Richard A. Leiter and Roy M. Mersky - Native American Law

Copyright 2021 by Richard A. Leiter and Roy M. Mersky

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This new edition includes new cases from the 2011-2014 terms of the United States Supreme Court, which ended in the summer of 2015, the last full term during which the court was fully staffed, before Justice Antonin Scalia died in February 2016.

In those four terms of the court, forty-six cases were selected as landmark, meaning that they are cases that have featured prominently in either scholarship, the press or popular media. Of all the cases, there were few standouts, such as the Obergefell v. Hodges, the case that found a constitutional protection for all same sex couples that wish to get married in any state, had a profound effect on every state and, arguably, American society as a whole. Only time will tell if other cases on the list, such as Burwell v. Hobby Lobby, will continue to be seen as having as large an impact.

In addition to the cases updating these four terms, we also added coverage of landmark cases in the field of Environmental and Water Law. Since the majority of landmark legislation regarding clean water, pollution and other environmental issues was passed in the early 1970s, many of the landmark cases are relatively recent.

The following people contributed draft summaries of the seventy new cases added to this edition. Annie Avery is a law student at University of Nevada Las Vegas, her husband, Matthew is a vicarious law student at the same institution. Everyone else listed are students at the University of Nebraska College of Law.

Annie Avery

Matthew Avery

Jessica Fauss

Kara Fischbach

Kayla Hathcote

Jared Koch

Amy Lierz

I thank each of these students for their hard (and excellent) work. I also wish to acknowledge the patience of my editor at Infobase Learning, Owen Lancer.

Entry Author: Leiter, Richard A.

During the nation's early expansion across the North American continent, our ancestors encountered sovereign Native peoples who were organized by tribe according to various ethnic groups. Because of the relative lack of sophistication of their governmental and social systems and the development and use of "modern" technologies, they were seen by the early Americans as "savages" and were thought to be generally uncivilized.

As a result, when European Americans moved into a territory and settled, they were able to do so with impunity. Occasionally, when the Native peoples resisted the Europeans' advances, they were quickly, if not without resistance, forced out of their lands. The early federal government recognized these peoples as sovereign nations and attempted to sign treaties and make peace with them. But as the society and economy developed, a concept of Manifest Destiny also developed, leading to a sense that the nation's growth was inevitable and that we were entitled to settle wherever we desired.

Eventually, through a series of wars and political negotiations, the United States negotiated with the Native American nations that they should be moved into "Indian Territories," over which their extant tribal governments would exert political authority. Over the years, there has been extensive litigation regarding the nature and extent of the tribes' sovereignty and authority to handle their own governmental matters and the authority of local, state, and the federal governments to regulate affairs within Native territories. Indian reservations have resisted the authority of governments to regulate and tax activities within their boundaries on the grounds that they are sovereign nations; they have, in recent years, been successful in asserting that authority. Native tribes have won important cases in which they have asserted their independence from the federal and state governments on a number of important issues. For example, Native tribes have won various tax exemptions and the right to establish gambling casinos in contradiction to state law, arguing that state laws that restrict or ban gambling cannot apply to them as sovereign nations.

In the end, the concept of sovereignty of the Indian nations is one that has not been completely settled. As those nations recover from the brutal ramifications of the policy of Manifest Destiny, they have struggled to find their way in the new nation that established itself on their native continent and are coming into their own as independent Native peoples free to determine their own destinies as sovereign nations. The future, it appears, holds a Manifest Destiny for them as well.

Section 8. The Congress shall have power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.

Section 1. The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may, from time to time, ordain and establish.

Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens, or subjects.

Entry Author: Leiter, Richard A., and Roy M. Mersky.

Also known as: 21 U.S. 543