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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 12 April 2015
The Basic Principles of American Law As
It
Applies to American Indian Tribes
ROBERT LAURENCE*
INTRODUCTION
The law of the United States as it relates to American Indian tribes may fairly be described as unique, both within the domestic law of the United States and when one compares it to the law of other nations. In this article, I will set forth the basic principles of that domestic law, leaving aside for now both the emerging international regimen regarding indigenous peoples, and any direct or indirect comparison to the internal law of any other nation regarding the native peoples who live therein. Much, much more could — and has been — written on the topic, of course,I but here I wish to set forth a primer, if you will, for newcomers to the field. What follows is meant to provide merely an overview of a complex field, upon which a reader could either proceed to a more careful study of the subject, or make initial comparisons with the body of New Zealand law as it relates to the Maori.
Robert A. Leflar Distinguished Professor of Law, University of Arkansas. This article is amalgamation of the material from three presentations that I made during the Southern Hemisphere winter of 2002 at the University of Waikato, Victoria University of Wellington and University of Canterbury, and I thank my hosts at those institutions for providing me with the opportunities to discuss a fascinating, if esoteric, subject. Generous support both for the preparation of this article and for travel to, from and within New Zealand was provided by a Northern Hemisphere summer research and writing grant from the University of Arkansas.
I should emphasize here at the outset that it must remain the readers' task to draw comparisons, if they will, between the principles set forth here and New Zealand domestic law as it applies to the Maori people. That body of law is rich in nuance and it would be more presumptive than the present American could muster to think that he could draw those comparisons or offer significant insight into the principles of Maori law. The law set out here is American domestic law relating to the tribes of the United States. Its Aotearoan application, if any, awaits further discussion.
There is no better place to begin a discussion of American Indian Law than with the following quotation from the Supreme Court of the United States in the case of McClanahan v. Arizona State Tax Commission' :
It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our own Government.'
This statement should be seen as no mere platitude; it is the essential truth of North American life. That is not to say that it, in fact, always is remembered; it is easy enough to point to cases in which our courts seem clearly to have not heeded the Supreme Court's injunction.' And there are surely millions of European-Americans, African-Americans and Asian-Americans who, on a day-to-day basis, forget that the tribes were here first. Nor, it must be conceded, is it the case that merely remembering the antiquity of the tribes means that the Indians should, or will, prevail in all controversies.
2 [1973] USSC 66; 411 U.S. 164 (1973).
3 Id. at 172.
4 As Justice Reed famously wrote in Tee-Hit-Ton Indians v. United States, [1955] USSC 24; 348
U.S. 272, 288 (1955): "Every American schoolboy knows that the savage tribes of
this continent were deprived of their ancestral ranges by
force and that, even
when the Indians ceded millions of acres by treaty in return for blankets, food
and trinkets, it was not a sale
but the conquerors' will that deprived them of
their land." Years later, Professor Philip Frickey responded: "Every learned
schoolchild
would be appalled by this point, for it cannot be defended as
accurate, if incomplete. Instead, it is just plain wrong, a mixture
of myth and
ethnocentrism masquerading as past legal practice." Philip P. Frickey,
"Domesticating Federal Indian Law", 81 Minn. L. Rev. 31, 32 (1996). As Professor
Frickey noted, the quotation is especially misguided in a case, like
Tee-Hit-Ton, dealing with Alaska Natives, for little force was used to
remove these peoples from their homelands. For an interesting discussion
of the
historical context of Justice Reed's remark, see Eric Kades, The Dark Side of
Efficiency: Johnson v. Mintosh and the Expropriation of American Indian
Lands, 148 U. Penn. L. Rev. 1065, 1129-30 (2000).
It is enough that the
starting point when one approaches the field of Indian law is with the antiquity
of the tribes and the youthfulness
of the United States. The dominant society is
young, large, vibrant, headstrong, diverse, self-indulgent and very much these
days
full of itself as "The World's Only Remaining Super-Power." Tribes, on the
other hand, tend to be old, small, homogeneous, vibrant
in their own ways,
introspective, and aware of their own fragility.' When approaching a conflict
between the two, the Supreme Court
was surely correct in admonishing that it
will serve the younger government well to keep in mind that the elder government
is indeed
that, especially when the courts of the younger government are
attempting to determine the extent of that more ancient sovereign
power.
It is this sovereignty, as we shall now see, that lies at the heart of American Indian law.
5 One must be very careful when indulging in stereotypes such as these. There
are some five hundred federally recognized tribes within
the United States
— about one hundred and fifty of which are in Alaska — and many more
self-proclaimed tribes that are
seeking federal recognition. There is
extraordinary variety within this group among the tribes, greater variety, it is
commonly said,
than among the various nations of Europe. Generalities are
dangerous and can be unfair. Fragility, especially, is a problematic
characterization
to apply to Indian tribes, or to any government a thousand
years old. It is true enough that tribes live these days on the edge of
extinction, and their members represent less that 1% of the population of the
United States. On the other hand, it seems rather near-sighted
to predict the
demise of governments that have survived so much.
THE SEVEN BASIC PRINCIPLES
OF AMERICAN INDIAN LAW
I. Indian tribes are recognized as governments under American federal law.
It was early on, in the case of Cherokee Nation v. Georgia,' that Chief Justice John Marshall recognized the sovereignty of the Indian tribes, declaring them to be "domestic dependent nations."' This sovereign status is unique in American law to American Indians. No other ethnic group — nor, for that matter any other religious, racial, gender nor political group — is recognized as being a government.' Members of all of these other groups must participate in American society as individuals, or as members of private, voluntary interest groups. In many cases following Cherokee Nation, the Court has made it clear that tribes are not mere voluntary organizations.'
6 30 U.S. (5 Pet.) I (1831).
If courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined. A people once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking beneath our superior policy, our arts and our arms, have yielded their lands by successive treaties, each of which contains a solemn guarantee of the residue, until they retain no more of their formerly extensive territory than is deemed necessary to their comfortable subsistence. To preserve this remnant, the present application is made.
