Native Americans

Author:Daniel Brannen, Richard Hanes, Elizabeth Shaw

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The term Native American is commonly used to refer to American Indians living within the United States, though it also includes Hawaiians and some Alaskan natives not considered American Indians. When referred to in general, American Indians often prefer to be called by their tribal names, such as Nez Perce, Navajo, Sioux, or Oneida.

The place of Native Americans in the U.S. legal system is highly unique. Tribes are formally recognized sovereign (politically independent) nations located within the boundaries of the United States. By the 1990s over 2 percent of lands within the United States were actually governed by Native American tribal governments. Such lands under tribal jurisdiction are referred to as Indian Country.

Tracing the history of U.S.-Indian relations from the nation's early years reveals that present-day Native American legal standing in the United States is not the result of a well-organized body of legal principles, but rather an accumulation of policies coming from many sources over time. Although many similarities do exist, each tribe has its own unique cultural and legal history. For over two hundred years, U.S. Indian policy shifted between periods of supporting tribal self-government

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and economic self-sufficiency apart from U.S. society to periods of forced Indian social and economic assimilation (inclusion) into the dominant society.

The Growth of Indian Law

The basis for what is known as Indian law, which is actually U.S. law about Indians and not by Indians, was established well before the birth of the United States. During the seventeenth century British and Spanish colonies began negotiating treaties with the New World's native peoples, treating them as politically independent groups. The treaties recognized Indian ownership of lands they were living on and using. The United States, after independence from Great Britain, inherited this age-old European international policy. As a result, tribal sovereignty, recognized well before the birth of the United States, became the basis for future U.S.-Indian relations.

Fresh from victory over Britain in the American Revolution (1775–1783), the fledgling new government made establishment of peaceful and orderly relations with American Indians one of its first items of business. The 1787 Northwest Ordinance, enacted by the Continental Congress, recognized existing Indian possession of the newly gained lands from Britain that were not part of the original colonies. Attempting to end the practice of private individuals or local governments negotiating treaties with or buying lands directly from the sovereign Indian nations, the Ordinance stated that only the federal government could legally carry out such activities.

Recognition of tribal sovereignty was directly addressed in the U.S. Constitution, adopted in 1788. Authority for the federal government's legal relationship with tribes was placed in the Commerce Clause of Article 1 which reads simply that Congress has power "to regulate Commerce with foreign Nations and . . . the Indian Tribes." The Constitution also recognizes the legal status of Indian treaties in Article VI by stating, "This Constitution, and the Laws of the United States . . . and all Treaties made . . . shall be the supreme Law of the Land." This means congressionally ratified (approved) treaties have the same legal force as regular federal laws. Further reflecting the importance of Indian relations to the new nation, one of the first acts passed by the first U.S. Congress was the Indian Trade and Intercourse Act of 1790. Exercising its new constitutional authority, Congress proclaimed treaty-making policy and brought all interactions between Indians and non-Indians under federal control.

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U.S. Indian policy became further defined by three landmark Supreme Court decisions between 1823 and 1832. Known as the Marshall Trilogy after then-Chief Justice John Marshall, the cases of Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832) affirmed the tribal right to occupy and govern their lands, tribal sovereignty from state jurisdiction within Indian reservations, and defined a moral trust responsibility of the United States toward the tribes. Marshall described tribes as "domestic dependent nations" essentially free of state controls. The trust relationship toward Indian nations meant the United States is responsible for Indian health and welfare.

Later Court decisions further defined Indian policy. A reserved rights doctrine was...

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