Act of Reconciliation Working Document
Major Supreme Court Cases relating to Native Americans
2/17/15
Marshall Trilogy
http://academic.udayton.edu/race/02rights/native11.htm
Native Americans as Separate Nations: WORCESTER V. GEORGIA, 31 U.S. 515, 8 L.Ed. 483 (1832).
The State of Georgia attempted to force whites to register and pledge allegiance to Georgia law
before entry onto the reservation was allowed. Worcester was a postmaster for the mail service
and refused to register and pledge his allegiance. The State of Georgia charged him with a crime.
The Supreme Court held that Indian tribes, as separate nations, had defined territorial
boundaries within which state law was inoperative and ordered Worcester charges dismissed.
Domestic Dependent Nation: CHEROKEE NATION V. GEORGIA, 30 U.S. (5 Pet.) 1 (1831). The
Cherokee Nation sought review with the Supreme Court to impose an injunction on the State of
Georgia prohibiting implentation of certain laws of that state on the Cherokee Nation
reservation. Pursuant to the Constitution, all regulations concerning commerce with Indian
nations were within the sole power of the federal government. In what is known as the
Commerce Clause, the Founding Fathers empowered Congress to "regulate commerce with
foreign nations, and among the several states, and with the Indian tribes." The Supreme Court
was authorized to hear only matters of "original jurisdiction", that is, matters expressly provided
for in the Constitution. The Supreme Court held that the Cherokee Nation was not a foreign
nation, rather a "domestic dependent nation" subject to the sovereignty of the United States
federal government. Since the tribe was not a "state" nor a "foreign nation", the Supreme Court's
held that the motion for an injunction was not a matter of original jurisdiction and refused to
grant the injunction.
Doctrine of Discovery: JOHNSON v. M'INTOSH, 21 U.S (8 Wheat) 543 (1823). This case involved a
dispute between two white men who held conflicting titles to land sold within the reservation to
them. Johnson held a title sold him by the Tribe within the reservation. Chief Justice Marshall,
examined the history of how land was acquired during the European invasion and ultimately held
that the tribe did not have an enforceable title to the land it sold. The Indians enjoyed a right of
"occupancy" only. The ultimate title to land had passed to the United States government under a
principle called "discovery."
The "discovery doctrine" was developed by the Spanish philosopher, Vittorio, in an attempt to
justify and explain the taking of land from aboriginal people. In its essence, Vittorio opined that it
was the manner in which the civilized nations dealt with each other as it pertained to the land,
that governed who had title. A European nation that discovered land occupied by aboriginal
people, assumed certain rights over that land that were recognized by the other European
nations. It was these "recognized" rights that were passed on to the United States when it won
the War of Independence. I will not attempt to go on a further dissertation on the doctrine,
except to say that, in it, Marshall found the rationale for asserting federal title power over the
land versus state power. As a result, with the adoption of the "discovery doctrine," the Court
held the title to land passed to the plaintiff by the Illinois and Piankeshaw tribes was invalid
because Indians held only a title of occupancy, and not full title.
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Gaming on Reservations
http://en.wikipedia.org/wiki/California_v._Cabazon_Band_of_Mission_Indians
Tribal Sovereignty: California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), was a
breakthrough case in the development of Native American Gaming. The Supreme Court decision, which
has come to be known as the Cabazon Decision of 1987, effectively overturned the existing laws
restricting gaming/gambling on U.S. Indian reservations.
The Cabazon decision of 1987 had lasting implications regarding the sovereignty of Native American
tribes in the United States. The ruling established a broader definition of tribal sovereignty and set that
precedent that if the few states that with some lawful jurisdiction over tribal lands could not impose
state regulations on reservation gaming, and then no state could have such a right. Indian gaming could
thus only be called into question in states where gambling was deemed criminal by state law.
Congress responded by passing the Indian Gaming Regulatory Act (IGRA) in 1988, which expanded the
kinds of games that tribal casinos could offer, and provided a framework for regulating the industry. As
part of the act, the National Indian Gaming Commission (NIGC) was formed and Indian gaming was
divided into 3 classes: Class I, Class II, and Class III. Class I encompasses charitable and social gaming with
nominal prizes; Class II includes bingo and other punch-board/pull-tab style games; and Class III includes
high-stakes bingo, casinos, slot machines, and other commercial gaming.
Fishing Rights
Tribes Maintain Fishing and Hunting Rights: Menominee Tribe v. United States, 391 U.S. 404 (1968), is a
case in which the Supreme Court ruled that the Menominee Indian Tribe kept their historical hunting
and fishing rights even after the federal government ceased to recognize the tribe. It was a landmark
decision in Native American case law.
