Distinguished Native American Law Professor Speaks at USD

On February 17, Professor Angelique EagleWoman spoke at USD on the topic of Native American Law in a presentation titled “Tribal Nations—United States Relations: Policy Eras and Future Developments.”  The presentation was sponsored by USD’s Department of Ethnic Studies, The Southern California Tribal Chairmen’s Association, USD’s Native American Students Organization (“NASO/USD”),1 and USD Law Professor Orly Lobel.

Professor EagleWoman condensed an entire overview of Tribal Nation Law and U.S. Federal Indian Law into an hour-and-a-half PowerPoint Presentation.  She took her audience of approximately 50 and brought us through the legal history of American Indian tribes’ relationship to the U.S. Government.2  Much of this focused on the distinct eras of U.S. “Indian policy” such as Reservation,3 Termination, and Self-Determination.4  Her passion for Native American Law emanated through her presentation that night. 

She first discussed the origins of U.S. Federal Indian Law jurisprudence. She talked about “Indians” in the U.S. Constitution.  The only place that the word “Indian” currently appears in this document is the Commerce Clause (Art. I, Sec. 8, Cl. 3), which states that “Congress shall have power To regulate Commerce . . . with the Indian Tribes.”5  This sub-clause is aptly named “the Indian Commerce Clause.” The U.S. Supreme Court has interpreted this language to mean that the federal government—not states or individuals—has exclusive power to regulate all affairs with tribes. An abundance of Federal Indian Law is codified within Title 25 of the U.S. Code—Title 25 is made up entirely of laws pertaining to Native Americans.

She discussed California’s disturbing treatment of Native Americans within its history: State-sanctioned efforts to exterminate Indians and bounties offered to hunt Indian people are just two examples.  She mentioned how Natives sought refuge within the California Mission System (which itself was not free of atrocities).6  Professor EagleWoman believes that part of this cruel treatment in California was due to California’s beautiful land and abundant natural resources, which non-Natives certainly found appealing.  She did note that our state has actually led the way for some areas of Native American legal rights.  One example of this is the law surrounding the protection of tribes’ sacred sites.

She talked about early 1800s Supreme Court decisions regarding Native Americans. Three cases in particular, known as the Marshall Trilogy because Chief Justice John Marshall presided over all three, helped establish modern Federal Indian Law. These cases were Johnson v. M’Intosh (holding that the U.S. gained the exclusive right to purchase land title from tribes via Britain under the Doctrine of Discovery, and that Indians merely occupied their lands),7 Cherokee Nation v. Georgia (using ward-guardian language to hold that tribes are “domestic dependent nations”),8 and Worcester v. Georgia (holding that federal laws preempt state laws on Indian lands).9  She also mentioned the 1903 Supreme Court case Lone Wolf v. Hitchcock, which held that Congress could unilaterally violate treaties the U.S. Government had made with Indian tribes.10

She discussed the complex laws of Tribal Jurisdiction.11  One point that stood out to me is that although tribes have criminal jurisdiction over all members of their particular tribes and other Indians, the penalties are shockingly low.  Congress, through the Indian Civil Rights Act, set maximum penalties of a $5,000 fine and one year incarceration for any crime.  Professor EagleWoman stated that this statutory maximum increases if the criminal defendant is represented by counsel: The maximums then become $15,000 and three years incarceration.  Because of these restrictions, tribes have had difficulty handling violent crimes on tribal lands.

Professor EagleWoman talked about Indian Gaming under the Indian Gaming Regulatory Act (“IGRA”).  IGRA states that for tribes to have Class III gaming (which means Vegas-style games—not Bingo), tribes must negotiate with states for “revenue sharing” compacts.  One problem, however, is that because of the Eleventh Amendment, tribes cannot sue states for bad faith negotiation, so therefore, once again, tribes are not on the same footing as the government.12 

Professor EagleWoman talked about many other Native American Law topics,13 but she concluded her presentation by discussing the Declaration on the Rights of Indigenous Peoples (“The Declaration”), which originated in 1982 and was adopted by the United Nations in 2007.14  The Declaration establishes individual and collective rights of indigenous peoples in the areas of culture, identity, language, employment, health, and education.  Key components include “the rights of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions, and to pursue their development in keeping with their own needs and aspirations”; the prohibition of discrimination against indigenous people; and indigenous people’s “full and effective participation in all matters that concern them and their right to remain distinct and to pursue their own visions of economic and social development.”  When adopted in 2007, Russia abstained from the vote, and four nations (Australia, New Zealand, Canada, and the U.S.) refused to approve it at all.  Three of the nations that originally refused have since approved The Declaration, and the fourth—the U.S., in a December 2010 statement by President Barack Obama—has conditionally approved it.15 

Professor EagleWoman hopes that The Declaration—a response to Federal Indian Law—will help change the entire world. She said that because “the U.S. has exported its cruel indigenous treatment, we have a responsibility” to ensure that indigenous peoples have rights such as free, prior, and informed consent before government intervention on sacred sites.16 And she hopes that indigineous peoples will one day own their land, rather than simply occupy it as Johnson v. McIntosh held. 

