The Federal Common Law Interpretation

By 1940, Native Americans had experienced many changes and counter-changes in their legal status in the United States. Over the course of the nineteenth century, most tribes lost part or all of their ancestral lands and were forced to live on reservations. Following the American Civil War, the federal government abrogated most of the tribes’ remaining sovereignty and required communal lands to be allotted to individuals. The twentieth century also saw great changes for Native Americans, such as the Citizenship Act and the Indian New Deal. Alison R. Bernstein examines how the Second World War affected the status and lives of Native Americans in American Indians and World War II: Toward a New Era in Indian Affairs. Bernstein argues

During the end of the nineteenth century, the United States had formed policies which reduced land allotted to Native Americans. By enforcing these laws as well as Anglo-American ideals, the United States compromised indigenous people’s culture and ability to thrive in its society.

Tribal sovereignty is a highly debated concept and an important aspect of Native American society. It refers to a tribe’s power to govern itself, manage its membership, and regulate tribal relations. As Joanna Barker stated, “Sovereignty carries the awful stench of colonization.” Tribal sovereignty must be traced to the beginning of colonization in North America. Colonizing nations asserted sovereignty over indigenous people and took away their independent status. The term “tribal sovereignty” carries with it multiples meanings and implications for tribal nations (Cobb, 2005).

In Chapter 6, Wilkins discusses how the disclaimer clauses. These clauses keep states from exercising authority on Indian land (180). They are an “important but often overlooked tool in the arsenal available to tribes to assert their own sovereignty against state threats” (177). A specific example of a disclaimer clause is Wisconsin’s territorial disclaimer of 1836 which prohibited territories or states from having any authority on Indian land (180). In Native American Church v. Navajo Tribal Council (1959) it was declared that Indian tribes actually have a higher status than states (179). This was a major victory for Indians in their fight for sovereignty. United States v. Rickert (1903) was also a win for sovereignty in that the Court prohibited South Dakota from taxing Indian land (185).After the verdict in Seminole Tribe v. Florida (1996), the balance of power between state and federal government leaned towards the states. Before this, negotiations with tribes had been conducted at the federal level and not with states (187). This was against the idea of sovereignty because now the states had more power over the tribes and could abuse that power for personal gain.

A policy of self-governance would end treaty violation, justly compensate tribes for land, prevent bureaucrats from obstructing the ability of Native Americans to participate in their religion, and prevent the serious cultural loss that may occur if the government continues to use Native American land for self-interested purposes. Arguments that these objectives are unattainable and unfounded do not hold up to analysis. Therefore, to provide a remedy for the ongoing infringement of Native American constitutional rights, Congress should both return non-privately owned land taken in violation of treaties and abolish federal plenary power over tribes, permitting greater self-governance.

When first considering the Navajo-Hopi land dispute as a topic of research, I anticipated a relatively light research paper discussing the local skirmishes between the two tribes. However, my research has yielded innumerable volumes of facts, figures and varying viewpoints on a struggle that has dominated the two tribes for over 100 years. The story is an ever-changing one, evolving from local conflict to forcible relocation to big business interests. The incredible breadth of the dispute's history makes it impossible to objectively cover the entire progression from all viewpoints. I will therefore focus on current issues - and their historical causes - facing the two tribes as they mutually approach

In the 1800’s tensions were rising between the whites and Indians over land. One of the Indian tribes called the Cherokee would be forced to leave their land due to a law passed by Congress called the Indian Removal Act, which detailed the relocation of Indian tribes to a new territory. Because of the law being passed, The Cherokee nation decided to make a strong case to the United States court for keeping their land in Georgia and North Carolina. In their plea to the government, the Cherokee people focused preserving the land of their ancestors and reminding the United States government, they were an independent nation whose rights should be protected under the law.