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) at 15.
9 See. e.g., United States v. Mazurie, [1975] USSC 9; 419 U.S. 544 (1975).
On a practical level, this recognition of tribal sovereignty means that, day-to-day, tribes do the kinds of things that governments do: they tax,'° they regulate," they adjudicate both civil' and criminal disputes,' they incarcerate,' and they enforce judgments:5 On a more theoretical level, to say that tribes are governments and not mere private organizations engages this interesting question: what, exactly, distinguishes the two types of entities? At first blush, the answer seems easy: governments exercise power over people, not all of whom consent to each individual exercise of that power. Sure enough, there is often thought to be a connection between some generalized consent of the citizens and a government's exercise of power over them, a connection expressed, perhaps, most eloquently by Thomas Jefferson, in the American Declaration of Independence: "Governments are instituted among Men, deriving their just powers from the consent of the governed."16 But all understand that such consent is only generalized, and that persons who have generally consented to the exercise of power may not withhold that consent when the particular exercise does not suit them. Thus, one stopped for driving too quickly through a school zone may not reply to the arresting officer that his consent to the exercise of governmental power is withheld. Well, one may reply that way, but one ought not expect it to do any good.
Members of private organizations, on the other hand, may opt out at any time, leaving the organization with no authority over their lives. However, it appears that the only way that one is ever sure that an entity is able to exercise power over non-consenting persons is if some other government will react to such exercise by recognizing and acquiescing in it, or, instead, by enjoining the
10 See, e.g., Merrion v. Jicarilla Apache Indian Tribe. [1982] USSC 27; 455 U.S. 130 (1982).
11 See, e.g., South Dakota v. Bourland, [1993] USSC 83; 508 U.S. 679 (1993).
12 See, e.g., Estate of Tasunke Witko v. G. Heileman Brewing Co., 23
Indian L. Rep. 6104, 6111 (Rosebud Sioux 1996). The legitimacy of this exercise
of tribal civil adjudicatory power was rejected
in Hornell Brewing Co. v.
Rosebud Sioux Tribal Court, [1998] USCA8 55; 133 F.3d 1087 (8th Cir. 1998). See generally,
Nell Jessup Newton, "Tribal Court Praxis: One Year in the Life of Twenty Indian
Tribal Courts",
22 Am. Indian L. Rev. 285 (1998).
13 See, e.g., United
States v. Ant, [1989] USCA9 690; 882 F.2d 1389 (8th Cir. 1989).
14 Id.
15 See, e.g., Eberhart v. Eberhart, 24 Ind. L. Rep. 6059
(Cheyenne River Sioux 1997).
16 The Declaration of Independence, §2 (U.S. 1776). The consent, if any, between American Indians and the United States government is carefully explored in Richard B. Collins, "Indian Consent to American Government", 31 Ariz. L. Rev. 365 (1989) and Robert B. Porter, "A Proposal to the Hanodaganyas to Decolonize Federal Indian Control Law", 31 U.Mich. J.L. Reform 899 (1998).
exercise as beyond the original entity's power. Such analysis, then, ends up defining a government according to the reaction of another government to the exercise of the first government's power, if the first is a "government" at all. In the end there is only this unhelpful circular definition: an entity is sovereign if, and to the extant that, another sovereign entity recognizes it as being sovereign.
Both of these practical and theoretical questions then collapse together into this reality: the United States, undeniably a sovereign entity in everyone's estimation, recognizes the sovereignty of the tribes within its borders, and has since the beginning of its own sovereign existence. Thus tribes may, and do, exercise the powers of governments, often against non-consenting individuals. This recognition by the federal courts is not absolute, and certain exercises of power — especially with respect to non-Indians — are not recognized by the United States as legitimate,' so the governmental status of the tribes under the domestic law of the United States is not as extensive as is, say, its recognition of the sovereign status of New Zealand. Nevertheless, the first basic principle remains uniquely true: tribes are governments, and they act like it every day, with the approval of the dominant society.
2. Tribal sovereignty is inherent in the tribes and does not derive from the United States.
Historically, this proposition is unassailable: the tribes are more ancient than the United States itself, much more ancient. As mentioned above, the Supreme Court in McClanahan v. Arizona State Tax Commission admonished,
It must always be remembered that the various Indian Tribes were once independent and sovereign nations and that their claim to sovereignty long predates that of our own Government.'"
How could, in fact, the older governments derive their sovereignty from the younger one?
17 See infra at notes 47-50.
18 McClanahan v. Arizona State Tax Commission, [1973] USSC 66; 411 U.S. 164, 172 (1973).
The inherency of tribal sovereignty was definitively established by the Supreme Court in United States v. Wheeler!' In that case, Wheeler had been prosecuted, convicted and incarcerated by the Navajo Tribal Court on charges of contributing to the delinquency of a minor. He then was re-prosecuted by the federal government, this time for statutory rape, based on the very same acts of consensual intercourse with a minor. Under the Double Jeopardy clause of the Fifth Amendment to the United States Constitution, such a dual prosecution would be prohibited if the tribal prosecution were tantamount to a federal prosecution.'" But under the judicially established "dual sovereign doctrine," two prosecutions by different sovereign powers does not offend the Constitution.' The Court held that the Navajo power to prosecute Mr. Wheeler did not derive from the United States, so the second prosecution was valid." The Navajo Tribe was declared to be a sovereign independent of the United States and Mr. Wheeler went to jail for the second time, in a decision that all, save him, consider a great victory for the concept of tribal sovereignty.
The linkage between inherent sovereignty and double jeopardy is, perhaps, unfortunate, for the Dual Sovereign Doctrine is one about which opinions vary widely, and an important concept like the inherency of tribal sovereignty should not rest on such a slender reed." For example, consider the question of tribal criminal jurisdiction over Indians who are not members of the prosecuting tribe. Interpreting the federal common law, the Supreme Court held in Duro v. Reina that such jurisdiction did not lie in the tribe." Congress disagreed, and shortly thereafter declared that
19 [1978] USSC 44; 435 U.S. 313 (1978).
