Indian Resources Events
Indian Resources Events
Start DateTitle
1778 First Treaty between the United States and an Indian Tribe
Treaty with the Delawares, 7 Stat. 13, II Kappler, Indian Affairs: Laws and Treaties 3
1789 The United States Constitution becomes effective
It recognizes that Congress has the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . ." Art. 1, section 7, cl. 3. The Constitution also provides that "[t]his Constitution, and the laws of the United States which shall be made in Pursuance of; and all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land; . . . " Art. VI, section 2.
1790 Congress passes the first Indian Trade and Intercourse Act
The Act, as modified in 1834, is codified at 25 U.S.C. section 177. The Non-Intercourse Act, which remains substantially the same today, prohibits conveyances of an Indian tribe's interests in land unless the conveyance is negotiated in the presence of a federal commissioner and ratified by Congress.
1831 Federal trust doctrine first described by Supreme Court
In Cherokee Nation v. Georgia, and in the 1832 decision of Worcester v. Georgia, Chief Justice John C. Marshall articulated the roots of the federal trust doctrine and affirmed that Indian affairs was the province of federal rather than state regulation. In Cherokee Nation, an original action in the Supreme Court, the Tribe sought to enjoin Georgia from taking tribal land and imposing burdensome regulations on the Tribe. Chief Justice Marshall termed tribes "domestic dependent nations," with the federal/tribal relationship resembling "that of a ward to his guardian." The Court, ultimately, held that it lacked jurisdiction to hear an original action brought by a tribe.

In 1832, the Court revisited Georgia's attempt to control the Tribe in Worcester v. Georgia. Worcester, a minister and federal postmaster, and another non-Indian challenged their conviction in the Georgia courts for unlawfully residing on the Cherokee Reservation without a state license. The Court invalidated the state law and confirmed the Nation's sovereign rights under various treaties, including the right of self-governance and the right to occupy its own territory to the exclusion of the citizens of Georgia and of Georgia laws. According to Chief Justice Marshall, the "Cherokee nation . . . is a distinct community, occupying its own territory, . . . in which the laws of Georgia can have no force . . . ." The Court described Georgia's attempts to regulate the Cherokee as "interfere[ing] forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, according to settled principles of our constitution, are committed exclusively to the government of the union."

1838 Forced removal of the Cherokees begins
The election of Andrew Jackson in 1828 led to a change in the previous policy of seeking voluntary removal by eastern Indian tribes to western lands. In 1838, Jackson ordered the Army to begin forced removal of the Cherokees. The forced migration became known as the "Trail of Tears."
1849 Responsibility for Indian affairs transferred to Interior Department
The authority over Indian affairs was transferred from the War Department to the Department of the Interior pursuant to a statute that created the Interior Department. This change, however, did not precipitate a shift in federal policy, which continued to emphasize removal from eastern states. And despite the transfer, Congress continued to debate for a number of years whether the War Department should regain authority over Indian affairs.
1854 First allotment of Indian tribal lands
Then-Commissioner of Indian Affairs, George Manypenny, advocated reducing the size of reservations in combination with allotting portions of the reservation in severalty to individual Indians. In Manypenny's view providing Indians with private real property would help to establish "habits of industry and thrift as will enable them to sustain themselves."
1871 An end to treaty making with Tribes
In 1871, Congress enacted an appropriations Act that included a rider stating "[t]hat hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty; . . ."
1885 Major Crimes Act enacted
In 1883, the Supreme Court in Ex parte Crow Dog, 109 U.S. 556, overturned the conviction of Crow Dog for the murder of Spotted Tail, both members of the Brule Band of Sioux. The General Crimes Act, which at the time provided the basis for criminal law in Indian country, excluded "crimes committed by one Indian against the person or property of another." Such acts generally were dealt with under tribal law, rather than through federal prosecution. Crow Dog's prosecution took place on the theory that an 1868 Treaty with the Sioux had implicitly repealed the Indian exception to the General Crimes Act. The Supreme Court reversed Crow Dog's conviction, ruling that "[t]o justify such a departure, in such a case, requires a clear expression of the intention of Congress, and that we have not been able to find."

In the wake of Ex parte Crow Dog, Congress enacted the Major Crimes Act in 1885. As enacted, the legislation provided that seven offenses, including murder and manslaughter, that, if committed against "another Indian or other person" within a territory or on an Indian reservation, constituted crimes under federal law. The Major Crimes Act in effect repealed the Indian exception to the General Crimes Act for certain crimes. The Major Crimes Act, as amended, is codified at 18 U.S.C. section 1153.

