Effective:

Spring 2002

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Course Number: *	HISTRY 425 (tentative)		Cross Listed Number:
Course Title:	History of American Indian Law and Policy

(limited to 65 characters)
 

15 Character Abbreviation:	Am Indian Law
25 Character Abbreviation:	Am Indian Law Policy

 

Sponsor:		Anthony Gulig		E-mail Address:	guliga@uww.edu
Department:		History		College:	Letters and Science
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Other Programs Affected:

Political Science, Legal Studies Minor

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Credit/Contact Hours: (per semester)
Total lab hours:			Total lecture hours:	48
Number of credits:	3		Total contact hours:	48

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Course justification: American Indian history, especially the historic relationships American Indians have with federal, state, and local governments is essentially a legal history. In many ways, it is not possible to fully understand current issues in Indian Country without understanding the historic and contemporary legal implications of tribal status in the United States. There is no more complex, variable, or unique relationship in the American experience. Many people mistakenly believe that American Indians possess a privileged place in American society as a result of recent treaty rights rulings, special tax status, and tribal identity. Rather than a special gift, concession, or privilege, however, today’s federal-Indian relationship is governed by legal precedent and history. This course will provide a basis for gaining insight into that relationship.

Relationship to program assessment objectives: This course meets several of the history department’s program assessment objectives. Students completing this course will:

• have a basic knowledge of the United States and pre-colonial origins, encompassing both its internal development and relationships with the world. (Subject Matter Objective # 2).
• gain in-depth knowledge of a thematically limited historical topic and develop an awareness of the complexity of historical study and that historical events and developments are subject to varied interpretation. (Subject Matter Objective # 3)
• have a knowledge of historical method, the evolution of the discipline of history, theories of historical inquiry, and major historiographical debates. (Subject Matter Objective # 5)
• have acquired the ability to trace the formation and development of the principal cultural, economic, and political institutions of western civilization and the ability to describe the interaction of cultural, economic, and political factors shaping particular historical periods. (Cognitive Matter Objective # 2)
• have acquired the ability to trace the evolution of major cultural, economic, and political forces and institutions within the United States and the ability to account for the diversity of its peoples and their heritage. (Cognitive Matter Objective # 3)
• will demonstrate the acquisition of skills permitting them to locate, identify, order, and communicate pertinent historical data within the appropriate context. (Skills Objective # 1)

Course description: The purpose of this course is to explain the unique nature of the historic and contemporary federal-Indian relationship. Students completing the course will gain a clearer understanding of the legal process by which American Indians were first subjugated to federal law and policy, and later became active agents by using that same legal system to preserve, protect, and enhance identity and tribal sovereignty in recent years.

Course requisites: Junior Class Standing.

Learning Objectives: By the end of the course students will be able to:

• identify the legal and constitutional place of American Indians within American society
• understand the origins and significance of tribal sovereignty in the United States
• explain the legal means by which Indian people in the United States have resisted policies of assimilation
• understand how the courts have interpreted the historic and contemporary nature of the federal/state Indian relationship
• interpret present day events in Indian Country in relation to their historical antecedents

Instructor:	Anthony G. Gulig
Office:	Baker 303
Office Hours:	T.B.A. and by appointment
Email:	guliga@uww.edu
Web Page:	http://facstaff.uww.edu/guliga/
Office Phone:	472-5148

Content Outline

Renard Strickland, a renowned scholar of American Indian history and law, has argued that the American Indian is the "miner’s canary" of American democracy; historically, Indian people are among the first to suffer when democratic principles are challenged. American Indians have a relationship with the federal government unlike that of any other ethnic or political group in the United States. That relationship is rooted in law and an understanding of their place in American society today cannot be gained without an understanding of the legal nature of that relationship.

Beginning with the American Constitution and the era of the early republic, the federal-Indian relationship will be discussed in terms of the developing American nation state. Central in this discussion will be an analysis of the retention of tribal sovereignty in the face of American political and geographic encroachment. The development and intent of early Indian policy, early treaty-making, and the American factory system in the Jeffersonian era will be cast against historic Native defiance in the Old Northwest. This will be followed by an examination of federalism versus states rights and Indian removal in the Jacksonian era. The Marshall Trilogy, (Cherokee cases) will be examined in detail as they provide an understanding of Indian tribes as "domestic dependent nations" within the United States. The plains wars will be discussed as "legal" wars of resistance against American policy between the 1860s and 1890s. Ex. Parte Crow Dog (1881), and the origins of modern, legal tribal sovereignty will be contrasted with the implications of the plenary powers doctrine. Here the Major Crimes Act (1885), and U.S. v. Kagama (1886) are central to understanding how federally recognized sovereignty was limited in the late 19^th and early 20^th centuries.

Moving into the twentieth century, students will consider the impact of the early conservation movement upon treaty rights, tribal interests, and subsistence needs of Aboriginal people. This is a particularly important era not only for the intrusions on tribal activities, but for the rise of modern pan-Indian movements which remain a central feature of tribal solidarity.

