During this classical period, the legal elite transformed its attitude about the set of legal relationships that make up the American legal system—private citizen to private citizen, private citizen to state, legislature to judiciary, and federal to state government. Previously these relationships had been seen as qualitatively distinct; during the period in question they came to be regarded as four distinctive instances of a single general relationship. The role of the judiciary, then, “was the application of a single, distinctively legal, analytic apparatus to the job of policing the boundaries of these spheres.”21
The fact that tribal nations were outside this legal matrix meant that the Supreme Court either deferred to the political branches or drew from the limited bank of information about tribes, with all its cultural biases, that had accrued within the Court’s own institutional memory and judicial consciousness, which rarely afforded a realistic picture of tribes or their own indigenous institutions of governance. Evidence of this ideological consensus can be found in the fact that of the ninety Supreme Court cases involving tribal sovereignty during this historical era, there was written dissent in only five: The Cherokee Tobacco (1871); Leavenworth Railroad Company v. United States (1876); Elk v. Wilkins (1884); Choctaw Nation v. United States (1886); and Donnelly v. United States (1912).
Advocates of Critical Legal Theory argue that conflicting decisions are made because they are based on different and often controversial moral and political ideas. Neither lawyers nor jurists can provide simple answers to complex political and legal questions because the legal system, like society at large, is unable to reconcile the contradictory instincts that arise when people confront social problems. Rather than deciding which of these conflicting instincts to follow, “the law” seeks to embrace them all. Critical Legal Theory argues that “law” is really politics clothed differently and that it obscures the nature of judicial decision making when courts and legal commentators present legal issues as if they were objective or even relatively objective matters of legal reasoning rather than political choices. A significant strength of this intellectual approach to understanding law is that it seeks a theoretical and practical understanding that places juridical institutions and individual actors in their social and historical contexts.
THE “MASKING” OF JUSTICE: LAW AS MAGIC
John T. Noonan Jr., in his telling study Persons and Masks of the Law,22 offers incisive observations about the place of “persons” or—for my purposes—tribes and tribal citizens in the law. His thesis is that people involved in cases in the American legal tradition are often given “masks” that conceal their true character. These masks, as Noonan defines them, are “legal constructs which suppress the humanity of a participant in the process.”23 Noonan’s primary example is the case of African Americans and the institution of slavery. The humanity of blacks was shielded, “masked,” in American law behind various descriptions normally reserved for property of one sort or another (real, personal, etc.). Once “the law” had characterized blacks as “property,” they could then be sold, bartered, or even killed without the legal system’s actually confronting the fact that African Americans were human beings entitled to basic human rights and liberties.
Noonan explains how “enlightened” individuals like Thomas Jefferson and George Wythe, “though supporting liberty and advocating emancipation of slaves, actually did nothing, even when vested with political power, to end slavery.” He points out that they accepted the entrenched legal framework that had codified the institution of slavery. As a result, they ignored the humanity of African Americans by placing “masks” or legal constructs on both their own feelings and those of the slaves, thus magically removing humanity from the legal process.
For Noonan, there are two basic kinds of masks—those that are imposed on others (as “property” for slaves), and those that are put on oneself (as the “Court” in the mouths of judges and “the law” according to judges, law professors, and attorneys).24 These masks are socially fashioned and are dangerous because they “have been stamped with approval by society’s official representatives of reason.”
The Supreme Court’s Indian decisions are also pocked with such masks. Tribes have, at various times, been defined by the Court as a “culturally deficient” set of individuals who were “in need of cultural improvement”; as “domestic-dependent nations” which were alleged to be dependent upon the federal government at a time when they were legitimate independent sovereigns subject to no other political power; and as “dependent wards,” who were (and in some cases still are) subject to virtually omnipotent paternalistic federal guardians. The Supreme Court has manufactured or refined other “masks” to justify intrusions on tribal sovereignty at the federal, state, and, recently, the county level: the doctrine, later appropriated by federal officials, that the “discovery” of America by the European countries vested an absolute property title to the discovering nation, thereby reducing tribal claims to aboriginal lands to those of a mere tenant; the political question doctrine which for nearly a century and a half denied tribes a legal forum for the adjudication of their rights of lands, treaty enforcement, etc.; the theory of congressional and even federal plenary power over tribes; and the so-called trust doctrine.25
Although crediting the Marxist argument that “masks are often employed by the ruling class to protect their own interests above those of the lower classes,” Noonan notes that legal constructs are not simply tools of power, nor are they acts of “violence.” The legal process “aims at compromise, avoidance of conflict, peaceful direction of conduct.”26 Masks cannot be treated “as armament.” Instead, they are more aptly conceived as a “set of communications,” as “magical ways by which persons are removed from the legal process.”27
A synthesis of Critical Legal Theory and Noonan’s approach will go far toward providing a conceptual framework to explain the fifteen Supreme Court cases that will be examined in these chapters. Both emphasize a concept of the law as “masks.” Both agree that “law” must be placed in the larger historical and social context. A significant difference, however, is that while Critical Legal Theorists speak of “law” as primarily a legitimating device utilized by elites situated at the top of the social, political, and economic hierarchy, Noonan asserts that “law” affects not only those it is used against but those who wield it as well.28 In other words, while the justices may seem to be masters of the law, there are also times when the law masters them.