1887 General Allotment Act enacted
The General Allotment (or Dawes) Act established the allotment of tribal land in severalty to individual Indians and the abolition of the tribal system as the major tenets of federal Indian policy. The Act authorized the President to survey reservations and allot lands to individual Indians for use as agricultural or grazing lands. Title to these lands was to continue to be held in trust for 25 years, at which point the land would be patented to the individual in fee. The program, as it developed, led to a considerable amount of land losing its trust protection and being sold to non-Indians. As a result, by 1900, Indians retained approximately one-half of the land that they had held in 1881. See Otis, D.S., The Dawes Act and the Allotment of Indian Land 87 (1973). Congress did not revisit Indian policy or the allotment approach in a comprehensive manner until 1934.
1921 Snyder Act encourages spending for tribal needs
The Snyder Act authorized appropriations "for the benefit, care, and assistance of Indians throughout the United States." Codified as amended at 25 U.S.C. 13. This legislation facilitated the passage of regular Indian appropriation bills to fund activities by the Bureau of Indian Affairs.
1924 Indian Citizenship Act enacted
The Citizenship Act of 1934 granted American citizenship to "all non-citizen Indians born within the territorial limits of the United States." Indians would not have to go through a naturalization process.
1928 Merriam Report published
The "allotment" period (beginning in 1887) created numerous health and welfare problems, which were detailed in this multi-year study undertaken by the Brookings Institute. The Report documented extensive poverty, disease, poor educational opportunity, and massive dislocation of Indians from their homelands. It recommended numerous changes, including the creation of a commission to hear Indian claims. The Report was a precursor to significant changes in federal policy.
1933 John Collier appointed Commissioner of Indian Affairs
John Collier was appointed Commissioner of Indian Affairs in the Administration of President Franklin D. Roosevelt. Collier worked with Congress and was instrumental in the passage of the Indian Reorganization Act of 1934 (IRA). Collier remained at the Department of the Interior through 1945, during the implementation of the IRA.
1934 Indian Reorganization Act (IRA) enacted
In 1934, Congress enacted the IRA to encourage tribes to revitalize their self-government, to take control of their "business and economic affairs," and to assure a solid territorial base by putting a halt to the loss of tribal lands through allotment. This sweeping legislation manifested a sharp change of direction in federal policy toward tribal sovereignty, replacing the assimilationist policy that had been in place since General Allotment Act of 1887. The IRA prohibited any further allotment of reservation lands, extended indefinitely the periods of trust or restrictions on alienation of Indian lands, provided a mechanism for the acquisition of trust land for tribes, and prohibited any transfer of Indian lands (other than to the tribe or by inheritance) except exchanges authorized by the Secretary as "beneficial for or compatible with the proper consolidation of Indian lands and for the benefit of cooperative organizations."

The overriding purpose of the IRA, however, was broader than remedying the negative effects of the General Allotment Act. As the Supreme Court has said, Congress sought to "establish machinery whereby Indian tribes would be able to assume a greater degree of self-government, both politically and economically." Congress thus authorized Indian tribes to adopt their own constitutions and bylaws and to incorporate. Congress also authorized the Secretary to take specified steps to improve the economic and social condition of Indians, including: adopting regulations for forestry and livestock grazing on Indian units, assisting financially in the creation of Indian-chartered corporations, making loans to Indian-chartered corporations out of a designated revolving fund "for the purpose of promoting the economic development" of the Tribes, paying tuition and other expenses for Indian students at vocational schools, and giving preference to Indians for employment in positions relating to Indian affairs.

Of particular significance to the current work of the Section, Section 5 of the IRA authorizes the Secretary of the Interior "in his discretion," to "acquire. . .any interest in lands. . . within or without existing reservations, . . . for the purpose of providing land for Indians." The acquired lands "shall be taken in the name of the United States in trust for the Indian tribe or individual Indian." Pursuant to authority expressly delegated to the Secretary to prescribe regulations "carrying into effect the various provisions of any act relating to Indian affairs," the Secretary has issued regulations governing the implementation of his authority under Section 5 to take land into trust.

