NOTES:
1. Worcestor v. Georgia, 1832, 31 U.S. 515.
2. For a history of this doctrine and its incorporation into U.S. law, see Williams, Robert A. Jr. 1990. The American Indian in Western Legal Thought: The Discourses of Conquest. New York: Oxford University Press.
3. Johnson v. McIntosh, 1823, 21 U.S. 543.
4. Cherokee Nation v. Georgia, 1831, 30 U.S. 1. In Worcester v. Georgia (1832, 31 U.S. 15) the Marshall Court barred the extension of Georgia laws into Cherokee country. 5. In Oliphant v. Suquamish (1978, 435 U.S. 191) tribes were stripped of criminal jurisdiction over non-Indians living on Indian reservations, undermining the ability of tribal law enforcement to protect the safety of reservation residents. A 2008 report by Amnesty International specifically cites Oliphant as a barrier in prosecuting cases of violence against indigenous women on Indian reservations. To redress this injustice, Amnesty International recommends the recognition of concurrent jurisdiction of tribal authorities over all crimes in Indian country (See Amnesty International, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA. Spring 2008). Under Montana v. U.S. (1981,450 U.S. 544) tribes are assumed to lack civil jurisdiction on non-Indian owned fee land except when non-Indians enter contracts with tribes, or non-Indian actions pose a threat to tribal self-governance or tribal welfare. While these exceptions would seem to provide some protection for tribal authority over these lands, courts have rarely upheld tribal civil jurisdiction under these “Montana exceptions.” In both cases the “dependent” status of tribes was used to justify these judicial attacks on tribal sovereignty.
6. For example, South Dakota v. Yankton Sioux (1998, 522 U.S. 329). In this ruling, the Supreme Court “ceded” on-reservation non-Indian-owned fee land on which an incinerator plant was located to the state of South Dakota. This was done by arguing that Congress had intended to remove this land from tribal control under an agreement implementing the 1887 Allotment Act. The Allotment Act, which was passed three years before the infamous Wounded Knee massacre, empowered the federal government to “allot” private plots of Indian land to individual Indians and open the remaining “surplus” lands to white settlement. In Yankton, this genocide-era law was used by the Court to undermine tribal environmental protections, as the Yankton Sioux wanted more stringent practices at the incinerator plant than required by the state. The Court continues to cite this law despite the fact that the 1934 Indian Reorganization Act ended the practice of allotment.
7. Washington v. Washington State Commercial Passenger Fishing Vessel Association, 1979, 443 U.S. 658.
8. United States v. Winans, 1905, 198 U.S. 371.
9. See American Friends Service Committee. 1970. Uncommon Controversy: Fishing Rights of the Muckleshoot, Puyallup and Nisqually Indians. Seattle: University of Washington Press. This text describes how Washington territorial governor and railroad advocate Isaac Stevens refused to allow Owen Bush, a staff member who understood tribal languages, to translate for tribes during treaty-making. Rather, Stevens insisted that the treaties be negotiated in the Chinook jargon, an intertribal trade language of some 300 words. Bush wrote that “it was utterly impossible to explain the treaties to them [Indians] in Chinook” (p.23).
10. Wilkinson, Charles F. and John M. Volkman. 1975. Judicial Review of Indian Treaty Abrogation: “As Long as Water Flows or Grass Grows Upon the Earth” – How Long is That? California Law Review 601(63):608-619.
11. Colonialism refers to the process by which states and societies impose their political and “legal” supremacy over politically and culturally distinct societies and engage in the economic exploitation of these “colonies.” The U.S. case can specifically be characterized as settler colonialism because it involved the expulsion of indigenous peoples from their lands and the migration of Americans into these lands. A recurring theme in the process of settler colonialism has been the movement of non-Indians into Indian Country, often in violation of treaties, and the subsequent extension of U.S. power to “protect” them. While the extension of U.S. power originally took place through the construction of military outposts in Indian lands, it now takes place through Supreme Court rulings attacking tribal government jurisdiction over non-Indians in Indian Country.
12. Lone Wolf v. Hitchcock, 1903, 187 U.S. 553.
13. United States v Dion, 1986, 476 U.S. 734.
14. For information on violation of the 1863 Treaty of Ruby Valley, see the Western Shoshone webpage at http://www.h-o-m-e.org/Shoshone/; also, see the webpage of the International Indian Treaty Council at http://www.treatycouncil.org/.
15. United States v Washington, Western District Court, 1974,384 F.Supp. 312.
16. U.S. v Washington, United States District Court, Western District of Washington, Case No. CV 9213RSM, Order on Cross-Motions for Summary Judgment (2006).
17. Parker, Alan, Grossman, Zoltan, Whitesell, Edward, Stephenson, Brett, Williams, Terry, Hardison, Preston, Ballew, Laural, Burnham, Brad, Bushnell, Jill and Renee Klosterman. 2006. Climate Change and Pacific Rim Indigenous Nations. Olympia, WA: Northwest Indian Applied Research Institute. This report documents the impact of climate change on indigenous communities and the indigenous response through inter-tribal coalitions and other means. It is an excellent introduction to the issue available at http://academic.evergreen.edu/g/grossmaz/IndigClimate2.pdf.
18. United Nations Declaration on the Rights of Indigenous Peoples. March 2008. United Nations. Available at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.
19. U.N. General Assembly. “General Assembly Adopts Declaration on Rights of Indigenous Peoples”, September 12, 2001. Available at http://www.un.org/News/Press/docs//2007/ga10612.doc.htm. Downloaded July 26, 2009.
