Fiduciary trust

Explanation

The fiduciary trust is the most complex trust arrangement.  In a fiduciary arrangement, the trustee is expected to act in good faith and in the best interest of the principle at all times.  If the trustee in a fiduciary trust breaches their responsibility, they can typically be found liable for any damages incurred as a result

Historical Significance

In the 1979 case Navajo Tribe of Indians v United States the Supreme Court ruled that the U.S. had a fiduciary trust agreement with the Navajo when it was handling any tribal assets including money or resources, unless Congress were to pass a law that says otherwise.  The U.S. is bound to act in a fiduciary manner in its trust relationship with tribes or pay any damages that may result from a breach of the trust arrangement. (Wilkins and Lomawaima 2001, 77)

Bare or limited trust

Explanation

A bare or limited trust arrangement is one that is construed in a narrow manner.  This type of trust arrangement may have a limited scope or purpose.

Historical Significance

The General Allotment Act of 1887 instituted a bare or limited trust arrangement with Indians in which the government would hold the allotted lands per person in trust for 25 years, to “protect the Indian land from taxation and involuntary alienation.” (Wilkins and Lomawaima 2001, 77)

Non-beneficial theory of trust

Explanation

An interpretation of trust as non-beneficial “denies that the trust doctrine carries any legally enforceable federal obligation to ‘best manage’ Indian affairs.” This non-beneficial theory of trust states that Congress has unrestrained powers to regulate Indian affairs.

Historical Significance

In the case Lyng v Northwest Indian Cemetary Protection Association, Just Sandra Day O’Connor found in favor of the U.S. Forest Service, when it wanted to build a road through several California tribe’s reservations.  Applying an interpretation of the non-beneficial theory of trust, O’Connor emphatically wrote that the federal government should never be constrained by tribal concerns when acting on federal lands.

Political Question Rule

Explanation

When the Supreme Court refuses to hear a case because it involves political questions and not questions of law, or when it determines that it might be overstepping its authority in the federal system, it can invoke the political question rule.

Historical Significance

As the United States began its policies of forced assimilation including land allotments and the indoctrination of young Indians in Christian schools, Indians would turn to the Court to redress grievances such as lost property.  The Supreme Court would deny these cases by invoking the political question rule.  The Court ended this practice in the late 1970’s.

Compact of 1802

Explanation

When Georgia began negotiating with the United States to cede Western lands claimed under the 1783 Treaty of Paris, the State asked President Washington to quickly annul the Cherokee and Creek land title in Georgia territory as a condition of the agreement.  Washington agreed to these terms.

Historical Significance

After the Compact of 1802 was signed, the Louisiana Purchase was completed in 1803.  With so much land available, the federal government adopted a policy of removal of Cherokee and Creek Indians from Georgia lands to west of the Mississippi, ushering in an era of forced removal and allotment.

Cherokee Phoenix

Explanation

In 1821 Sequoyah, a Cherokee Indian, invented the Cherokee syllabary.  This provided the desire for the Tribe to buy a printing press, which it acquired a few years later.  In February of 1828, the Cherokee Phoenix was published, a bilingual newsletter devoted to expounding on the current crisis between the State of Georgia and the Cherokee Nation.

Historical Significance

The Cherokee Phoenix was shut down by the Georgia militia in 1835, but from 1828 until then it acted as an important vehicle for Cherokee and non-Indian opinions, legal writings, manifestos, and “important statements of Cherokee policy.”  With an international circulation it became a popular tool for everyday citizens to learn more about the horrible treatment of Indians by the State of Georgia.

Article 1, Section 8

Explanation

Article 1, Section 8, also known as the Indian Commerce Clause, of the U.S. Constitution gives Congress the exclusive authority to deal with Indians in the United States.

Historical Significance

In the landmark case Worcester v Georgia, the missionaries arrested on Cherokee lands appealed to the Supreme Court to overturn their convictions based on the language of Article 1, Section 8 of the U.S. Constitution.  The justices agreed and in a forceful opinion noted that Georgia’s laws were “repugnant” to the U.S. Constitution.  The exclusive right of Congress to deal with Indians has generally been upheld by the courts.