20 U.S. Const., amend. V, c1.2. This clause is the Double Jeopardy Clause of the Fifth Amendment to the Constitution, one of the first ten amendments, which are known to Americans as the Bill of Rights. The Fifth Amendment states:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . .; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
21 Double Jeopardy and the Wheeler case are discussed in more detail
in Robert Laurence, "Dominant-Society Law and Tribal Court Adjudication", 25
N.M.L.R. 1 (1995).
In particular, it is noted there that the analysis changes if
the first prosecution is in federal court and the second prosecution
in tribal
court, due to the application of Principle 3, below.
22 Wheeler, 435
U.S. at 323.
23 See Laurence, "Dominant-Society Law and Tribal Court
Adjudication", supra note 21.
24 [1990] USSC 78; 495 U.S. 676 (1990).
tribes did have such jurisdiction." Now the question arises whether, when a tribe is prosecuting a non-member Indian, is it exercising power delegated to it by Congress, or its own ancient and inherent jurisdiction? One would think that, notwithstanding the disagreement between two branches of the two-century-old American government, such jurisdiction is consistent with what American Indian tribes have been doing for ten thousand years, more or less, and certainly since long before contact with any European. However, when the issue arises in the context of Double Jeopardy, a court will be confronted with the specter of an Indian spending time in two different jails for one criminal act, with the only judicial solution being to declare the Dual Sovereign Doctrine not to apply, due to the congressional act of ratifying tribal criminal jurisdiction."
It must be noted that the Dual Sovereign exception to Double Jeopardy analysis, and its application in the narrow case where the federal government is prosecuting under the congressionally enacted "Duro fix," does not cut back on the fundamental truth of the basic principle established by Wheeler. It may be that in the narrow case where tribes are prosecuting non-member Indians they are acting under congressional authority, and not their ancient sovereignty, though that result would be unwise. Even so, in most other governmental acts, the tribes are acting for themselves and no other government. Tribal sovereignty is inherent.
3. The United States Constitution does not apply to the tribes.
This principle is not to say that the protections of the Constitution do not apply to Indians; by and large they do." However, the Constitution, generally speaking, accomplishes these ends: (1) it
25 See 25 U.S.C. §I301(2).
26 See, e.g., United States v. Lara, [2002] USCA8 353; 294 F.3d 1004 (8th Cir. 2002); United States v. Enas, [2001] USCA9 430; 255 F.3d 662 (9th Cir. 2001); United States v. Weaselhead, [1998] USCA8 1022; 156 F.3d 818, (8th Cir. 1998), vacated by an equally divided court, 165 F.3d 1209 (8th Cir. 1999) (en bane).
27 A good deal of history. law and policy are subsumed under the words "by and large." A careful discussion of the situations in which constitutional protections do not apply to Indians, and why, is beyond the scope of the present essay. Here I am focused on the law as it relates to tribes, not individual Indians, but it is worth noting that the two are related, and individual Indians may find themselves at either an advantage or a disadvantage vis a vis the federal government due to their membership in an Indian tribe. Compare United States v. Dion, [1986] USSC 127; 476 U.S. 734 (1986)(applying a tribe's treaty rights to an individual Indian as a possible defense to a federal crime) with United States v. Antelope, [1977] USSC 57; 430 U.S. 641 (1977)(upholding a murder prosecution of an Indian where a non-Indian would have been prosecuted for a lesser offense, because the defendant was a member of an Indian tribe).
creates, and grants powers to, the federal government," (2) it limits the power of the states;" (3) it protects the states from federal overreaching;" and (4) it protects individuals from the improper exercise of both state and federal power.' It is not the case that the Constitution is silent regarding Indian tribes,' however the Supreme Court held in the case of Talton v. Mayes,' that the specific provisions of the Constitution do not bind the activities of Indian tribal governments as they do the federal and state governments.'
It can be seen that this principle flows most directly from the last. Why would, in fact, the organic document creating the United States in 1789 apply to governments a thousand years older than the one being created? The tribes did not join in the drafting of the Constitution, nor did they ratify it; they are referred to in it as entities with whom the United States has external relations. Their members are excluded from the enumeration that apportions Congress. The Constitution only provides its protections to people who are facing action by the federal or the state governments. Talton v. Mayes makes eminent sense and has stood the test of time; it is still good law.
28 See, e.g., U.S. Const., art. I, §8, c1.1 ("Congress shall have Power To lay and collect Taxes.
29 See, e.g., U.S. Const., art. I, §10, cl. I ("No State shall enter into any Treaty, Alliance, or Confederation, .. .").
30 See, e.g., U.S. Const., amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.").
31 See, e.g., U.S. Const., amend. 1, cl. 1 ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ."); amend. XIV, §1. cl. 3 (". . nor shall any State deprive any person of life, liberty, or property, without due process of law . .").
32 Indians are expressly mentioned three times in the Constitution: Article 1, §8, c1.3 contains the Indian Commerce Clause, empowering Congress "to regulate commerce . . . with the Indian Tribes." Article I, §3, c1.1 of the original Constitution, as amended by Amendment XIV, §2, c1.1, apportions the House of Representatives by population, "excluding Indians not taxed." These latter two provisions have no modern importance, for Indians are now taxed like everyone else, at least under federal law.
33 [1896] USSC 157; 163 U.S. 376 (1896).
34 Id. The specific provision of the Constitution at issue in Talton v. Mayes dealt with the Fifth Amendment's requirement of indictment by Grand Jury, quoted above in footnote 20. Bob Talton had been convicted of murder by the Cherokee tribe without the full protection of the Fifth Amendment. He sought habeas corpus in the federal courts, which refused to order him released. The Supreme Court affirmed and Bob Talton was hanged by the Cherokees.
