Professor Angelique EagleWoman on Tribal Property Rights
I'm Professor Angelic Eaglewoman Wambadi Awanwi Chaquastewian in my Dakota language. I'm a tribal member of the Sustin Wapden Oyate of the Lake Traverse Reservation and the director of the Native American Law and Sovereignty Institute. So this session is going to be about building your knowledge on tribal nations, tribal land holdings and understanding trust status and why that's important for tribal lands.
We're going to learn about the mixing of European Christian doctrine in law and how it is embedded in foundational property law in the United States. I want you to understand that there is a cross cultural relationship and tensions between tribal nations and the U.S. government and the U.S. government's component state governments at times.
In terms of terminology. So the word Indian is a misnomer and was used by Great Britain for the Native people of the Western Hemisphere. This is then picked up by the formation of the United States and we call it codified or written into U.S. law. And that's why we have the term federal Indian law.
Obviously that is a misnomer, as Christopher Columbus reported back that he had reached Asia when in fact he reached Central North America.
And so we often see the word American added onto the front of that American Indian, further disconnecting the Native people of this hemisphere from their lands. So the academic term is Native American. It's also used because it's more inclusive of both American Indians, who we would say are the tribes in the lower 48 states, and Alaska Native tribal nations. So Alaska Natives have tribal governments and they're often called Alaska Native villages.
Those are still tribal governments. Sometimes federal policies did include and do include Native Hawaiians, but they do not have that same tribal nation status.
Internationally, the term used is Indigenous peoples.
So notice the S on the end of the word people. Why is that there? Because the United Nations Charter discusses a definition of self determination for peoples.
So we often see Indigenous peoples as the term used.
So I want to plan in your mind that there's thousands and thousands of years of relationship between land that's now termed property in the legal system and this area, this hemisphere, and what is now known as North America. For many tribal nations, they refer to these lands as Turtle Island.
And here is an artist depiction of these lands and this idea of that connection. And there are many origin stories about how the lands were formed. And they came about on the back of a turtle. One of the lenses I use when I talk about the relationship between tribal nations, the United States, is economics. And so here is a depiction of trade routes from tribal nations. And these trade routes stretch all the way from what we would now call the top of Canada to what we would call the southernmost point of South America. And this history is not well known or documented.
Sometimes, especially in public education, these trade routes were what the European charters and companies and colonists all entered into when they came to these lands. And so this idea of, you know, cutting through grass to get from one place to another, that's not true. There were well established roads and actually the major US highways are built on these same trade routes.
So economics was always a huge part of the interaction between tribal nations. And then what becomes the United States, when we start talking about the United States, we have to go back in time and we have to talk about European concepts that are developed over time.
So when we talk about Europeans, we have to talk about religion and this hierarchy that gets formed with the religion of Christianity.
And within that religion there is a hierarchy. And at the top of it is the Catholic Pope. And the Catholic Pope, over hundreds of years, each one issues a series of orders. And these are considered laws to them. And they're referred to as papal bulls. And within the Papal bulls is developed this idea of the doctrine of discovery, beginning with the dividing up of continents by this Christian hierarchy.
In 1436, Portugal was given permission from the Catholic Pope to colonize the Canary Islands after they use what I call legal fictions stating that the people there had no laws or government. And then in 1455, Portugal was also given by Pope Nicholas V exclusive authority to colonize all of Africa.
So when we get to Central and mid North America and all of North America really, we have Pope Alexander VI bull Intercatera 1493. So this is Spain now competing with Portugal and financing Christopher Columbus.
And Christopher Columbus writing back that he had found spices and gold and a people that were very straightforward and welcoming and friendly, and he wanted permission to colonize and take over.
And Pope Alexander V6 issued the bull Intercatera and gave Spain that authority. In this development of these Papal bulls, we have the development of the rights of Spain through their black philosophers and scholars. And they determined that Spain has the right to assert superior title over pagans or infidels. And that's anyone who's non Christian and monopolize, trade with them and convert people to Christianity.
And then within their assertions they state that if the native people refuse to allow Them to monopolize trade or refuse to convert to Christianity, then they have the right to start a just war and enslave all the people, take their land and all resources. And so we see this happening then under Christopher Columbus and other Spanish rule, rulers coming over to North America.
The British kings didn't follow the papal bulls and issue charters in the 1600s for trading companies. Virginia Trading Company, you may have heard of the Hudson Bay Trading Company. So these are the first economic institutions or entities that are issued to settle in what becomes Canada and the United States. And also they issue charters for colonies in North America. And they use the language of the papal bulls that they're to propagate Christianity. And under these charters they just say that they have the right to mine copper, gold and silver and then they send a portion back to the British king. So papal bulls are used to justify taking the resources of those who are not of the same religion.
We're going to find in 1823 the U.S. supreme Court in its decision, Johnson vs. McIntosh, which we will go over that the U.S. is going to assert successor status. It's going to say we're descended from England, which is European based. And because of that we're going to claim the doctrine of discovery and use it in mid North America.
