Some legal principles
underlying relations between
Indian Tribes and the US Government
Indian Sovereignty Assured by the US Federal Government
– Supreme Court ruling – Worcester v. Georgia (1832) – court recognized that Indian nations were "distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries." The court also acknowledged the sovereign nature of Indian nations as established and recognized through treaties with the federal government.
– As defined through treaties/agreements, the legal status of the tribal entities is acknowledged to be that of inherent "sovereign nations." That is, state law is not applicable within reservation boundaries, unless abrogated by Congressional consent (e.g., Gaming Compacts with states).
– As established in Article VI Section 2 of the United States Constitution, treaties are the "supreme law of the land," are bilaterally-constructed, nation-to-nation agreements, intended to be legally binding for all time.
– Ownership of the land and the resources is to be held by the tribes unless explicitly relinquished in the language of an agreement/treaty. For example, the ownership of a lake or river, if not explicitly granted to the United States, would remain with the tribe. As such, the agreements entered into were not grants of rights to Indians, but rather grants of rights from Indians to the United States, i.e., "reserved rights doctrine." Property should not be taken without consent of the Indian. (United States v. Winans, 198 U.S. 371 1905)
– Treaties/agreements are to be interpreted as their signers intended, i.e, "cannons of construction."
– In exchange for the cession of vast tracts of land and resources, i.e. "ceded territory," the tribes would receive educational and health benefits, and other services. Such services and allocations are thus "purchased" and "contracted" services, and not "social entitlements" or "special rights."
– Especially during the late nineteenth and much of the twentieth century, the Federal government’s record of adhering to these principles was far from exemplary. Simply because one party in an agreement did not honor the accords of that agreement does not negate the legal status and continued integrity of the agreement/treaty.
– Over 400 treaties and agreements (executive orders) established between 1778-1902
Infringement on Indian sovereignty by US federal government
– Congressional plenary powers, i.e., rights acknowledged by treaties can be abrogated by Congress pursuant to its plenary power (Lone Wolf v. Hitchcock, 187 U.S. 552 1903 and as exemplified in the Dawes Act of 1887 and Termination Policy of the 1950s and Public Law 280 in 1953)
– Indian tribes are not foreign nations, but constitute "distinct political" communities within the United States, i.e., "domestic, dependent nations" whose relation to the US resembles that of a ward to his guardian (Supreme Court Chief Justice John Marshall in Cherokee Nation v. Georgia 1831). Gave birth to federal trusteeship in Indian affairs.
– Lyng v. Northwest Indian Cemetery Protective Association (1988) and the U.S. Supreme Court
– Three California tribes, Yurok, Karok, and Tolowa, attempted to block a six-mile forest service road through what is the Six Rivers National Forest or what the Indians call their "High Country," a sacred area used for vision questing, gathering of medicine roots and other ceremonial purposes. Prior to the proposed construction, the Indians had undisturbed access and use of the area. An impressive number of plaintiffs joined the tribes in the litigation, including the Sierra Club, Wilderness Society, California Trout, Redwood Audubon Society, and the State of California, among others, against the United States government’s proposal.
– Prior to this case, most all religious freedom cases (including American Indian religious freedom)
i.e., guaranteed under the First Amendment of the Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ." i.e., – "establishment clause," the government shall not endorse or promote a religion, and "free exercise clause," the government shall not interfere with the free expression of religious belief.
had to pass the Sherbert Test (Sherbert v. Verner 1963)
i.e., the plaintiff had to demonstrate that, 1. he/she (individual) was infringed upon and burdened by the actions of the government, and 2. he/she was a member of a shared/sincere religious group; and once demonstrated, the state must then 3. prove that they had a compelling interest to continue their actions (outweighed interests of individual)
– All the lower courts, including the Federal Ninth Circuit Court of Appeals, upheld the religious freedom claims of the tribes.
– But overturning the lower courts decisions and writing for the majority, Supreme Court Justice Sandra Day O’Connor asserted that the construction of the public road outweighed the rights of the specific individual religious infringement. Thus the government, as the ultimate landowner, should take precedent over the claims of religious infringements of the individual.
– And in addition, the court argued that today there are "too many so-called religions" and the court needs to stay out of the business of defining which religions are sincere religions. Hence forth, religious freedom cases should be deferred to and conducted as legislative matters and not judicial issue, i.e., the courts are no longer in the business of protecting religious freedom of the majority or minority. But such matters should be left to the will of the majority, i.e., elected congressional members, to protect the expressions of the minority.
– Thus the Sherbert Test would no longer be applicable as a safeguard for protecting religious freedoms of anyone.
– And in the larger context, the ruling compromised and undermines, 1. the treaty relations between the federal government and the tribes as "sovereign" entities and the "reserved rights doctrine" which assures the all rights, including religious rights, to be held by the tribes unless explicitly given up; and 2. the "trust relationship" of the federal government to look after the interests of their "wards," i.e., the Indians.
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