New paradigm: Indian tribes in the land of unintended consequences

Natural Resources Journal

Volumn 46, Issue 2, 2006, Pages 301-315

  Deloria, Sam ^a  

^a American Indian Law Center   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

INDIGENOUS POPULATION; LAND TENURE;

EID: 33846690795     PISSN: 00280739     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (18)

1. Brookings Inst., Inst. for Gov't Res., The Problem of Indian Administration (Lewis Meriam tech. dir., 1928).
2. Wheeler-Howard Act (Indian Reorganization Act), 48 Stat. 984-988 (1934).
3. Cohen's Handbook of Federal Indian Law 98-99 (Nell Jessup Newton et al. eds., 2005).
4. Id. at 100.
5. Special Message to the Congress on Indian Affairs, 1 Pub. Papers 564 (July 8, 1970).
6. Although in Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968), the Supreme Court held that tribes continued to possess an unspecified political existence notwithstanding the termination of their federal recognition.
7. Indian Self-Rule First Hand Accounts of Indian-White Relations from Roosevelt to Reagan (Kenneth R. Philp ed., 1980).
8. Marshall's architecture of subsequent Indian law is found in Johnson v. M'Intosh, 21 U.S. 543 (1823);
9. Cherokee Nation v. Georgia, 30 U.S. 1 (1831);
10. and Worcester v. Georgia, 31 U.S. 515 (1832).
11. Few Indian cultures have, or had, economies similar in any way to American capitalism. Many Indians have expressed pride in their asserted indifference to the profit motive, and, of course, Indians are in some quarters the prototypes of cultural anticapitalism and are widely admired for it. But the gaming phenomenon seems to undermine this image at the tribal level. And a new generation of Indians will probably address their own economic problems vigorously and resolve most of them, begging the question of the causal relationship between Indian culture and poverty. On the basis for services issue, Indian advocates make the point that services have their bases in treaties and other mechanisms in which land was sold to the United States in exchange for the promise of various kinds of support. But it is difficult to see social and other services being provided in the future to those Indian communities who have no apparent economic need for them, notwithstanding treaty or other promises. One can expect Indian services to be changed eventually to a needs-based system.
12. 118 U.S. 375 (1886).
13. Act of Mar. 3, 1885, § 9, 23 Stat. 362.
14. 163 U.S. 376 (1896) (holding that tribal powers are not derived from the Constitution nor delegated by Congress).
15. One wonders if history would have been different had the Court decided Kagama, on, say, War Power grounds, to keep the peace on Indian reservations. Under a continued regime of Enumerated Powers, would the Allotment Policy and Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), not have happened, or had a different outcome?
16. One is obliged to argue that tribes, like other nations, should have governmental power over non-citizens, i.e., non-members, within their geographic jurisdiction. Some nations do not offer citizenship to any resident aliens and suffer international criticism as a result. Tribes do not offer membership to ineligible residents.
17. In McLanahan v. Arizona Tax Commission, 411 U.S. 164 (1973), Justice Thurgood Marshall characterized tribal sovereignty as a platonic backdrop to the federal acts, including treaties, defining the scope of tribal government power in the American system.
18. Comm'n on State-Tribal Relations. Am. Indian Law Ctr., Inc., Handbook on State-Tribal Relations (1982).