And so I ask you, is it problematic for the United States to say they have the rights of a European nation? Is the United States in Europe? Hopefully your answer is no, it is not. So again, legal fictions happening here. Legal fictions that tribe tribal nations didn't have governments, didn't have laws.
Legal fiction that the United States can claim a Christian doctrine from Europe as a Christ, as a European nation and, and take it from Great Britain.
Lots and lots of legal fictions happening here to dispossess the native people of this continent. And of course we have different cultures, different understandings, but we also have a language barrier that's happening.
So the British Crown and then the United States follow this practice of entering into treaties which are agreements or alliances with tribal nations. Tribal nations have a long, long history of relationship building in alliances and had confederacies all up and down the Western hemisphere.
Also have oral traditions around entering into alliances and a kinship worldview. So long history prior to British and French arrival, understood any kind of commitments or sacred promises and often memorialize them in song, ceremony, oral tradition, pictographs and other means.
And had this idea that when we enter into this relationship, this alliance, it extends to all our future generations. We'll teach our children, our grandchildren or great Grandchildren that we're in this alliance, that we have taken you as relatives. They did so on the tribal nation side to protect their ability to continue way of life. And they also allowed settlers as permanent neighbors, understanding that they would abide by the agreements reached.
They did not sell land to others. They allowed for settlement. They could not be given land by newcomers in the tribal worldview, but they could agree to relocate to other lands. And what we'll find in treaties as they develop is that tribal leaders had great foresight and were very adamant that they would continue to exercise the their hunting, fishing, harvesting and ceremonial use as perpetual rights to any lands they allowed for settlement on.
So we call these ceded or purchased lands and treaties and off reservation. So the reserve lands are on reservation, off reservation. And those rights still continue today, although there's a lot of litigation that has to occur sometimes to enforce those rights.
On the British side and the US Side, the treaties were entered into as an expedient means to acquire land for settlement and industry. We find here in North America that treaties are written into the English language and often used legal terms. Over time, courts will adopt interpretive tools that we call cannons of construction. Canons is another word for doctrines or ways in which to guide how you read a treaty.
You have to look at how both sides understood it. The majority of U.S. treaties promised perpetual peace and friendship. Treaties were necessary for either Great Britain or the US to establish legal title to lands.
But lands were seized were possible without entering into treaty and treaties. All of the treaties have been partially or fully abrogated over time without the US Return of lands. The US Supreme Court is going to empower the US Congress with what it calls the plenary power doctrine or absolute power over tribal nations over time.
So these are the things that we continue to review and seek to change in terms of Native American law. When we talk about the U.S. constitution. One of the main places where we see tribes listed is in what we call the Indian Commerce clause. This is the power of the US Congress in Article 1, Section 8, Clause 3, to regulate commerce with foreign nations and among the several states and with the Indian tribes.
This is going to be important when we get to the Johnson vs.McIntosh decision. The way that this is listed. There's also the US Presidential power to enter into treaties. The treaties then must be approved by 2/3 of the U.S. senate. And 1 thing that comes up over and over again is the US Supremacy Clause in Article 6 of the US Constitution that says, all treaties made under the authority of the United States shall be the supreme law of the land, and the judges in every state should be bound thereby.
So the treaty should be upheld on every level of government in the United States. We also see in original Article 1, Section 2, Clause 3, that the formula for taxation excluded Indians, not taxed.
So it's a recognition that tribal nations are separate entities with their own governance, engaging in commerce with the United States.
Here are that canons of construction. Why did the United States courts uphold treaties? Well, because they had to in order to settle title.
If the treaties are completely abrogated, when we think of a bilateral treaty, the two countries, if they both withdraw from the treaty, then what happens with the relationship? Often things go back to a status quo. Well, the US Courts didn't want things to go back to a status quo with tribal nation land ownership.
And so they wanted to at least partially uphold the treaties.
And so where we see the treaties continuing to be upheld is really with the off reservation hunting, fishing and harvesting rights. And over time, these are the doctrines or canons of Indian treaty construction that the U.S. Supreme Court uses. Ambiguities and treaties must be decided in favor of Indians or tribes. But we do see Supreme Court cases where the US Supreme Court says, no ambiguity here, so no deference to the tribal understanding.
Another doctrine, treaties must be interpreted as Indians would have understood them. So that requires expert witnesses. And treaties must be construed liberally in favor of the tribes. Why is this? Because they're written in English and used legal terms, and we have a language barrier.
So a lot of times the treaties are entered into using sign language, and the tribes had developed a sign language that was used for trade and commerce. And in a sign language, you're not going to get specific meanings of words. Right. These interpretation principles are also applied to federal laws and federal regulations enacted for the benefit of tribal nations and tribal members.
So that is something that has occurred as US Federal Indian laws developed.
Now we're going to go into Johnson versus McIntosh.
