ESPM Discussion – 3-31-08
Deloria Reading (pg 25-57)
Elissa Schlueter
INTRODUCTION
This purpose of this chapter is to depict how the federal government has excercised its authority over Indian affairs. The chapter gives a history of federal responsibility and then explains what the various parts of the government have responsibility for.
ROOTS OF FEDERAL RESPONSIBILITY
The chapter begins by addressing the need for the federal government to deal with Indian affairs because of the persistent conflict between Indian and non-Indian communities and because of the balance of powers between states and the federal government. The Supreme Court and Chief Justice John Marshall were first given constitutional authority for the Indians.
Marshall first expressed his opinion in the Johnson v. McIntosh case. The Marshall court argued that the white settlers gained ownership and title to Indian land upon conquest and stressed that Indians must obey the federal government.
The theory of federal guardianship over Indian affairs was a result of the Cherokee Nation Cases. The Cherokee Nation v. Georgia case was a result of the state of Georgia attempting to use its sovereignty to remove the Creek and Cherokee Indians. Despite the attempts of the Cherokee Nation to prove its independence through a written constitution, the Georgia legislature passed another act that ended the Cherokee laws. After Andrew Jackson passed the Indian removal act and gold was discovered in Cherokee lands, the Cherokee went to the Supreme Court in an effort to gain relief from the state of Georgia and their oppressions. The case was dismissed after the legislature ruled in favor of Georgia’s sovereignty and decided that the writ Marshall had issued was unconstitutional.
The Cherokee Nation Cases brought out the contradictories in the Supreme Court. Marshall and McLean argued that tribes are domestic dependent nations. Thompson and Story argued that tribes are sovereign nations. Baldwin claimed that tribes have no sovereignty and Johnson argued that tribes have no present sovereignty, but could gain the power through the right circumstances.
When the Worcestor case reached the Supreme Court, Marshall used Thompson’s argument. The Cherokees won the Worcestor case as Marshall concluded that the Treaty of Hopewell recognized the Cherokees as having rights to self-government. Shortly after this case, the Cherokees signed the Treaty of Echota, unwilling but without much choice, and began leaving Georgia.
The President and the Executive Agencies
One of the primary responsibilities of the president in relation to Indians is to oversee executive agencies that affect them. The president directs their programs and demands their implementation. Another role of the president, empowered by the Constitution, was to make treaties on behalf of the United States. This began a relationship between the Indians with the president personally. The president is also designated as commander-in-chief of the armed forces. This was a huge factor in Indian affairs as the president decided when to protect the Indians and when not to. In regards to the Worcestor case, if President Jackson had supported the Supreme Court decision, he would have had to protect the Indians.
Congress and Its Plenary Power
One of the responsibilities Congress holds in relation to Indians comes from the Commerce Clause and gives Congress the power to regulate commerce with the Indian tribes. The legislative branch has a significant amount of power over the Indians as it can recognize Indian tribes, end to provide or withhold services to them. Congress basically has the power to affect all areas of Indian life. The “guardianship” theory that Marshall used in the Cherokee Nation Cases was further expanded to Congress having “guardianship” over the Indians in the United States v. Kagama case. Unlike presidential or bureaucratic actions, which are often examined by the Supreme Court, Congress has not been challenged in any of its actions in regards to Indian matters. Even many treaty negations had to be renegotiated due to the combination of Congress and historical events that were taking place. Congress does have to follow the necessary steps when abrogating a treaty and provide compensation when needed, but its’ control is still extremely great.
The Supreme Court: Arbiter of Indian Legal Problems
A large part of Indian history is due to the action of the Supreme Court. As a whole, the federal courts have been very supportive of Indian affairs. The Supreme Court uses a set of judicial rules, created by the court, to come to a decision on Indian matters and these rules acknowledge the hardships the Indians face in treaty making. The reserved rights doctrine is also in favor of the Indians and expands the words of treaties to how they were interpreted, rather than their word-for-word meaning. Another doctrine that the Supreme Court relies on is the doctrine of internal tribal sovereignty, which has allowed the judges to protect the federal laws and Indians from state efforts to govern Indians. Federal rulings of the Supreme Court have worked best when interwoven with Indian rights and federal responsibilities, so the state has to deal with the ruling and can not ignore it. Today, the doctrine of internal tribal sovereignty is not as important as the federal law and does not play as significant of a role in court rulings. In general, the court has made a notable attempt to rightly judge Indian issues and has made an important influence on Indian history.
Date created: June, 2002
Last modified: March, 2008
Copyright ©2003, 2004, 2005, 2006, 2007, 2008
George R. Spangler