GENERAL INDIAN LEGISLATIVE HISTORY
Trade and Intercourse Acts (1790-1834): This series of statutes, beginning with ch. 33, 1 Stat. 137 (now codified at 25 U.S.C. 177), served to codify the constitutional Commerce Clause, providing the federal government with tools to enforce its regulatory authority over its citizens in their interactions with native peoples. The 1790 Act was succeeded by other statutes in 1793, 1796, 1799, 1802, and 1834. Supplemental legislation, elaborating federal authority to punish U.S. citizens guilty of non-commercial crimes "in Indian Country," was enacted in 1802 and 1834. Over time, interpretation of these laws by federal courts came to be seen as binding upon the conduct of Indians as well as U.S. nationals. The federal Non-Intercourse Acts require congressional permission for Indian property interests to be alienated even on a temporary or lease basis.
The Indian Removal Act (1830): This Act (ch. 148, 4 Stat. 411), passed on May 28, 1830, provided for "an exchange of lands with any of the Indians residing in any of the states and territories, and for their removal west of the river Mississippi." It was used as a basis by Andrew Jackson, in defiance of a Supreme Court opinion to set in motion the mass forced relocations of the Creek, Cherokee, Choctaw, Chickasaw, Seminole and scores of other American Indian nations located east of the Mississippi during the 1830s.
Suspension
of Treaty-Making (1871): It was in 1867 that the House considered passing
legislation to repeal the authority given the President, the Secretary of the Interior and
the Commissioner of Indian Affairs to make treaties with Indian nations. Many Congressmen
regarded treaties with Indian nations as creating a two-fold problem: Rapidly increasing
demands for revenues in a time of budgetary restraint following the Civil War; and
allowing the U.S. Senate to usurp the Constitutional power of the House by creating new
budgetary demands through treaties. Failing to win passage of the bill to restrain the
Executive branch from making treaties, and thus unable to restrain the Senate as the
Constitutionally empowered body of Congress responsible for treaty ratification, the
debate continued. A compromise bill was subsequently introduced as an attachment to the
Indian Appropriation Act of 1871 (ch. 120, 16 Stat. 544, 566 now codified at 25 U.S.C.
71): "[N]o Indian nation or tribe within the territory of the United States shall
[henceforth] be recognized as an independent nation, tribe, or power with whom the United
States may contract by treat: Provided further, That nothing herein contained shall be
construed to invalidate or impair the obligation of any treaty heretofore lawfully made
with any such Indian nation or tribe."
The passage of the Appropriation Act into law effectively stopped making new treaties with
Indian nations and severed formal government-to-government relations between the U.S. and
Indian nations. While satisfying the political concerns of Congressmen worried about
Senate usurpation, the breaking of government-to-government connections with Indian
nations posed dilemmas for the U.S. government:? were legal means available for the United
States to legally acquire Indian lands, and could the government deal with the growing
number of civil and criminal problems involving U.S. citizens in Indian territories.? A
string of court cases resulting from these dilemmas appeared in the federal courts.
1885 Major Crimes Act (Criminal jurisdiction in Indian Country is now governed by federal law set out primarily in Title 18 of the United States Code at Sections 1151, 1152, and 1153. Under these statutes, the United States expressly retained jurisdiction over major crime committed by Indians and crimes against Indians committed by non-Indians. Under Supreme Court interpretations of these statutes, jurisdiction over crimes between non-Indians, even though occurring in Indian Country, is vested in states. SEE PL-280 for California )
The General Allotment Act (1887): By this measure (ch. 119, 24 Stat. 388, now codified as amended at 25 U.S.C. 331 et seq.; also known as the "Dawes Act" or "Dawes Severalty Act"), the U.S. broke up traditional systems of collective land tenure. In order to retain land, native people were compelled to accept individually deeded land parcels. "Full Blood Indians" were deeded with "trust patents," over which the government exercised complete control for a minimum of twenty-five years; "Mixed Blood Indians" were deeded with "patents in fee simple," over which they exercised rights, but were forced to accept U.S. citizenship in the process. The balance of reserved Indian land was opened up to non-Indian homesteading, corporate utilization, or incorporation into national parks and forests. Between 1887 and 1934, approximately two-thirds (100 million acres) of all Indian-reserved land was appropriated by the government through the mechanism.
The Reclamation Act of 1902 {See also California v. United States 438 U.S. 645 (1978)]
Indians were granted citizenship pursuant to the Indian Citizenship Act of 1924 (8 U.S.C. §1401). Later amendments clarified that the Act applied to Alaska Natives, as well. "BE IT ENACTED by the Senate and house of Representatives of the United States of America in Congress assembled, That all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property. (Approved June 2, 1924)" The Act gave Indians the right to vote in national elections, but it did not provide full protection under the Bill of Rights to Indians living under tribal governments
1928 Meriam Report delivered a harsh criticism of federal Indian policy, and called for sweeping changes.
The Wheeler-Howard Act, June 18, 1934 (The Indian Reorganization Act) and Amendments.
