TBL CHP 2
Colonial era and international status of tribes
Colonial times (roughly 17th–19th centuries) and into the early 1800s: the British crown treated Native tribes as distinct nations and entered treaties with them, operating under international-like practices alongside other European powers.
Despite treaty-based relations, colonial settlers encroached on Indigenous lands.
The Crown often positioned itself to protect tribes and maintain peace to prevent widespread violence between settlers and tribes.
Federal framework and the Indian Commerce Clause
The U.S. Constitution, Article I, Section 8 (the Indian Commerce Clause), grants Congress the exclusive right to deal with tribes.
Congress created agencies within the executive branch to handle day-to-day relations with tribes; Congress retains the federal prerogative in these relationships.
The federal government continued to engage with tribes through treaties, effectively treating tribes as foreign or semi-sovereign entities under international norms of the time.
The Removal period and the Cherokee trilogy as foundational cases
Timeframe: roughly 1820–1850, known as the Removal period.
The Cherokee cases (often called the Cherokee trilogy) are foundational to modern Indian law: Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), Worcester v. Georgia (1832).
These cases remain cited in briefing arguments before the Supreme Court today, illustrating the enduring influence of early tribal law.
The Johnson v. McIntosh decision (1823)
Key holding: Governments, not individuals, had the right to acquire land from tribes; transfers had to be government-to-government, reflecting the legal status of tribes and colonists.
Predates the American Revolution’s end.
The decision acknowledged a right of occupancy for Indigenous peoples but operated within the then-dominant doctrine of discovery: external powers discovered lands they claimed to own, thereby granting transfer rights to the discovering sovereigns.
The doctrine of discovery posits that the sovereign (e.g., colonial powers) could decide what to do with lands occupied by Indigenous peoples; the land transfer to outsiders could only occur through the discovering sovereign.
Ironically, this doctrine, while profoundly Eurocentric and dispossessive, at times extended some temporal protection to Indigenous land by delaying outright dispossession.
The transcript notes that the “Jacksonians” sought to strike deals with Georgia to eliminate the “Indian problem,” extending state law into tribal territories and attempting to criminalize tribal actions; the Supreme Court intervened.
Worcester v. Georgia (1832)
The Cherokee were granted status similar to a nation but not a foreign state under certain international law prescripts.
Chief Justice John Marshall held that the Cherokee Nation constituted a distinct community occupying its own territory with clearly described boundaries, and that Georgia law could have no force within that territory.
This decision rejected Georgia’s authority over Cherokee lands and actions, reinforcing tribal sovereignty within its recognized territory; the ruling had implications for where state power ends and tribal authority begins.
The takeaway is the federal overreach versus state attempts to regulate tribes; the ruling underlines the importance of tribal contiguous land and governance rights.
Post-trial period, governance, and the push toward assimilation
The era following these cases saw increased federal efforts to manage and reform tribal life.
In 1883, an authorization related to Indian affairs (the transcript mentions an authorization of “Court Indian Offices”) did not align with or accommodate tribal life and customs.
Tribes continued to practice their own customary legal processes for internal matters, including reparations in response to intra-tribal wrongdoing.
Non-Indian settlers and policymakers often believed tribes should adopt non-Indian occupations (farming, shopkeeping, domestic service) and sought to integrate lands and people into the broader American economy.
There was a growing perception that tribes possessed vast landholdings that should be opened to non-Indian settlement.
The Dawes Act and allotment policy (late 19th century)
The Dawes Act (late 1880s) aimed to break up tribal landholdings and promote individual ownership among tribal members.
Each enrolled member would receive an allotment, often around , with remaining lands designated as surplus and opened to white settlement.
The policy intended to reduce tribal landholdings and promote farming and integration into the dominant economy.
The act provided a period of protection from taxation (often described as about ), but once protection ended, many tribal members lost land ownership due to taxation, mismanagement, or exploitation.
Major consequences:
Massive dispossession of tribal land, reducing tribal landholdings from about to roughly .
An estimated of the remaining land belonged to desert areas, often less valuable for settlement.
Language barriers and a fundamental difference in property concepts (communally held land vs. private individual ownership) contributed to widespread misunderstanding and loss.
Trust lands were finally transferred away from protection, resulting in extensive dispossession and dispossession-driven hardship for many tribal communities.
The stated purpose was to make tribal members farmers and productive members of the dominant society; in practice, it fragmented tribal landholdings and increased non-Indian settlement.
Housing, self-determination, and modern policy shifts (late 20th century)
1996 policy reform (the transcript references: “the hospital” or “American Housing Assistance and Self-Determination Act”; the actual statute is the Native American Housing Assistance and Self-Determination Act of 1996, NAHASDA).
This act recognized ongoing pluralism and the existence of multiple tribal governments, reinforcing self-determination in housing and related areas.
The broader policy landscape moved toward acknowledging tribal sovereignty and self-governance within federal structures.
Supreme Court trends and jurisdiction over non-Indians
Over the past several decades, the Supreme Court has generally narrowed tribal power over non-Indians living on reservations.
Notable exception: under the Violence Against Women Act (VAWA) — Indian Country provisions — non-Indians can be prosecuted in tribal courts for domestic violence if certain conditions apply.
Civil interactions on reservations: non-Indians can face tribal jurisdiction for business or travel if they meet the Montana test (from Montana v. United States, 1981), which governs when states or tribes can exercise jurisdiction over non-members on reservations.
Current takeaways and preview
The course will continue with chapter three in the next session.
The ongoing relationship among tribes, the federal government, and states remains a dynamic field with significant historical roots in treaty making, discovery, removal, and various governance models.
Connections to broader themes and ethical implications
The history reflects ongoing debates about sovereignty, self-determination, and the balance of power between federal, state, and tribal authorities.
Assimilation policies (like the Dawes Act) illustrate the ethical costs of forced integration: dispossession of land, cultural disruption, and lasting socio-economic disparities.
Recognizing tribal governance structures and self-determination rights today is essential for addressing historical injustices and supporting tribal resilience.
Quick reference to key terms and concepts
Indian Commerce Clause:
Doctrine of Discovery: historical rationale granting sovereign status to discovering powers over lands inhabited by Indigenous peoples.
Cherokee Trilogy: Johnson v. McIntosh (1823); Cherokee Nation v. Georgia (1831); Worcester v. Georgia (1832).
Dawes Act: allotment policy converting communal tribal land into individually owned parcels; significant land loss and entrenchment of non-Indian settlement.
Montana test: test determining when tribal or state authority can regulate non-members on reservations.
Violence Against Women Act (VAWA) Indian Country provisions: allows certain tribal court prosecutions of non-Indians for domestic violence in some circumstances.
NAHASDA (1996): Native American Housing Assistance and Self-Determination Act, reinforcing tribal self-governance in housing.
Notable numbers for quick memorization
Allotment per member:
Land loss due to policy: from to
Desert lands included in the lost land:
Timeframe for Dawes Act protections:
Century reference for removal period:
Presidential actions cited in the transcript: Obama (02/2009), Trump (2019), Biden (2023).