Indian Removal Act, 1830

Explanation

Congress passed the Indian Removal Act of 1830 “to create a legal commitment on the part of the United States to a policy of moving Indians across the Mississippi.”  The law was passed while Georgia was passing oppressive laws to create a hostile environment for the Cherokee Nation situated within its borders.  President Andrew Jackson, having been newly elected to office, came out in favor of Indian Removal and Georgian policy towards the Cherokee Nation.

Historical Significance

The Indian Removal Act of 1830 pass by Georgia caused Chief John Ross of the Cherokee Nation to react swiftly and decisively, hiring professional attorneys and challenging Georgia’s actions in court.  The legal team sued in the Supreme Court for an injunction against Georgia’s onerous laws in Cherokee Nation v Georgia (1831).  The Court ruled that they did not have jurisdiction to hear the case, but in the majority opinion Chief Justice Marshall determined that while Indian nations are not foreign states, they are something new – a “domestic, dependent nation” – that would become part of the liberal cannon of American Indian law.

William Wirt

Explanation

William Wirt was a prominent attorney in the early 19th century, having argued several times before the Supreme Court and represented many high-profile clients.  As Attorney General in 1828, he wrote favorably of the sovereign rights of the Cherokee people, firmly believing that they constituted a fully independent nation.

Historical Significance

Based on his prominence and sympathy with the cause of the Cherokee Nation, Chief John Ross hired Wirt as his lead attorney in Cherokee Nation v Georgia as well as Worcester v Georgia.  A fastidious man, his constant legal strategizing with colleagues, the legal team, and Chief Ross resulted in successful arguments before the Supreme Court that were the genesis for the liberal cannon of American Indian Law Chief Justice John Marshall constructed during his tenure.

Fletcher v. Peck, 1810

Explanation

Two land speculators owned land in what are called the Yazoo Lands, the modern-day states of Alabama and Mississippi. These lands were Indian lands that Georgia claimed by right of discovery, and on which tracts were sold and speculated under the Yazoo Land Act of 1795.  Fletcher bought land from Peck before the legislature invalidated the Land Act.

Historical Significance

The case is widely seen as the precursor to the Cherokee cases, with the rulings in cases including Fletcher designed to “Americanize” Indian law and reduce the sovereign status of Indian tribes.  Chief Justice Marshall began analyzing who owned title to North American lands post-discovery.  Marshall described an “Indian title” that existed before Europeans arrived, but that was nevertheless one of “occupancy” that can be extinguished by the discoverer before conveyance. (Norgren 2004, 88) 

Miner’s Canary concept

Explanation

Paul McSloy wrote “The Miner’s Canary: A Bird’s Eye View of American Indian Law and its Future” for the journal New England School of Law.  In it he likened the American Indian to a canary in a coal mine.  The coal mine is our constitutional federalist republic, constantly buffeting Indians between the various powers and government agencies.  He notes that the miners carry the canary around, “to find seams and fissures,” testing the limits of federal law.  He ends by suggesting the canary (American Indians) get out of the mine, by staying out of court and refusing to be entangled in legislation that could negatively impact their sovereignty.

Historical Significance

American Indians today exercise sovereignty directly, by engaging in economic-development, education initiatives, new community and government centers, gaming, and a host of other long-term investments.  When California Mission Peoples expanded into gaming, they stayed out of the courts where they may have challenged NAGPRA and instead devoted $125M in funding for State initiatives, winning Class III gaming rights and public opinion.

Felix Cohen

Explanation

Felix Cohen is described as the father of modern American Indian law.  He lived from 1907 to 1953, and during that time wrote extensively on Indian rights and legal issues, including his hallmark book The Handbook of Federal Indian Law.

