The United States' romance with the West and its historical development have been chronicled in countless books and films. A central theme is often the relationship between white settlers and Indians and Indian tribes. This part of the romance is much more than pure nostalgia. It involves a wide variety of emotions that white culture has had toward Indians, each of which has been more or less prevalent at different times in our nation's history. These include admiration of the “noble savage, ” fear and hatred of the “marauding warriors, ” paternalism, tolerance, and respect.
The course of U.S. public policy on Indians and Indian tribes has been shaped by these conflicting emotions, shifting dramatically several times from the polar positions of total assimilation of Indians and tribes to geographic segregation and sovereignty for them. As a result, the situation has evolved into something between assimilation and segregation. Indians are citizens of the United States and individual states but, for the most part, are also members of tribes. Most of the tribes have a land base that has been set aside for them and enjoy at least a limited form of sovereignty.
The shifts in U.S. Indian policy have created a complicated legal structure governing the relationships among Indians, tribes, non-Indians, and the federal and state governments. This has made it difficult for many lawyers to find clear answers to common legal problems that arise from these relationships. Exacerbating the problem has been a relatively small amount of legal scholarship in the area of Indian law. While numerous books, treatises, and articles have been published, the attention given to this area of law has been small compared to other areas. And much of what has been published has been polemical rather than pure scholarship, not surprising given the emotion this topic often arouses.
The states, particularly those in the West, where most of the tribes and reservations are located, encounter issues of Indian law with far more frequency than most entities. Indian law has become a major part of the business of the offices of the western attorneys general.
Attorneys general, as the chief lawyers in their respective states, have a responsibility to handle legal disputes that arise from relationships with