1943 Tribal leaders create the National Congress of American Indians
The group sought to promote tribal interests at a national level.
1944 Attacks on the IRA increase
Attacks on the policies underlying the IRA increased in the 1940s. These attacks were premised on both economic (opposition to devoting federal funds to tribes) and ideological grounds (opposition to special treatment for tribes and their members). A 1943 Senate report (Survey of the Conditions Among the Indians of the United States) was broadly critical of the IRA and of Collier, particularly with regard to the continued federal role in managing Indian lands. In 1944, the House Committee on Indian Affairs held its own hearings "to determine whether the changed status of the Indian and the conditions under which he now lives require a revision of the laws and regulations affecting the American Indian." Although the House Committee, through the Mundt Report, also recommended revisions to the IRA, it acknowledged that "the Government of the United States has not yet discharged its obligations to the Indian to the point where the Indian Office can be abolished and the various necessary services to the Indian discontinued.
1946 Congressional committees on Indian affairs eliminated
The Legislative Reorganization Act of 1946 abolished the standing committees on Indian affairs in the House and Senate, transferring responsibility to the Committees on Public Lands.
1946 Indian Claims Commission established
In 1946, Congress enacted the Indian Claims Commission Act (ICCA), which created the Indian Claims Commission (ICC), establishing a novel mechanism for Indian tribes to bring past claims against the United States. The cognizable claims under the ICCA included "claims in law or equity arising under the Constitution, laws, treaties of the United States, and Executive orders of the President," as well as claims for lack of "fair and honorable dealings that are not recognized by any existing rule of law or equity." Moreover, neither laches nor statute of limitations constitute permissible defenses to claims brought under the ICCA. Claims that had arisen prior to enactment of the statute were to be filed by 1951. Monetary compensation was the sole remedy available to the ICC. The Commission concluded its work in 1978 and transferred its remaining cases to the Court of Claims.
1948 Interior Department begins analysis on discontinuation of federal obligations
In 1948, Congress directed the Bureau of Indian Affairs to examine the status of tribes or groups to facilitate "the eventual discharge of the federal government's obligation, legal, moral, or otherwise, and the discontinuance of Federal supervision and control at the earliest possible date compatible with the government's trusteeship responsibility."
1948 "Indian Country" defined
In 1948, Congress codified existing federal common law regarding what constitutes "Indian county" for purposes of federal criminal jurisdiction. The Supreme Court subsequently has applied the Indian country definition to determine the scope of tribal jurisdiction.
1949 Hoover Commission Report issued
The Congressionally chartered Commission on the Organization of the Executive Branch (Hoover Commission) issued its report, calling for termination and the "complete integration" of Indians into the larger society. The Report did not, however, support abrupt discontinuation of federal services.
1950 Navajo-Hopi Rehabilitation Act passed
In what proved to be an isolated case of emphasis on tribal and reservation development in an era of increased emphasis on termination of federal tribal status, Congress in 1950 passed a statute that created a multi-year comprehensive program of development and funding.
1952 State court jurisdiction over general stream water adjudications
In 1952, Congress passed the "McCarran Amendment," which waived the sovereign immunity of the United States for state-court general adjudications of all water rights.
1952 House of Representatives signals termination policy
The House of Representatives endorsed a resolution calling on a committee to propose legislation "designed to promote the earliest practicable termination of all federal supervision and control over Indians."
1952 Arizona v. California litigation begins
The longest-running water rights litigation began in 1952 with the filing of an original action in the Supreme Court by Arizona against California seeking a division of the waters of the Colorado River. The United States subsequently intervened to protect federal water rights, including reserved water rights held for the benefit of five Indian tribes (for the Fort Mojave, Fort Yuma (Quechan), Chemehuevi, Colorado River, and Coocopah Indian Reservations).