Historical Significance

Felix Cohen worked for the Department of the Interior before moving to private litigation in support of Indians, being instrumental in voting rights, property law, and government benefits in relation to American Indians.  His handbook of federal Indian law is widely used by professionals, scholars, students, and laypersons alike today and represents a comprehensive history of Indians and Indian law that is sympathetic to indigenous peoples’ quest for true sovereignty.

Plenary power as “exclusive”

Explanation

Exclusive plenary power is the most frequently exercised plenary power currently used by the Congress.  They are exclusive legislative power, not executive or judicial in nature.

Historical Significance

Congress has exercised exclusive plenary power throughout the history of the nation.  Some examples of its application are the Indian Reorganization Act of 1934, or in the case of Morton v Mancari (1974) where the court ruled that Indian preference laws enacted by Congress were valid as extensions of the exclusive plenary power.  The 1978 American Indian Religious Freedom Act applied the Constitutional right of freedom of religion to indigenous peoples when Congress exercised its exclusive plenary power to ensure religious liberties for Indians.

Marshall’s “brilliant compromise”

Explanation

In Johnson v M’Intosh Chief Justice Marshall tried to strike a balance between outright taking of Indian lands and the deep notion that this was wrong.  Marshall turned to an expansionist view of the Trust Doctrine, considering Indians as having granted rights to the discoverers, including the right to purchase land.

Historical Significance

The majority opinion in Johnson v M’Intosh and the ‘brilliant compromise” that Marshall designed gave footing to American Indians in acting as their own sovereign before the courts of the United States.  The ‘compromise’ laid the groundwork for Marshall’s future work on developing a liberal canon of American Indian law by leaving room for addressing the scope of their sovereignty in later cases such as Worcester v Georgia (1832).

Yazoo Lands

Explanation

The Yazoo Lands were the lands of the Western portion of Georgia Territory, before the Compact of 1802 ceding the lands to the federal government and becoming the states of Mississippi and Alabama.  They were originally inhabited by a tribe of American Indians known as the Yazoo.

Historical Significance

The Yazoo Lands were appropriated by Georgia and in a controversial arrangement offered for sale to citizens.  In the case Fletcher v Peck the court invalidated the Land Use act and established for the first time a title of occupancy for American Indians living on traditional lands.  The State was forced to cede the lands to the U.S as a result of the controversial and illegal transfer of land title. 

Justice Henry Baldwin

Explanation

Justice Henry Baldwin was a Supreme Court Justice on the Marshall Court at the time of Cherokee Nation v Georgia (1831).  An ardent Jacksonian, he presented countervailing arguments for Chief Justice Marshall’s ongoing plan to establish a liberal cannon of American Indian law.

Historical Significance

In Cherokee Justice Baldwin was asked to write a concurring opinion for the majority.  While he concurred that the Cherokee did not have standing to sue in the Supreme Court, it was different grounds than Chief Justice Marshall.  Justice Baldwin, being a state’s rights supporter and ardent Jacksonian, took the position that Georgia had “full jurisdiction over the Cherokee and fee simple title to their lands.”

Ex parte Crow Dog, 1883

Explanation

Ex parte Crow Dog (1883) was a case involving an Indian murderer (Crow Dog) that murdered another Indian on tribal lands.  The court reasoned that Congress’ exclusive and preemptive power gave Congress sole authority to legislate the matter of justice in Indian country.

Historical Significance

Crow Dog was one of two cases that established the plenary power of Congress over Indian affairs. While it did extend some level of autonomy to American Indians in dealing with capital crimes on their reservations, the public backlash was swift.  One year after the case and even though Crow Dog was convicted, the Congress enacted the Major Crimes Act putting several crimes committed on reservations under the jurisdiction of the federal government.

Major Crimes Act

Explanation

In response to public concerns about “Red Man’s Justice” the Congress in 1884 passed the Major Crimes Act, which made seven serious crimes committed by Indians subject to federal authority.