So usually this is a case in every major case book or US Law schools on property law. I'm going to give you a extended version of it of this case and bring in some critiques as well. So remember this theme I have here of legal fiction. So we're going to talk about some of that that comes up in this case.
And this is the primary case that establishes US Title to the lands in North America. So here we go. So here we have two different alleged landowners claiming title to a piece of land. And one group says that their title comes directly from entering into a agreement with the tribe. The other group says that they received title after the United States entered into an agreement with the tribe, and now they have a deed down through the United States title. So question is, can the private individuals who claimed direct agreement with the tribe, can that title stand in the US Courts and in US Law?
I will tell you that there have been legal scholars that have traced these two parcels of land and did not find that they overlapped. And if that is true, then that means that this was not a real controversy. And the U.S. supreme Court is not supposed to hear advisory opinions or speculative claims.
They are supposed to hear actual real claims where there is an issue in controversy. So like I said, legal scholars have said these, these two tracks of land did not overlap and that this appears to have been a sham as a case or controversy. So this was something that was an important topic for land speculators at this point in US History because there are corporations being formed and going out to tribal nations and supposedly entering into agreements.
And the idea here is that if any group can do that, including those from other countries in Europe or Russia or anywhere else, then the United States is going to become smaller and smaller, surrounded by different property claims. So there's a lot of politics and policy behind this decision. The other thing to know is there are no tribal nations represented in this decision. And this decision is going to determine tribal nation property rights for all time and continues to today.
So the court starts with going back to Great Britain and sets out that there is an international principle, an international principle under the rights of sovereign nations.
And on. I'm quoting from this. On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves as much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all, and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy. So we have a lot of derogatory language towards tribes.
And then we have this principle set out that comes from the Papal Bulls.
Discovery gave title to the government by whose subjects or by whose authority it was made against all other European governments which title might be consummated by possession.
So what that means is, you know, this image of sticking a flag on a piece of land. You also see that on the moon stick A flag on it. So that's consummating possession. That was part of the physical discovery under the Papal bulls. So the decision goes on. The first European nation to get there excluded all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives and establishing settlements upon it.
It was a right with which no Europeans could interfere. It was a right which all asserted for themselves and to the assertion of which by others all assented. So again, this is preventing war amongst Europeans. European nations, by establishing this papal bull doctrine of discovery to go and claim title over lands already owned by native people in all regions of the world.
So what about tribal nations? Here's what the decision says. They were admitted to be the rightful occupants of the soil with a legal as well as just claim to retain possession of it and to use it according to their own discretion. But their rights to complete sovereignty as independent nations were necessarily diminished. And their power to dispose of the soil at their own will to whomsoever they please was denied by the original fundamental principle. That discovery gave exclusive title to those who made it. So again, no tribal nations are part of this decision.
And the U.S. supreme Court is now stating that tribes have less than fee title, have less than full title, have something called occupancy title, and that the US Government has superior title and that tribal nations can only sell their lands to the United States government.
Again, how did Great Britain gain any title in North America? Well, England granted a commission to the Cabot, to John Cabot. The Cabots and John Cabot sailed along the coast of the continent of North America and claimed it for Christian people. And to this discovery the English trace their title. Again, legal fictions, right? So to say that you can sell along a coast and then claim the title.
All right, so we continue on. And the U.S. supreme Court says, thus has our whole country, this is the United States, been granted by the Crown is Great Britain while in the occupation of the Indians.
These grants purport to convey the soil as well as the right of dominion to control to the grantees. Next. So after this idea of Great Britain acquiring idle to North America, where does the US Fit into this? So we have the opinion continuing all the nations of Europe who have acquired territory on this continent have asserted themselves and have recognized in others the exclusive right of the discoverer to appropriate the lands occupied by the Indians.
So claim them and then divide them up however you want, even though the native people are on their lands. The court goes on and says by the treaty which concluded the war of the US Revolution, Great Britain relinquished all claim not only to the government, but to the propriety and territorial rights of the United States, whose boundaries were fixed in the second article.
By this treaty, the powers of the government and the right to soil which had previously been in Great Britain passed definitively to these states.
So now the US claims the discovery doctrine, which wasn't owned by Great Britain, right?
This is a concept in a papal bull. But now the United States is going to take this legal fiction and claim it as a legal principle and say that it has the right to claim it as a legal principle because it was originally descended from Great Britain.
The US didn't have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country.
They hold and assert themselves the title by which it was acquired.
They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish any entitled occupancy, either by purchase or by conquest, and gave also right to such a degree of sovereignty as the circumstances of the people would allow them to exercise.
So this is important. So the United States is saying we have discovery title or superior title.
Where the tribes live, tribes have occupancy title.
How does the United States get full title? By purchase or by conquest? I'm going to tell you, no tribe in the United States believes that it has ever been conquered or subject to conquest by the United States.
Rather, the United States has entered into treaties or executive orders or congressional agreements with tribal nations, and so there's no conquest.
We go on and decision says all our institutions. It says, US recognize the absolute title of the Crown.
