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American Indian Policy

American Indian Policy

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American Indian Policy

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  1. American Indian Policy

  2. The Threads of the Law • 25 USC Indians • 25 CFR Indians • 25 USCS Indians (LexisNexis Academic) • <US Legal> <Federal Statutes, Codes> • <Annotated US Code (USCS)>

  3. Article 1, Section 8 of the Constitution of the United States vests the Congress with the authority to engage in relations with the Tribes • This is not often exercised – thus the courts have ruled on the legal status of bands • When the governmental authority of Tribes was first challenged in the 1830's, Chief Justice John Marshall articulated a fundamental principle that has guided the evolution of federal Indian law -- Tribes retain certain inherent powers of self-government as "domestic dependent nations“ • The relationship between the Tribes and the United States is one of a government to a government – Tribes are distinct legal entities albeit with an ambiguous legal status • This principle has shaped the history of dealings between the federal government and the tribes • “Recognition" is a legal term meaning that the United States recognizes a government-to-government relationship with a Tribe and that a Tribe exists politically in a "domestic dependent nation" status

  4. Recognized bands/tribes • Sovereign entities • Sovereign Policy (US Department of Justice, Office of Tribal Justice) • Domestic dependent nations • Tribal entities recognized and eligible for funding and services from the Bureau of Indian Affairs • Indian Affairs: Laws & Treaties (Kappler) • Handbook of Federal Indian Law (Felix Cohen) • Native Americans (FedLaw)

  5. Recognized Native American entities

  6. Individuals • American Indians are indigenous peoples residing in the boundaries of the present-day United States, including those in Alaska and Hawaii • Comprise numerous, distinct tribes and ethnic groups, many of which survive as intact political communities • Enrolled member of a federally recognized tribe • U.S. citizen with special legal rights – exempt from state law – with exceptions • National Museum of the American Indian • National Congress of American Indians • Indian Heritage Foundation

  7. Federal Indian Policies

  8. Native Americans and Their Lands Landscape Anachronisms?

  9. Minnesota et al V Mille Lacs Band of Chippewa Indians 526 U. S. 172 Legal Information Institute (Cornell University) U S Supreme Court Center (Justia) Oyez U S Department of Justice FindLaw (Thompson FindLaw) My home page Where to obtain Supreme Court opinions My interestThe Nature of the Web

  10. In 1837 several Chippewa Bands ceded land in present-day Minnesota and Wisconsin to the United States. The United States, in turn, guaranteed to the Indians certain hunting, fishing, and gathering rights on the ceded land “during the pleasure of the President of the United States” • In an 1850 Executive Order, President Taylor ordered the Chippewa’s removal from the ceded territory and revoked their usufructuary rights • An 1855 Treaty set aside lands as reservations for the Mille Lacs Band, but made no mention of rights guaranteed by previous treaties • In 1990, the Mille Lacs Band and several members sued Minnesota, its Department of Natural Resources, and state officials seeking a declaratory judgment that they retained their usufructuary rights and an injunction to prevent the State’s interference with those rights

  11. The District Court ultimately concluded that the Chippewa retained their usufructuary rights under the 1837 Treaty and resolved several resource allocation and regulation issues • The Eighth Circuit affirmed • it rejected the State’s argument that the 1850 Executive Order abrogated the usufructuary rights guaranteed by the 1837 Treaty • concluded that the 1855 Treaty did not extinguish those privileges for the Mille Lacs Band, and • rejected the State’s argument that, under the “equal footing doctrine,” Minnesota’s entrance into the Union extinguished any Indian treaty rights

  12. Native American Lands18 USC 1151 Indian Country • American Indian lands in the lower 48 States comprise over 45 million acres of reserved lands and an additional 10 million in individual allotments • There are another 40 million acres of traditional Native lands in Alaska • Home to more than 560 Federally recognized tribes, these lands provide the living space, the sacred and cultural sites, and many of the natural resources that tribes need to keep their people and cultures alive • Tribal governments generally place a high priority on preserving these lands and their natural resources, including many vulnerable wildlife species • With exceptions, the activities of tribes and tribal members on these lands is subject only to the jurisdiction of the federal government, nominally Congress but increasingly the federal courts

