The federal trust doctrine - historical policy tensions - F_09

The federal trust doctrine - historical policy tensions - F_09

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ESPM 50 Fall 2009 The federal trust doctrine - tribal sovereignty and wardship In all fairness to president Bush, tribal sovereignty is a complicated issue.* For nearly two centuries, political and legal struggles have characterized the discourse on tribal sovereignty and wardship under the trust doctrine. Here are some historical points concerning these highly contested ideas: 1) The federal government first considered the issue of tribal sovereignty in a series of court cases described in lecture ( Johnson v. McIntosh [1823], Cherokee Nation v. Georgia [1831], and Worcester v. Georgia [1832]). In the Johnson decision, Chief Justice of the Supreme Court John Marshall implied that tribal sovereignty was inferior to that of the federal government, which had the right to original title and sale of land by virtue of the doctrine of discovery. However tribes were recognized as having ‘impaired’ sovereignty, by which they ‘retained’ certain rights – most significantly the ‘right to occupancy.’ In Cherokee Nation , Marshall coined the term ‘domestic dependant nations’ to describe the relationship between the tribes and the federal government. Tribes were domestic in the sense that they existed within the sovereign territory of the United States. They were dependent in that they were seen as unable to care entirely for their own needs. This idea of dependency reflected the ‘guardianship theory’ that postulated the obligation of the colonial or federal government to provide for the needs of the tribes. This, in turn, gave rise to the trust doctrine, which held
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This note was uploaded on 10/05/2010 for the course ESPM 28984 taught by Professor Spreyer during the Fall '10 term at University of California, Berkeley.

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The federal trust doctrine - historical policy tensions - F_09

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