This is Great Britain, subject only to the Indian right of occupancy and recognize the absolute title of the Crown to extinguish that right.
This is incompatible with an absolute and complete title in, in the Indians.
So there is how tribal nations have just been dispossessed of fee title.
The court goes on. And now we get really derogatory language about tribal people to justify this.
In 1823, there had already been, you know, almost, you know, if you look at the 1660s when the Virginia Company is chartered, so you have, you know, over a hundred years of interaction, trading relationships, neighboring villages.
But again, we have all these legal fictions in, in this decision about who tribal nations are.
So we have the British government, which was then the US's government and whose rights have passed the United States, asserted title to all the lands occupied by Indians within the charter limits of the British colonies.
And the court is now Going to rationalize it is not for the courts of this country to question the validity of this title or just sustain one which is incompatible with it.
And again, going back to blaming tribal people and stereotyping them, Europeans may, we think, find some excuse, if not justification, the character and habits of the people whose rights have been rested with them.
The opinion then goes in and talks about sort of the formula for Rome when it conquered people to then incorporate them into their government and says that but the tribes of Indians and having this country were fierce savages whose occupation was war.
New subsistence was drawn chiefly from the forest.
They're saying they the Europeans could not conquer tribal nations and bring them into U.
S. I mean, well, yeah, this time US Society. And then says to leave them in possession of their country was to leave the country a wilderness.
To govern them as a distinct people was impossible because they were as brave and as high spirit as they were fierce and were ready to repel by arms every attempt on their independence.
So this is saying that conquest couldn't happen.
So now the court is going to legally dispossess without any tribal nations involved.
In this case, the next paragraph, what was the inevitable consequence of this state of things?
Europeans were under the necessity either of abandoning the country and relinquishing their pompous claims to it.
So we do see some awareness of what is happening here or of enforcing those claims by the sword and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix and who could not be governed as a distinct society or remaining in their neighborhood and exposing themselves and their families to the perpetual hazard of being massacred.
I will say that from the 1600s on there were intermarriages happening between the British and French and many tribal nations.
So again, another legal fiction, the court goes on.
Frequent and bloody wars in which the whites were not always the aggressors unavoidably ensued.
So we do see the court using this term whites very early on.
This is 1823 European policy. Numbers and skill prevailed. As the white population advanced, that of the Indians necessarily receded.
And then again, using more legal fictions about the fact that tribes didn't farm, we did farm.
Many of our indigenous farming practices are now coming back and being used because they're better for the soil and for growing compatible plants together.
So the court says the country in the immediate neighborhood of agriculturalists became unfit for them.
The game fled into the thicker and more unbroken forest, and the Indians followed the soil to which the crown originally claimed title.
Being no longer occupied by its ancient inhabitants, was parceled out according to the will of the sovereign power and taken possession of by persons who claimed immediately from the Crown or immediately through its grantees or deputies.
And then we do find that the court talks about sort of a self awareness that there's a lot of pretension coming here.
The resort to some new and different rule better adapted to the actual state of things was unavailable.
Oh, I'm sorry. Unavoidable. According to this court, every rule which can be suggested will be found to be attended with great difficulty.
Next paragraph. However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear if the principle has been asserted in the first instance and afterwards sustained.
If a country has been acquired and held under it, if the property of the great mass of community originates in it, it becomes a law of the land and cannot be questioned.
So this is sort of like if a great wrong has been committed, you just allow it to continue.
Right. And this is the yes, supreme court establishing property rights will limits on American Indian property rights.
So we're getting to the end of the case. So the court goes on. So too with respect to the com competent principle that the Indian inhabitants are to be considered merely as occupants, to be protected indeed while in peace in the possession of their lands, but to be deemed incapable of transferring the absolute title to others.
So this is setting up that idea that only the US can purchase title from tribes.
The tribes have less than fee ownership. The bundle of rice that you're going to learn about in property law.
They have occupancy title at the whim of the United States.
Going on, we see the the court stating, however, this restriction may be opposed to natural right into the usages of civilized nations.
Yet, so saying, you know, what we're setting up here doesn't align with international law.
Yet if it be indispensable to that system under which the country has been settled and be adapted to the actual condition of the two people, it may perhaps be supported by reason and certainly cannot be rejected by courts of justice.
Now the court goes on and talks about US citizens who purchase lands from tribes.
The person who purchases lands from the Indians within their territory incorporates himself with them so far as respects the property purchase, holds their title under their protection and subject to their laws.
So this seems to be a recognition that tribes have laws and in fact tribes did have property laws.
If the tribes annul the grant, we know of no tribunal which can revise and set aside the proceeding.
We know of no principle which can distinguish this case from a grant made to a native Indian authorizing him to hold a particular tract of land.
And severalty I added the emphasis there. Next the court says by the treaties concluded between the United States and the Indian nations whose title the plaintiff's claim going back to the parties reportedly in the case, the country comprehending the lands and controversy has been seated to the US without any reservation of their title.
