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Why Indian Country? An Introduction to the Indian Law Landscape

Monte Mills, Indian Law and Natural Resources: The Basics and Beyond (2017)

If you understand Indian law, you can understand anything. Over 500 years since their first contact with non-Indians and nearly 250 since America’s founding, Indian tribes and their members continue to build, enhance, and sustain their governments, cultures, and societies. In doing so, tribes are engaged in the diverse array of activities demanded of modern governments, from criminal law and child protection to environmental law, contracts, business transactions, torts, and, perhaps most importantly for the readers of this paper, both protection and development of a variety of natural resources. The range of issues facing a single Indian tribe requires familiarity with a broad range of substantive areas of the law, any one of which could otherwise occupy an entire legal career. Beyond the variety of subjects relevant to tribal law, however, understanding Indian law requires a deeper knowledge of the history, structure, and core of American law and government. As the leading treatise on Federal Indian Law notes, “Native American legislative policy and historic case law derives from more than five centuries of varied elements of international jurisprudence, constitutional principles, federal jurisdiction, conflicts of law, corporations, torts, domestic relations, procedure, trust law, intergovernmental immunity, and taxation.” Indeed, scholars steeped in the formation and development of Federal Indian Law raise fascinating questions about the nature of the United States Constitution, the role of racism in Supreme Court jurisprudence, and the shortcomings of legal education and the profession itself in addressing these challenging issues. Felix Cohen, creator of the field of Federal Indian Law, famously compared the rights of Indians to a miner’s canary, suggesting that America’s “treatment of Indians . . . reflects the rise and fall in our democratic faith.” To understand Federal Indian Law is, therefore, to better understand the past, present, and future of the American legal system. In an effort to help promote such understanding, this paper provides a foundation of Indian law principles for the deeper treatments of more nuanced topics that follow. To do so, the paper is divided into four sections, each taking on a core aspect of the field: history, tribal sovereignty, the federal-tribal relationship, and the role, meaning, and power of treaties. Importantly, while this paper surveys the basics of Indian law, the field’s diversity and complexities prohibit a detailed examination of every minute detail; therefore, more specific research and analysis would be necessary before tackling a particular legal issue. Nonetheless, by providing both basic principles and some broader context, readers of this work will hopefully have the conceptual framework within which to successfully take on such challenges.