Justice Thomas and Federal Indian Law: Hitting his Stride?

American Indian Law Review, 1998

2022

An examination of tribal sovereignty with regards to Chief Justice John Marshall and the United States Constitution

American Indian Law Review, 1991

In this decision, the Court held as invalid tribal conveyance of land to private individuals. The Court reasoned that Indians retained a right of occupancy extinguishable by discovering European sovereigns. The result was a recognition of a legal right of Indians in their lands valid against all parties save the federal government. 5. 30 U.S. (5 Pet.) 9 (1831). Cherokee Nation expanded the recognition of Indian sovereignty set forth in Johnson v. M'Intosh. Georgia attempted to impose its laws on the Cherokees in violation of treaty provisions. To stop such intrusions, the Cherokee filed suait in the Supreme Court under article III, section 2 of the United States Constitution-a section which gives the Supreme Court original jurisdiction in cases and controversies involving states and foreign nations. Id. at 7-14. The key issue before the Court was whether the Cherokees constituted a "foreign nation" in the Constitutional sense. Chief Justice Marshall determined that they did not. However, Marshall determined that the tribe was a state in the international sense; it was "a distinct political society separated from others, capable of managing its own affairs and governing itself." Id. at 16. Marshall noted that the tribe was "in a state of pupilage," and "their relations with the United States resembles that of a ward to his guardian." Id. at 17. 6. 31 U.S. (6 Pet.) 515, 528 (1832). The following term, Justice Marshall addressed the unresolved issue of state jurisdiction over Indian tribes. Georgia attempted to prevent non-Indians from living on Cherokee lands without permission of the State's Governor. In a strongly-worded opinion, Marshall struck down the application of Georgia law to Cherokee lands, stating: "The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force." Id. at 561. Marshall's opinion is the foundation of law excluding a states' law from Indian Country. https://digitalcommons.law.ou.edu/ailr/vol16/iss1/5 7. Tribal sovereignty as recognized in Worcester is best described by Felix Cohen: The whole course of judicial decision on the nature of Indian tribal powers is marked by adherence to three fundamental principles: (1) An Indian tribe possess, in the first instance, all the powers of any sovereign state, (2) Conquest renders the tribe subject to legislative power of the United States, and, in substance, terminates the external powers of sovereignty of the tribe, e.g., its power to enter into treaties with foreign nations, but does not, by itself, affect the internal sovereignty of the tribe, i.e., its power of local self-government, (3) these powers are subject to qualification by treaties and by express legislation of Congress, but, save as thus expressly qualified, full powers of internal sovereignty are vested in the Indian tribes and in their duly constituted organs of government. F. COEN, HANDBOOK OF FEDERAL INwAxN LAW 123 (1942 ed. 8. See infra note 56 and accompanying text. 9. See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); The Kansas Indians 72 U.S. (5 wall.) 737 (1866); United States v. Kagama, 118 U.S. 375 (1886). 10. In modern times, the Supreme Court has held that tribal governments are "unique aggregations possessing attributes of sovereignty over both their members and their territory." See, e.g., United States v. wheeler, 435 U.S. 313 (1978). 11. Ch. 148, 4 Stat. 411 (current version of § § 7-8 at 25 U.S.C. § 174 (1988)). The Act authorized President Jackson to exchange territory west of the Mississippi River for the lands of eastern tribes. For further discussion, see F. COHEN, HANDBOOK OF FEDERAL INDLAN LAW 78-92 (1982 ed.).

SSRN Electronic Journal, 2000

2016

There has long been concern that the U.S. Supreme Court is hostile to Indian tribes. Between 1990 and 2015, tribal interests lost in 76.5% of Supreme Court cases distinctly affecting them; the loss rate rose to 82% in the first decade of the Roberts Court. With four Indian law cases on the docket last year, Native communities were poised for disaster. Newspapers speculated on why tribes could not win in the Supreme Court. By the end of June 2016, however, tribal interests had lost just one case, won two, and the Court split four-four in a fourth, affirming a lower court decision upholding tribal jurisdiction without opinion. One Term does not reverse a pattern of decades, and the Court remains a very dangerous place for Indian tribes. But, together with other recent majority and dissenting opinions, the Term suggests a resurrection on the modern Court of an old idea: that tribes are a third sovereign in the federal system and that this sovereignty has significant implications for st...

American Indian Quarterly, 1994

The concept of tribal sovereignty frequently conflicts with that of congressional plenary power, depending on the definition and basis of plenary power. Analysis of 107 federal court cases between 1886 and 1914 suggests that when plenary power is seen in terms of preemption and exclusivity, it may help to protect tribal sovereignty from private or state incursions. However, if plenary power is defined as absolute and unlimited, tribal rights are not constitutionally protected against federal actions. Although tribes are properly regarded as extra-constitutional entities, they are often treated as inferior in relation to Congress by the courts. Full Text: The 200-year-old political relationship between American Indian tribes and the United States remains both problematic and paradoxical because of the conjuncture of geographical, historical, political, and constitutional issues and circumstances that influence tribal-federal affairs. A central feature of this dynamic dialogue is the incongruous relationship between the United States Congress's exercise of plenary power and the tribes' efforts to exercise their sovereign political rights. This essay traces the historical, legal, and political origins and transformation of this pivotal concept from 1886 to 1914, an important period in its development. Analysis of 107 federal court cases and of the plenary power concept reveals that congressional plenary power has several distinctive definitions. Depending on which definition is used by the court and whether the term is based on constitutional or extraconstitutional doctrine, determines whether the court's decision will adversely or positively affect tribal sovereignty, political rights, and resources.

Montana Law Review, 1995

2021

Amici curiae are law professors who teach and write in the area of federal Indian law and Native American legal history. They file this brief to explain the history of the federal government’s practice of “recognizing” Indian tribes generally, as well as the specific history of recognition of Alaska Native tribes

2009

Professor of Law, UCLA. I would like to thank UCLA law student Kevin Balster for his research assistance, and to acknowledge the support of the UCLA School of Law Dean's Fund. 1 Okla. Tax Comm'n v. Chickasaw Nation, 515 U.S. 450 (1995). Justice Breyer dissented for himself and Justices O'Connor, Stevens, and Souter. Id. at 468 (Breyer, J., dissenting). 2 See infra notes 87-109 and accompanying text.