And then goes back again to Great Britain and talks about the Royal Proclamation of 1763 is a further objection to the title of the plaintiffs.
Under this royal proclamation which is something that leads to the revolt of the colonies against their government and the formation of the United States.
The British king set out a line and told British subjects do not settle on tribal lands.
We have agreements, we have treaties with them. And so that's what the US Supreme Court is now drawing on the Royal Proclamation of 1763.
Further objection to title. The plaintiffs crown reserved under its own dominion and protection Indian lands and strictly forbade all British subjects from making any purchases or settlements.
Whatever the result of the cl the case plaintiffs do not exhibit a title which can be sustained in the US Courts.
Therefore land speculators who go out and seek to purchase lands directly from tribes those those titles are not going to be safe.
But a lot's happening in this case especially for tribal nations who are not represented.
What are the consequences? Well, purchasers from the US Government are securing their titles against all others.
US Officials are authorized to go forward with purchase or conquest to assert U.
S Title Overall tribal lands tribes negotiations with anyone that is non US Government is invalidated over land purchases and the tribes weren't looking to sell their land.
So that was a big deal for the tribes. But this one is a complete extinguishment of all fee title, all full ownership for tribes left with something called occupancy title that the U.S.
supreme Court makes up. This decision rationalized and girded a US Legal framework for extinguishing tribal nation title and claimed that the US had superior title to all tribal lands.
In later cases we'll see that when tribes seek to sue the United States under the fifth amendment for just compensation of taking of their property, we have a U.
S. Supreme Court case that says takings will only be upheld if the United States recognized the tribe had title.
So unless you have a treaty, a statute or an executive order saying that this tribe has title to these lands, there is no taking.
So think about that for a minute. What that means is the United States, according to the US Supreme Court can take all the lands in North America, flipped it and say unless we recognize that you have title, you don't.
Huge dispossession tribal lands. I want to make a Note here that March 30, 2023, the Catholic Vatican repudiated the doctrine of discover.
And this is from an NPR article. The Catholic Church therefore repudiates those concepts that fail to recognize the inherent human rights of indigenous peoples, including what has become known as illegal and political doctrine of discovery.
I should note that they don't claim responsibility for what the doctrine of discovery did to indigenous peoples around the world, including here in North America and still good law in the United States.
The Johnson case is called one of what we call the Marshall trilogy when and if you study American law.
So three cases that are authored by Chief Justice John Marshall at the time for the U.S.
supreme Court, Johnson vs. McIntosh tribes recognized land right limited to occupancy of their lands because of the doctrine of discovery in which the US Claims to be successor to Great Britain and the US Gained the exclusive title to purchase title from the tribes or conquer tribes and seize title, which again is disputed by tribes.
We're going to see two more cases come out of this court.
We call them the Cherokee Nation cases which are going to further diminish tribes as governments by creating a new term domestic dependent nations.
And then we will see a case where the US Supreme Court says that federal law preempts state law in Indian affairs and the treaty should be upheld.
But even after that case, this is where Georgia is asserting all of its laws over the Cherokee Nation, which is on its homelands guaranteed by treaties with the United States.
The US President, Andrew Jackson signed into law the Indian removal Act of 1830 and coerced over 70 trees of removal to lands west of the Appalachians and then west of the Mississippi River.
And these are called Trail of Tears, Trail of Death, lots of names like that for many, many tribal nations.
So we're going to watch this map. It isn't completely accurate because it doesn't reflect the lands for the reservations in Oklahoma, but it does give you a sense of the land seizure by the United States.
So as you can see, very little bits lands are left and that is the basis for contemporary movements, land back movements and asserting claim to lands that were wrongfully taken or seized or squatted on.
And you'll learn about squatters in property law.
What also happens is an era of US Indian policy that we just call the worst possible era allotment and assimilation.
It's the late 1800s and 1930s. And here the US Supreme Court begins to talk about the US Congress is having plenary power, absolute power over tribal nations in terms of criminal law, lands and children.
And so here are some of the major decisions. But what I want to draw your attention to is the General allotment Act of 1887.
So with the US Congress empowered to take action impacting tribes without the US Supreme Court really reviewing it, we have this law that's passed that allows the US President and through the Executive, the Department of Interior and the Bureau of Indian affairs that has US Indian agents on and around tribal reservations to go in and divide up the land.
So think of a checkerboard and parcel it out by creating a list, we call it a role of tribal members and then declaring any lands that are not parceled out surplus.
And the United States then setting its own price for how much it will pay the surplus lands.
So that's where you get pennies on the acre by the United States for tribal lands.
This abrogates all treaties because all treaties reserved a homeland for the tribal nation.
And often tribes were forced into this. This goes hand in hand to what we call the assimilation policy.
Very, very sad, tragic period of time where the US government made it mandatory for tribal nation children to go to military style and Christian run Indian boarding schools.
The children were forced to speak English and convert to Christianity.
To add insult to injury, the United States then directed treaty payments due to tribal governments to fund these schools.
