Dissenting opinion: A formal written opinion by a justice who disagrees with the result reached by the majority.
Domestic-dependent nation: Phrase coined by Chief Justice John Marshall in the 1831 case Cherokee Nation v. Georgia to describe the status of tribal nations vis-à-vis their relationship to the federal government. The Court concluded that tribes lacked foreign national status because of their geographic proximity in the United States, were not states within the meaning of the U.S. Constitution, but still had a significant degree of internal autonomy as “domestic-dependent nations.”
Due process: Government procedures that follow principles of essential fairness. The Fifth and Fourteenth amendments guarantee persons that they will not be deprived of life, liberty, or property by the government until fair and usual procedures have been followed.
Equal footing: Doctrine which holds that states newly admitted into the Union are on an equal footing with the original states in all respects. Every new state is entitled to exercise all the powers of government which belong to the original states. This condition of equality applies primarily to political standing and sovereignty rather than to economic or property rights.
Equity: Law based on principles of fairness rather than strictly applied statutes.
Error, writ of: An order issued by an appeals court commanding a lower court to send up the full record of a case so that it may be reviewed for error.
Establishment clause: That provision of the First Amendment to the U.S. Constitution which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” This language prohibits a state or the federal government from creating a church, or enacting laws which aid one, or all, religions, or giving preference to one religion, or forcing belief or disbelief in any religion.
Ex parte: A hearing in which only one party to a dispute is present.
Excise tax: A tax on the manufacture, sale, or consumption of a product. It embraces every form of tax burdens not laid directly upon persons or property.
Exclusion: Theory that congressional laws do not apply to tribal nations unless Congress expressly writes them into the legislative measure. See Inclusion.
Exclusive powers: Powers reserved for either the federal government, state government, or tribal government, but not exercised by all three.
Extraconstitutional: Outside the constitutional framework. Tribes were preexisting and original sovereigns and did not participate in the creation of the U.S. Constitution which focused on the establishment of the federal government and the relationship between the central government and the constituent states. Thus, tribal sovereign rights do not arise from and are not protected by the provisions of the Constitution. The Indian Civil Rights Act of 1968 modified the relationship slightly because portions of the Constitution’s first ten amendments, for the first time, were made applicable to tribal governments in their treatment of persons under tribal jurisdiction.
Federalism, dual: A nineteenth-century concept that the functions and responsibilities of the federal and state governments were theoretically distinguished and functionally separate from each other.
Federally recognized tribes: Indian tribes recognized by the federal government as self-governing entities with whom the U.S. maintains a government-to-government political relationship. This relationship may be established by treaty or agreement recognition, congressional legislation, executive order action, judicial ruling, or by the secretary of the interior’s decision. Recognized tribes are eligible for special services and benefits designated solely for such tribes (e.g., Bureau of Indian Affairs educational and law-enforcement assistance, Indian Health Service care), but they also benefit by and are subject to the federal government’s trust doctrine and plenary power.
Fee-simple ownership: An estate in land of which the inheritor has unqualified ownership and sole power of disposition.
Five Civilized Tribes: A term coined by whites for the remarkable social, educational, economic, and political progress made by the Cherokee, Choctaw, Chickasaw, Seminole, and Creek Indians after their coerced removal from the Southeast to lands west of the Mississippi during the Indian Removal era of the 1830s and 1840s.
Free Exercise Clause: The First Amendment to the U.S. Constitution, which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” See also Establishment clause.
Geographic incorporation: Legal doctrine that tribes, by residing within what are considered the territorial boundaries of the U.S., are subject to the political jurisdiction of the federal government.
Good faith: Legal doctrine first articulated in the Northwest Ordinance of 1787 which expressly states that the federal government shall always observe “the utmost good faith towards the Indian tribes. . . .” Good faith is a state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation. According to the federal courts, an act is done in good faith if done honestly, even though negligently.
Guardianship/wardship: The legally specious characterization of the political relationship between tribes and the federal government, now largely defunct, often attributed to Chief Justice John Marshall in his 1831 ruling in Cherokee Nation v. Georgia, where he asserted that Indian tribes were not foreign nations but were “domestic-dependent nations” whose relationship to the United States “resembled that of a ward to a guardian.” As the federal government’s allotment and assimilation campaign mushroomed in the 1880s, Marshall’s analogy of Indian wardship to federal guardians became reified in the minds of federal policymakers and Bureau of Indian Affairs officials, who popularized the phrase and relied on it to justify any number of federal activities (e.g., suppression of Indian religious freedom, forced allotment of Indian lands, unilateral abrogation of Indian treaty rights) designed to hasten the assimilation of Indian people into mainstream American society. Despite the federal government’s reliance on the phrase, Indian wardship and federal guardianship remained an illusion which was unsupported by legal authority or tribal consent.