  13. An Indian is a person who is of some degree Indian blood and is recognized as an Indian by a Tribe and/or the United States • No single federal or tribal criterion establishes a person's identity as an Indian • Government agencies use differing criteria to determine eligibility for programs and services • Tribes also have varying eligibility criteria for membership • The protections and services provided by the United States for tribal members because the person is a member of a Tribe recognized by the United States and with which the United States has a special trust relationship • American Indians and Alaska Natives are citizens of the United States and of the states in which they reside • They are also citizens of the Tribes according to the criteria established by each Tribe 

  14. Native American groups • Tribes • Nations • Villages • Pueblos • Reservations are territories reserved as permanent tribal homelands • Some were created through treaties while others were created by statutes, or executive orders

  15. American-Indian tribes • Indian tribes - American Memory - Library of Congress • Introduction to Tribal Governments - National Congress of American ... • Indian Affairs | Tribal Directory (BIA) • Indian Lands Judicially Established • Tribal Enrollment (National Indian Law Library)

  16. Native American Bands in Minnesota • Minnesota Chippewa Tribe • Boise Forte Band (Nett Lake) • Fond du Lac Band • Grand Portage Band • Leech Lake Band • Mille Lac Band • White Earth Band • Red Lake Band of Chippewa Indians • Dakota bands • Lower Sioux Indian Community • Prairie Island Indian Community • Shakopee Mdewakanton Sioux Community • Upper Sioux Community

  17. Off-Reservation Lands • American Indian trust lands associated with a specific tribe or reservation and held in trust by the Federal government • Such lands may be either • tribal (held in trust for the tribe) or • individual (held in trust for an individual member of the tribe). • Native American trust transfers in Minnesota (CURA) • Indian Trust Land - Minnesota Department of Transportation • Feds begin process to clear titles on Indian-owned lands (MPR Dec 19 2012)

  18. President Obama and the Native American Community • US Department of Justice • Office of Tribal Justice • Tribal Justice and Safety • Gaming • National Indian Gaming Commission

  19. Department of the Interior • Bureau of Indian Affairs • Who we are • What we do • Office of Indian Energy and Economic Development • Bureau of Indian Education • Office of Indian Gaming • Division of Natural Resources • Office of Justice Services • Tribal Government

  20. Historical Issues • Dawes Act (1887) • Treaty Provisions that are still being litigated • A reservation or community is a segment of land that belongs to one or more groups of American Indians • It is land that was retained by American Indian tribes after ceding large portions of the original homelands to the United States through treaty agreements • It is not land that was given to American Indians by the federal government

  21. Under the General Allotment Act  • United States was to “hold the land thus allotted, for the period of twenty-five years, in trust for the sole use and benefit of the Indian to whom such allotment shall have been made…” • During the 25-year trust period, individual accounts were to be set up for each Indian with a stake in the allotted lands, and the lands would be managed for their benefit • Indians could not sell, lease, or otherwise encumber their allotted lands without government approval • Where the tribes resisted allotment, it could be imposed • After twenty-five years, the allotted lands would become subject to taxation • Many allottees did not understand the tax system, or did not have the money to pay the taxes, and lost their lands

  22. Fond du Lac

  23. Fond du Lac Reservation

  24. Indian Reorganization Act of 1934 • Any Indian tribe shall have the right to organize for its common welfare, and may adopt an appropriate constitution and bylaws, which shall become effective when ratified by a majority vote of the adult members of the tribe • The constitution adopted by said tribe shall also vest in such tribe or its tribal council the following rights and powers • to employ legal counsel, the choice of counsel and fixing of fees to be subject to the approval of the Secretary of the Interior • to prevent the sale, disposition, lease, or encumbrance of tribal lands interests in lands, or other tribal assets without the consent of the tribe • to negotiate with the Federal, State, and local governments • American Indian Communities in Minnesota - definitions • American Indian communities in Minnesota (Senate, Minnesota, 1998)