Historical Significance

As a matter of cultural heritage and legal sovereignty tribes are expected to judge crimes and other legal matters in their own courts and under their own legal systems.  But Congress, exercising its plenary powers cut into this sovereignty by enacting legislation that exceeds the limits of initial treaty language, as well as court precedents upholding Indian rights to self-governance.

United States v. Kagama, 1886

Explanation

In United States v Kagama (1886) the Supreme Court upheld the constitutionality of the Major Crimes Act, again in a case of an Indian killing another Indian and being arrested by U.S. authorities for trial.

Historical Significance

The violent murders by Crow Dog and Kagama convinced the Congress to exercise its plenary powers to institute the Major Crimes Act, which American Indians considered a violation of their sovereignty.  The argument that resulted in the killing by Kagama was over an unfair allotment process that had uprooted his tribe from their traditional home.  Notably the Supreme Court ruled that Congress has a duty and the power to regulate Indian affairs because they had been determined to be as “wards” to the United States, and therefore the United States could step in and make laws that it considered beneficial to Indians’ wellbeing.

Justice William Johnson

Explanation

Justice William Johnson was a Supreme Court Justice on the Marshall Court at the time of Cherokee Nation v Georgia (1831).  An ardent Jacksonian, he presented countervailing arguments for Chief Justice Marshall’s ongoing plan to establish a liberal cannon of American Indian law.

Historical Significance

In Cherokee Justice Johnson was asked to write a concurring opinion for the majority.  While he concurred that the Cherokee did not have standing to sue in the Supreme Court, it was different grounds than Chief Justice Marshall.  Justice Johnson, being a state’s rights supporter and ardent Jacksonian, took the position that Georgia while the Cherokee Nation had no standing to sue, and that generally Georgia had title to the lands, the Cherokee people could not be deprived of their right to self-governance.

Justice Joseph Story

Explanation

Justice William Johnson was a Supreme Court Justice on the Marshall Court at the time of Cherokee Nation v Georgia (1831).  Justice Johnson dissented in Cherokee Nation and would have opted to issue an injunction against the State of Georgia for extending its laws over the Cherokee Nation.

Historical Significance

Dissenting in Cherokee Nation Justice Story noted “that the Cherokees compose a foreign state within the sense and meaning of the Constitution and constitute a competent party to maintain a suit against the state of Georgia.”  As a Northerner Story emphasized “the values of republicanism, nationalism, and the liberalism of John Locke.”  As a dedicated supporter of federal power over the States, his dissent was a strong defense of the legal strategy and views of William Wirt, Chief John Ross, and the Cherokee Nation.

Justice Smith Thompson

Explanation

Justice Smith Thompson was a Supreme Court Justice on the Marshall Court at the time of Cherokee Nation v Georgia (1831).  Justice Thompson dissented in Cherokee Nation and would have opted to issue an injunction against the State of Georgia for extending its laws over the Cherokee Nation.

Historical Significance

Dissenting in Cherokee Nation Justice Story noted “that the Cherokees compose a foreign state within the sense and meaning of the Constitution and constitute a competent party to maintain a suit against the state of Georgia.”  As a New Yorker Thompson strongly empathized with the plight of the American Indian and wholeheartedly supported their status as an independent foreign nation not subject to the laws of any State.  His dissent was a strong defense of the legal strategy and views of William Wirt, Chief John Ross, and the Cherokee Nation.

Lone Wolf v. Hitchcock, 1903

Explanation

In Lone Wolf v Hitchcock (1903) Kiowa Chief Lone Wolf determined that his tribe had been bamboozled by federal agents in the Treaty of Medicine Lodge of 1892.  Representatives from the federal government tricked individual Kiowa’s into signing the treaty even though they did not support it.  In 1901 Lone Wolf hired a prosecutor and sued to restore their original treaty rights, which had been severely abrogated several times in the years prior.