[http://en.wikipedia.org/wiki/Menominee_Tribe_v._United_States]
Tribes Denied “Special Rights” on Ceded Land: Oregon Department of Fish and Wildlife v. Klamath
Indian Tribe, 473 U.S. 753 (1985), was a case appealed to the US Supreme Court by the Oregon
Department of Fish and Wildlife. The Supreme Court reversed the previous decisions in the District
Court and the Court of Appeals stating that the exclusive right to hunt, fish, and gather roots, berries,
and seeds on the lands reserved to the Klamath Tribe by the 1864 Treaty was not intended to survive as
a special right to be free of state regulation in the ceded lands that were outside the reservation after
the 1901 Agreement.[1]
[http://en.wikipedia.org/wiki/Oregon_Department_of_Fish_%26_Wildlife_v._Klamath_Indian_Tribe]
South Dakota v. Bourland, 508 U.S. 679 (1993), was a case in which the Supreme Court of the United
States held that Congress specifically abrogated treaty rights with the Cheyenne River Sioux Tribe as to
hunting and fishing rights on reservation lands that were acquired for a reservoir.[1]
[http://en.wikipedia.org/wiki/South_Dakota_v._Bourland]
Criminal Prosecution
Double Jeopardy and Tribal Rights to Prosecute Non-Indians: United States v. Lara, 541 U.S. 193 (2004),
was a United States Supreme Court case which held that both the United States and a Native American
(Indian) tribe could prosecute an Indian for the same acts that constituted crimes in both jurisdictions.
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The Court held that the United States and the tribe were separate sovereigns; therefore, separate tribal
and federal prosecutions did not violate the Double Jeopardy Clause.[1]
Adoption
Adoptive Couple v. Baby Girl, 570 U.S. ___ (2013), was a decision of the Supreme Court of the United
States that held that several sections of the Indian Child Welfare Act (ICWA) do not apply to Native
American (Indian) biological fathers who are not custodians of an Indian child. The court held that the
procedures required by the ICWA to end parental rights do not apply when the child has never lived
with the father. Additionally, the requirement to make extra efforts to preserve the Indian family also
does not apply, nor is the preferred placement of the child in another Indian family required when no
other party has formally sought to adopt the child.
[http://en.wikipedia.org/wiki/Adoptive_Couple_v._Baby_Girl]
Michigan v. Bay Mills Indian Community, 572 U.S. __ (2014),The State of Michigan, petitioner, entered
into a compact with respondent Bay Mills Indian Community pursuant to the Indian Gaming Regulatory
Act (IGRA). See 25 U.S. C. §2710(d)(1)(C). The compact authorizes Bay Mills to conduct class III gaming
activities (i.e., to operate a casino) on Indian lands located within the State’s borders, but prohibits it
from doing so outsid e that territory. Bay Mills later opened a second casino on land it had purchased
through a congressionally established land trust. The Tribe claimed it could operate a casino there
because the property qu alified as Indian land. Michigan disagreed and sued the Tribe under
§2710(d)(7)(A)(ii), which allows a State to enjoin “class III gaming activity located on Indian lands and
conducted in violation of any Tribal-State compact.” The District Court granted the injunction, but the
Sixth Circuit vacated. It held that tribal sovereign immunity barred the suit unless Congress provided
otherwise, and that §2710(d)(7)(A)(ii) only authorized suits to enjoin gaming activity located “on Indian
lands,” whereas Michigan’s complaint alleged the casino was outside such territory.
[http://www.supremecourt.gov/opinions/13pdf/12-515_jq2i.pdf]
Michigan State University College of Law: Indigenous Law and Policy Center
http://www.law.msu.edu/indigenous/center-clinic.html
Employment Division, Department of Human Resources of Oregon vs. Smith is a United States Supreme
Court case that determined that the state could deny unemployment benefits to a person fired for
violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious
ritual. Although states have the power to accommodate otherwise illegal acts done in pursuit of
religious beliefs, they are not required to do so. Alfred Smith and Galen Black were both members of the
Native American Church and counselors at a private drug rehabilitation clinic. They were both fired
because they had ingested peyote, a powerful entheogen, as part of their religious ceremonies as
members of the Native American Church. At that time intentional possession of peyote was a crime
under Oregon law without an affirmative defense for religious use. The counselors filed a claim for
unemployment compensation with the state, which was denied because the reason for their dismissal
was deemed work-related "misconduct." The Oregon Court of Appeals reversed that ruling, holding that
denying them unemployment benefits for their religious use of peyote violated their right to exercise
their religion. The Oregon Supreme Court agreed, although it relied not on the fact that peyote use was
a crime but on the fact that the state's justification for withholding the benefits—preserving the
"financial integrity" of the workers' compensation fund—was outweighed by the burden imposed on
Smith's and Black's exercise of their religion.
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The U.S. Supreme Court left the Oregon Supreme Court's judgment against the disgruntled employees,
and returned the case to the Oregon courts to determine whether or not sacramental use of illegal
drugs violated Oregon's state drug laws (485 U.S. 660 (1988)). On remand, the Oregon Supreme Court
concluded that while Oregon drug law prohibited the consumption of illegal drugs for sacramental
religious uses, this prohibition violated the free exercise clause. The case returned to the U.S. Supreme
Court in this new posture.[1] The state asked the U.S. Supreme Court to review this second decision of
the Oregon Supreme Court, and it agreed to do so. In earlier rulings, the Court had deliberated that the
government could not condition access to unemployment insurance or other benefits on an individual's
willingness to give up conduct required by their religion. However, the Supreme Court did not find that
this principle also applied when the conduct in question is justifiably prohibited by law. For the first time
in an unemployment compensation case, the Court found against the believer and for the state. Of
particular importance was the fact that the Oregon law was not directed at the Native Americans'
religious practice specifically; thus, it was deemed constitutional when applied to all citizens.