For this reason, on a very dramatic level from an American perspective, the Establishment of Religion Clause of the Constitution does not apply to Indian tribes." They can, and some do, have official religions. Many tribes, most obviously the several Pueblos of New Mexico, are in fact ancient theocracies, which are not, under Talton v. Mayes, threatened by the First Amendment of the United States Constitution. On a more mundane level, criminal defendants have no constitutional right to a free lawyer before tribal court, nor are they entitled to the usual warnings upon their arrest by tribal police.'
We might return to the question of double jeopardy to demonstrate what can be the complicated effects of Talton v. Mayes. Suppose a tribal member commits an act that is criminal under both tribal and federal law." Suppose the tribe prosecutes first. In the subsequent federal prosecution, the Double Jeopardy Clause of the Fifth Amendment of the Constitution clearly applies, but, as we have seen it is constitutional doctrine that the second prosecution by a sovereign independent of the first prosecutor does not offend the clause. But, as we have also seen, if the defendant is not a member of the tribe, then Duro v. Reina causes difficulties that may prevent the second prosecution.
Now suppose instead that the federal government prosecutes first. In the subsequent tribal prosecution, under Talton v. Mayes, the constitutional protection against double jeopardy does not apply at all. The local law of the tribe may, or may not, have double jeopardy protection. And, as we shall see, there is federal statutory, as opposed to constitutional, protection available for the defendant.' But the Constitution does not work to bind the
35 The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." For an application of this principle to Indian law, see, e.g. Toledo v. Pueblo of Jemez, 119 F. Supp. 429 (D.N.M. 1954), in which members of the tribe challenged the existence of a tribal cemetery that they alleged was only for the use of Catholics. The plaintiffs were Protestants. The court dismissed the action.
36 See, e.g., United States v. Ant, [1989] USCA9 690; 882 F.2d 1389 (8th Cir. 1989). I speak here in the text of the constitutional right to warnings upon arrest, which Talton v. Mayes says do not apply to tribal officers. As we shall see shortly, the Indian Civil Rights Act, 25 U.S.C. §1302, imposes statutory requirements on the activities of tribal police.
37 For reasons having to do with the sixth principle below, state law
ordinarily will have no application to on-reservations criminal
acts committed
by Indians.
38 See the discussion of the Indian Civil Rights Act, 25 U.S.C.
§1301-03, infra note 42-43.
activity of Indian tribes, and it will be the tribal judge who will determine the reach of any possible "dual sovereign" exception double jeopardy protection.
After the first three principles, the American law seems entirely in favor of the tribes and there is little to distinguish what I've said above from the law as it would apply to any sovereign nation independent of the United States. The nation of New Zealand is a sovereign government; that sovereignty does not flow from the United States; the U.S. Constitution has no application to New Zealand, and the rights granted under it may not be raised by one, even an American, who happens to be standing before a New Zealand judge. As we shall now see, however, the sovereignty of the tribes is not equivalent to the sovereignty of a nation like New Zealand, at least not under U.S. federal law.'
4. The United States Congress, and possibly the federal courts, have plenary power over the Indian tribes.
Begin with this most basic proposition: no Act of Congress has ever been held by the United States Supreme Court to be invalid as beyond the constitutional power of Congress to act. For example, Congress was permitted by the Court to enact a criminal code for Indian country in United States v. Kagama,' and, in fact, had been practically invited to do so by the Court in Ex Parte Crow Dog.' Likewise, the Court has accepted without dispute the validity of the Indian Civil Rights Act,'
39 This is probably as good a place as any to remind the reader that I am talking here only about the domestic law of the United States as it applies to tribes. There is an emerging body of international law dealing with indigenous populations, but a discussion of that law is beyond the scope of this article.
41 [1883] USSC 252; 109 U.S. 556 (1883). In Crow Dog, the Court ordered the defendant released from federal custody because the murder of one Indian by another in Indian country was not a federal crime. The Court said "To justify such a departure [from prior precedent], in such a case, requires a clear expression of the intention of Congress, and that we have not been able to find." Id. at 572. Congress responded by enacting the Major Crimes Act, whose constitutionality was upheld in Kagama, previously cited.
42 25 U.S.C. §§1301-03. Section 1301 of the Indian Civil Rights Act (ICRA) contains relevant definitions. Section 1302 is the substantive provision of the statute and imposes on the tribes some, but not all, of the protections of individuals contained in the Bill of Rights and the Fourteenth Amendment of the Constitution. Section 1303 contains a habeas corpus provision allowing one to attack one's incarceration by a tribal court.
which imposes a Bill-of-Rights regime on tribal governments.' For a period of time in the last century, it was thought that Congress had something like this plenary power over the affairs of the entire nation. However, in the last ten years or so, the Supreme Court has become increasingly aggressive in striking down statutes in which, it thinks, Congress has reached beyond its constitutional limits and thrust itself into affairs reserved for the states. Still, the plenary power of the Congress over Indian affairs remains. The Court has stricken key provisions of the federal Violence Against Women Act' and the Gun-Free School Zones Act," but few Indian-law scholars doubt the validity of a hypothetical Violence Against Indian Women Act, or Gun-Free Indian School Zones Act.
For the first time, then, in this primer on American Indian law, we begin to see the complexity of the field. This congressional plenary power, as it is called, this power without subject-matter limitation, places a sizeable qualification next to the accepted idea of Indian nationhood, and the sovereignty of the tribes becomes quasi-sovereignty at best. Indeed, for some, the recognition under federal law of the plenary power of Congress spoils the federal recognition of sovereignty that is found in the first three basic principles."