Case Summary: Arizona v. California

1953 House Resolution on termination passes
Congress unanimously adopted House Concurrent Resolution 108 stating that it was "the policy of Congress, as rapidly as possible, to make the Indians within the territorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States, to end their status as wards of the United States, and to grant them all of the rights and prerogatives pertaining to American citizenship." Among other things, it specifically called for the termination of the Menominee Tribe of Wisconsin. Subsequently, the Tribe was informed that unless it agreed to termination it would not receive funds that had previously been awarded by the Indian Claims Commission. Numerous other tribes also were terminated by specific statutes following the approval of the Resolution.
1953 Public Law 280 enacted
Congress enacted a statute that delegates to five states criminal and civil jurisdiction over Indian lands within their boundaries
1954 Congress terminates a group of tribes
In 1954, Congress enacted legislation terminating the Southern Paiute of Utah, the Alabama and Coushatta Indians of Texas, the Klamath of Oregon, the Menominee Tribe of Wisconsin, and other tribes and bands in Oregon. Congress terminated additional tribes over the next eight years.
1955 Indian Long-Term Leasing Act enacted
In 1955, Congress passed legislation that extended the maximum terms of mineral and grazing leases approved by the Secretary of the Interior.
1958 Congressman secures Interior Department moratorium on Indian land sales
During the termination period, large amounts of tribal land were lost. In 1958, Senator James Murray, Chairman of the Senate Committee on Interior and Insular Affairs persuaded the Interior Secretary to halt further Indian land sales pending a study. The study that was subsequently prepared showed that the termination policy had been "disastrous" in its implementation.
1959 Eisenhower's Interior Secretary speaks out against termination
Interior Secretary Fred Seaton signaled the end of the termination era when he stated that it is "absolutely unthinkable. . . that consideration would be given to forcing upon an Indian tribe a so-called termination plan which did not have the understanding and acceptance of a clear majority of the members of the affected tribe."
1960 Presidential candidates also question termination policy
Both Richard Nixon and John Kennedy, in their run for the presidency, questioned continuation of the termination policy in the absence of tribal consent.
1961 President Kennedy appoints Stewart Udall as Interior Secretary
The appointment of Stewart Udall led to the creation of a special task force on Indian affairs. The Task Force recommended that the termination policy be abandoned. Two members of the Task Force subsequently were appointed to lead the BIA, and under their leadership, BIA expanded reservation services.
1961 Tribal representatives endorse self-determination
Representatives of numerous tribes issued a "Declaration of Indian Purpose" which stated that Indians "want to contribute to their own personal tribal improvements and want to cooperate with their Government on how best to solve the many problems in a businesslike, efficient, and economical manner as rapidly as possible."
1963 First Supreme Court ruling in Arizona v. California
The Court held that the United States had reserved water rights for five Indian reservations in accordance with the Court's earlier Winters v. United States decision.
1966 Indian appointed as Interior Commissioner of Indian Affairs
President Johnson appointed Robert Bennett as Commissioner. He was the first Indian to hold the position in the modern era.
1968 President Johnson urges end to termination and endorses self-determination
In an address to Congress, President Johnson purposed "a new goal" for federal Indian programs that specifically endorses self-determination and gives "an opportunity [for Indians] to remain in their homelands, if they choose, without surrendering their dignity; an opportunity to move to the towns and cities of America, if they choose, equipped with the skills to live in equality and dignity."
1968 Indian Civil Rights Act enacted
Congress enacted the Indian Civil Rights Act to ensure that the provisions akin to those in the Bill of Rights applied to tribal governments.
1970 Self-determination without termination announced