The law, she said, is a societal agreement.  As we change, we adopt new laws.  The Declaration establishes a customary international law, and hopefully tribal changes will happen soon.  This is certainly an exciting development in the law and livelihood of all indigenous peoples.  I am fortunate to have had the opportunity to learn from Professor EagleWoman that night. 

ENDNOTES

1 NASO/USD’s current president welcomed everyone before the presentation and asked USD students to join the organization.  Because she and other members are graduating, they are worried that the organization will become defunct—she stated how much the organization has helped her and other Native American students throughout their undergraduate experience.  Similarly, USD Law’s Native American Law Students Association (“NALSA”) is on SBA’s list of potentially defunct organizations and has been inactive since Spring 2009.  According to SBA, however, the club is “in the process of being revived.”
2 As far as I know, I was the only USD Law student there . . . unless you count my wife, who is related to a law student.  Of course, the Battle of the Brains was happening the same night directly above us in the UC—so for most of my colleagues, beer and trivia prevailed.  A number of law students from Thomas Jefferson School of Law were there, perhaps because Professor EagleWoman attended TJSL’s Native American Women and the Law Conference that weekend.  See Native American Women and the Law Conference, http://www.tjsl.edu/node/2821 (last visited Mar. 5, 2011).  USD Law has not offered a Native American Law course in at least four years, although “Native American Law” is listed as a potential elective within the Public Interest Law Concentration.
3 Professor EagleWoman clarified that when tribes agreed to live on reservations, they reserved lands to the U.S.  The U.S. has never granted any land to tribes—tribes ceded their lands to the U.S.
4 She mentioned how from an international viewpoint, self-determination means to choose one’s own destiny.  Conversely, for Indians, self-determination means being allowed to use money from the U.S. Bureau of Indian Affairs to run social service programs.
5 The 1789 Constitution originally mentioned Indians when determining how many representatives a state can have in Congress.  Indians did not count as citizens (or toward determining congressional representation) unless they paid taxes.  Most Indians did not become official U.S. citizens until Congress passed the Indian Citizenship Act in 1924.  Even then, some states refused to allow American Indians to vote in elections—Arizona’s Native population, for example, did not receive the right to vote until 1948.  It was a lawsuit from an American Indian World War II veteran that led to that right.  See Harrison v. Laveen, 196 P.2d 456 (Ariz. 1948).
6 For an objective telling of an early history of the land that is now California, see Roger L. Nichols, American Indians in U.S. History 89–90 (2003) (describing cultural collision between the Spanish and Native peoples, including the Kumeyaay, in the creation of the California Mission System).  California’s American Indian population fell 75% between the late 1700s and 1850 due primarily to cruel treatment and harsh conditions imposed by the Spanish.  See id.
7 Johnson v. McIntosh, 21 U.S. 543 (1823).  Professor EagleWoman pointed out that although this decision tremendously impacted tribal property rights, no tribe was a party to this case or knew about the decision.
8 Cherokee Nation v. Georgia, 30 U.S. 1 (1831).
9 Worcester v. Georgia, 31 U.S. 515 (1832).
10 Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
11 Professor EagleWoman discussed a number of laws pertaining to tribal jurisdiction, but a primary message was that tribes have very little jurisdiction over non-members.  For that reason, as long as those laws remain in place, it is less likely that a tribe can ever truly be sovereign.
12 Professor EagleWoman also mentioned the only five ways in which tribes could spend gaming revenue: 1) for the general welfare of the tribe, 2) for economic development, 3) charitable gifts, 4) any payment to local or state governments, and 5) payment to general tribal governments.
13 She covered topics such as the U.S. historical policy to “Kill the Indian and Save the Man”; Public Law 280, which delegated federal law enforcement authority on tribal lands to certain states, including California; the Indian Child Welfare Act of 1978; and the American Indian Religious Freedom Act, which because it grants no cause of action to enforce is practically worthless.  Because of her limited time frame and the wealth of information, she skipped over the topics of environmental regulation, voting rights, and taxation—although she made sure to mention that she loved tax. 
14 See United Nations Adopts Declaration on Rights of Indigenous Peoples, UN News Centre, Sept. 13, 2007, http://www.un.org/apps/news/story.asp?NewsID=23794&Cr=indigenous&Cr1=.
15 See Nick Engelfried, US Endorses UN Declaration on the Rights of Indigenous Peoples, GreenAnswers, Dec. 17, 2010,
http://greenanswers.com/news/210309/us-endorses-un-declaration-rights-indigenous-peoples.
16 The current law comes from President Bill Clinton’s Executive Order 13007, signed in 1996.  The order states that government agencies must first consult with tribes before engaging in action that may impact sacred sites.  Professor EagleWoman believes that free, prior, informed consent is the appropriate standard.

See also Brief Bio of Professor EagleWoman; “California Native Contributions

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