The conjunction, therefore, between the basic premises and legal constructs offered by Critical Legal Theory and Noonan’s characterization of legal “masks” operating with reciprocal effects on both sides of the legal equation supports and gives additional convincing argument as to why the Court treats tribes and their members the way it does. Further evidence that the Court operates with a distinctive consciousness is seen in the fact that the judiciary has never voided a single congressional act that diminished or abrogated any inherent or aboriginal tribal rights. And while the Rehnquist Court is willing to challenge congressional authority in other areas of law (e.g., interstate commerce), and has occasionally rendered decisions which seem to conflict with current congressional Indian policy, which in recent years has emphasized a measure of tribal self-determination,29 the Court and the Congress still adhere to the historically and constitutionally inaccurate idea that places tribes in a subservient political/legal position to the federal and sometimes even the state governments.30
From the beginning of its relations with the Indians, the Supreme Court’s legal consciousness has stressed tribes’ allegedly inferior cultural, political, technological, social, and spiritual status in relation to the prevailing lifestyle of Euro-America. This judicial predisposition can be divided into three types, constitutional/treaty, civilizing/paternalistic, and nationalist/federalist,31 each wielding a distinctive set of “masks” that have been fashioned to symbolize the legal process and conceal or disfigure the humanity of all of the actors in the l
egal drama. In the analysis that follows, each type of consciousness is accompanied by one or more sets of legal masks which are examined with specific comments relating to the parties, the law, and the Court.
CONSTITUTIONAL/TREATY
The basic assumption of this legal consciousness is that constitutional or treaty considerations (i.e., ratified treaties or agreements) are the only relevant instruments for the adjudication of a legal dispute between tribes and federal/state governments. This consciousness is evident in Supreme Court opinions dealing with tribal sovereignty which generally acknowledge the inherent sovereignty of tribal nations and their preand extraconstitutional aboriginal rights of self-government. These decisions have generally left tribal nations free of the constitutional constraints applicable to the states and the federal government.
This consciousness has usually employed the following masks: for the parties, one party (the Congress) is understood as being within the Constitution’s purview, while the other (tribes), is understood to be outside its parameters. The two parties are politically connected by ratified treaties or the treaty-type of agreements that are recognized under the Constitution as being the “supreme law of the land,” and by tribal tradition and custom as being “sacred covenants.”
In a mask for the legal process, the Court is seen primarily as a legitimator of policies developed by the political branches. This is an orthodox version of the Court as a body that represents self-restraint and functions primarily as an interpreter of the Constitution, not as a policymaking entity. In this “model of law” approach,32 the Court is seen as an agent for interpreting and applying preexisting laws: it is bound, although not absolutely, by the doctrine of stare decisis (past precedent). In most of the Supreme Court cases utilizing this legal consciousness tribes have been victorious. Such victories included Worcester v. Georgia (1832), which affirmed the sanctity of Indian treaties; The Kansas Indians (1866), which acknowledged the distinctive political standing of tribes and their freedom from state interference; Ex parte Crow Dog (1883), which recognized the inherent sovereignty of tribes; and Talton v. Mayes (1896), which discussed the extraconstitutional basis of Cherokee sovereignty and many other historical and contemporary cases.