President Nixon announces a new direction in federal Indian policy when, in a special message to Congress on July 8, 1970, he condemned the forced termination of Indian tribes. He reiterated the federal government's responsibility to Indians but also proposed new policies to encourage Indian independence and self-determination.
1970 Indian Trust Counsel Authority proposed
President Nixon proposes the creation of an Indian Trust Counsel Authority (ITCA) to provide independent legal representation for Indian interests. He perceived that federal interests might win out over Indian interests when both are represented by the Department of Justice, despite the federal government's fiduciary obligations to Indians. Nixon suggested the ITCA to combat this conflict of interest: the ITCA would be a separate entity from the Department of Justice, and the United States would waive its sovereign immunity to suits brought by the ITCA.
1970 Return of Taos Pueblo lands
Congress enacted legislation returning Blue Lake and 48,000 acres of land to the Taos Pueblo in New Mexico.
1970 United States files suit on treaty right to fish
Treaties entered into in the 19th century between the United States and the tribes of western Washington included a reservation of a right to fish at usual and accustomed grounds and stations in common with all citizens of the territory. In 1970, the United States filed suit against the State of Washington to protect the tribes' treaty fishing rights. In 1974, the district court ruled in the "Boldt decision" that "in common with" means sharing equally the opportunity to take fish; therefore, treaty and non-treaty fishermen were to have the opportunity to take up to 50 per cent of the harvestable number of fish. The harvestable number was to be determined based on a run-by-run analysis of how many fish needed to survive to maintain the species. United States v. Washington remains an active case today.
1971 Alaska Native Claims Settlement Act enacted
In the first major land claim settlement legislation, Congress agreed to pay approximately $1 billion in exchange for elimination of all claims concerning "aboriginal right, title, use, or occupancy of land or water areas in Alaska." The State was divided into regional and village corporations for distribution of funds. Alaska Natives also were to receive 40 million acres of land, with no restrictions on alienation.
1972 "Split" Justice Department/Interior Department briefs begin
In 1972, before the Indian Resources Section was created, the White House, the Department of Interior, and the Department of Justice agreed to file "split briefs," addressing both sides" of an issue when there was a divergence between the interests of an Indian tribe and a federal agency. These briefs would include two conflicting sets of arguments: those of the Department of Justice, representing the federal interest, and those of the Department of the Interior, representing the Indian interest.
1972 Indian Education Act enacted
Congress enacted the Indian Education Act providing increased federal aid for Indian education.
1973 Menominee Restoration Act enacted
The Menominee Restoration Act is enacted, marking the first restoration of a terminated tribe. It "reinstated all rights and privileges of the tribe or its members under Federal treaty, statute, or otherwise which may have been diminished or lost." Numerous other tribes were subsequently restored.
1973 United States files treaty fishing rights case in Michigan
The United States filed a lawsuit on behalf of the Bay Mills Indian Community to obtain a clear determination of the Community's right to fish in areas of Lakes Michigan, Huron, and Superior ceded under an 1836 treaty. Several other tribes intervened, and the treaty right was initially confirmed by a 1979 decision. After that ruling, the parties entered into a consent decree in 1985 in which Great Lakes fishery was allocated among the parties by lake, zones, species, and catch limits. After that decree expired in 2000, it was replaced by a new agreement.
1974 New York and Wisconsin Oneida tribes bring land claim lawsuit
In 1974, the New York Oneidas and the Wisconsin Oneidas brought a lawsuit against the Counties of Oneida and Madison, New York. The Tribes sought relief for the violation of the Indian Trade and Intercourse Act, which led to the unlawful dispossession of approximately 250,000 acres of Oneida land in New York. The lands at issue were reserved to the Oneida Nation by the United States in the Treaty of Canandaigua of 1794, and could not be alienated from them without federal approval under the terms of the Indian Trade and Intercourse Act.