The last segment of the course will focus on the "post-colonial" era in the history of Native America, treaty rights, and tribal sovereignty. This post-colonial era is best defined in terms of Native American resistance to continued assimilationist efforts via the successful legal challenges to termination, assaults on tribal culture and sovereignty, and property rights identified in the historic treaty relationship. Concerning the post-colonial era, content will include an examination of Alaska Native Claims Settlement Act (1971), Washington v. Washington State Commercial Passenger Fishing Vessel Association (1979), Indian Child Welfare Act (1978), Indian Gaming Regulatory Act (1988), and the Native American Grave Protection and Repatriation Act (1990).

The purpose of this course is to explain the unique nature of the place of American Indians within historic and contemporary American society. Students completing the course will gain a clearer understanding of the legal process by which American Indians were first subjugated to federal law and policy, and later became active agents in using the same legal system to preserve, protect, and enhance identity and tribal sovereignty in recent years. Many people mistakenly believe that American Indians possess a privileged place in American society as a result of treaty rights, special tax status, and tribal identity. Rather than privilege, that relationship is based in law, policy, and successful struggles against assimilation. The main objective of this course is to explain the nature of that relationship.

General Course Information

• students will read and listen critically and interactively
• readings will be discussed in class
• students will discuss the readings and lectures with each other outside of class via the electronic discussion list established for that purpose (see Blackboard information above)
• students will participate in several learning objective surveys throughout the semester
 
Discussion: The success of this course depends on students’ intellectual contribution in each meeting’s discussion. Everyone is expected to contribute to the group discussion (in class and through the electronic discussion list created for the course) which forms the basis of each class meeting. It is imperative that everyone completes the assigned reading and arrives prepared for the discussion. It is expected that everyone will attend and contribute to each meeting’s discussion.

	Topic	Getches and Wilkinson	Other Readings
Week 1	Introduction to American Indian Law and Policy;  Legal Research, the Courts and Indian Country	Preface; p. 1-72	United States Constitution
Week 2 1st Brief Assigned	History of Federal Indian Policy and Law to 1871	p. 73-139	Johnson v. McIntosh Supreme Court of the United States, 1823 21 U.S. 543, 5 L.Ed. 681; Cherokee Nation v Georgia Supreme Court of the United States, 1831 30 U.S. (5 Pet.) 1, 8 L.Ed. 25;  Worcester v. Georgia Supreme Court of the United States, 1832 31 U.S. (6 Pet.) 515 8 L.Ed. 483;  United States v. Winans Supreme Court of the United States, 1905 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089
Week 3	History of Federal Indian Policy and Law Since 1871	p. 140-257	Strickland, Tonto’s Revenge
Week 4 1st Brief Due	The Federal-Indian Trust Relationship	p. 258-372	Seminole Nation v. United States Supreme Court of the United States, 1942 316 U.S. 286, 62 S. Ct. 1049, 86 L.Ed. 1480;  Pyramid Lake Paiute Tribe of Indians v. Morton United States District Court, District of Columbia, 1972 354 F. Supp. 252;  United States v. Sioux Nation of Indians Supreme Court of the United States, 1980 448 U.S. 371, 100 S.Ct. 2716, 65 L.Ed.2d 844
Week 5 1st Mid Term Exam	Tribal Sovereignty and Justice in Indian Country	p. 373-437	Ex. Parte Crow Dog Supreme Court of the Untied States, 1883 109 U.S. 556, 3 S.Ct. 396, 27 L.Ed. 1030
Week 6 2nd Brief Assigned	Limits on Tribal Jurisdiction in Indian Country	p. 438-555	Public Law 280 Oliphant v. Suquamish Indian Tribe Supreme Court of the United States, 1978. 534 U.S. 191, 98 S.Ct. 1011, 55, L.Ed 2d 209.
Week 7	Tribal/State Jurisdictional Conflicts	p. 556-682	Williams v. Lee Supreme Court of the United States, 1959. 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251
Week 8	On-Reservation Economic Development	p. 683-753
Week 9 2nd Brief Due	Tribal Culture and the Law	p. 754-790
Week 10 2nd Mid Term Exam	Natural Resource Law and Indian Reservations	p. 792-859
Week 11	Tribal Hunting and Fishing Rights	p. 860-904	Washington v. Fishing Vessel Assn. ASSN Supreme Court of the United States, 1979. 443 U.S. 658
Week 12	Alaska and Hawaii Natives	p. 905-974
Week 13 Last Brief Assigned	Comparative and International Indigenous Law	p. 975-1056	R. v. Harry Catarat and James Sylvestre Court of Queen’s Bench, Saskatchewan, 1999 (1999-08-25) SKQB QB99469
Week 14 Last Brief Due	Course Conclusions
Week 15 Final Exam

The University of Wisconsin-Whitewater is dedicated to a safe, supportive and non-discriminatory learning environment. It is the responsibility of all undergraduate and graduate students to familiarize themselves with University policies regarding Special Accommodations, Misconduct, Beliefs Accommodation, Discrimination and Absence for University Sponsored Events. (For details please refer to the Undergraduate and Graduate Timetables; the "Rights and Responsibilities" section of the Undergraduate Bulletin; the Academic Requirements and Policies and the Facilities and Services sections of the Graduate Bulletin; and the "Student Academic Disciplinary Procedures" [UWS Chapter 14]; and the "Student Nonacademic Disciplinary Procedures" [UWS Chapter 17]).

