Krakoff - Indian Law - Fall 2005 - Outline-1

Krakoff - Indian Law - Fall 2005 - Outline-1 - Indian Law...

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Indian Law Outline Cannons of Construction: for interpreting Indian treaties (from Worcester v. GA) 1. Ambiguous expressions must be resolved in favor of Ind parties: terms are given meaning attached to them by laypeople unversed in law 2. Ind treaties must be interpreted as Indians would have understood them, construed in favor of weaker party (like adhesion Ks) 3. Ind treaties must be liberally construed in favor of Indians b/c Ind weaker party 4. Rights in treaties are cessions to the US and not the other way around (from Winans ) Why : Treaty making was so unfair for the Indians – they were so disadvantaged, language barrier Treaties were drafted by the US gov in its terms History of the Legal Relationship w/ Indian Tribes (Vine Deloria, Jr. Article) __________________________________________________________________________________ / -Discovery- \ -Removal- / -Allotment/Assimilation- \ -Reorgztion- / -Termination- \ -Self Detrmn- / 1532 1828 1871/1887 1928 1945 1961 ??? Discovery, conquest, treaty-making 1532-1828 o Johnson v. McIntosh Removal and relocation 1828-1887 o Still assumed that tribes would govern themselves after we pushed them into isolated areas through military force o Cherokee Nation and Worcester Allotment and Assimilation 1887-1928/ Dawes Act 1887 -authorized carving up of Indian land into allotments into 160 acre plots to each Indian head of household. Any surplus was sold to non-Indian homesteaders o this transferred lots of land into non-Indian hands Indian Reorganization Act 1928-1945 o Trial sovereignty on the rise again o Passes to revitalize tribal governments Termination 1945-1961 o Rtn to measured separatism, own strategies for economic development o Terminated federal relationship with some tribes – to get at natural resources Self-Determination 1961-?? – current period that we seem to still be in o Statutes have been passes to allow Tribes to run their own government Origins of Am Indian Law Pope Innocent: Pope has jurisdiction in law over all people; OK to invade foreign lands; If infidels act in accordance with “law of nature” then can govern yourself; Gives people a “chance” to come into line Spain: Corodado – read passage to inhabitants: OK to conquer, if inhabitants obey right away DISCOVERY (1532 to 1828) European Doctrine of Discovery: assumed indigenous/non-Christians racially and culturally inferior dual goal: (1) convert people to Christianity; (2) gain riches for the crown of home nation inherently racist and assumes that you can just take the land Affirmed in Johnson v. McIntosh Law of Nations kind to one another – have to let others on your land only the Conquerors knew the what the law of nations was 1
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Idea of Treaties – assumes that the parties have right to own land treaties were an alternative to fighting a long and bloody war with the tribes b/c some hostile tribes made it difficult to take them over Felix Cohen (p57): principle assumptions underlying that land should be acquired from Indians only with consent have sovereign pwrs tribes had some form of transferable title of land
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  • Fall '05
  • Wilkinson
  • Law, Native Americans in the United States, Land

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