The Supreme Court subsequently held that the Tribes' claim stated a common law cause of action for trespass and striking the defendants' defenses, including statute of limitations and nonjusticiability. In 1998, the United States intervened as a plaintiff, and in 2000, the State of New York was joined as a defendant. The lawsuit continues today, with the Indian Resources Section and the Tribes seeking recovery of disgorgement of any profits made by the State in its acquisitions and subsequent sales of Oneida lands protected by the Nonintercourse Act.

1974 Supreme Court rules that federal relationships with tribes are political, not racial, in nature
In Morton v. Mancari, the Supreme Court held that the federal government's special treatment of Indians is political and non-racial when it "can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians." Subsequent decisions have both reaffirmed the holding and made clear that it applies to the federal government's dealings with Indians generally. For example, in United States v. Antelope, the Supreme Court held in 1977 that "[f]ederal regulation of Indian tribes, therefore, is governance of once-sovereign political communities; it is not to be viewed as legislation of a 'racial' group consisting of 'Indians.'"
1975 Indian Resources Section established
Indian Resource Section of U.S. Attorneys Manual
1975 American Indian Policy Review Commission (AIPRC) established
AIPRC is commissioned to do a thorough overview of the United States' Indian policy and suggest improvements.
1975 Indian Self-Determination and Education Assistance Act enacted
Congress enacted the ISDEA to permit tribes to contract with the federal government to provide certain federal services and programs to tribal members.
1976 "Split" briefs end
The Justice Department filed split briefs in six cases; in all of them, the pro-Indian position eventually prevailed. In 1976, DOJ requested that the agreement be allowed to lapse.
1976 McCarran Amendment application to Indian reserved water rights
When the McCarran Amendment was enacted in 1952, it was not clear if it applied to waive the United States' sovereign immunity for state-court general stream adjudications involving Indian reserved water rights. In Colorado River Water Conservation District v. United States, the Supreme Court held that the Amendment waives sovereign immunity for such claims.
1976 Supreme Court limits reach of Public Law 280
In Bryan v. Itasca County, the Supreme Court ruled that Public Law 280, which was enacted in 1953, does not provide for state regulatory power over Indian lands.
1977 AIPRC releases its report
AIPRC issues its reports calling for an end to all policies of assimilation. Among other recommendations, AIPRC suggested creating a cabinet-level agency, the Department of Indian Affairs, to handle all aspects of Indian administration and litigation. Within the new Department, there would be an Office of Trust Rights Protection to provide legal services to Indian tribes. This proposal was not adopted.
1977 Senate Committee on Indian Affairs re-established
The Senate Select Committee on Indian Affairs is created in 1977. The Committee was made permanent in 1984, reflecting the growing prominence of Indian affairs on the national stage.
1978 American Indian Religious Freedom Act (AIRFA) enacted
Congress enacted the AIRFA in 1978 providing that "it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believ e, express, and exercise the traditional religions of the Indians." 42 U.S.C. section 1996.
1978 Indian Claims Commission wraps up its work
Congress had extended the lifespan of the Commission five times, but the last extension ended in 1978
1978 Rhode Island Indian Claims Settlement Act enacted
Congress enacted the Rhode Island Indian Claims Settlement Act, the first negotiated settlement of an eastern-state Indian land claim. The lands in question had been taken by the State and private parties in violation of the Indian Trade and Intercourse Act.
1979 Important tribal fishing rights decision issued
In Washington v. Washington State Commercial Passenger Fishing Vessel Association, the Supreme Court held that, in general, tribal fishing rights under treaties that contain a phrase reserving for tribes the "right of taking fish [off reservation] at all usual and accustomed grounds and stations" entitle tribes to "take a fair share of the available fish." According to the Court's interpretation of a series of treaties protecting tribal fishing rights in western Washington, a "fair share" allows Indians to secure as much as 50 per cent of a fishing harvest, "but no more than, is necessary to provide the Indians with a livelihood--that is to say, a moderate living." Thus, Fishing Vessel and other rulings support the proposition that certain treaties create an enforceable right to take fish.
1980 Interior Department issues first tribal acknowledgment regulations
As an outgrowth of the 1977 AIPRC report, the Interior Department promulgates regulations providing an administrative process through which Indian groups may seek federal acknowledgment.
1981 Supreme Court addresses tribal civil authority over non-Indians
In Montana v. United States, the Supreme Court issued the first of several decisions clarifying the scope of tribal civil authority over non-Indians. The Court has since made clear that the inherent sovereign powers of an Indian tribe generally do not extend to the activities of non-Indians on fee lands except in certain circumstances.
1983 President Reagan specifically refers to "government-to-government" relationship
In a January 1983 statement on federal Indian policy, President Reagan stated his support for self-determination and specifically noted the existence of a government-to-government relationship between the federal government and Indian tribes.
1983 Nevada v. United States decided by Supreme Court
The Supreme Court held that the federal government does not breach its fiduciary duty to Indian tribes by simultaneously representing competing interests, when Congress has obliged it to represent both.
1984 Environmental Protection Agency issues Tribal policy
The agency stated that "in keeping with the federal trust responsibility, [EPA] will assure that Tribal concerns and interests are considered whenever EPA's actions and/or decisions may affect reservation environments."
1987 Clean Water Act amended to include a provision treating tribes as akin to states
In the mid-1980s, Congress began to amend federal pollution control statutes to treat tribes like states. In 1986, Congress amended the Clean Water Act to include such a provision. In 1990, Congress included such a provision in the Clean Air Act.
1988 Indian Gaming Regulatory Act enacted
Shortly after the Supreme Court's 1987 ruling in California v. Cabizon Band of Mission Indians, which held that California lacked authority to impose its regulatory gaming requirements on a tribal bingo operation, Congress enacted comprehensive legislation to address Indian gaming. Among other things, the statute created the National Indian Gaming Commission (NIGC), which is one of the Section's primary clients. The IGRA legislation sought to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments. IGRA applies only to federally recognized tribes, which may conduct gaming only on "Indian lands" within their jurisdiction.

Section 20 of IGRA bars gaming on property taken into trust after October 1, 1988. There are limited exceptions to that rule, however. One is for "restored lands," under which gaming is permitted on lands taken into trust in conjunction with "the restoration of lands for an Indian tribe that is restored to Federal recognition." Subsequent litigation handled by the Indian Resources Section has frequently concerned interpretations of the Section 20 exceptions.

1988 Wyoming Supreme Court issues important water rights decision
In 1977, the State of Wyoming began proceedings to determine all of the water rights in all of the river systems in the State. This included determining all water rights within the Big Horn River basin, which includes the Wind River Reservation inhabited by the Eastern Shoshone and the Northern Arapahoe Tribes. The Tribes and the United States, on its own behalf for federal lands and as trustee for the Tribes, participated in the proceedings.