Bibliography: (Key or essential references only. Normally the bibliography should be no more than one or two pages in length. Indicate current library holdings by placing an asterisk [*])

Canby Jr., William. American Indian Law in A Nutshell. St. Paul: West Publishing Group, 1999.

Carrillo, Jo, ed. Readings in American Indian Law: Recalling the Rhythm of Survival. Philadelphia: Temple University Press, 1998.

*Cohen, Felix S. ed. Handbook of Federal Indian Law, rev. ed. Charlottesville, Virginia: Michie/Bobbs-Merrill, 1982.

*Deloria Jr., Vine and Clifford Lytle. American Indians, American Justice. Austin: University of Texas Press, 1983.

*________. The Nations Within: The Past and Future of American Indian Sovereignty. New York: Pantheon Books, 1984.

Deloria Jr., Vine and David E. Wilkins. Tribes, Treaties, and Constitutional Tribulations. Austin: University of Texas Press, 1999.

Fay, George E. Charters, Constitutions and By-Laws of Indian Tribes of North America. Greeley, Colorado: Museum of Anthropology, Colorado State College: 1967-1981.

*French, Laurence. The Winds of Injustice: American Indians and the U.S. Government. New York: Garland Publishers, 1994.

*Getches, David H., Charles F. Wilkinson, and Robert A. Williams. Cases and Materials on Federal Indian Law. St. Paul: The West Group, 1998.

*Green, Donald E. and Thomas V. Tonnesen., American Indians : Social Justice and Public Policy. Milwaukee, Wisconsin: University of Wisconsin System, Institute on Race and Ethnicity, 1991.

Grinde, Donald A., Exemplar of Liberty : Native America and the Evolution of Democracy. Los Angeles, California: American Indian Studies Center, University of California, Los Angeles, 1991.

*Harring, Sidney L. Crow Dog’s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century. New York: Oxford University Press, 1994.

*________. White Man's Law: Native People in Nineteenth-Century Canadian Jurisprudence. Toronto: Osgoode Society, University of Toronto Press, 1998.

*Jaimes, M. Annette. The State of Native America: Genocide, Colonization, and Resistance. Boston: South End Press, 1992.

Johansen, Bruce Elliott. The Encyclopedia of Native American Legal Tradition. Westport, Connecticut: Greenwood Press, 1998.

Johnson, Ralph Whitney. Studies in American Indian Law. Seattle: University of Washington Press, 1970.

* Kappler, Charles J. ed. Indian Affairs: Laws and Treaties, 7 vols. Washington: Government Printing Office, 1892-1972.

*Medcalf, Linda. Law and Identity: Lawyers, Native Americans, and Legal Practice. Beverly Hills, California: Sage Publications, 1978.

Poe, Cynthia R.. Those Wondrous Structures Found: The Antiquities Act of 1906 and Federal Indian Policy., Madison, Wisconsin: Institute for Legal Studies, University of Wisconsin-Madison, 1995.

*Prucha, Francis Paul, ed. Documents of United States Indian Policy, 2^nd ed. Lincoln: University of Nebraska Press, 1990.

*Satz, Ronald N. Chippewa Treaty Rights : The Reserved Rights of Wisconsin's Chippewa Indians in Historical Perspective. 2^nd ed. Madison: University of Wisconsin Press, 1997.

Taylor, Graham D. The New Deal and American Indian Tribalism: the Administration of the Indian Reorganization Act, 1934-45. Lincoln : University of Nebraska Press, 1980.

*Taylor, Theodore W. American Indian Policy. Airy, Maryland: Lomond Publications, 1983.

Vecsey, Christopher and Robert Venables, eds. American Environmental Movements: Ecological Issues in American Indian History. Syracuse: Syracuse University Press, 1980.

*Washburn, Wilcomb E. Red Man's Land White Man's Law. Norman, Oklahoma: University of Oklahoma Press, 1995.

*Wilkinson, Charles F. American Indians, Time, and the Law. New Haven: Yale University Press, 1987.

Wilkins, David E. American Indian Sovereignty and the U.S. Supreme Court : The Masking of Justice. Austin: University of Texas Press, 1997.

Williams, C. Herb. Indian Treaties: American Nightmare. Seattle: Outdoor Empire Publishing, 1976.

Vaughan, Alden T. Early American Indian Documents : Treaties and Laws, 1607-1789. Washington, D.C. : University Publications of America, 1979.

Vecsey, Christopher. Handbook of American Indian Religious Freedom. New York: Crossroad, 1991.