Thomas Flanagan disapproves the idea of Native sovereignty ever coexisting with Canadian sovereignty. Flanagan identifies the flaws in Townshend’s arguments referring to them as a theoretical approach and not a practical approach. It is true that the sharing of jurisdictional power is the essence of the Canadian state but this cannot apply to the Aboriginals of Canada. One reason a third level of government cannot work in Canada is “In the 10 provinces, Canada has over six hundred Indian bands living on more than 2200 reserves, plus hundreds of thousands of Métis and non-status Indians who do not possess reserves,” (Flanagan 44). Flanagan draws the fact that “No one has proposed a workable mechanism by which this far-flung archipelago could

Power can be viewed as the ability to influence and/or control others. Another flaw about reservations is the fact that they are not totally governed by Native American representatives. The U.S. government actually has tight control over the majority, if not all, reservations (Perry, 2002, p 233). This tight control has left the Native American population powerless in terms of self- regulation. Despite the fact that Native American government do exist,

American Indians and Alaskan Natives have a relationship with the federal government that is unique due to the “trust relationship” between the US and American Indians/Alaskan Natives (AI/ANs) who are entitled to health care services provided by the US government by virtue of their membership in sovereign Indian nations. In order to contextualize the complex nature of Indian health programs it is necessary to become versed in the political and legal status of Indian tribes. Through numerous constitutional, legislative, judicial, executive rulings, and orders that were largely associated with the succession of land and subsequent treaty rights; the health care of AI/ANs has been one of many responsibilities guaranteed by the federal government. The foundations of which can be traced back to the year 1787. The ceded land has been interpreted in courts to mean that healthcare and services were in a sense prepaid by AI/AN tribes and 400 million acres of land. The misconception of “free healthcare” and a conservative political disdain from so called entitlement programs have also led to misconceptions regarding the federal government’s responsibility to provide health care and services to AI/ANs. Rhoades (2000) has argued that tribal sovereignty is the overarching principle guiding Indian health care on a daily basis.1 This paper will examine the history surrounding federally mandated healthcare to AI/ANs, pertinent issues of sovereignty, as well as case studies in tribal

There are about 566 federally recognized tribal governments in the United States. These governments are dependent nations with a nationhood status and inherent powers of self governance. These powers entitle them to their laws as long as these laws are not contrary to the U.S. Constitution. It is because of these laws that sometimes a state police department with jurisdiction bordering a Native American reservation is frustrated while policing. The paper examines the challenges that these state law enforcers face while policing alongside Native Americans.

With the federal government’s support, many Native tribes have constructed Native Governments and Corporations where the rights to land and money are placed to their own responsibility. What this actually means is that the rights of the people’s land and monetary bonds are transferred from governmental trust to

This is important because the Native American nation’s self-governance remains deeply ingrained in America’s jurisprudence. In turn, this provides a crucial backdrop against which analysis of any state law can be contrasted. A wide difference of opinion exists about the costs and benefits among both Indians and non-Indians. However, gaming on reservations has grown rapidly since 1988 with experts stating that the trend will continue the same way for some time. This means that the sovereignty issue remains the greatest significance for Native American tribes and state governments. State governments will be affected due to the newly-empowered assertions of Native American sovereignty. A good example is the recent ratification by California Senate and Assembly of the new tribal gaming compact. This case that was between the state and the Santa Ynez Band of Chumash Indians was a great revelation on how good work can be accomplished through government-to-government negotiations (Evans, Topoleski,

One major reading that contests this idea of sovereignty is the book Mohawk Interruptus by Audra Simpson, which discusses the trials of Native American populations and their efforts to reclaim their own sovereignty. Within Mohawk Interruptus, the people of the Kahnawá:ke tribe struggle against the colonial idea of American or Canadian sovereignty lorded over them, and through refusal of such “gifts” regain their sovereignty. “… Kahnawa’kehró:non had refused the authority of the state at almost every turn and in so doing reinstated a different political authority” (Simpson, 2014, 106). Through these rejections, the people of Kahnawá:ke and Kahnawa’kehró:non established that the current system of sovereignty does not work for them, as it is colonially based to oppress the Native American communities. Simpson uses these examples to make a larger point on the Western systems of governance and understandings of authority. Though this idea of sovereignty, Simpson argues, was a way to appropriate land and incorporate or destroy opposing cultures.

The “Indian Problem” was the “burden” that the United States Government faced throughout the 19th and early 20th centuries. The Government considered the Indians to be a “problem” due to the fact that native tribes were halting the expansionist policy popular in the 1800’s. The main aspects targeted and defined as the “Indian Problem” by the Government were the Indian’s religious practices, household structure and land ownership, and educational differences. The variety of responses