CHAPTER 1 WHY INDIAN COUNTRY? AN INTRODUCTION TO THE INDIAN LAW LANDSCAPE

• Jurisdiction: United States

Indian Law and Natural Resources: The Basics and Beyond (Sep 2017)
CHAPTER 1
WHY INDIAN COUNTRY? AN INTRODUCTION TO THE INDIAN LAW LANDSCAPE
Monte Mills
Assistant Professor & Co-Director
Margery Hunter Brown Indian Law Clinic
Alexander Blewett III School of Law
Missoula, MT

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MONTE MILLS is an Assistant Professor and Co-Director of the Margery Hunter Brown Indian Law Clinic at the Alexander Blewett III School of Law at the University of Montana. He teaches a variety of Indian law courses and works with clinical students on a range of legal matters in the Indian Law Clinic. Prior to joining the faculty at the Alexander Blewett III School of Law at the University of Montana, Monte was the Director of the Legal Department for the Southern Ute Indian Tribe in Colorado, an in-house counsel department that he helped organize and implement in 2005 following completion of a unique two-year in-house attorney training program. As Director of the Tribe's Legal Department, Monte represented and counseled the Tribe on a broad array of issues, including litigation in tribal, state, and federal courts; legislative matters before the Colorado General Assembly and the United States Congress; and internal tribal matters such as contracting, code-drafting, and gaming issues.

I. Introduction.

If you understand Indian law,¹ you can understand anything. Over 500 years since their first contact with non-Indians and nearly 250 since America's founding, Indian tribes and their members continue to build, enhance, and sustain their governments, cultures, and societies.² In doing so, tribes are engaged in the diverse array of activities demanded of modern governments, from criminal law and child protection to environmental law, contracts, business transactions, torts, and, perhaps most importantly for the readers of this paper, both protection and development of a variety of natural resources. The range of issues facing a single Indian tribe requires familiarity with a broad range of substantive areas of the law, any one of which could otherwise occupy an entire legal career.

Beyond the variety of subjects relevant to tribal law, however, understanding Indian law requires a deeper knowledge of the history, structure, and core of American law and government. As the leading treatise on Federal Indian Law notes, "Native American legislative policy and historic case law derives from more than five centuries of varied elements of international jurisprudence, constitutional principles, federal jurisdiction, conflicts of law, corporations, torts, domestic relations, procedure, trust law, intergovernmental immunity, and taxation."³ Indeed, scholars steeped in the formation and development of Federal Indian Law raise fascinating questions about the nature of the United States Constitution,⁴ the role of racism in Supreme Court jurisprudence,⁵ and the shortcomings of legal education and the profession itself in addressing these challenging issues.⁶ Felix Cohen, creator of the field of Federal Indian Law,⁷ famously compared the rights of Indians to a miner's canary, suggesting that America's "treatment of Indians . . . reflects the rise and fall in our

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democratic faith."⁸ To understand Federal Indian Law is, therefore, to better understand the past, present, and future of the American legal system.⁹

In an effort to help promote such understanding, this paper provides a foundation of Indian law principles for the deeper treatments of more nuanced topics that follow. To do so, the paper is divided into four sections, each taking on a core aspect of the field: history, tribal sovereignty, the federal-tribal relationship, and the role, meaning, and power of treaties.

Importantly, while this paper surveys the basics of Indian law, the field's diversity and complexities prohibit a detailed examination of every minute detail; therefore, more specific research and analysis would be necessary before tackling a particular legal issue. Nonetheless, by providing both basic principles and some broader context, readers of this work will hopefully have the conceptual framework within which to successfully take on such challenges.

II. History.

One cannot begin to understand Indian law without acknowledging history and the role it continues to play in shaping the body of both Federal Indian and Tribal Law. History is important on two levels: first, as a general matter, the weight of history and the passage of time since many of the events that remain relevant to the development of modern Indian law necessarily affects the field itself. Second, at a more discrete level, specific historical events, policy eras, and tribal events can drastically affect the way in which Federal Indian Law applies in a particular instance. In addition, for almost every tribe, the past and its lessons remain closely tied to the day-to-day decision-making and determinations that drive the development of Tribal Law.