In a landmark decision, the Wyoming Supreme Court in 1988 ruled that Congress, through the Treaty of Fort Bridger, reserved water rights for agricultural use on the Reservation. The Tribes were awarded almost 500,000 acre-feet of reserved rights with a priority date (the date the water right was established) of the Treaty. The U.S. Supreme Court affirmed the decision by an equally divided Court.

Since that ruling, the Wyoming Supreme Court has also held, among other things, that the Tribes can use their water rights only for agricultural purposes, and that the State Engineer's office has administrative authority over all water rights (although the State must turn to the courts to take enforcement action against the Tribes).

1990 Native American Grave Protection and Repatriation Act enacted
The legislation addressed protection of Native American grave sites and the repatriation of remains on federal and tribal lands and culturally significant objects from museums receiving federal aid. A number of states have enacted similar statutes.
1991 President Bush affirms self-determination and government-to-government relationship
President George H.W. Bush issued a statement reaffirming President Reagan's 1983 statement.
1993 Interior Secretary Babbitt requires consultation with tribal governments
In a Secretarial Order, Interior Secretary Bruce Babbitt required all bureaus and offices within the Interior Department to consult with tribal governments with regard to proposals that affect the tribe's trust property.
1994 President Clinton reiterates government-to-government relationship
On April 29, 1994, President Clinton issued a memorandum to all executive departments and agencies in which he reiterated the sovereignty of Indian tribes by asserting that the United States interacts with federally recognized tribes on a government-to-government basis. He required all federal agencies to consult "to the greatest extent practicable" with tribal governments prior to taking actions that affect them.
1994 Listening Conference held by Justice and Interior
On May 5-6, 1994, the Justice and Interior Departments sponsored the National American Indian Listening Conference, to which all federally recognized tribes were invited.
1995 DOJ issues tribal policy
The Department of Justice issues a policy concerning government-to-government relations with tribes.
1995 Challenges to taking land into trust for tribes
One of the most important provisions of the Indian Reorganization Act is Section 5, which provides the Secretary of the Interior with authority to take land into trust for tribes. In 1995, the State of South Dakota challenged the Secretary's authority to acquire land into trust for the Lower Brule Sioux Tribe. The Eighth Circuit held that Section 5 constituted an unlawful delegation of Congressional authority and that the Secretary lacked authority to acquire the lands into trust for the Tribe. In response, the Interior Department promulgated a new regulation requiring publication of notice of intent to take land into trust and giving a 30-day window of opportunity for judicial challenges to be brought. The United States then petitioned the Supreme Court for review of the Eighth Circuit's decision. The Supreme Court granted the petition, and vacated the Eight Circuit's decision with instructions to vacate the District Court's decision and remand the matter back to the Secretary.
1996 Supreme Court decides Seminole Tribe v. Florida
In Seminole Tribe (an Eleventh Amendment challenge to the provision of the Indian Gaming Regulatory Act that permits tribes to sue states for failure to negotiate with a tribe regarding a compact to engage in casino-type gaming) the Court held that the Indian Commerce Clause of the Constitution did not provide Congress with authority to abrogate a state's Eleventh Amendment protection against suit. The Court's ruling left tribes with few options if a state refuses to negotiate in good faith.
1998 President Clinton issues Executive Order on consultation with tribal governments
Executive Order 13084 required "meaningful" consultation in the areas of unfunded mandates, waiver procedures, and negotiated rulemaking. The Order was replaced in 2000 with Order 13175, which required agencies to implement an "accountable practice" whereby tribal input is received in the development of regulatory policies. This Order remains in place.
1998 Supreme Court affirms tribal sovereign immunity
In Kiowa Tribe of Oklahoma v. Manufacturing Technologies, the Court affirmed that federally recognized tribes"enjoy immunity from suits on contracts, whether those contracts involve governmental or commercial activities and whether they were made on or off a reservation."
1999 Supreme Court issues major off-reservation tribal hunting, fishing, and gathering rights decision
The Indian Resources Section is frequently involved in litigation protecting tribal off-reservation treaty rights to hunt, fish, and gather ("usufructuary rights"). The Supreme Court's ruling in Minnesota v. Mille Lacs Band of Chippewa Indians, holding that the Chippewa retained rights on lands ceded to the United States in 1837, was a significant victory and a clear statement of tribal rights.
2004 United States files claim for Michigan tribes' right to hunt, fish, and gather on lands ceded under treaty
In 1979, the five treaty tribes in the United States v. Michigan litigation that commenced in 1973 amended their complaint to assert tribal hunting, fishing, and gathering rights on lands ceded to the United States under an 1836 treaty. In 2004, the Indian Resources Section filed a supplemental complaint alleging that the tribal right reserved under a provision of the treaty continued to exist on lands and waters within the ceded area that were not required for settlement within the meaning of the treaty. This phase of the litigation was resolved by a settlement agreement entered into in 2007.
2004 Gila River Indian Community Water Rights Settlement
The Gila River Indian Community Water Rights Settlement was ratified by the Arizona Water Settlements Act. The agreement provides the Gila River Indian Community with a water budget of 653,500 acre-feet of water annually. The budget is composed of water from the Central Arizona Project, the Gila River, the Salt River, and groundwater. The agreement resolved water rights claims filed by the Tribe and the United States to over one million acre-feet of water. The settlement also provided for resolution of enforcement issues surrounding the Gila Decree, Globe Equity No. 59, that had been the subject of litigation between the Tribe and the United States and non-Indian farmers in the Safford, Duncan and Virden Valleys.
2004 Supreme Court affirms scope of Congress's authority over Indian affairs
In United States v. Lara, the Court considered whether Congress' expansion of tribal authority over members of other tribes altered the inherent authority of tribes or whether Congress was limited to delegating federal authority to tribes. This issue arose in the context of a tribal prosecution and a subsequent federal prosecution of the same person for the same criminal act. Prosecutions by separate sovereigns normally do not constitute a violation of the Double Jeopardy Clause of the Fifth Amendment.