Indian Claims Commission Act of August 13, 1946 (60 Stat. 1049, 1050; 25 U.S.C.A. 70a)
McCarran Amendment 43 U.S.C. 666, (66 Stat. 560; adopted July 10, 1952) waives the sovereign immunity of the United States where there is a suit designed to establish the rights to a river or other source of water, or the administration of such rights, and the United States appears to own or be in the process of acquiring rights to any such water. (The effect is to permit State courts to adjudicate Federal water rights claims under State law.)
An Act Granting the consent of Congress to the Klamath River Basin Compact between the States of California and Oregon, and for related purposes.Public Law 85-222 August 30, 1957 | [S. 2431] 71 Stat. 497
Kuchel Act (16 U.S.C. §§695k-695r) Public Law 88-567, Act of September 2, 1964, 78 Stat. 850
July 2, 1965 Indian Property in California Adoption and Application of State Laws
The Indian Civil Rights Act (1968): While it negated many of the worst potentialities of termination policy, the Indian Civil Rights Act (P.L. 90-284; 82 Stat. 77, codified in part at 25 U.S.C. 1301 et seq. )
Indian Self Determination and Education Act of 1973 Public Law 93-638,
25 U.S.C. 450 et seq (signed January 4, 1975; 88 Stat. 2203; 42 U.S.C. 450-458) as
amended by P.L. 100-202, P.L. 101-301, P.L. 100-446, P.L. 100-472, P.L. 100-581, and P.L.
101-644. This Act recognized
the obligation of the United States to provide for maximum participation by Native
Americans in Federal Indian programs and services to Indian communities, including
education. It establishes a goal to provide education and services to permit Indian
children to compete and achieve self-determination.
Whereas the Act originally applied only to the activities and programs of the Bureau of
Indian Affairs, P.L. 100-472 (102 Stat. 2285) expanded it to all bureaus within the
Department of the Interior. This law declares a commitment to the maintenance of the
Federal Government's unique and continuing relationship with, and responsibility to,
individual Indians and Tribes. The Secretary of the Interior is directed, upon the request
of any Indian Tribe, to enter into self-determination contracts with Tribal organizations
to plan, conduct, and administer programs, including those which the Department is
authorized to administer for the benefit of Indians because of their status as Indians.
The Indian Child Welfare Act (1978): (P.L. 95-608; 92 Stat. 3069, codified at 25 U.S.C. 1901 et seq.)
Public Law 83-280 (67 Stat. 588). (a.k.a PL 280) treatise transfer of criminal and other jurisdiction to California and other states.
Under the Safe Drinking Water Act (SDWA) amendments of 1986, tribes may be treated as states through provisions empowering the EPA to delegate certain program authority (42 U.S.C. 300h-1e (1988); 40 C.F.R. 145 Subpart E (1994)). Consequently, if a tribe demonstrates its ability to administer a program effectively, the EPA may delegate to the tribe primary enforcement authority over underground injection well regulation or other SDWA program enforcement http://www.lectlaw.com/files/env21.htm
The Resource Conservation and Recovery Act (RCRA) (42 U.S.C. 6901-6987 (1988)) does not expressly address whether Indian tribes have a role in its administration. However, in recognition of federal enforcement authority, one court has held that the EPA may refuse to certify a state's RCRA program insofar as it would apply to Indian lands within the state's borders (see Washington Dep't of Ecology v. United States EPA, 752 F.2d 1465 (9th Cir. 1985)). Currently, the EPA retains RCRA regulatory authority over Indian lands. Tribes may, however, be held liable for RCRA violations for hazardous waste sites on reservation lands. The Eighth Circuit has held that the Oglala Sioux Tribe was amenable to suit under RCRA's private suit provisions for damage caused by widespread RCRA violations on the reservation, because the tribe's sovereign status carried with it the responsibility to regulate dumping on the reservation (see Blue Legs v. United States EPA, 668 F. Supp. 1329 (D.S.D. 1987), aff'd, 867 F.2d 1094 (8th Cir. 1989)). http://www.lectlaw.com/files/env21.htm
In 1987, Congress added §518(e) to the CWA which authorized EPA to permit tribes "to be treated as a state" (TAS) for purposes of promulgating Water Quality Standards: 33 U.S.C. S 1377(e). "The Administrator is authorized to treat an Indian tribe as a State for purposes of subchapter II . . . to the degree necessary to carry out the objectives to this section, but only if -- (1) the Indian tribe has a governing body carrying out substantial governmental duties and powers; (2) the functions to be exercised by the Indian tribe pertain to the management and protection of water resources which are held by an Indian tribe, held by the United States in trust for Indians, held by a member of an Indian tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the borders of an Indian reservation; and (3) the Indian tribe is reasonably expected to be capable, in the Administrator's judgment, of carrying out the functions to be exercised in a manner consistent with the terms and purposes of this chapter and of all applicable regulations"
In the Clean Air Act Amendments of 1990, Congress gave the EPA power to delegate to federally recognized tribes considerable authority over air quality matters on Indian lands, including over permit issuance (42 U.S.C. 7601 (D)(2) (1988 and Supp. II 1990)). The 1990 amendments authorized the EPA administrator to treat tribes as states whenever tribes are capable of carrying out those functions "in a manner consistent with the terms and purposes of the Act." The EPA has proposed regulations to implement the 1990 amendments (59 Fed. Reg. 43956-43983 (Aug. 25, 1994)), but final regulations have not been issued. Consequently, no tribe has yet been granted TAS status under those provisions. http://www.lectlaw.com/files/env21.htm
To demonstrate authority over the activities of nonmembers on non-Indian fee lands, EPA requires a tribe to show that the regulated activities affect "the political integrity, the economic security, or the health or welfare of the tribe." Final Rule, 56 Fed. Reg. at 64,877 (quoting Montana, 450 U.S. at 566, 101 S. Ct. at 1258). The potential impacts of regulated activities on the tribe must be "serious and substantial." Id. at 64,878.
