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Indian law Outline- Prof Wilkinson

Indian law Outline- Prof Wilkinson - American Indian Law...

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American Indian Law – Wilkinson Fall 2006 - WRITE AS YOU WOULD IN GIVEN SITUATION Definitions - Indian o Federally recognized as tribal member o Usually done by blood quantum Determined by Tribe Some require reservation birth o Citizens of US (1924) - Indian Tribe o Entity Federally recognized as a tribe o Ethnologically a band - Indian Country (18 USC §1151) o Three Parts “All land w/in limits of any Indian reservation under the jurisdiction of the United States Government” (inside the reservation) direct growth out of Donnelly v. United States All dependent Indian communities in the United States “whether within or without the limits of a state” (outside the reservation) out of United States v. Sandoval Trust allotments, where Indian title hasn’t be extinguished (outside the reservation) must be held by Indians o criminal statute, but applies in civil cases too o Test Not how the land was acquired, but rather whether the land has been set apart for the use and occupancy of Indians ( State v. Youngbear ) o Where Federal Indian law operates Exceptions: off reservation fishing rights o Larger than the 58 million acres held in trust, b/c includes fee land w/in reservations and rights of way - Diminishment o Only Congress can diminish a reservation and it must do so with a clear statement, mere allotment does not diminish the reservation - Dependent Indian Communities o Land set aside by the fed for use of the Indians as Indian land o There is federal supervision over the use of land History - Colonialism o Doctrine of Discovery - Confederation
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o Disputes between States and Federal Gov’t over control of Indian lands - Removal o 1835-1861 - Reservation o 1861-1871 o 1871: Congress ended formal treaty making with tribes But still exec orders and valid agency designations - o 1871-1928 1919: End of Reservations through Exec. Order - Indian Reorganization Act o 1928 -1945 - Termination o 1945 -1961 - Self-Determination o 1961 - Present Tribal Sovereignty - Marshal Trilogy o Doctrine of Discovery ( Johnson v. McIntosh - 1831) Before Europeans – Tribes had Fee Simple Absolute (FSA) After Euro Discovery – Euro Nation had title to the exclusion of all other Euro nations, Tribes had right of occupancy (Indian Title) Right to complete sovereignty was diminished, but right to retain possession and discretional use were retained After US Treaty – US had FSA except in reservation where Indians had FSA held in trust by US US has legal title, tribe has equitable title Right of Occupancy not protected by 5 th Amendment US not constitutionally req’d to pay for what it takes Indians can’t transfer title without US approval – “Protective Provision” o Tribal Sovereignty (see also Talton v. Mayes ) Domestic Dependant Nations ( Cherokee Nation v. Georgia - 1831) Relation to the US resembles that of a ward to his guardian Reserved Rights Doctrine (
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Indian law Outline- Prof Wilkinson - American Indian Law...

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