43 See Santa Clara Pueblo v. Martinez, [1978] USSC 76; 436 U.S. 49 (1978). In the Martinez case, a mother and daughter brought suit in federal court challenging the Pueblo's membership rule that excluded the daughter from membership because her father was a member of another tribe. The federal district court found that it had jurisdiction, but dismissed the case, holding that the 1CRA did not prohibit under its Equal Protection clause, long-standing customs and traditions, even if they resulted in gender-based discrimination. Martinez v. Santa Clara Pueblo, 402 F. Supp. 5 (D.N.M. 1975). The Court of Appeals for the Tenth Circuit agreed with the court below that jurisdiction was proper. but reversed it on the grounds that the ordinance under which the Pueblo was discriminating did not reflect a long-standing custom or tradition of gender-based membership rules. Martinez v. Santa Clara Pueblo, [1976] USCA10 136; 540 F2d 1039 (10th Cir. 1976). The Supreme Court held that jurisdiction was improper in the trial court, reversed and ordered the case dismissed, without reaching the merits. The Court held that the ICRA did not create a civil cause of action that could be sued on in federal court. Santa Clara Pueblo v. Martinez, [1978] USSC 76; 436 U.S. 49 (1978). I have called the Martinez case the most interesting set of opinions ever written in English: see Robert Laurence, "A Quincentennial Essay on Martinez v. Santa Clara Pueblo", 28 Idaho L. Rev. 307 (1992). For a case discussing the relationship between gender and immigration into the United States, see Nguyen v. Immigration and Naturalization Service, 553 U.S. 53 (2001).
44 18 U.S.C. §922(s)(2), declared unconstitutional by Printz v. United States, [1997] USSC 77; 521 U.S. 898 (1997).
45 18 U.S.C. §922(q)(1), declared unconstitutional by United States v. Lopez, [1995] USSC 42; 514 U.S. 549 (1995).
46 See Robert A. Williams, Jr.. "The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man's Indian Jurisprudence", 1986 Wis. L. Rev. 219. My response came in Robert Laurence. "Learning to Live with the Plenary Power of Congress over the Indian Nations: An Essay in Reaction to Professor Williams' Algebra", 30 Ariz. L. Rev. 413 (1988).
From a logical perspective, the plenary power is inconsistent, if not frankly contradictory, with the notions of tribal sovereignty. But from a public policy perspective, the two are perhaps at odds, but no more so than many other policies that are at odds in a diverse, vibrant society. Much like a well-tuned piano, which has to be strung with strong, conflicting forces in order to make music, the conflict between the plenary power, on the one hand, and the concept of tribal sovereignty on the other, can be seen as the force that holds American Indian law together, and does not pull it apart.
However, in the past twenty-five years, the Supreme Court has added another force which threatens to upset the dynamics of the balance just described, as it has created, under the federal common law, a plenary power running to itself, which it, and the courts below it, may use to divest tribes of sovereign power. This process began in 1978 with the case of Oliphant v. Suquamish Indian Tribe," where the court held, in a poorly reasoned case, that an Indian tribe has no power to prosecute a non-Indian for on-reservation activity. Duro v. Reina," discussed above, extended the Oliphant holding to prevent the prosecution of Indians who are not members of the prosecuting tribe. Montana v. United States" took Oliphant to the civil side, restricting under the self-same common law, a tribe's ability to regulate the on-reservation activities of non-Indians. A-/ Contractors v. Striate divested the tribes of civil adjudicatory authority over tort actions between two non-Indians, and recently in Nevada v. Hicks" tribes were denied the power to adjudicate a civil controversy between a tribal member and off-reservation game wardens.
It is difficult to overstate the destructive nature of this trend of judicial diminishment of tribal sovereignty via a common law judicial plenary power. Layer by layer, tribal power has been stripped away by the Supreme Court on its own, all in the face of Congress's ability to accomplish the same result democratically if it so wishes, which it apparently doesn't. American Indians represent less that one percent of American society, so their representation in the national political process is always
47 [1978] USSC 34; 435 U.S. 191 (1978).
48 [1990] USSC 78; 495 U.S. 676 (1990).
49 [1981] USSC 121; 450 U.S. 544 (1981).
50 [1997] USSC 32; 520 U.S. 438 (1997).
51 [2001] USSC 58; 533 U.S. 353 (2001).
problematic. Yet through effective lobbying and through the perception by many that Indians hold a high moral ground due to the historical circumstances of their loss of the continent, they have, of late, received a largely friendly reception before Congress. The common law judicial diminishment of tribal power via the Oliphant - Hicks line of cases is not subject to these democratic processes, nor does the present Supreme Court seem to find particularly relevant this high moral position. Neither the concept of tribal sovereignty nor the structure of American government is served well by the judicial activism represented by this aggressive common law.
5. Indian treaties are enforceable and part of what the Constitution calls "the Supreme Law of the Land."
Treaties between the Indians and the Europeans were a feature of the North American legal landscape from before the United States existed, and the new nation carried on the tradition early on." The first treaty, with the Delaware Tribe, was ratified on September 17, 1778." By the time treaty-making ended in 1871," more than 350 treaties had been ratified.' Thereafter, formal treaties became unknown, but more than seventy agreements between tribes and the United States were entered into and were approved of by Congress, usually by way of legislation." All of these treaties and agreements are with tribes outside of Alaska, and the nation never treated directly with the natives of Hawai'i, so treaty law has direct application only in the contiguous 48 states.
Treaties generally — that is without specific mention of Indian treaties — are made the "supreme law of the land" by the Constitution,' as well they should be as they are ratified by the
52 See generally Francis Paul Prucha, American Indian Treaties: The History of a Political Anomaly (1994).
53 .7 Stat. 13 (1778).
54 Treaty-making was formally ended by the Appropriations Act of March 3, 1871, ch. 120, 16 Stat. 544, 566, codified at 25 U.S.C. §71.
55 See Prucha, supra note 52, at Appendix B. The constitutional ratification process implicates two branches of our government. The Constitution provides that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . ..." U.S. Const., art. II, §2, c1.2.