The majority opinion was delivered by Justice Scalia. The First Amendment forbids government from
prohibiting the "free exercise" of religion. This means, of course, that government may not regulate
beliefs as such, either by compelling certain beliefs or forbidding them. Religious belief frequently
entails the performance of physical acts—assembling for worship, consumption of bread and wine,
abstaining from certain foods or behaviors. Government could no more ban the performance of these
physical acts when engaged in for religious reasons than it could ban the religious beliefs that compel
those actions in the first place. "It would doubtless be unconstitutional, for example, to ban the casting
of statues that are to be used for worship purposes or to prohibit bowing down before a golden calf."
But Oregon's ban on the possession of peyote is not a law specifically aimed at a physical act engaged in
for a religious reason. Rather, it is a law that applies to everyone who might possess peyote, for
whatever reason—a "neutral law of general applicability," in the Court's phrasing. The Court
characterized Smith's and Black's argument as an attempt to use their religious motivation to use peyote
in order to place themselves beyond the reach of Oregon's neutral, generally applicable ban on the
possession of peyote. The Court held that the First Amendment's protection of the "free exercise" of
religion does not allow a person to use a religious motivation as a reason not to obey such generally
applicable laws. "To permit this would be to make the professed doctrines of religious belief superior to
the law of the land, and in effect to permit every citizen to become a law unto himself." Thus, the Court
had held that religious beliefs did not excuse people from complying with laws forbidding polygamy,
child labor laws, Sunday closing laws, laws requiring citizens to register for Selective Service, and laws
requiring the payment of Social Security taxes.
http://en.wikipedia.org/wiki/Employment_Division_v._Smith
Lyng v. Northwest Cemetery Protective Association 485 U.S. 439 (86-1013)
In 1982, the United States Forest Service prepared a final environmental impact statement for
constructing a paved road through federal land, including the Chimney Rock area of the Six Rivers
National Forest. This area, as reported in a study commissioned by the Service, has historically been
used by certain American Indians for religious rituals that depend upon privacy, silence, and an
undisturbed natural setting. Rejecting the study's recommendation that the road not be completed
through the Chimney Rock area because it would irreparably damage the sacred areas, and also
rejecting alternative routes outside the National Forest, the Service selected a route through the
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Chimney Rock area that avoided archeological sites and was removed as far as possible from the sites
used by the Indians for specific spiritual activities. At about the same time, the Service also adopted a
management plan allowing for timber harvesting in the same area, but providing for protective zones
around all the religious sites identified in the study. After exhausting administrative remedies,
respondents -- an Indian organization, individual Indians, nature organizations and members thereof,
and the State of California -- filed suit in Federal District Court challenging both the road-building and
timber harvesting decisions. The court issued a permanent injunction that prohibited the Government
from constructing the Chimney Rock section of the road or putting the timber harvesting plan into
effect, holding, inter alia, that such actions would violate respondent Indians' rights under the Free
Exercise Clause of the First Amendment and would violate certain federal statutes. The Court of Appeals
affirmed in pertinent part.
(a) In Bowen v. Roy, 476 U.S. 693 -- which held that a federal statute requiring States to use
Social Security numbers in administering certain welfare programs did not violate Indian
religious rights under the Free Exercise Clause -- this Court rejected the same kind of challenge
that respondents assert. Just as in Roy, the affected individuals here would not be coerced by the
Government's action into violating their religious beliefs; nor would the governmental action
penalize the exercise of religious rights by denying religious adherents an equal share of the
rights, benefits, and privileges enjoyed by other citizens. Incidental effects of government
programs, which may interfere with the practice of certain religions, but which have no tendency
to coerce individuals into acting contrary to their religious beliefs, do not require government to
bring forward a compelling justification for its otherwise lawful actions. The Free Exercise
Clause is written in terms of what the government cannot do to the individual, not in terms of
what the individual can exact from the government. Even assuming that the Government's
actions here will virtually destroy the Indians' ability to practice their religion, the Constitution
simply does not provide a principle that could justify upholding respondents' legal claims. Pp.
447-453.
(b) The Government's right to the use of its own lands need not and should not discourage it
from accommodating religious practices like those engaged in by the Indian respondents. The
Government has taken numerous steps to minimize the impact that construction of the road will
have on the Indians' religious activities -- such as choosing the route that best protects sites of
specific rituals from adverse audible intrusions and planning steps to reduce the visual impact of
the road on the surrounding country. Such solicitude accords with the policy and requirements of
the American Indian Religious Freedom Act. Contrary to respondents' contention, however, that
Act does not create any enforceable legal right that could authorize the District Court's
injunction. Pp. 453-455.
http://www.law.cornell.edu/supremecourt/text/485/439
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