Native American law Summary

  • Last updated on November 11, 2022

Body of law, also known as federal Indian law, that deals with the U.S. government’s interpretations of the Constitution, executive orders, statutory law, and treaties as they affect Native Americans and their rights.

The Marshall Court took a leading role in defining the fundamental principles of federal Indian law through its decisions in Johnson and Graham’s Lessee v. McIntosh[case]Johnson and Graham’s Lessee v. McIntosh[Johnson and Graham’s Lessee v. McIntosh] (1823), Cherokee Nation v. Georgia[case]Cherokee Nation v. Georgia[Cherokee Nation v. Georgia] (1831), and Worcester v. Georgia[case]Worcester v. Georgia[Worcester v. Georgia] (1932). Known as the Marshall Trilogy, these seminal decisions established the important precedent that tribal governments are subject to federal control although states have few regulatory powers. These cases also established the relationship between American Indians and the federal government. The federal government has virtually unfettered authority over American Indians, but it has a special relationship with them and perhaps an obligation to act in their best interests.Native American sovereigntyMarshall Trilogy

Subsequent case law reasserted and clarified the key principles set forth by the Marshall Trilogy. Congressional authority over tribal affairs was expanded through two liquor cases, United States v. Holliday[case]Holliday, United States v.[Holliday, United States v.] (1865) and United States v. Forty-three Gallons of Whiskey[case]Forty-three Gallons of Whiskey, United States v.[Forty-three Gallons of Whiskey, United States v.] (1876). In both cases, the Court gave Congress jurisdiction to regulate the sale and consumption of alcohol by American Indians because of the commerce clause and because Congress has the power to regulate the health, safety, morality, and welfare of the citizenry. The states’ power to regulate the tribes remained limited, however. In The New York Indians v. United States[case]New York Indians, The v. United States[New York Indians, The v. United States] (1898), for example, the Court held that American Indians were exempt from state taxation.

Although the Court created a basic doctrine to define the interests of American Indians in the U.S. political system, there are many areas within Native American Indian law that are still unresolved. In White Mountain Apache v. Bracker[case]White Mountain Apache v. Bracker[White Mountain Apache v. Bracker] (1980), Associate Justice Thurgood Marshall, speaking on behalf of the Court, acknowledged that federal Indian law “is not dependent upon mechanical or absolute conceptions of state or tribal sovereignty, but has called for a particularized inquiry into the nature of the state, federal, and tribal interests at stake.”

Further Reading
  • Clinton, Robert, et al. American Indian Law. 3d ed. Charlottesville, Va.: Michie, 1981.
  • Deloria, Vine, Jr., and Clifford M. Lytle. American Indians, American Justice. Austin: University of Texas Press, 1983.
  • Strickland, Rennard, et al. Felix S. Cohen’s Handbook of Federal Indian Law. Charlottesville, Va.: Michie, 1982.
  • Wilkinson, Charles F. American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy. New Haven, Conn.: Yale University Press, 1987.

Cherokee Nation v. Georgia

Indian Bill of Rights

Johnson and Graham’s Lessee v. McIntosh

Native American sovereignty

Native American treaties

Santa Clara Pueblo v. Martinez

Worcester v. Georgia

Categories: History