56 See Prucha, supra note 52 at Appendix C.
57 U.S. Const., art. VI, c1.2 states: "This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof;
and all Treaties made,
or which shall be made, under the Authority of the United States, shall be the
supreme law of the Land..."
L48 Yearbook of New Zealand
Jurisprudence Volume 6 Issue 1 2002-2003
Senate and proclaimed by the President. Many, many cases could be cited for the proposition that Indian treaties are an enforceable part of the federal law of the United States; Worcester v. Georgia comes immediately to mind as an early case applying a treaty between the United States and the Cherokee tribe.' Not only are Indian treaties enforceable, they are also subject to a generous set of canons of judicial construction that may generally be summarized by saying that Indian treaties are to be construed to the advantage of the weaker parties, who were negotiating in a language other than their own, generally using interpreters provided by the other side. Terms and conditions are to be read as the Indians are presumed to have understood them, and ambiguities are to be resolved in favor of the tribes.'
The law with respect to treaties is not, however, entirely favorable to the Indians. While the canons of construction just mentioned remain formally in place, and while the Supreme Court continually gives lip service to them, one can point to cases where it is difficult to discern any particular resolution of ambiguities in favor of the Indians' Even more markedly, the Supreme Court has held that treaties may be abrogated by one side acting alone, the reality of North American life being that it is always the United States that is the abrogating party. It was in the case of Lone Wolf v. Hitchcock that the Court refused to enjoin the implementation of an abrogating statute,' and since the time of that case, there have been many instances of the abrogation of Indian treaties, often via the diminishment of treaty-made reservations 62
With the Lone Wolf case, the Supreme Court decided in 1903 that Indian treaties were abrogable by the United States, but it was not until 1980 that the Court held that such abrogations may be compensable before the United States Claims Court. In United States v. Sioux Nation of Indians,' the Court established a "good faith test," under which a treaty abrogation leads to a claim for
58 31 U.S. [1832] USSC 39; (6 Pet.) 515 (1832).
59 See generally, Charles F. Wilkinson & John M. Volkman, "Judicial
Review of Indian Treaty Abrogation", 63 Calif. L. Rev. 601 (1975).
60 See,
e.g., South Dakota v. Yankton Sioux Tribe, [1998] USSC 10; 522 U.S. 329 (1998).
61 187
U.S. 552 (1903).
62 See, e.g., South Dakota v. Yankton Sioux Tribe, [1998] USSC 10; 522 U.S. 329 (1998); Hagan v. Utah, 510 U.S. 399 (1994); Rosebud Sioux Tribe v. Kneip, [1977] USSC 52; 430 U.S. 584 (1977); DeCoteau v. District County Court, [1975] USSC 72; 420 U.S. 425 (1975).
63 [1980] USSC 149; 448 U.S. 371 (1980).
money damages if the federal government made no good faith attempt to compensate the Indians for the abrogation at the time the treaty was breached. If a good faith attempt to compensate the tribe existed at the time of the abrogation, then the Court was willing to entertain the presumption that the government was acting as a fiduciary, under the seventh principle below, and was managing the tribe's property as it thought best. But, as Justice Benjamin Cardozo had earlier written with his usual brief eloquence, "Spoliation is not management,' and it is those abrogations that are compensable. In Sioux Nation itself, the court, over Chief Justice Rehnquist's strong dissent, held that the government had abrogated the treaty without good faith, and affirmed the entry of the largest money judgment ever entered against the United States."
6. State law has only limited applicability on-reservation.
Given the realities of American federalism, where so much of the corpus of the law flows from the states, and not the federal government, it is not surprising that the competition between the states and the tribes for the control of reservation activity is intense and long-standing. Indeed, both of the famous Cherokee cases, Cherokee Nation v. Georgia' and Worcester v. Georgia,' previously discussed, involved exactly that competition between the tribe and the State of Georgia. The tribe was the nominal loser of the earlier case, as a majority of the Court held that the Cherokee Nation was not a "foreign nation" for constitutional purposes. However, as we have seen, the tribe won the moral and practical victory as four of the six Justices voting held with the principle of tribal sovereignty, a principle that is with us still. And in the second case, in which there was no tribe or individual Indian party, the tribe nevertheless won, as the Court declared the attempts by Georgia to regulate Rev. Worcester's activities on the reservation to be contrary to federal law and void. Here, though, the practical victory may have gone to the State, first when
64 Shoshone Tribe of Indians v. United States, 299 U.S. 479.498 (1937).
65 In a related case, the Court of Appeals for the Eighth Circuit held that an award of money damages was the sole remedy for abrogation of a treaty and dismissed a quiet title suit against the current land owners of property taken via the abrogation of the treaty at issue in United States v. Sioux Nation. See Oglala Sioux Tribe of the Pine Ridge Reservation v. United States, [1981] USCA8 293; 650 F2d. 140 (8th Cir. 1981).
66 30 U.S. [1831] USSC 6; (5 Pet.) 1 (1831).
67 31 U.S. [1832] USSC 39; (6 Pet.) 515(1832).
President Andrew Jackson said "John Marshall has made his law; now let him enforce it,' and later when most of the Cherokees were removed from Georgia and re-settled in Oklahoma, a 19th Century ethnic cleansing that the Cherokees call "The Trail of Tears.""
Happily, the second half of the 20th Century brought less dramatic battles between the states and the tribes, often fought out over the mundane issues of taxation. In the process of deciding the cases, the modern Court has established a two-tiered analytical scheme. When a state attempts to apply its laws on-reservation, a court is first to look to see if the state law runs afoul of conflicting federal law, including, of course, Indian treaties. If it does, the state law falls, under the Constitution's Supremacy Clause.' If there is no direct or indirect conflict between the state law and federal law, there remains a federal common law inquiry into whether the state action "infringes on the reservation Indians' right to make their own laws and be ruled by them?"' Supremacy Clause analysis is much preferred by the Court to Infringement analysis, but both remain as viable defenses to the application of state law on-reservation .