And this was often used as a weapon against tribal leaders to force them to do to agree to allotment of their reservations if they wanted their children to be in schools close to their reservation and not sent away to these boarding schools.
But this lasted for up to four generations. My father went to an Indian boarding school. My grandparents, many of my relatives. So this wasn't a long time ago. This is looked at as 8 really negative, harmful social experiment.
And the policy was stated as kill the Indian, save the man.
In Canada there has been a Truth and Reconciliation Commission because they adopted the same process with 94 calls to action to heal and restore aboriginal Canadian relations with government apologies and monetary settlement amounts for survivors of the mandatory Indian residential schools modeled after the US Indian boarding schools allotment.
So this is a huge impact to a full another wave of dispossession of tribal lands.
What this did was again the US Indian agent would divide up the land base into 160 acres or less, sometimes 40 acres, sometimes 80 acres, their sole discretion.
The remaining lands again declared surplus by the US and the US Decided how much it would pay for that and then decided what lands would be sold to settlers, what lands would be set aside as national parks, what lands would become federal public lands, what lands would become public universities, military bases and other uses.
So this is where we find the great injustices that tribal nations still are seeking deremity within reservation borders.
There were often parcels side by side with settlers that the US Indian agent did purposefully.
And we call this a checkerboard pattern. And because tribal land has tribal nation government jurisdiction and the fee lands are held to be under state jurisdiction, we have a jurisdictional maze especially for law enforcement.
Under the General Allotment act, the U S established itself as the trustee or guardian for Native American lands.
So the US Holds land in trust for Native Americans and it is called Indian country.
And this is set out in the criminal Statutes of the US Government, 18 USC Section 1151.
And we also see this under the 1934 Indian Reorganization Act.
What does the USS Trustee do? They must approve land transactions including leasing sales and transfers.
And depending upon what the land use is for. There are provisions for 10 years or 25 year leasing authority for tribal nations.
And some of those land use purposes the tribes can do without secretarial approval.
Why do tribes continue to have land into trust? Well because in the United States, land in a trust equals tribal jurisdiction for the application of tribal laws and governance.
So tribal governments still seek to put as much land as possible into tribal trust status.
Tribes may own fee lands as well, but when they do, it may lead to disputes with the surrounding states on jurisdiction.
So to have full tribal jurisdiction or tribal law and management and conservation and environmental protection, the land has to be in trust status with the US Government trust status.
So as part of the allotment process, tribal lands are held in trust.
That means the deed is held by the US for the benefit of the allottee, the person that receives the allotment, the tribe or tribal members.
And under the law the lati or tribe or tribal members are incompetent.
So I do have tribal trust land and I am considered incompetent under the law because the land is in trust status and I want it to be in trust status as part of my tribes jurisdiction.
Almost all tribal government lands are held in trust and it's necessary so they aren't state taxed.
And sometimes the U S trust responsibility to tribes may conflict with the US interest.
In 1934 the Indian reorganization Act a major federal laws passed and it stopped the policy of allotment we don't have allotment after that.
And the General Allotment act is repealed and it extended the trust periods from the original 25 year trust period indefinitely unless Congress changes it.
And also the Secretary of Interior today can take land in a trust for tribes and tribal people where that land is within or contiguous with reservation boundaries.
Here's the statute I was telling you about in the criminal statutes where Indian country is defined as three categories.
Reservations, dependent Indian communities that are under federal supervision, similar to the pueblos in New Mexico and then the parcels, the trust restricted lands and allotments.
One thing that I want you to be aware of is that tribes have a very strong worldview with land.
And we often call this land Mother Earth. And we see her as a living being and we see ourselves in a reciprocal relationship with Mother Earth.
We have cultural and religious practices that are interwoven with the natural world.
We believe that we have responsibilities to steward and protect Mother Earth.
That there are sacred places, geographies, landscapes, waterways in the natural world that we must administer and steward, take care of.
And we also have a worldview that we respect other expressions of spirituality and religion.
This is intention that cross cultural understanding with the Euro American Christianity where there's a written text containing principles of religious beliefs and practices and practitioners may worship from any location.
We have specific geographies in this Euro American Christianity.
Other people must be converted to enjoy a positive afterlife.
We don't have that view. Also in Christianity, unconverted people are inferior and under the control of Christians.
And that was the doctrine of discovery. So we have these tribal, sacred and cultural sites.
And again we have the US Government being very aggressive in allotting the reservation lands and claiming them as surplus.
US President Theodore Roosevelt was very aggressive in implementing the allotment policy and claimed tribal nation lands for national parks, conservation areas and recreational locations, millions of acres.
So now many of our sacred and cultural sites are now on lands claimed by the US Government as national federal land, state parklands and may be located within private non native owned lands through this land loss history.
And we feel it's our responsibility to take care of these places.
This has led to constant interaction with the United states to educate US leaders and develop laws around protecting these places.
In 1996, US President Bill Clinton did issue an Executive Order 13007 which is accommodation of sacred sites.