EPA believes that tribes will normally be able to demonstrate that the impacts of regulated activities are serious and substantial due to "generalized findings" on the relationship between water quality and human health and welfare. See id. Nonetheless, under the Final Rule EPA will make a casespecific determination on the scope of each tribal applicant's authority. See id. Because EPA's generalized findings will be incorporated into the analysis of tribal authority, the factual showing required under §131.8 is limited to the tribe's assertion that (1) there are waters within the reservation used by the tribe, (2) the waters and critical habitat are subject to protection under CWA, and (3) impairment of waters would have a serious and substantial effect on the health and welfare of the tribe. See id. at 64,879.
Once the tribe meets this initial burden, EPA will, in light of the facts presented by the tribe and the generalized statutory and factual findings regarding the importance of reservation water quality, presume that there has been an adequate showing of tribal jurisdiction over fee lands. See id. Unless the party objecting demonstrates the tribe's lack of jurisdiction, the EPA will determine there is inherent authority. See id.
Federal Register Vol. 59, No. 85, May 4, 1994 Presidential memorandum of April 29, 1994 Government-to-Government Relations With Native American Tribal Governments (Pages 29-30)
The Tribal Self Governance Act of 1994, 25 U.S.C. §458 Part D
DOI Departmental Responsibilities for Indian Trust Resources 12/1/95 (Manual) This Chapter establishes the policies, responsibilities, and procedures for operating on a government-to-government basis with federally recognized Indian tribes for the identification, conservation, and protection of American Indian and Alaska Native trust resources to ensure the fulfillment of the Federal Indian Trust Responsibility. Dept of Commerce - 1995 American Indian and Alaskan Native Policy (Pages 30-35)
Indian Country" Historically, the term “Indian
country” has been used to identify land that is subject to the “primary
jurisdiction . . . [of] the Federal Government and the Indian tribe inhabiting it.”
Alaska
v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520,
527 n.1 (1998). The U.S. Code defines “Indian country” as:
(a) all land within the limits of any Indian reservation …,
(b) all dependent Indian communities…, and
(c) all Indian allotments, the Indian titles to which have not been extinguished…
(See further discussion by National Indian Gaming Commission)
Tribal Self-Governance Amendmenst of 2000, P.L 106-260, 8/18/00
Executive Order 13175--Consultation and Coordination With Indian Tribal Governments Nov. 6, 2000
2003 report Tribal Self-Governance Health Care and Social Services Delivery Effectiveness Evaluation Feasibility Study Legislative History and Development of Tribal Self-Governance and Contracting Revised Report
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TITLE 25 - INDIANS CHAPTER 15 - CONSTITUTIONAL RIGHTS OF INDIANS SUBCHAPTER I - GENERALLY -HEAD- Sec. 1302. Constitutional rights -STATUTE- No Indian tribe in exercising powers of self-government shall - (1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances; (2) violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized; (3) subject any person for the same offense to be twice put in jeopardy; (4) compel any person in any criminal case to be a witness against himself; (5) take any private property for a public use without just compensation; (6) deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense; (7) require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and (!1) a fine of $5,000, or both; (8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law; (9) pass any bill of attainder or ex post facto law; or (10) deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons. -SOURCE- (Pub. L. 90-284, title II, Sec. 202, Apr. 11, 1968, 82 Stat. 77; Pub. L. 99-570, title IV, Sec. 4217, Oct. 27, 1986, 100 Stat. 3207- 146.)
See also Indian Law (Cornell)