A. Balancing the weight of history.

At the broadest level, the effect of history remains a driving force in Federal Indian Law. Professor Charles Wilkinson captured this effect in his recognition of Federal Indian Law as a "time-warped field"¹⁰ in which "results repeatedly turn on the tension between maintaining integrity and stability in the law and affording the flexibility that law must maintain in order to meet the demands of changing circumstances."¹¹ While perhaps comparable in some ways to questions of constitutional law, this tension is particularly acute regarding questions of Indian law, which are necessarily tied to centuries-old tribal status and historical developments that may pre-date the United States constitution.¹² But those historical events are often reviewed in the harsh light of a more modern era, where judges, legislators, and policy-makers may be unable or unwilling to recognize the role and importance of history.

Cases involving questions regarding the present-day boundaries of Indian reservations demonstrate the dangers of this lack of recognition. Such cases arise as a result of Congressional acts during the

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Allotment era of the late 1800s and early 1900s,¹³ which opened reservations to non-Indian settlement. A century or so later, uncertainty arises over the status of the lands in those areas that were opened by Congress - did Congress mean to diminish the reservation by moving its boundaries or does the reservation remain, albeit with non-Indians owning land within it?

In developing its "fairly clean analytical structure"¹⁴ for answering such questions, the United States Supreme Court described precisely the tension that Professor Wilkinson captured as emblematic of this time-warped field. The Court begins its analysis by probing the language Congress used to open a reservation to non-Indian settlement, and, where such language expresses a Congressional decision to terminate or where such a decision is "clear from the surrounding circumstances and legislative history" the Court can safely rely on such Congressional direction.¹⁵ But where such clear, express evidence is lacking, the Court can also see how history played out on those lands: "Where non-Indian settlers flooded into the opened portion of a reservation and the area has long since lost its Indian character, we have acknowledged that de facto, if not de jure, diminishment may have occurred."¹⁶ In some cases, these "changing circumstances" can drive the Court's review of the original Congressional act, which potentially undermines the "integrity and stability in the law."¹⁷ Most recently, the Court downplayed subsequent demographics and "justifiable expectations" to confirm the boundaries of a challenged reservation based on Congressional language.¹⁸ Even then, however, the Court suggested that the passage of time could be relevant to related questions regarding the tribe's authority over the disputed lands.¹⁹ Thus, the passage of time and the movement of history - separate and apart from specific relevant historical facts - can influence the development of Indian law and, to be effective, practitioners must recognize the role of history and its weight upon the field.

B. Understanding the history of Federal Indian law.

Beyond recognizing the weight of history and its effect on the field, successful Indian law practitioners must also understand particular aspects of the field's history and the ways in which that history shaped the contours of present-day doctrine. While the unique histories, traditions, legal structures, and other aspects of each individual Indian tribe make generalizing from the broader history of Federal Indian Law and policy treacherous,²⁰ one must understand the history of federal

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policies toward Indian tribes in order to grasp the complexities of each individual challenge facing the field in the present day. Although it is impossible to organize over 250 years of history into neat and discrete categories,²¹ the following presents a brief overview of the general eras of Federal Indian Law and policy.

1. Laying the Foundations (Pre-Colonial times-Early 1830s). ²²

The roots of European colonial presence in America are interlaced with tribal relations and the rights of North America's indigenous peoples to the lands of the "New World."²³ Because European colonizers imported their own legal traditions that were subsequently incorporated into American legal doctrine, the foundations of Federal Indian Law can be traced all the way back to the medieval crusades, through Papal doctrines, Spanish conquest, and British Imperial policies up until the Revolutionary War and the founding of America.²⁴ Importantly, though Federal Indian Law set its own course in an attempt to find a "new and better rule, better adapted to the actual state of things" in the so-called New World,²⁵ the fundamental conflicts imbedded deep within these European legal concepts set forth challenges for the...