Federal Indian Law

by

Leo Killsback

• LAST REVIEWED: 24 February 2021
• LAST MODIFIED: 24 February 2021
• DOI: 10.1093/obo/9780199766567-0263

Introduction

Federal Indian law (FIL), also known as American Indian law, is the body of doctrine that regulates the political relationship between American Indian and Alaska Native governments and the federal government. FIL is best understood as the development of this “government-to-government” relationship, which intersects with other bodies of law like constitutional law, criminal law, and environmental law. FIL is comprised of legal doctrines, statutes, judicial decisions, treaties, and executive orders, all of which have direct influences on the rights and sovereignty of Indian tribes. In the United States there are 573 federally recognized tribes that are subject to the rights and privileges, as well as the consequences, of FIL. These federally recognized tribes are the third sovereign authority in the United States—the other two are states and the federal government—that retain inherent rights and that exercise and enjoy sovereignty and self-governance on their own lands. The historical development of FIL in the United States constitutes an important starting point in understanding the special relationship between Indian tribes and the federal government. The origins of FIL lay in three US Supreme Court cases known as the “Marshall trilogy,” after Chief Justice John Marshall, the presiding chief justice of Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832). At that time, the primary questions centered on the sovereign rights of Indian tribes, that is, whether Indians have dominion over themselves and their lands. Throughout the development of FIL, until today, questions of Indian tribal sovereignty—or Indigenous nation sovereignty—remained contentious as Indians continued to fight for treaty rights, autonomy, and self-determination. FIL can be described as a series of wins and losses for American Indians in their fight for sovereign rights. In the end, however, the study of FIL is equally the study of how the United States was able to legally subjugate America’s indigenous peoples and acquire their lands. FIL is basically the study of America’s justification for Native America’s colonization and the genocide perpetrated against American Indians. The literature on FIL or American Indian law is vast, but the most valuable resources are authored by and for attorneys and for students of law. Although the disciplines of Native American and Indigenous studies encompass facets of American Indian and Indigenous peoples’ lives, scholarship in FIL has proven to be beneficial. The resources cited in this article represent some of the widely used texts that provide a solid foundation for studies in FIL.

General Overviews

The best FIL sources are those authored by and for attorneys and students in the fields of law and legal studies. Clinton, et al. 2004; Cohen 2012; and Getches, et al. 2017 are law casebooks that comprise detailed relevant court cases, statutes, commentaries, articles, and other relevant materials on FIL. Nearly every law text begins by explaining the history of the development of FIL emphasizing the Marshall trilogy, the federal-tribal relationship, treaties, and the rights and powers of Indian tribes.

• Canby, William C., Jr. 2015. American Indian law in a nutshell. 6th ed. St. Paul, MN: West Academic.

  This brief but concise book offers general overviews of the cases and laws that comprise FIL. This book is easily accessible and offers a clear discussion of the primary doctrines. Indian tribes and Alaska Natives are covered. The book does not cover developments in Native Hawaiian issues in relation to Indian tribal sovereignty.

• Clinton, Robert N., Carole E. Goldberg, Rebecca Tsosie, and Angela Riley. 2004. American Indian law: Native nations and the federal system; Selected federal Indian law provisions. 4th ed. Newark, NJ: LexisNexis.

  This is a law casebook, approximately 1,360 pages, that is very detailed with actual cases, statutes, and other materials that are necessary for grasping a full understanding of legal doctrines. This book merges “jurisprudence, history, ethnology, and sociology” to bring meaning to the government-to-government relationship, emphasizing major doctrines and the role of law and legal processes in protecting the rights of Indians and Indian tribes.

• Cohen, Felix S. 2012. Cohen’s handbook of federal Indian law. San Francisco: LexisNexis.

  Originally published in 1941, this treatise is the first and probably one of the most detailed law resources. It is the leading treatise in the field and it is comprehensive in scope. Cohen was a leading advocate of tribal self-government and a prolific legal scholar and writer. This treatise may have very well shaped the way FIL developed for half a century. The recent edition is more than 1,600 pages.

• Fletcher, Matthew L. M. 2016. Federal Indian law. Hornbook Series. St. Paul, MN: West Academic.

  This hornbook is a concise treatise that summarizes major cases and doctrines. It is organized to provide readers with content that is quick and easy to retrieve and understand. This volume is another law resource that is detailed in citation, reference, and content, yet it highlights “blackletter law, with statutory, regulatory, and historical context.” This text is approximately 380 pages.

• Getches, David H., Charles F. Wilkinson, Robert A Williams Jr. Matthew L. M. Fletcher, and Kristen A. Carpenter. 2017. Cases and materials on federal Indian law. 7th ed. American Casebook Series. St. Paul, MN: West Academic.

  This is another law casebook that is also detailed in scope and content. It contains nearly 1,180 pages.

• Pevar, Stephen L. 2012. The rights of Indians and tribes. Introduction by John Echohawk. 4th ed. New York: Oxford Univ. Press.

  This text is approximately 540 pages and was published for an audience other than attorneys and law students. In partnership with the Native American Rights Fund and the American Civil Liberties Union (ACLU), this book represents efforts to educate the public about Indian law and Indian rights, treaties, tribal sovereignty, and the decisions of the US Supreme Court.