Harmless error: Legal doctrine that minor or harmless errors during a trial do not require reversal of the judgment by an appellate court. An error is considered “harmless” if reviewing court, after viewing the entire record, determines that no substantial rights of the defendant were affected and that the error did not influence or only slightly influenced the verdict.
Implicit divestiture: Legal doctrine that tribes, by becoming subject to the dominant sovereignty of the U.S. via geographic incorporation, implicitly surrendered or were divested of certain sovereign powers, for example, criminal jurisdiction over non-Indians. According to this doctrine, unless a tribe has been affirmatively delegated governing powers via express treaty (or agreement) provisions or explicit congressional enactments, then it is assumed that those non-specified powers have been “impliedly” lost to the tribes. See also Affirmative delegation.
Implied repeal: The superseding of an existing law, rule, or treaty provision without an express directive to that effect.
Incidental effect: Legal test which holds that if, for example, prohibiting the exercise of religion is not the object of the law but merely the incidental effect of a generally applicable and otherwise valid provision, then the First Amendment has not been offended.
Inclusion: Theory that congressional laws apply to tribal nations unless Congress explicitly states in the measure that tribes are to be excluded from the act’s provisions. See Exclusion.
Indian Civil Rights Act: A congressional law passed in 1968, the ICRA was the first legislation to impose many of the provisions of the U.S. Bill of Rights on the actions of tribal governments vis-à-vis reservation residents; set out a model code for courts of Indian offenses; and required states to secure tribal consent before assuming legal jurisdiction in Indian Country.
Indian Claims Commission: Co
ngress established this commission in 1946 in an effort to resolve the hundreds of accumulated claims tribes had against the federal government, frequently stemming from the federal government’s failure to fulfill prior treaty or agreement terms. Designed as a commission but working more as an adversarial judicial body, the commission awarded over $800 million on nearly 300 claims before it was terminated by Congress in 1978. A number of unresolved tribal claims were passed on to the U.S. Court of Claims.
Indian Country: Broadly, it is country within which Indian laws and customs and federal laws relating to Indians are generally applicable. But it is also defined as all the land under the supervision and protection of the United States government that has been set aside primarily for the use of Indians. This includes all Indian reservations and any other areas (e.g., all other Indian communities, including the various pueblos and Indian lands in Oklahoma, and individual Indian allotments which are still held in trust by the federal government) under federal jurisdiction and designated for Indian use. And according to some courts, it also includes privately held non-Indian lands within the boundaries of Indian reservations, rights-of-way (including federal and state highways), and any additional lands tribes may have acquired.
Indian removal: Federal policy enacted in 1830 and lasting into the 1850s which authorized the president to negotiate with a majority of eastern (and other) tribes for their relocation to lands west of the Mississippi River.
Indian Reorganization Act: Commonly known as the Wheeler-Howard Act, this 1934 congressional measure is considered by most knowledgeable sources to be the most important piece of Indian legislation enacted in the twentieth century. Largely the brainchild of Commissioner of Indian Affairs John Collier, the IRA provided, for those tribes that adopted it, an end to the devastating allotment policy, for the purchase of new lands to offset some of those lost through allotment, a measure of economic restoration, cultural regeneration, and the opportunity for tribes to adopt constitutionally based governments.
Indian self-determination policy: While the federal government had turned towards Indian self-determination in the 1960s, the policy was officially inaugurated by President Richard Nixon in 1970 and by Congress in 1975 through the Indian Self-Determination and Education Assistance Act. As Nixon proclaimed: “Both as a matter of justice and as a matter of enlightened social policy, we must begin to act on the basis of what the Indians themselves have long been telling us. The time has come to break decisively with the past and to create the conditions for a new era in which the Indian future is determined by Indian acts and Indian decisions.” To ensure tribal input into decision making, Congress directed the secretaries of the appropriate agencies, upon the request of any Indian tribe, to enter into contracts with tribes to design, carry out, and evaluate programs and services previously provided by the federal government.
Indian Territory: Lands west of the Mississippi River, principally present-day Oklahoma and Kansas. This area eventually became the home of many relocated eastern and other tribes, including the Five Civilized Tribes.
Indigenous: The United Nations Working Group on Indigenous Populations defines indigenous populations as those “composed of the existing descendants of peoples who inhabited the present territory of a country wholly or partially at the time when persons of a different culture or ethnic origin arrived there from other parts of the world, overcame them, and by conquest, settlement or other means, reduced them to a nondominant or colonial situation; who today live more in conformity with their particular social, economic and cultural customs and traditions than with the institutions of the country of which they now form a part, under a State structure which incorporates mainly the national, social and cultural characteristics of other segments of the population which are predominant.”1
In extenso: Legal term meaning at length, in full, verbatim.
