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The term Native American is commonly used to refer to American Indians living within the United States, though it also includes Hawaiians and some Alaskan natives not considered American Indians. When referred to in general, American Indians often prefer to be called by their tribal names, such as Nez Perce, Navajo, Sioux, or Oneida.

The place of Native Americans in the U.S. legal system is highly unique. Tribes are formally recognized sovereign (politically independent) nations located within the boundaries of the United States. By the 1990s over 2 percent of lands within the United States were actually governed by Native American tribal governments. Such lands under tribal jurisdiction are referred to as Indian Country.

Tracing the history of U.S.-Indian relations from the nation's early years reveals that present-day Native American legal standing in the United States is not the result of a well-organized body of legal principles, but rather an accumulation of policies coming from many sources over time. Although many similarities do exist, each tribe has its own unique cultural and legal history. For over two hundred years, U.S. Indian policy shifted between periods of supporting tribal self-government and economic self-sufficiency apart from U.S. society to periods of forced Indian social and economic assimilation (inclusion) into the dominant society.

The Growth of Indian Law

The basis for what is known as Indian law, which is actually U.S. law about Indians and not by Indians, was established well before the birth of the United States. During the seventeenth century British and Spanish colonies began negotiating treaties with the New World's native peoples, treating them as politically independent groups. The treaties recognized Indian ownership of lands they were living on and using. The United States, after independence from Great Britain, inherited this age-old European international policy. As a result, tribal sovereignty, recognized well before the birth of the United States, became the basis for future U.S.-Indian relations.

Fresh from victory over Britain in the American Revolution (1775–1783), the fledgling new government made establishment of peaceful and orderly relations with American Indians one of its first items of business. The 1787 Northwest Ordinance, enacted by the Continental Congress, recognized existing Indian possession of the newly gained lands from Britain that were not part of the original colonies. Attempting to end the practice of private individuals or local governments negotiating treaties with or buying lands directly from the sovereign Indian nations, the Ordinance stated that only the federal government could legally carry out such activities.

Recognition of tribal sovereignty was directly addressed in the U.S. Constitution, adopted in 1788. Authority for the federal government's legal relationship with tribes was placed in the Commerce Clause of Article 1 which reads simply that Congress has power "to regulate Commerce with foreign Nations and . . . the Indian Tribes." The Constitution also recognizes the legal status of Indian treaties in Article VI by stating, "This Constitution, and the Laws of the United States . . . and all Treaties made . . . shall be the supreme Law of the Land." This means congressionally ratified (approved) treaties have the same legal force as regular federal laws. Further reflecting the importance of Indian relations to the new nation, one of the first acts passed by the first U.S. Congress was the Indian Trade and Intercourse Act of 1790. Exercising its new constitutional authority, Congress proclaimed treaty-making policy and brought all interactions between Indians and non-Indians under federal control.

U.S. Indian policy became further defined by three landmark Supreme Court decisions between 1823 and 1832. Known as the Marshall Trilogy after then-Chief Justice John Marshall, the cases of Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832) affirmed the tribal right to occupy and govern their lands, tribal sovereignty from state jurisdiction within Indian reservations, and defined a moral trust responsibility of the United States toward the tribes. Marshall described tribes as "domestic dependent nations" essentially free of state controls. The trust relationship toward Indian nations meant the United States is responsible for Indian health and welfare.

Later Court decisions further defined Indian policy. A reserved rights doctrine was established in United States v. Winans (1905) meaning that Indians retain certain inherent (native) rights until explicitly taken away by Congress. But, the Court in Lone Wolf v. Hitchcock (1903) also gave Congress "plenary" (absolute) power over Indian peoples. Plenary power meant Congress could on its own change U.S. Indian policy, even change treaties and end specific rights without consent of the tribes. However, the trust responsibility requires careful exercise of this absolute power, using it only when considered beneficial to Indian peoples. To resolve legal disputes over treaty interpretations, the "canons of construction" recognized in Winters v. United States (1908) state that unclear treaty language should always be interpreted by the courts from the tribal perspective.

U.S. governmental policy concerning Indians proceeded from the Marshall Trilogy to the year 2000 along a zig-zag pathway of alternating goals. Policy swerved from isolation and protection on reservations, to forced integration (assimilation) into American farming society, to recognition of reorganized tribal governments and relations with the federal government, to termination of trust status, and finally to support for tribal self-determination and integrity.

Treaties, Removal, and Reservations

Despite the seemingly protective U.S. Indian policies developed through the first few decades of the nation's history, in reality Indian peoples suffered catastrophic loss of economies, lands, and life during the persistent westward push of white settlements. One of the more tragic examples of U.S. government actions was the 1830's removal policy directed by President Andrew Jackson (1829–1837). Under this policy, the United States forcefully removed the Five Civilized Tribes from the Southeastern United States to a newly created Indian Territory in what later became Oklahoma. Thousands of deaths directly resulted.

