Excerpted from: Ashley A. Glick, The Wild West Re-lived: Oil Pipelines Threaten Native American Tribal Lands, 30 Villanova Environmental Law Journal 105 (2019) (Student Comment) (250 Footnotes) (Full Document)
Since the inception of designated reservations, the land within the reservation boundaries has served as a point of contention between the Native Americans and the federal government. In 1851, the United States government attempted to negotiate peace with the Native American tribes by assigning designated lands as sovereign nations to the tribes under the protection of the Treaty of Fort Laramie. The terms of the treaty stipulated peace between the tribes and the government.
The years following the government's enactment of the treaties were riddled with attacks from settlers and the government agencies on Native American tribes and their reservations, primarily to hunt the food sources on the land. The settlers and the United States Calvary led onslaughts resulting in loss of reservation land, declining game populations, and retreat of many tribes, further minimizing the size of the reservations. In 1868, the United States government attempted to control the tension and vicious attacks between Native Americans, settlers, and Calvary. This led to a second signing of the Fort Laramie Treaty by Native Americans and the government, which combined the reservations and substantially cut the land initially designated to the tribes by the federal government. Historians theorize the willingness of the tribes to accept a substantial loss of land as being the result of extreme hunger from loss of hunting grounds, intimidation from the United States military, or misleading information regarding the terms of the treaty.
The Supreme Court delivered opinions on the Native Americans in the “Marshall Trilogy,” which further constricted the tribes' land rights between 1823 and 1832. In 1823, the Supreme Court rendered an opinion in Johnson v. McIntosh, where it held Native American tribes “had no power to grant lands to anyone other than the federal government.” In 1831, the Court decided Cherokee Nation v. Georgia, and held “that Indians were neither US citizens, nor independent nations, but rather were 'domestic dependent nations' whose relationship to the US 'resembles that of a ward to his guardian.”’ The following year, the Court rendered an opinion in Worcester v. Georgia, holding tribal nations to be under control of the federal government. This case established that state law did not dictate control of Native Americans, but that the authority over Native Americans “belongs exclusively” to the United States Congress.
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Since the inception of designated reservations, the United States government has slowly reallocated, allotted, restructured, and taken in excess of one billion acres of land from Native Americans. The Tribes were segregated to reservations in an attempt to keep peace between the Native Americans and settlers. Subsequently, settlers crossed reservation boundaries to take resources such as wildlife and gold. Today, Native Americans are fighting to keep what little they have left in a battle over oil that holds a stark comparison to the taking of the Black Hills and numerous examples throughout our Nation's history. Centuries later, Native Americans are still fighting to protect their land, enduring government inaction and threats, and struggling to maintain their traditional way of life.
The United States' history paints a picture of pushing the Native American population further and further into smaller tracts of land and reminding them that they are “wards” of the government. The Wild West has been a way of life, as Native Americans fight the government and “the capitalist drive for profit” to defend the land they have left from the devastating effects of the “black gold rush[.]” As the Lummi Tribe noted while fighting against TransMountain Pipeline, “[s]o much we're losing, losing, losing every generation .... What are we going to have left for our future generations ...?” “The economic devastation in American Indian communities is not simply a result of their history as victims of forced assimilation, war, and mass murder; it's a result of the federal government's current policies, and particularly its restrictions on Natives' property rights.” The United States government has continually minimized the land promised under treaties and wreaked havoc on the remaining lands left to the tribes through the devastating and irreparable damage of mining and drilling activities.
J.D. Candidate, 2019, Villanova University Charles Widger School of Law; B.A., Business Administration, 2011, West Chester University.