Public forum doctrine: Legal doctrine involving the range of places and contexts in which the constitutional right of free speech has been contested. The Supreme Court’s analysis in recent cases has started with a determination of whether certain spaces are “public forums.” A public forum, according to the Supreme Court, is government property that has either (1) traditionally been available for public expression and has as a principal purpose the free exchange of ideas (traditional public forum); or (2) been specifically designated by the government as a public forum (designated public forum). If the spaces in question are not adjudged to be public forums, the infringement on speech, even if it is the most protected speech, is not strictly scrutinized; any “reasonable” restriction is constitutionally permissible.
Purpose doctrine: Term coined by the Critical Legal theorist David Kairys, which, he suggests, has allowed the Rehnquist Court to legitimate a number of constitutional violations unless a victim can prove that the government has acted maliciously and the government cannot suggest an alternative, plausibly benevolent purpose. Kairys says the purpose doctrine is synonymous with the incidental effects test and other judicial techniques which have worked to constrict individual constitutional rights in the areas of free speech, free exercise of religion, and due process.
Res judicata: Legal term meaning ‘the thing has been decided.’ The principle that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies.
Respondent: The party against whom a legal action is filed.
Reserved rights doctrine: Judicially crafted concept which holds that tribal nations retain all rights (that is, to self-government, cultural expression, lands, water, hunting, fishing, etc.) which have not been expressly granted away in treaties or agreements.
Separation of church and state: Legal doctrine outlined in the First Amendment to the U.S. Constitution, which reflects the philosophy that church and state should be separated. As concerns interference with the free exercise of religion and establishment of religion, the Supreme Court has confirmed that the separation must be complete and unequivocal. Nevertheless, while the First Amendment was intended to erect a wall of separation between church and state, the amendment does not say that in every and all respects there shall be a separation of church and state. Total separation is not regarded as possible in an absolute sense, according to a Senate publication on the subject, and some relationship between government and religious organizations is believed to be inevitable.2
Separation of powers: Constitutional doctrine mandating the equal division of powers between the executive, legislative, and judicial branches. The separation is a fundamental characteristic not only of the federal government, but also of state governments and some tribal governments. Under this doctrine, one branch is not permitted to encroach on the domain or exercise of another.
Solicitor general: Justice Department official whose office represents the federal government in all litigation before the U.S. Supreme Court.
Sovereignty: A western concept, both complex and contested, central to modern political thought. Its importance is bound up with specifying the essential character of the territorial state. Implicit in the discussions about the term since Bodin, Machiavelli, and Hobbes is the conviction that the state is the ultimate arbiter of its own fate in relation to the outside world. Each state is “sovereign” in international society, a law unto itself. However, absolute sovereignty no longer exists for any modern state because of international interdependence and the interpenetration of domestic and international politics, the mobility and globalization of capital and information, and the rising influence of transnational social movements and organizations. Sovereignty in modern times more accurately connotes legal competence; the power of a culturally and territorially distinctive group of people to develop institutional arrangements that both protect and limit personal freedoms by social control.
Standing; standing to sue: The right of parties to bring legal actions because they are directly affected by the legal issues raised.
Strict scrutiny test: A measure which is found to affect adversely a fundamental right (e.g., free exercise of religion or speech) will be subject to this test, which requires the state to establish that it has compelling interest which justifies the law and that distinctions created by law are necessary to further some governmental purpose.
Sui juris: Legal term meaning ‘the only one of its kind.’
Supremacy clause: Article VI, clause 2, which declares the federal Constitution and laws “to be the Supreme Law of the Land,” provides to the federal government powers that cannot be exercised by the states and that the states must heed.
Termination policy: Federal Indian policy from approximately 1953 to the mid-1960s which legislatively severed federal benefits and support services to certain tribes, bands, and California rancherias and forced the dissolution of their reservations. This policy was exemplified by House Concurrent Resolution No. 108 in 1953, the infamous “termination resolution”; Public Law 83–280, which conferred upon several designated states full criminal and some civil jurisdiction over Indian reservations within those states and consented to the assumption of such jurisdiction by any other state that chose to accept it; and relocation—a federal policy focused on the relocation of Indians from rural and reservation areas to urban areas.
