American Indian law

DESCRIPTION: Body of law, also known as federal Indian law, that deals with the US government’s interpretations of the Constitution, executive orders, statutory law, and treaties as they affect American Indians and their rights.

SIGNIFICANCE: The Supreme Court defined the central tenets of American Indian law in the early nineteenth century through three cases known as the Marshall Trilogy.

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

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 (1865) and United States v. Forty-three Gallons of Whiskey (1876). In both cases, the Supreme 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 (1898), for example, the Supreme Court held that Indigenous Americans were exempt from state taxation. McGirt v. Oklahoma (2020) upheld the principle that Indigenous Americans are subject to federal rather than state jurisdiction, even in areas of historical tribal control rather than clearly established reservations. However, with Oklahoma v. Castro-Huerta (2022) the Court notably expanded state power, holding that states can prosecute non–Indigenous people concurrently with the federal government for crimes against Indigenous Americans (as well as fellow non–Indigenous people) on American Indian land. In Haaland v. Brackeen (2023) the Supreme Court upheld the 1978 Indian Child Welfare Act (ICWA), which gave preference to placing adoptable American Indian children with American Indian families, after a federal judge declared the Act unconstitutional. Considered a major win for Indigenous rights, the ruling indicated that federal mandates are prohibited from being imposed on areas of power that are traditionally state-regulated, such as those concerning family law.

Although the Supreme Court created a basic doctrine to define the interests of Indigenous Americans in the US political system, there are many areas within American Indian law that are still unresolved. In 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.”

Bibliography

"American Indian Law." Cornell Law School Legal Information Institute, www.law.cornell.edu/wex/american_indian_law. Accessed 8 Apr. 2025.

Price, Anna. "American Indian Law: A Beginner's Guide." Library of Congress, 11 June 2024, guides.loc.gov/american-indian-law#s-lib-ctab-27950409-1. Accessed 8 Apr. 2025.

"American Indian Law & Culture." Thomas J. Meskill Law Library Research Guides, UConn School of Law, libguides.law.uconn.edu/AmericanIndian. Accessed 8 Apr. 2025.

Clinton, Robert, et al. American Indian Law. 3d ed. Michie, 1981.

Deloria, Vine, Jr., and Clifford M. Lytle. American Indians, American Justice. U of Texas P, 1983.

Strickland, Rennard, et al. Felix S. Cohen’s Handbook of Federal Indian Law. Michie, 1982.

Totenberg, Nina and Meghanlata Gupta. "The Supreme Court Leaves Indian Child Welfare Act Intact." NPR, 15 June 2023, www.npr.org/2023/06/15/1182121455/indian-child-welfare-act-supreme-court-decision. Accessed 2 Aug. 2023.

Wilkinson, Charles F. American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy. Yale UP, 1987.