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Being a Good Tribal Neighbor
The special relationship between the European settlers and the indigenous local tribes goes back to the birth of our Nation.
The beginnings of “Federal Power” over tribes can be traced back to 1781 with the Articles of Confederation – which gave the federal government “sole and exclusive” authority over Indian affairs, “provided that the legislative right of any State within its own limits be not infringed or violated.”
The new Constitution lodged broad power in Congress under the Indian Commerce Clause, article I, section 8, clause 3: “The Congress shall have Power … to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” (Emphasis supplied.)
Federal policy is central to Indian affairs because Congress has “plenary” (broad) power over Indians, including the authority to decide who is, or is not, recognized officially as an Indian.
It became clear that state control over Indians was subordinated to federal power.
For over two hundred years, federal-tribal relations revolved around two conflicting themes:
- Self-Government for the tribes and
- Assimilation of the reservations into existing framework of state and local government.
Congress has attempted to strike a balance between these two themes.
The shape of federal Indian law and policy was determined by early comprehensive federal legislation and by three leading court decisions.
Those opinions, written by Supreme Court Chief Justice John Marshall and referred to as the Marshall Trilogy, defined the relationship between the tribes and the federal government.
| Marshall Trilogy are Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 5L Ed. 681 (U.S. Sup. Ct. 1823), Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L. Ed. 25 (U.S. Sup. Ct. 1831), and, perhaps most importantly, Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8L. Ed. 483 (U.S. Sup. Ct. 1832). |
Five periods define the history federal-tribal relations:
- 1789-1871-The Formative Years
- 1871-1928-The Allotment & Assimilation Years
- 1928-1945-Reorganization Years
- 1945-1961-The Termination Years
- 1961-present-The Self-Determination Years
Consultation with tribes is not a discretionary action. It is the law of the land.
In the California Desert for example, is required to include the tribes in the planning for, and allocating of, desert natural and cultural resources. The governing resource management document for the California Desert states that its goals (on page 26) for Native American Consultation are to:
(1) Achieve the full consideration of Native American values in all land-use and management decisions. The BLM will seek to manage and protect these values.
(2) Provide guidance for contact and consultation with tribal organizations and reservation governments as specified in the Memorandum of Agreement between USBLM and the California State Native American Heritage Commission (NAHC).
Not to mention the list of laws that the American people put in place:
*1966 National Historic and Preservation Act NHPA
*1978 American Indian Religious Freedom Act AIRFA
*1979 Archeological Resource Protection Act ARPA
*1990 Native American Graves Protection & Repatriation Act of 1990
*1996 Sacred Sites Protection (Executive Order 13007)
Tribes are inevitable to the management of our public lands. They must be meaningfully included the decision-making process.
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