And here it is directed at all federal agencies to have these responsibilities to accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners and to avoid adversely affecting the physical integrity of such sacred sites.
Where appropriate, agencies shall maintain the confidentiality of sacred sites.
So this is really important when federal public lands are open to, say, gravel mining.
And it's a sacred area for a tribal nation. So there's a conflict here, and tribes often have to litigate to try to stop the destruction of really important places to us.
I want to talk a little bit about where the law school is located.
The law school is located on treaty lands of the Dakota peoples.
And you can see on this map all the different treaties that were entered into with the United States where the United States sought more and more purchases of land.
And eventually the Dakota people were involved in a war with the United States when they were being starved along these strips of land along the Minnesota River.
And there's still a federal law on the books that outlaws Dakota people from being in Minnesota.
And some tribes have tried to get that off the books.
Minnesota has repealed their law, but it's still a federal law, which obviously people are not adhering to, because here I am on this other map.
You can see where the current reservations are, and you can see the Dakota people have lost a lot of their land base, but are continuing to purchase lands and put them into trust status to try to rebuild and protect sacred places.
All right, here's a check in how many tribal nations and reservations are in what is now Minnesota.
So the correct answer is 11. So there are 7. Anishinaabe or Ojibwe or Chippewa. Those are interchangeable tribal nations. Anishinaabe reservation, seven. And there are four Dakota tribal nations. So correct answer is 11. How important is all this? It's really important. We have a US Supreme Court case that just came down, just, I mean, in 2020, not that long ago, where, again, we have the issue of jurisdiction.
And the issue is whether or not this tribal person could be convicted under state law on the land where the alleged crime took place.
And the tribal member, who's a member of the Seminole Tribe, as a defense to their criminal prosecution, said, I was on the Muscogee Creek Nation reservation, and so therefore, I was not under state criminal jurisdiction.
Okay? So the court had to review whether or not the status of the land was a reservation.
And here we have a 5 to 4 decision with Justice Gorsuch writing the majority opinion, holding that we.
We start with the Indian country statute in the criminal laws, and we look at whether or not this is a reservation.
And so they look at the treaties that the Creek Nation entered into.
Treaty of 1832, treaty of 1833. And treaty of 1866. And they go back to the Supremacy Clause. Treaties are the supreme law of the land. And then they cite to another U.S. supreme Court case which recognizes Congress is having plenary authority and a statement, only Congress can divest a reservation of its land and diminish its boundaries.
And then they review, is there any law that Congress passed that diminished or changed the reservation.
And Oklahoma, the state argued there are no reservations in Oklahoma.
It's been saying that for decades. And the court said the Creek Reservation survived allotment as no language from Congress on change to the reservation.
The boundaries are still intact even though allotment took place inside of them.
And the court went on and rejected Oklahoma's reliance on additional steps after reviewing federal law.
So there are a series of cases the US Supreme Court decided through the late 1970s and early 1990s where they said, we're going to look at an allotment act, plus we'll look at contemporaneous understandings.
We'll look at what population is there. We'll do all these steps and then decide whether or not a reservation is still in existence.
And in my opinion, that's very unjust. And it actually happened to my reservation, the Lake Traverse Reservation, here.
In this decision in 2020, the court says that is not the proper analysis. The proper analysis is you look at the federal law, period. There are no other steps. If you look at contemporaneous understandings, whose contemporaneous understandings are you going to see?
You're going to see newspaper articles by those interested in the elimination of the reservation. If you look at demographics, what are you going to see? You're usually going to see more non natives than tribal members. All of these additional steps or factors go against the existence of the reservation. And the court said that would be the rule of the strong, not the rule of law.
Went on to say Oklahoma's arguments that non Indians would be surprised to find they live in Indian Country.
The 1832 Creek Nation would be equally surprised to find them living there because.
Because often the treaty said that no settlers would be allowed on the reservations.
But this is abrogated by the General Allotment act and that policy of the U.S.
congress. The court went on to state, in any event, the magnitude of a legal wrong is no reason to perpetuate it.
Anne says that for criminal jurisdiction, there are many intergovernmental agreements that Oklahoma and tribes already have.
This is not going to lead to chaos. The ultimate finding here is Congress has never withdrawn the Promise Reservation.
A dissent by four Justices. Chief Justice John Roberts with Alito, Kavanaugh Thomas.
And they're saying the court has destabilized eastern Oklahoma as the court does not follow the well settled process, which is there are additional factors and steps.
So this is the rule of law. This was a huge decision that was celebrated by tribal nations as, yes, adhere to your own rule of law.
United States, in upholding our reservations and our treaties.
So why is this still important? Because tribes are still defending their treaty rights and their lands.
All right, so these are permanent homelands. We are all treaty people. A majority of treaties entered into by the US with tribal nations in the late 1700s and 1800s contain the promise of perpetual peace and friendship.