One area in which state law is especially restricted on-reservation under Supremacy analysis is criminal law. Far and away most criminal law in the United States is state law, but the Major
68 Some doubt that President Jackson ever made the statement. See Anton-Hermann Chroust, "Did President Jackson Actually Threaten the Supreme Court of the United States with Nonenforcement of Its Injunction Against the State of Georgia?". 4 Am. J. Legal Hist. 76 (1960). Even if the words were not his, however, the sentiment was, and Worcester v. Georgia threatened a grave constitutional crisis, as the states and central government battled for power in the early days of the Republic. See generally, Burke, The Cherokee Cases, supra note 7. John Quincy Adams' appraisal of the situation was that "the nation is about to founder." See Albert J. Beveridge, The Life of John Marshall 544 (1919). The crisis was averted, however, as the main political actors stepped back from the brink, and the Governor of Georgia was persuaded to pardon Rev. Worcester and release him, thereby mooting out the case. Id. The brink remained there to be approached again, however, until in 1861, South Carolina fired on Fort. Sumter, and both sides fell into the chasm that we call our Civil War.
69 Much has been written about the removal of the Cherokees, Choctaws, Chickasaws, Seminoles and Creeks from the Southeastern United States to Oklahoma. Interested readers might start with Trail of Tears National Historic Trail, Comprehensive Management and Use Plan, US Dept of Interior, National Park Service, excerpts of which can be found at http://www.powersource.com/cocinc/history/trail.htm
70 See, e.g., White Mountain Apache Tribe v. Bracker, [1980] USSC 142; 448 U.S. 136 (1980);
McClanahan v. Arizona State Tax Commission., [1973] USSC 66; 411 U.S. 164 (1973).
71
Williams v. Lee[1959] USSC 13; , 358 U.S. 217, 220 (1959).
Crimes Act72 and the General Crimes Act," as well as other, less sweeping federal statutes, make on-reservation crimes, committed by either Indians or non-Indians, federal crimes, thereby preempting the application of state law." This pre-emption, however, applies only if the crime was committed on-reservation, which implicates the question of where, exactly the reservation boundary lies. That question, in turn, often implicates an Indian treaty, for it is there that most reservations are defined." And it further implicates the question of Indian treaty abrogation, for many of those reservations suffered what is called "diminishment" during the so-called Allotment Period of the late 19th and early 20th Centuries. During the Allotment Period, ninety million acres of the American West and Mid-West changed from Indian to white hands, usually via the unilateral abrogation of a pre-existing treaty and the opening of the reservation up to white settlement." In some, but not all, of those cases, the reservation boundary was completely destroyed, leaving as a reservation only a disjointed series of non-contiguous blocks of land, a so-called "checkerboard" reservation." In these reservations, it is only crimes committed on the Indian "squares" that are subject to federal statutes; on the non-Indian "squares," state law applies." Ergo, the efficient administration of criminal justice becomes difficult, if not impossible, requiring as it does a virtual land survey before one can know which jurisdiction's law applies."
72 18 U.S.C. §1153.
73 18 U.S.C. §1152.
74 See generally Robert N. Clinton, "Criminal Jurisdiction over Indian Lands: A Journey through a Jurisdictional Maze", 18 Ariz. L. Rev. 503 (1976).
75 Many, many treaties, of course, accomplished as one primary objective the conveyance of the ancient homeland of the Indians to the United States government. (Johnson v. M'Intosh, 21 U.S. [1823] USSC 22; (8 Wheat.) 543 (1823), held that the tribes were able to convey their land only to the government in Washington, thereby (1) ensuring the orderly progress of European civilization to the Pacific, and (2) removing from the tribes the ability to set potential buyers bidding against each other in order to maximize the price.) Often — usually — the treaty also reserved to the tribe a certain portion of the homeland for all time, hence the term "reservation."
76 For an overview of the Allotment Period, see Judith V. Royster, "The
Legacy of Allotment", 27 Ariz. St. L. J. 1 (1995).
77 See, e.g., Hagan v.
Utah, 510 U.S. 399 (1994).
78 See id. and, generally, Robert Laurence, "The Unseemly Nature of Reservation Diminishment by Judicial, As Opposed to Legislative Fiat, and the Ironic Role of the Indian Civil Rights Act in Limiting Both", 71 N.D.L. Rev. 393 (1995).
79 The solution to this problem, as with so many Indian law practical problems, is state-tribal cooperation, including the cross-deputization of police officers, so that a single officer is a tribal officer, a state trooper and a federal marshal. Then, when criminal activity is spotted an an-est can be made, with the jurisdictional issues sorted out later.
Nevada v. Hicks," previously mentioned, represents a recent inroad into a larger role for state law on-reservation. As the previous discussion showed, the issue in that case was whether the tribal court had jurisdiction over a civil action brought by a tribal member against state game wardens, the Court holding that it did not.' However, Justice Scalia went far afield and commented on the legitimacy of the on-reservation service of state-issued search warrants. In Hicks itself, one could hardly argue that there had been an infringement of tribal self-rule, for the tribal court had signed off on the state-issued search warrants, an admirable example of state-tribal cooperation. Thus Justice Scalia's opinion in dicta that such service was appropriate is not squarely wrong. But without the tribal court approval, the on-reservation service of off-reservation warrants poses a serious question both under Supremacy and Infringement analysis.
7. The United States acts as a fiduciary toward the Indian tribes.
"Humanity," Chief Justice John Marshall wrote in Johnson v. M'Intosh,82 " . . . acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed!' Here one finds the origin of the trusteeship between the United States and the conquered tribes. The Chief Justice was more explicit in Cherokee Nation v. Georgia,' where he described the Indians' condition as being in "a state of pupilage,'"8S noting that "[t]heir relation to the United States resembles that of a ward to his guardian!„ "b
Nearly everyone is of two distinct minds regarding this guardian-and-wardship. Chief Justice Marshall's "state of pupilage" was, and is, demeaning, even if consistent with the kind of divine arrogance and effortless certainty in the superiority of European civilization that was common in America then, and today. On the other hand, there is something that rings true in the notion that the
80 [2001] USSC 58; 533 U.S. 353 (2001).