Historical Significance

In a devastating ruling for American Indians, the Court unanimously ruled against Lone Wolf declaring that Congress had absolute plenary power over Indian affairs and could abrogate or terminate treaties at will.  As an “inferior race” the Indians were at a disadvantage in the treacherous treaty negotiations.  As a result of Lone Wolf the Kiowa lost over 2/3 of their reservation lands and it is considered on par with the Dred Scott ruling, infamous in American law for its inhumanity.

Perrin v. U.S., 1914

Explanation

In Perrin v U.S. (1884) a liquor transaction on the Sioux Indian Reservation resulted in action by the federal government, in a location where the sale of liquor was prohibited.

Historical Significance

The Court extended wide latitude to Congress but noted limitations on the use of plenary power.  It reasoned that while the Congress could extend liquor sales laws onto reservations, it must have a compelling reason that is based in the care and trust relationship established with Indian tribes.

Morton v. Mancari, 1974

Explanation

A lawsuit was brought under the Indian Preference in Hiring legislation instituted by Congress.  The appellant argued that the policy was discriminatory and purely arbitrary.

Historical Significance

In Mancari the Court sided with Congress in its application of plenary power.  It noted a reasonable aim in the Indian preference policy.  “As long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians,” the Court wrote, the judicial branch would not interfere with them.  Because the material is subjective, it establishes for Congress a wide latitude in employing its plenary power over American Indians.

Equal footing doctrine

Explanation

The Equal Footing Doctrine, first outlined in the 1896 case Ward v Race Horse, held that on admission to the Union, a state “at once became entitled to and possessed of all the rights of domination and sovereignty which belonged to the original States.” The notion of the Court was to give newly admitted States exclusive power over lands, including Indian lands, in their boundaries, an equal start to the colonies e.g.

Historical Significance

In the 1905 case United States v Winans the defendants invoked the Equal Footing Doctrine as they attempted to wrest control of fishing on the Columbia River from tribes including the Yakama.  The court forcefully rejected the premise and Justice Joseph McKenna wrote a forceful opinion in support of tribal sovereignty based on treaty language.  Additionally, it dramatically weakened the doctrine by reaffirming the supremacy of federal law over the states in certain areas.

United States v. Winans, 1905

Explanation

In United States v. Winans the Yakama Tribe and federal government sued the Winans brothers, who had set up great fishing wheels on the Columbia River, depleting fish for the Yakama and other tribes downstream.  The fishing operation had grown large and the federal government intended to restore the treaty-based fishing rights that had been overcome by the Winans’ upstream fishing venture

Historical Significance

In Winans the brothers invoked the Equal Footing Doctrine as they attempted to wrest control of fishing on the Columbia River from tribes including the Yakama.  The court forcefully rejected the premise and Justice Joseph McKenna wrote a strong opinion in support of tribal sovereignty based on treaty language.  Additionally, it dramatically weakened the doctrine by reaffirming the supremacy of federal law over the states in certain areas.

Ward v. Race Horse, 1896

Explanation

Barnook Indian Race Horse, a traditional Elk hunter in his tribal lands, lived on the Fort Hall Reservation in what is now Wyoming.  When Wyoming became a state it began enforcing hunting and fishing laws, and one day wardens caught Race Horse with several elk.  He was arrested but released, and so the Sheriff, Ward, appealed his release on grounds that Race Horse was hunting illegally.

Historical Significance

In another case that ended poorly for American Indians, the Court held in Race Horse that treaty rights were “nothing more than temporary and precarious ‘privileges.”  Furthermore, the court adopted the Doctrine of Equal Footing, stating that upon entry into the Union states like Montana were to have full sovereignty over all their lands, as did the original thirteen colonies and States.  According to Race Horse the act of admitting Wyoming into the Union had “repealed the treaty rights to hunt.”

Other Terms

Dawes Act, 1887

Winters v. United States, 1908

Plenary power as “preemptive”

Plenary power as unlimited/absolute

Dawes Act, 1887

Lyng v. Northwest Protective Cemetery, 1988

Minnesota v. Mille Lacs Band of Chippewa Indians, 1999