  25. Indian Reorganization Act of 1934 • No land in an Indian reservation, created by treaty or agreement with the Indians, Act of Congress, Executive order, shall be allotted to any Indian • The Secretary of the Interior is authorized to restore to tribal ownership lands in any Indian reservation heretofore opened to sale, or any other form of disposal by Presidential proclamation, or by any of the public land laws of the United States • The Secretary of the Interior is authorized to proclaim new Indian reservations on lands acquired pursuant to any authority conferred by this Act, or to add such lands to existing reservations • Nothing in this Act shall be construed to relate to Indian holdings of allotments or homesteads upon the public domain outside of the geographic boundaries of any Indian reservation now existing or established in future

  26. White Earth Reservation • Established in 1867 to provide a home for all Chippewa bands • White Earth Indian Reservation (Wikipedia) • White Earth Land Recovery Project • White Earth Land Reservation Settlement Act • White Earth (Indian Affairs Council) • List of Additional Lands Affected by White Earth Reservation Land Settlement Act of 1985 (76 FR 43699 July 21, 2011) • Land transfer at White Earth completed under settlement (Forum News Service Jul 17, 2013) • Hey Ryan, I am sure that you have an idea of what you want to do (Unknown, no date)

  27. Sec. 2. The Congress finds that • (1) claims on behalf of Indian allottees or heirs and the White Earth Band involving substantial amounts of land within the White Earth Indian Reservation in Minnesota are the subject of existing and potential lawsuits involving many and diverse interests in Minnesota, and are creating great hardship and uncertainty for government, Indian communities, and non-Indian communities • (2) the lawsuits and uncertainty will result in great expense and expenditure of time, and could have a profound negative impact on the social and well-being of everyone on the reservation • (3) the White Earth Band of Chippewa Indians, State of Minnesota, along with its political subdivisions, and other interested parties have made diligent efforts to fashion a settlement to these claims, and the Federal Government, by providing the assistance specified in this Act, will make possible the implementation of a permanent settlement with regard to these claims

  28. Sec. 2. The Congress finds that • (4) past United States laws and policies have contributed to the uncertainty surrounding the claims • (5) it is in the long-term interest of the United States, State of Minnesota, White Earth Band, Indians, and non-Indians for the United States to assist in the implementation of a fair and equitable settlement of these claims • (6) this Act will settle unresolved legal uncertainties relating to these claims • Indian Land Claims Settlements (US Code)

  29. American Indian History • Congress signed treaties with various American Indian bands in which the aboriginal title was ceded • The ceded lands were surveyed and title to them conveyed to individuals, corporations, and states • Congress created governments to define and guarantee the rights protected by title

  30. Treaties • 1778-1871 370 treaties of peace and land appropriation • Treaties were not neat expressions of public intent • Reflected ambiguous and contradictory principles and practices that characterized federal American Indian policies - the relationship between American Indians and non-Indians • Reflected the ambiguous and contradictory principles and practices that characterized federal land policy designed to promotes and subsidize the colonization of the United States • Consequently they have become subject of intense scrutiny

  31. American Indian Bands and the Judiciary • The judiciary have established special "canons" of construction in deciding cases involving the interpretation of treaties • Ambiguities in treaties should be construed in favor of the Indians • Treaties should be interpreted as the Indians would have understood them • Treaties should be liberally construed in favor of the Indians • But • Plain meaning cannot be ignored

  32. Mille Lacs Case • Does the Mille Lacs Band of Chippewa Indians have usufructuary rights on land now part of the state of Minnesota? • The District Court ultimately concluded that the Chippewa retained their usufructuary rights under the 1837 Treaty and resolved several resource allocation and regulation issues • The Eighth Circuit affirmed rejecting the State’s arguments • that the 1850 Executive Order abrogated the usufructuary rights guaranteed by the 1837 Treaty • that the 1855 Treaty did not extinguish those privileges for the Mille Lacs Band, and rejected the State’s argument • that, under the “equal footing doctrine,” Minnesota’s entrance into the Union extinguished any Indian treaty rights • Yes, The Chippewa retain the usufructuary rights guaranteed to them by the 1837 Treaty