Test: A criterion or set of criteria used by courts to determine whether certain legal thresholds have been met or constitutional provisions violated.
Treaty: A formal agreement, compact, or contract between two or more sovereign nations that creates legal rights and duties for the contracting parties. A treaty is not only a law but also a contract between two nations and must, if possible, be so construed as to give full force and effect to all its parts. Treaties can be bilateral (involving only two nations) or multilateral and deal with single or multiple issues. Indian treaties are of the same dignity as international treaties, but because of the unique political (trust) relationship which unfolded between tribes and the United States, the federal courts have created several so-called canons of construction which are designed to protect Indian rights. These serve to distinguish Indian treaties from those the United States negotiates with foreign nations: (1) A cardinal rule in the interpretation of Indian treaties is that ambiguities in treaty language are to be resolved in favor of the Indians; (2) Since the wording in treaties was designed to be understood by the Indians, who often could not read and were not skilled in the technical language often used in treaties, doubtful clauses are to be resolved in a nontechnical way as the Indians would have understood the language; and (3) Treaties are to be liberally construed to favor Indians. These three legal doctrines have been enforced inconsistently by the courts, the Congress, and the executive branch; for example, the courts have also ruled repeatedly that Congress in exercising its plenary power may unilaterally abrogate Indian treaty provisions without tribal consent.
Treaty clause: The provision of the U.S. Constitution, Article II, section 2, which gives to the president the power “by and with the consent of the Senate, to make treaties, provided two thirds of the Senators present concur.”
Tribal sovereignty: The spiritual, moral, and dynamic cultural force within a given tribal community empowering the group toward political, economic, and, most importantly, cultural integrity; as well as maturity in the group’s relationships with its own members, with other peoples and their governments, and with the environment.
Tribe: A community or combination of communities all of which occupy a common territory, share a political ideology, and are related by kinship, traditions, and language.
Trust doctrine: One of the unique foundational concepts underlying the political-moral relationship between the United States government and American Indian nations. The trust doctrine, also known as the trust relationship, has historical roots in
several sources: in treaties and agreements with individual tribes; in the international law doctrine of trusteeship first broached in papal bulls and related documents during the time of European nations’ first encounters with indigenous societies when the European states assumed a protective role vis-à-vis these societies and their territories; and in constitutional clauses, executive orders and policies, and statutory and case law. Broadly defined, the trust doctrine is the unique legal and moral duty of the federal government to assist Indian tribes in the protection of their lands, resources, and cultural heritage. The federal government, many courts have maintained, is to be held to the highest standards of good faith and honesty in its dealing with Indian peoples and their rights, resources, and funds. Nevertheless, since the trust doctrine is not explicitly constitutionally based, it is not enforceable against Congress, although it has occasionally proven a potent source of rights against the executive branch. Importantly, the trust doctrine, which is also referred to as a trustee-beneficiary relationship (with the federal government serving as the trustee and the tribes as the beneficiary) is not synonymous with the so-called guardian-ward relationship which was said to exist between the U.S. and tribes from the 1860s to the 1930s.
Unmistakable intent: Evidence gleaned by the court (e.g., express statutory language, legislative documents, etc.) that unequivocally shows what Congress intended to do by enacting a particular statute. If the court finds what it considers “unmistakable intent,” the disputed legislation (or provision thereof) is upheld as constitutional.
Wardship: See Guardianship.
Writ: A written order or an oral command issuing from a court that commands the recipient to perform or not perform acts specified in the order.
NOTES
1. U.N. Economic and Social Council Commission on Human Rights, Preliminary Report on the Problem of Discrimination Against Indigenous Populations, as quoted in Franke Wilmer, The Indigenous Voice in World Politics (Newbury Park, Calif.: Sage, 1993).
2. Johnny H. Killian, ed., The Constitution of the United States: Analysis and Interpretation (Washington, D.C.: Government Printing Office, 1987), 970. (Senate Document No. 99–16, 99th Cong., 1st Sess., rev. and annot. version of 1964 federal publication).
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