Indian Tribes and Tribal Governments

Who is an Indian?

What is an Indian tribe?

- Felix Cohen, Handbook of Federal Indian Law (1941)

History

1775-1819

1820-1864

1865-1894

TODAY

Indian Tribes and the United States

U.S. Constitution

*“[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” – Article I, Section 8

*“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.” – 14th Amendment

*“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, 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.” – Article VI, Section 2

“Treaty Federalism”

- Treaty with the Delawares (1778)

“And it is further agreed on between the contracting parties should it for the future be found conducive for the mutual interest of both parties to invite any other tribes who have been friends to the interest of the United States, to join the present confederation, and to form a state whereof the Delaware nation shall be the head, and have a representation in Congress: Provided, nothing contained in this article to be considered as conclusive until it meets with the approbation of Congress.”

- Treaty of Fort Laramie (1868)

“From this day forward all war between the parties to this agreement shall forever cease. The Government of the United States desires peace, and its honor is hereby pledged to keep it. The Indians desire peace, and they now pledge their honor to maintain it.”

Treaty at the Russian River (1851) (Unratified)

“The said tribes or bands hereby jointly and severally relinquish, cede, and forever quit claim to the United States, all their rights, title, claim, or interest of any kind which they or either of them have to lands or soil in California.”

Non-Intercourse Act

1793

“"No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution."

*THE MARSHALL TRILOGY

The Foundation of Federal Indian Law

*Johnson v. McIntosh (1823): Property rights

*Cherokee Nation v. Georgia (1831): Domestic dependent nations

*Worcester v. Georgia (1832): No state control

“John Marshall has made his decision. Now let him enforce it.”

Eras of Federal Indian Policy

*War and Treaty-Making (1776-1888)

*Allotment (1888)

*Reorganization (1934)

*Termination (1950’s)

*Self-Determination (1974)

*Today?

*Judicial Termination vs. Restoration

The Trust Relationship

“They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.”

- Cherokee v. Marshall

Indian Tribes in Michigan

The People of the Three Fires

*Anishnaabek – Self-Identity

*Ojibwe (Chippewa)

*Odawa (Ottawa)

*Bood’awadomii (Potawatomi)

12 Federally Recognized Tribes• Bay Mills Indian Community

• Grand Traverse Band of Ottawa and Chippewa Indians

• Gun Lake Tribe of Pottawatomi Indians

• Hannahville Indian Community

• Nottawaseppi Huron Band of Potawatomi Indians

• Keweenaw Bay Indian Community

• Lac Vieux Desert Band of Lake Superior Chippewa Indians

• Little River Band of Ottawa Indians

• Little Traverse Bay Bands of Odawa Indians

• Pokagon Band of Potawatomi Indians

• Saginaw Chippewa Indian Tribe

• Sault Ste. Marie Tribe of Chippewa Indians

Indian Treaties and the Making

of Michigan

Indian Treaties in Michigan

*1795 Treaty of Greenville (Southeast Michigan)

*1821 Treaty of Chicago

*1836 Treaty of Washington

*1842 Treaty of LaPointe

Treaty Rights and the “Fishing Wars”

“Article thirteenth. The Indians stipulate for the right of hunting on the lands ceded, with the other usual privileges of occupancy, until the land is required for settlement.”

- 1836 Treaty of Washington

Legal Principles

*United States v. Winans (1905)

*“In other words, the treaty was not a grant of rights to the Indians, but a grant of right from them -- a reservation of those not granted.”

*Indian Canons of Construction

*Interpret the treaties as the Indians would have understood them at the time

*Resolve ambiguities in favor of Indians

*Liberal construction of treaties in favor of Indians

Treaty Rights Cases &

Settlements

*People v. LeBlanc (1976) Michigan Supreme Court recognized tribal treaty rights in criminal case against Albert “Big Abe” LeBlanc

*United States v. Michigan

Indian Gaming in Michigan

Indian Gaming Regulatory Act of

1988

*Gaming must be conducted on “Indian lands”

*What are Indian lands?

*Trust lands

*Lands within Reservation

*Not allowed on Indian lands acquired after 1988, BUT…there are exceptions

*Must have tribal-state gaming compacts

LUNCHTIME!

Welcome Back!

The Powers of Tribal

Governments

Inherent Powers

*Remember the Winans case – treaties are a grant of rights FROM tribes

*In the beginning, Indian tribes had full and complete sovereignty over themselves

*Power has been whittled away from tribes, but not vanquished completely

*Tribes retain what hasn’t been given or taken – their powers are not delegated by the federal government

Delegated Authority and

Relationship with United States

*Congress has passed laws allowing tribes to operate federal programs on their lands

*“Self-Determination” Contracts

*Take the power (and the funding) from the Feds

*NOTE!! This isn’t a true “delegation” > These powers of self-government are inherent, but the scope of tribal control over federal programs is limited by the trust relationship

Indian Tribes and Michigan

*Urban Cooperation Act

*Law Enforcement Agreements

*Road Maintenance Agreements

*Other agreements to share power and resources

GUEST SPEAKER: ROBERT

MEMBERTO LITTLE RIVER BAND OF

OTTAWA INDIANS

The Tribal-State Relationship

“These Indian tribes are the wards of the nation. They are communities dependent on the United States -- dependent largely for their daily food; dependent for their political rights. They owe no allegiance to the States, and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies.”

- United States v. Kagama (1886)

Tribes and States: Competing Sovereigns

Issues Facing Tribes, States, and Local Governments

Today

Land

*It’s the land, stupid!

*Fee-to-Trust Process

*Control over tribal lands (development and zoning)

Jurisdiction

*Taxes

*Regulations

*Criminal Law

FINAL THOUGHTS AND QUESTIONS