  33. Indian Claims Commission • Created by Congress in 1946 to adjudicate Indian claims against the United States • Awarded more than a half billion dollars before its expiration almost 33 years later in 1978 • Also created hundreds of thousands of pages of documents, most of which have significant anthropological and historical research value • Indian Lands Judicially Established • Indian Claims Commission Decisions • 50 Years Past the Deadline. . . Why are Indian Tribes Still Suing over Ancient Treaties?

  34. A typical case • Three phases - each of which results in one or more decisions • title • value • offsets • In the title phase the claimant attempts to establish ownership of a specific area of land • In the absence of deeds, heavy reliance is placed on the testimony of anthropologists, archaeologists, geographers, historians and economists • The federal government introduces similar expert testimony, generally in an attempt to prove that a smaller area of land was actually involved

  35. If aboriginal title is established, it is then necessary to determine the value of the land at the time of the original transfer, usually the date of a treaty, land cession, act of Congress or executive order of the President • If the Commission determines that the Government failed to compensate the Indians adequately for the lands it acquired, or that the lands were obtained under conditions of fraud, duress or error, then it recommends to Congress that a cash settlement be awarded to the tribe • Any payments that were made under the original treaty are deducted from the award in the offsets phase of the litigation

  36. Current Controversies

  37. Mille Lacs The Mille Lacs Indian Reservation embraces four townships along the southern and southwestern shores of Mille Lacs Lake. However, the Band and its members are the owners of fee and trust lands throughout East Central Minnesota.

  38. County of Mille Lacs et al. v Melanie Benjamin et al (2003) Cause for Concern about Mille LacsReservation (PERM)

  39. The Fractionation of Indian Lands • Fractionated Ownership of Indian Lands • Fractionated Ownership | Indian Land Tenure Foundation • Lawsuit settlement will allow consolidation of Indian lands (2011) • Indian Land Consolidation Program (ILCP) - Indian Affairs • Profile of Land Ownership at 12 reservations (GAO, 1992) • Coordination of Efforts to Address Indian Land Fractionation (DOI, 2011) • Fractionation: Inheriting undivided interests (Montana State University, 209)


  41. Sheldon Peters Wolfchild et al v. United States (2004)

  42. American Indians and Nuclear Waste • Minnesota – Prairie Island Sioux Community • Prairie Island Coalition • Prairie Island Nuclear Waste (Minnesota Legislative Reference Library) • Utah – Skull Valley Band of Goshute Indians • Private Fuel Storage • Private Fuel Storage: A Public Hazard (Public Citizen) • Private Fuel Storage ( • Nevada – Western Shoshone • Environmental Justice Case Study: The Yucca Mountain High-Level Nuclear Waste Repository and the Western Shoshone (University of Michigan)

  43. National Indian Gaming Commission • An independent federal regulatory agency • Established under the Indian Gaming Regulatory Act of 1988 (PL 100-497 25 USC 270 et seq) • The Commission comprises a Chairman and two Commissioners, each of whom serves on a full-time basis for a three-year term • The Chairman is appointed by the President and must be confirmed by the Senate. The Secretary of the Interior appoints the other two Commissioners • At least two of the three Commissioners must be enrolled members of a federally recognized Indian tribe, and no more than two members may be of the same political party • Commission Regulations • DOI Gaming Regulations

  44. National Indian Gaming Commission • Mission  • to regulate gaming activities on Indian lands to shield Indian tribes from organized crime and other corrupting influences • to ensure that Indian tribes are the primary beneficiaries of gaming revenue • to assure that gaming is conducted fairly and honestly by both operators and players