Rights of American Indians are Protect (Part 1)

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When Indian nations first began to deal with the federal government they were considered sovereign (Getches ET AL., supra note 18, at 122-5). They exercised independent authority to govern themselves, and no other nation was depended upon to legitimate their acts of government. After colonization of the continent, Indian nations accepted certain limitations on such sovereignty and significant losses of land and resources in exchange for treaty agreements. These treaty agreements and subsequent legal decisions interpreting them protected the Indian rights of self-government and the understanding that the powers exercised by tribal governments were inherent to sovereigns, not something that had been granted to them by the Constitution.

In what is more commonly known as the "Marshall Trilogy", the U.S. Supreme Court decided three cases in the early 1800's establishing a number of statues that remain the basis for the federal-tribal relationship. These principles are the following:

(1) The Federal government has "plenary power" over Indian matters. This means that federal treaties and statues prevail over state law (Getches et al., supra note 18, at 122-5)

(2) The status of Indian nations was established as "dependent sovereign nations" to the federal government. Thus, Indian nations cannot enter into agreements with other countries, nor can they alienate their lands except to the federal government. (Canby, supra note 53, at 68).

(3) Treaties between Indian nations and the federal government were interpreted to establish that Indian nations retained the right to self-government within the territories reserved to them, without constraint by any other entities, including state governments. (Id. At 109)

(4) Certain "Canons of Construction " were established for the interpretation of treaties with Indian nations. These Canons provided that when construing the treaties they were interpreted as understood by the Indians. Ambiguities within treaties or statues were interpreted in the Indians' favor. Treaties and Federal Indian laws were interpreted liberally and they were to favor retained tribal self-government, rather than state or federal authority. (GETCHES ET AL., supra note 18, at 155-66.)

(5) The protection of land, guaranteed in the treaties, was later extended to the right to use and develop the resources of the land for the economic self-interest of Indian nations. (U.S. v. Shoshone Tribe of Indians, 304 U.S. 111, 118 (1938), White Mountain Apache Tribe V. Bracker, 448 U.S. 136, 138 (1980).

During the early years of the twentieth century the Supreme Court began to allow more incursions of federal power into Indian country, thus endangering the internal sovereignty of Indian nations. (See, e.g., Lone Wolf v. Hitchcock, 187 U.S. 553 (1903); United States v. Sandoval, 231 U.S. 28 (1913); Sioux Tribe v. United States, 316 U.S. 317 (1942). Prior to a number of court decisions in the 1930's and 1940's, the Supreme Court had held to the concept that general federal laws, like state laws, were not applicable to Indians within Indian country. This changed significantly with the Supreme Court ruling in Federal Power Commission v. Tuscarora Indian Nation (362 U.S. 99, 120 (1960), the court held that absent a treaty of federal statute to the contrary, federal laws of general applicability apply also to Indians and tribal governments.