81 See supra, notes 47 - 51.
82 21 U.S. [1823] USSC 22; (8 Wheat.) 543 (1823).
83 Id. at 589.
84 30 U.S. [1831] USSC 6; (5 Pet.) 1 (1831).
85 Id. at 17.
86 d.
United States owes a higher responsibility toward the Indians than mere good faith, arms'-length dealing. Having so commonly breached the solemn obligations of a treaty, usually in order to grab yet more tribal land to relieve the westward pressure applied by immigrants from Europe," and having so commonly used ruthless negotiation tactics in order to gain the Indians' consent to the treaty in the first place," a higher standard for the latter-day dealing with the tribes seems appropriate. Judge, later Justice, Benjamin Cardozo defined that standard as "Not honesty alone, but the punctilio of an honor the most sensitive . . . Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd."" And nowhere does this high standard seem more deserved than when the United States deals today with the tribes.
87 See notes 75 - 76, supra.
88 See. e.g., South Dakota v. Yankton Sioux Tribe, [1998] USSC 10; 522 U.S. 329 (1998). In that case Justice Sandra Day O'Connor for the unanimous Court quoted a communication from John J. Cole, an emissary from the federal government to the Yankton representatives, during a lengthy negotiation regarding the sale to the United States of lands guaranteed to the Yankton Sioux tribe by the Treaty of 1858,11 Stat. 743:
I want you to understand that you are absolutely dependent upon the Great Father to-day for a living. Let the Government send out instructions to your agent to cease to issue these rations, let the Government instruct your agent to cease to issue your clothes. . . . Let the Government instruct him to cease to issue your supplies, let him take away the money to run your schools with, and I want to know what you would do. Everything you are wearing and eating is gratuity. Take all this away and throw this people wholly upon their own responsibility to take care of themselves, and what would be the result! Not one-fourth of your people could live through the winter, and when the grass grows again it would be nourished by the dust of all the balance of your noble tribe.
Council of the Yankton Indians (Dec. 10, 1892), transcribed in S. Exec. Doc. No. 27, at 74, quoted in South Dakota v. Yankton Sioux Tribe, 522 U.S. at 346-47.
The issue before the Court in Yankton Sioux was whether the statute that followed those negotiations was intended by Congress to result in the diminishment of the Yankton reservation down to merely the lands that remained with the tribe itself after the sale, or whether, on the other hand, the sale of the lands to the United States, ratified by Congress via statute, left the reservation boundary intact. The purpose of Justice O'Connor's quotation seems to be that, with the hard negotiating position taken by the United States, as exemplified by this communication, it was appropriate for the modern Court to interpret the resulting sale and legislation as having been on the government's most extreme terms. "Given the Tribe's evident concern with reaffirmance of the Government's obligations under the 1858 Treaty, and the Commissioners' tendency to wield the payments as an inducement to sign the agreement, we conclude that the saving clause pertains to the continuance of annuities, not the 1858 borders." Yankton Sioux, 522 U.S. at 347.
Perhaps so, but it is more than a little difficult today to read Mr. Cole's
words to the effect that if the Indians don't sign then
three fourths of them
will starve the following winter and that will be all right with the government.
Such a statement can give
one a different perspective from which to view the
Statue of Liberty's lamp of welcome to the homeless downtrodden of Europe.
89
Meinhard v. Salmon, 164 N.E. 445 (N.Y. 1928).
The parameters of this guardianship have never been fully defined. In some senses, at least, it is like a private trust relationship, and the Supreme Court has, on occasion, used private trust cases as precedent in Indian trust cases." On the other hand, for the federal government to be a fiduciary for the tribes raises unique and difficult questions of sovereign immunity, when the ward seeks to hold the guardian liable for breach of trust.' Likewise, because Johnson v. M'Intosh held that only the federal government could deal with the Indians over land, the government ends up in a conflict of interest that we would not tolerate if undertaken by a private trustee, buying land out of the trust corpus for re-sale to the trustee's own "family.'
Perhaps the two most practical ramifications of the trusteeship are, first, the generous canons of treaty interpretation mentioned above.' Some scholars read those canons to be justified by the existence of the trust responsibility, and this seems to be a reasonable reading." And second, it is in some sense the trust responsibility that gave rise to the creation of the ubiquitous Bureau of Indian Affairs in the federal Department of the Interior, whose influence reaches directly into the lives of most American Indians
CONCLUSION
On these few pages, one can hardly do justice to an area of the law as complex as American Indian law. A foreign audience, especially, might feel itself lost in a forest of unfamiliar legal principles, sketched out here in a map that gives less than is necessary to find one's way. Even more especially when the audience resides in a country with its own body of law regarding indigenous peoples, one worries that such a short description will lead others to false
90 See, e.g. Cheyenne-Arapaho Tribes v. United States, 512 F.2d. 1390 (Ct.C1.1975)(applying the Restatement 2nd of Trusts.).
92 Conflict of interest in the
area of American Indian law can give rise to very convoluted analysis. See
generally Robert N. Clinton,
et al., American Indian Law (3d ed. 1991) at
255-75.
93 See text at note 59, supra.
94 See, e.g., Charles F. Wilkinson & John M. Volkman, "Judicial Review of
Indian Treaty Abrogation", 63 Calif. L. Rev. 601 (1975).
95 See Robert N.
Clinton, et al., American Indian Law (3d ed. 1991) at
200-09.
metaphors or unfair comparisons. I have tried to avoid these pitfalls
in this primer and hope that I have instead managed to engage
the reader's
interest in an esoteric topic, leading perhaps to future comparative exchanges
regarding the two quite different, but
still similar situations on an essential
level.
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