The Government-Government and Trust Relationships

INTRODUCTION\nIn 1834 the House Committee on Indian Affairs issued a comprehensive report, "Regulating the Indian Department," which analyzed the United States relationship with the Indian nations. Following a review of applicable laws, the committee concluded that Congress had overstepped its authority in legislating for tribes. Only legislation, the committee admonished, which fulfilled treaty obligations and to which tribes had consented in their treaties, was legal. Laws which did not meet these criteria, constituted "indirect and therefore vicious legislation." The committee concluded with the observation that "a recognition of the exercise of power without right is usually followed by the claim of the right..."\nWithin fifty short years, the committee's prophetic words were reality. In 1885, Congress passed the Seven Major Crimes Act, which provided the federal courts with jurisdiction over Indians committing one of seven major crimes. The Kagarna decision the following year examined Congress' authority to pass this act and to assume criminal jurisdiction in Indian Country. The Supreme Court admitted that although no constitutional provision granted such jurisdiction, the authority was appropriate given the tribes weakened state from which ”arises the duty of protection, and with it the power.”

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