U.S. removal policies continued through the 1850s and 1860s as more treaties were made with tribes in the West. The western treaties created a vast reservation system in which the inherent rights of Native Americans would presumably persist within certain defined territories, called reservations. Some treaties also reserved Indian hunting, fishing, and gathering rights outside reservation boundaries to help maintain traditional economies. Although not written in the treaties, water rights were also implicitly included as later interpreted by the Court in Winters. Honoring these treaties conflicted with the promotion of non-Indian settlement and economic development in newly gained U.S. territories.

As opposed to rights of tribal governments, the legal rights of Indian individuals was a major concern of neither the federal government nor the courts throughout much of the nineteenth century. With tribal relations largely guided by the treaties rather than standard U.S. law, legal dealings with Indian individuals were generally avoided. As a result, a system for policing and punishment of Indians developed largely beyond the reach of U.S. courts. Indian agents having ready access to the military, exercised broad authority, often detaining and executing numerous individuals for a wide range of alleged actions.

The End of Treaty-Making

In 1871, Congress ended treaty-making, closing a major chapter in U.S.-Indian relations. By this time, the Indian population had largely been isolated by the U.S. government into remote areas, out of the way of U.S. expansion and settlements. Distant from U.S. markets, as well, prospects for economic recovery were slim at best. Consequently, the fortunes of Indian peoples was only to decline further through the next sixty years. Greed for more lands led to further damaging federal policies. Continued U.S. expansion brought increased natural resource needs and gold discoveries making the remote reservation lands suddenly attractive to Westerners.

In addition, by the 1870s Indian issues rose more in the national public eye as social reformers shifted attention from slavery. Demands for humanitarian action gathered momentum. An 1879 federal court ruling in United States ex rel. Standing Bear v. Crook asserted that Indians off-reservation were "persons" having the same constitutional due process and equal protection rights under the Fourteenth Amendment as U.S. citizens. The U.S. army no longer held broad authority to detain Indians without full civilian constitutional protections. However, much about the legal standing of Indian individuals still remained poorly defined. In 1884 the Supreme Court ruled the Fourteenth Amendment of the Constitution had not automatically granted citizenship to Indians.

Assimilation

A major period of forced cultural assimilation began with the General Allotment Act of 1887 and lasted into the 1930s. Assimilation means the U.S. government tried to blend Native Americans into the mainstream U.S. society. Many believed the Indian tradition of communally-owning property was a key barrier to Indians adopting Western ways. As a result, Congress passed the Allotment Act, also known as the Dawes Act, authorizing the Bureau of Indian Affairs (BIA) to divide all reservation lands into smaller parcels. The agency then allotted (assigned) 160-acre parcels to families and eighty-acre parcels to single adults over eighteen years of age. Indians receiving allotments also received U.S. citizenship. U.S. policymakers reasoned that when people owned their own property they would most likely become farmers and adopt the U.S. farming lifestyle.

Given the still relatively extensive land holdings of the Indians in 1887, much land was left over after every tribal member had received their allotment. Those unallotted lands were declared "surplus" and sold by the United States to non-Indians. In addition to the loss of vast amounts of "surplus" lands, much allotted land went into forfeiture (banks claim ownership) when many Indians could not pay taxes on their often remote unproductive desert properties. Even if the land was productive, markets were usually still too distant. The allotment policy became an economic disaster to Indian peoples, reducing Indian Country in the United States from 138 million acres in 1887 to forty-eight million acres by 1934. In many cases, the more agriculturally productive lands on reservations had passed out of tribal control.

In a further effort to assimilate Indians, all Indians born in the United States became U.S. citizens through the Indian Citizenship Act of 1924. The act also made Indians citizens of the states in which they resided. Although able to vote and hold state office, they are not subject to state law while on Indian lands. The Constitution's Bill of Rights, however, did not apply to protecting Indians from their tribal governments as it did from federal and state actions because of tribal sovereignty. As a result, tribal members could be subjected at times to harsher legal penalties from their own tribal governments than non-Indians in U.S. society for the same crimes.

Reorganizing Tribal Governments

By the 1930s the calamity of the allotment policy had become apparent. In an effort to end assimilation efforts, U.S. policy returned to stressing tribal sovereignty. The Indian Reorganization Act of 1934 ended the allotment process, stabilized remaining tribal land holdings, and promoted tribal self-government. The act encouraged tribes to adopt U.S.-style constitutions and form federally-chartered corporations. Although many tribes elected to organize under the rules of the act, many others rejected developing constitutions. Some organized new governments under their own tribal rules. However, even this seemingly friendly policy of encouraging formation of modern tribal governments had harmful social effects in Indian Country. The newly established more modern governments often came in conflict with the traditional tribal political leaders.