And this would mean, or should mean recognition of full human rights, the application of the rule of law to tribal nation claims and fairness in court decisions.
Tribal nations in the US Are in a permanent neighbor relationship.
That's how I term it. The tribal nations aren't going anywhere. The United States is not going anywhere and the component states are not going anywhere.
It's time to reconcile the past and provide a way forward.
That's just. We now have lawyers who are looking at these things.
You're being educated on this. And the United States must live up to the treaties.
The US Is what we call a settler nation state and must honor the treaty relationships with tribal nations for tribal peoples.
We look at the impact of our actions for the next seven generations.
That's a common principle we use and we do the work now to provide for the children yet to come.
So we have contemporary lawsuits to enforce treaty rights, seek return of lands that were improperly not following the law taken from us. And we have grassroots land efforts using Land Back as their motto. These are ongoing. So because these are permanent homelands for both tribal nations, the United States, and they were established by treaties, executive orders and congressional land recognition acts and settlement acts.
We need to all know this. This should be taught at all levels of education.
I'm glad you're participating in this and understanding this and I look forward to your continued study of property law.
Introduction
I am Professor Angelic Eaglewoman Wambadi Awanwi Chaquastewian in my Dakota language, a tribal member of the Sustin Wapden Oyate of the Lake Traverse Reservation, and the director of the Native American Law and Sovereignty Institute. This session focuses on building knowledge about tribal nations, tribal land holdings, and understanding trust status, along with their significance for tribal lands.
Historical Context
We will explore the mixing of European Christian doctrine in law and its embedding in foundational property law in the United States. There exists a cross-cultural relationship and tension between tribal nations and the U.S. government, as well as its state governments. The term "Indian" is a misnomer that originated from Great Britain for the Native people of the Western Hemisphere. When the United States formed, this term was codified in U.S. law as federal Indian law. The academic term "Native American" is more inclusive of both American Indians in the lower 48 states and Alaska Native tribal nations, which have tribal governments often referred to as Alaska Native villages. Although some federal policies include Native Hawaiians, they do not possess the same tribal nation status. Internationally, the term "Indigenous peoples" is used, acknowledging the diverse nations with a focus on self-determination.
Land and Economics
For many tribal nations, the lands referred to today as property were historically viewed as Turtle Island. Thousands of years of relationship between these lands and Indigenous peoples exist. An important lens through which we examine the U.S. relationship with tribal nations is economics, illustrated by historical trade routes spanning from Canada to South America, which were well-established long before European colonization.
European Doctrine and Legal Fictions
To understand this relationship, we must examine European concepts developed over time, particularly within Christianity's hierarchical structure, where the Pope issued papal bulls granting rights to colonize. For instance, Portugal received permission to colonize the Canary Islands in 1436 and all of Africa in 1455 from Pope Nicholas V. The doctrine of discovery, stemming from papal bulls, legitimized claims over lands occupied by non-Christians, enabling the colonization and seizure of resources. This practice was used by both the Spanish and British, who issued charters for trading companies and colonies.
The Johnson vs. McIntosh Case
The 1823 U.S. Supreme Court case Johnson vs. McIntosh established the basis for U.S. title to lands in North America, asserting that tribal nations had occupancy title rather than full sovereignty. This decision disregarded tribal claims to land and determined that only the U.S. government could purchase land from tribes, further entrenching the legal fictions used to dispossess Native people from their lands. "Discovery" was perceived by European nations as providing the right to acquire land from Indigenous peoples, despite their actual sovereignty.
Treaties and Their Impact
The U.S. Constitution recognizes tribes in the Indian Commerce Clause, granting Congress the power to regulate commerce with tribal nations. Treaties, which promise perpetual peace and friendship, were essential for the U.S. to establish legal land ownership. However, many were abrogated over time without returning lands to tribal nations, which led to a significant loss of territories. The case also set a foundation for U.S. Supreme Court decisions limiting tribal sovereignty and changing the nature of tribal interactions with the government.
Allotment Policies and Assimilation
The General Allotment Act of 1887 initiated a damaging era of U.S. policy towards Native Americans, promoting allotment and assimilation, leading to significant land loss and the establishment of Indian boarding schools aimed at eradicating Indigenous cultures. This policy treated tribal lands as surplus to be seized by the government, while simultaneously claiming to protect them through legal claims that ignored tribe governance and autonomy.
Trust Status and Contemporary Issues
Presently, most tribal lands are held in trust, managed by the U.S. government, which necessitates approval for land transactions. This trust status is crucial for maintaining tribal jurisdiction and governance. The trust relationship remains complex, reflecting ongoing disputes regarding land rights, and many tribes are actively engaged in movements advocating for land repatriation and the acknowledgment of treaty rights.
Conclusion
The understanding of tribal land rights and sovereignty is vital in recognizing the permanent relationships between tribal nations and the United States. Treaties made with tribal nations should be acknowledged, and there remains a pressing need to address historical injustices while developing strategies for reconciliation and proper governance in collaboration with Indigenous communities.