The defendant in this case, however, claimed that since Congress had amended the Indian Civil Rights Act to expand tribal authority following the Supreme Court's ruling in Duro v. Reina -- which held that tribes lacked inherent authority to prosecute members of other tribes -- thereby delegating federal authority to tribes. As a result, defendant asserted that Double Jeopardy applied, since both the tribal and federal prosecutions constituted exercise of federal authority. The Supreme Court rejected this argument, affirming that Congress had the authority to expand and contract the scope of tribal inherent authority.

2007 Off-reservation tribal hunting, fishing, gathering rights settlement reached in Michigan
This United States filed a lawsuit in 1973 in order to honor and enforce commitments the federal government made to the Ottawa and Chippewa Indian Nations in the 1836 Treaty of Washington. In that treaty, the Ottawas and Chippewas ceded lands and waters that encompass much of Michigan and the Great Lakes but, in return, retained hunting and fishing rights within the ceded territory.

The case proceeded in two phases. In the first phase, the United States secured a court order in 1979 declaring that the tribal successors to the Ottawa and Chippewa treaty signatories retained a treaty right to fish in the Great Lakes waters ceded in the Treaty. In light of the court's order, the State of Michigan, the tribes, and the Indian Resources Section negotiated a consent decree that provides for the exercise of tribal fishing rights in the Great Lakes on terms acceptable to all parties.

The second phase of the case concerned the tribes' right to hunt and fish on the land ceded in the treaty. The State, the Tribes, and the Indian Resources Section negotiated a second consent decree in 2007 that provides for exercise of the tribes' hunting and fishing rights within the portions of Michigan ceded in by the tribes in the treaty. Besides showing the continuing vitality of nineteenth century treaty rights in the modern context, the case also shows how all interested parties can cooperatively work out ways to honor Indian treaty rights without sacrificing the interests of other stakeholders in the wildlife resources of Michigan.

2009 Supreme Court interprets "now" in important section of the Indian Reorganization Act
In 1978, Congress enacted the Rhode Island Indian Claims Settlement Act, implementing a settlement between the State and the Narragansett Indians of land claims brought by the Tribe. In addition to providing for money and settlement lands, the Act anticipated the formal federal recognition of the Tribe.

After securing recognition, the Tribe filed an application to have Interior acquire 32 acres into trust for a HUD-funded low income housing project for elderly tribal members. The Interior Department's approval of that application precipitated almost a decade of litigation with the State and Town of Charlestown through which myriad constitutional and statutory attacks were leveled at the Secretary's authority to acquire land into trust for the Tribe.

The Indian Resources Section successfully defended against these attacks in the District Court and the Court of Appeals. The Supreme Court, however, held that the word "Indian," which is defined in the 1934 Indian Reorganization Act to include "all persons of Indian descent who are members of any recognized tribe now under Federal jurisdiction," limits the Interior Secretary's trust acquisition authority to tribes that were "under federal jurisdiction" in 1934.