Infringement: Legal doctrine which holds that in litigation between Indians and non-Indians arising out of conduct on an Indian reservation, resolution of conflicts between the jurisdiction of state and tribal courts has depended, absent a governing act of Congress, on whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them. In other words, the courts have placed restrictions on the exercise of state jurisdiction if the state’s actions interfere or infringe on the tribal right of self-government.
In personam: Legal term meaning against the person; involving the person. Action seeking judgment against a person involving his personal rights and based on jurisdiction of his person, as distinguished from a judgment against property.
Judicial activism: A philosophy that courts should not be reluctant to review and, if necessary, strike down legislative and executive actions.
Judicial deference: Judicial philosophy which motivates justices to acquiesce to decisions made by the political department of government. See also Political question.
Judicial restraint: A philosophy that courts should defer to the political branches whenever possible.
Judicial review: The power of a court to determine the constitutionality of legislative and executive actions and to declare them null and void if found to be in violation of the Constitution. Courts also review the judgments of lower courts at times in order to determine the legality and appropriateness of decisions.
Jurisdiction: The authority of a court to hear a case or controversy and to enforce its rulings.
Last-in-time: Legal rule which holds that if there is a conflict between a treaty provision and an act of Congress (or between two acts of Congress), the one latest in time prevails.
Majority opinion: An opinion in a case that is subscribed to by a majority of the justices who participated in the decision.
Manifest destiny: Nineteenth-century belief in the inevitability of the continued territorial expansion of U.S. boundaries westward to the Pacific Ocean and beyond. The notion of “manifest destiny” was frequently used by American expansionists to justify physical relocations of tribal nations as well as the annexations of Texas, Oregon, California, and other territories.
Merits of case: Legal phrase meaning the essential issues; the substantive rights presented by an action.
Moot: Unsettled or undecided. Describes a question presented in a lawsuit that cannot be answered by a court either because the issue has resolved itself or because conditions have so changed that the court is unable to grant the requested relief.
Motion: An application, normally incidental to an action, made to a court or judge for the purpose of obtaining an order or rule directing something to be done in favor of the applicant.
Nation: A social group which shares a common ideology, common institutions and customs, a sense of homogeneity, and a belief in a common ancestry. A prerequisite of nationhood is an awareness or belief that one’s own group is unique in a most vital sense; therefore, the essence of a nation is not tangible but psychological, a matter of attitude rather than of fact. A nation may comprise part of a state, be coterminous with a state, or extend beyond the borders of a single state.
Native American Church: A religious organization, formally organized in 1918, by Indians whose beliefs include the sacramental use of the peyote cactus.
Original jurisdiction: The authority of a court to try a case and to decide it, as opposed to appellate jurisdiction. The Supreme Court has original jurisdiction under Article III of the Constitution.
Per curiam: Legal term describing an action taken by the court as a whole. A per curiam opinion is an opinion of the court in which the judges or justices are all of one mind and the question involved is so clear that the opinion is not elaborated by an extended discussion of the supporting reasons.
Per se rule: From the Latin expression meaning ‘by itself’ or ‘in itself,’ refers to Congress’s ability to exercise exclusive plenary authority. In federal Indian law a rule promulgated in some courts to the effect that while Congress may authorize a state to tax a tribe or its members, “[i]t has not done so
often, and the Court consistently has held that it will find the Indians’ exemption from state taxes lifted only when Congress has made its intention to do so unmistakably clear.”
Petitioner: A party seeking relief in court. When a writ of certiorari is granted by the Supreme Court, the party seeking review is called the petitioner, and the party responding is called the respondent.
Plenary power: Complete in all aspects or essentials. However, in federal Indian policy and law, this term has three distinct meanings: a) exclusive—Congress, under the Commerce Clause is vested with sole authority to regulate the federal government’s affairs with Indian tribes; b) preemptive—Congress may enact legislation which effectively precludes state government’s acting in Indian related matters; c) unlimited or absolute—this judicially created definition maintains that the federal government has virtually boundless governmental authority and jurisdiction over Indian tribes, their lands, and their resources.
Plurality opinion: An opinion announcing the decision of the Supreme Court, but having the support of less than a majority of the justices.
Political question: A question that courts refuse to decide because it is deemed to be essentially political in nature or because its determination would involve an intrusion on the powers of the legislative or executive branch.
Preemption: A doctrine under which an area of authority previously left to the states is, by act of Congress, brought into the exclusive jurisdiction of the federal government.
Prima facie: Legal term meaning ‘at first sight.’ In reference to evidence, adequate as it appears, not requiring more. Describes a fact presumed to be true unless disproved by evidence to the contrary.
Property clause: The provision of the federal Constitution, Article IV, section 3, clause 2, which declares that “[t]he Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. . . .” While the Constitution is silent as to the methods of disposing of federal property, congressional authority is considered comprehensive over all public lands. Thus, no state can tax public lands of the U.S., nor can state legislation interfere with the power of Congress under this clause.
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