Urban Indians and Termination

Following World War II (1939–1945), other traditions began changing also. With thousands of Indians returning from military service abroad or working in defense plants, their exposure to mainstream U.S. society made life on poverty-ridden reservations less acceptable. Also, the GI Bill provided educational opportunities. More Indians began moving off-reservation into the newly expanding urban areas, seeking greater economic opportunity. The welfare of these urban Indians became an increasing concern of the federal government under its trust responsibilities.

In a few cases, tribes still held a sufficient land base with marketable natural resources such as timber began to develop an economic base and prosper. However, greed for Indian-owned assets of value rose again. By 1953 U.S. governmental policy significantly shifted back to assimilation, this time through "termination" policies. Termination of a tribe meant ending the special trust relationship and loss of reservation lands. The lands, some very productive, were sold to non-Indians and access to federal health and education services was taken away. The economic base for those Indian communities was devastated. In addition to termination, Congress also passed Public Law 280 in 1953. The act expanded state jurisdiction onto tribal lands in selected states, decreasing tribal sovereignty yet more in those areas.

Tribal Self-Determination

Congressional support for termination did not last long as U.S. Indian policy again took a dramatic shift back in the 1960s toward a tribal government self-determination (govern own internal affairs) era. Influenced by the black American civil rights movement, a series of Congressional hearing in the 1960s focused on the lack of consistent civil rights protections offered by tribal governments to their members.

As a result, Congress passed the Indian Civil Rights Act (ICRA) of 1968 extending most of the Bill of Rights to Indian peoples including free speech protections, free exercise of religion, and due process and equal protection of tribal government laws. Not extended to Indians was the right to a jury trial in civil cases, free legal counsel for the poor, search and seizure protections, and prohibition on government support of a religion. Issues such as gender discrimination in tribal laws still could not be challenged under federal law. The act also cut back some of the states' authorities granted in Public Law 280. In respect for tribal sovereignty, interpretation of ICRA is left to the tribes and tribal courts, not federal courts. Federal courts can only review tribal court decisions in certain types of criminal cases.

Other legal distinctions for Indians were also identified. Title VII of the 1964 Civil Rights Act explicitly exempted Indian hiring preferences from its due process protections in some instances. The 1974 Court ruling in Morton v. Mancari affirmed that American Indians can be treated differently from other U.S. citizens by the federal government despite anti-discrimination laws. Tribes are political not racial groups on occasions when the U.S. government bases it actions on its trust responsibilities to protect Indian interests and promote tribal sovereignty. If the Indian preference laws were only designed to help Indians as individuals, they then could be determined illegal.

With civil rights protections different from other U.S. citizens, determining who is Indian has important legal consequences. Constituting a political rather than racial group, tribal members may gain membership to a tribe through birth or marriage and may have substantial non-Indian ancestry. Conversely, a person of total Indian ancestry who has never established a relationship with a tribe may not enjoy Indian legal status. Each of the over 550 recognized tribes in the United States is responsible to determine membership as an exercise of their tribal sovereignty. In general, an Indian is anyone with some degree of Indian ancestry, considered a member of an Indian community, and promoting themselves as Indian.

The biggest boost in support of tribal sovereignty and self-sufficiency came in 1975 when Congress passed the Indian Self-Determination and Education Assistance Act. The act gave tribes much greater opportunity to administer federal programs benefitting Indian peoples that were previously administered by the BIA. Many of these programs provided health and education services.

Through the rest of the twentieth century Congress continued passing acts protecting tribal rights and interests, including the American Indian Religious Freedom Act (1978), Indian Mineral Development Act (1982), Indian Gaming Regulatory Act (1988), the Native American Graves Protection and Repatriation Act (1990), and the Indian Self-Governance Act (1994). By the 1990s, tribes could form and reorganize their own governments, determine tribal membership, regulate individual property, manage natural resources, provide health services, develop gaming businesses, regulate commerce on tribal lands, collect taxes, maintain law enforcement and establish tribal court systems. By the end of the twentieth century, tribal court systems had greatly expanded as many tribes gained greater economic and political power. However, due to the broad diversity of tribal legal systems, the meaning of justices and the way it was applied differed from tribe to tribe. Besides those patterned after United States models, some tribes retained traditional systems and others no system at all.

By 2000, the resulting branch of U.S. law, commonly called Indian Law, was a very peculiar part of the U.S. legal system with tribal governments and their peoples possessing a unique legal status. Members of federally recognized tribes were both U.S. and tribal citizens, simultaneously receiving benefits and protections from federal, state, and tribal governments.