indian Alcohol Policy, 28 Ariz. St. L.J. 223, 232, 249 (1996) (use of alcohol by the U.S. in treaty negotiations); Robert J. Miller, Speaking with Forked Tongues: Indian Treaties, Salmon, and the Endangered Species Act, 70 Or. L. Rev. 543, 552-55 (1991) (coercion, bribery, selecting chiefs to sign).

The canons of construction include: a “treaty is not a grant of rights to the Indians, but a grant of rights from them — a reservation of those not granted.” United Stated v. Winans, 198 U.S. 371, 381 (1905).  The treaties were bargaining sessions in which tribes traded away their aboriginal ownership of land in exchange for federally recognized title to specific reservation lands and to retain other rights they already possessed such as hunting, fishing, and gathering rights, and to gain assistance for education, housing, and medical care.

Moreover, an Indian treaty should be construed as the tribe itself would have understood it. Choctaw Nation v. Oklahoma, 397 U.S. 620, 630-31 (1970), 

In addition, any ambiguities in a treaty must be resolved in favor of the tribe.  Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208 n.17 (1978); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 582 (1832) (“The language used in treaties with the Indians should never be construed to their prejudice.”).  And treaties in general are to be liberally construed in favor of the tribes to accomplish their protective purpose.  Carpenter v. Shaw, 280 U.S. 363 (1930). These canons of construction also apply to statutes concerning Indians.  Antoine v. Washington, 420 U.S. 194, 199-200 (1975).

While Indian treaties have often been compared to contracts, Washington Fishing Vessel, 443 U.S. at 675; they can be unilaterally abrogated by Congress.  United States v. Dion, 476 U.S. 734, 738-40 (1986).

Tribes are governments.  Indian tribes possess “attributes of sovereignty over both their members and their territory . . . .”  United States v. Mazurie, 419 U.S. 544, 557 (1975). “[T]ribal sovereignty is dependent on, and subordinate to, only the Federal Government, not the States.”  Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 154 (1980).

Tribes are sovereign governments whose authority does not flow from the United States Government.  Talton v. Mayes, 163 U.S. 376 (1896). Tribes are governments independent from state and federal governments.  United States v. Wheeler, 435 U.S. 313 (1978) (double jeopardy does not prevent federal and tribal governments from trying a defendant for the same act as they are separate governments).  Tribes predate the Constitution and have historically been regarded as being unrestrained by constitutional provisions that specifically limit federal and state authority.  Talton, 163 U.S. 376; Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

Although tribes are no longer “possessed of the full attributes of sovereignty,” they remain a “separate people, with the power of regulating their internal and social relations.”  United States v. Kagama, 118 U.S. 375, 381-82 (1886). For example, tribes have the sole authority, not reviewable by federal or state courts, to define their tribal membership.  Martinez, 436 U.S. 49. Tribes have the power to make their own laws regarding internal matters, Roff v. Burney, 168 U.S. 218 (1897) (membership); Jones v. Meehan, 175 U.S. 1, 29 (1899) (inheritance); United States v. Quiver, 241 U.S. 602 (1916) (domestic relations), and to enforce that law in their own forums.  Williams v. Lee, 358 U.S. 217 (1959).

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