Of the fifteen cases examined herein, only one, United States v. Sioux Nation (1980), can be classed under the constitutional/treaty category. But even this pro-Indian decision was not a complete tribal victory, because the Court perpetuated several masks that have diminished the sovereignty of tribal nations without tribal consent. The writings of the legal commentators who argue that the Supreme Court is the tribes’ most articulate and best friend focus almost exclusively on constitutional/treaty cases and choose to ignore or downplay the significance of the other two types of judicial consciousness and the decisions they evoke. I choose to reverse this order and focus, with the exception of Sioux Nation, exclusively on those cases that demonstrate the latter two types of judicial masking.
CIVILIZING/PATERNALISTIC
The basic assumption of this type of legal consciousness is that “the law” is the most effective instrument for civilizing indigenous (read: primitive) peoples who are considered culturally inferior. An excellent example of this view can found in a federal district court case, United States v. Clapox (1888). This decision involved a determination of the status of the federally created Courts of Indian Offenses (referred to by the acronym COF for the Code of Federal Regulations from which they sprang) that had been developed by the Bureau of Indian Affairs in 1883. These courts, manned by agent-appointed Indian judges, were charged with enforcing a Code of Federal Regulations designed to “civilize” and assimilate Indians by punishing tribal members who engaged in tribal dances, polygamy, traditional healing ceremonies, or any activity deemed “heathenish” by the local agent and the commissioner of Indian affairs.
Commissioner of Indian Affairs Hiram Price stated in his annual report of 1883: “There is no good reason why an Indian should be permitted to indulge in practices which are alike repugnant to common decency and morality; and the preservation of good order on the reservations demands that some active measures should be taken to discourage and, if possible, put a stop to the demoralizing influence of heathenish rules.”33
Five years later, an Umatilla woman (identified as “Minnie”) was arrested, tried by the COF, and charged with adultery. She was subsequently freed from jail by several friends who later were caught and charged with her jail break. When the case reached the federal court, the main issue to be addressed involved the status of the COF—as to whether they were constitutional courts organized pursuant to section 1, article 3, of the Constitution or had been developed under some other authority. In explaining its decision, the court explicitly capsulized the general view of the federal policymakers of the time regarding Indian cultures. The court held that the offenses courts were not constitutional courts but “mere educational and disciplinary instrumentalities, by which the government of the United States is endeavoring to improve and elevate the condition of these dependent tribes to whom it sustains the relation of guardian.” “In fact,” said the court, “the reservation itself is in the nature of a school, and the Indians are gathered there, under the charge of an agent, for the purpose of acquiring the habits, ideas, and aspirations, which distinguish the civilized from the uncivilized man.”34 Continuing this reasoning, the individuals who were responsible for Minnie’s futile rescue were convicted and charged with “flagrant opposition to the authority of the United States on this reservation,” and their actions were deemed “directly subversive of this laudable effort to accustom and advocate these Indians in the habit and knowledge of self government.”35
For most federal policymakers and many Euro-Americans in that era, the allegation of tribal cultural “inferiority” was justified in a number of ways. Tribes were viewed as technologically primitive. Federal lawmakers and early social scientists invariably classified all tribal-based cultures as hunter/gatherer societies, perceived as inferior to an agriculturalist-based society that had pride in its domestic industries. Finally, indigenous peoples were purportedly “pagans” or “savages,” perceived as being without legitimate religious beliefs since they had little or no knowledge of Jesus Christ or the Christian church.36
Some tribes, notably the Cherokee, Choctaw, Chickasaw, Creek, and Seminole (often referred to as the “Five Civilized Tribes”), and the various Pueblo groups, were, at least for the first century or more of U.S./tribal interaction, perceived as being less savage37 or pagan than other tribes, although Pueblo status actually changed from a perceived “civilized” state in 1877 to a more “primitive” state in 1913. These tribes, therefore, were for a significant period treated with more leniency both by the Supreme Court and by the political branches. Nevertheless, for both the allegedly “wild” tribes and the so-called civilized tribes, a fundamental belief prevailed among most of the federal policymakers, including the Court, that all Indians could and should be culturally “elevated” with proper education, training, and spiritual (read: Christian) guidance. Hence, paternalistic policies (e.g., Christian missionaries funded by the federal government, boarding schools, reservations, and the individualization of tribal lands and funds) were developed by the Congress and sanctioned by the Supreme Court to impose this cultural transformation.
Civilizing/paternalistic consciousness generally employed three types of masks for the parties involved and the legal process. Two sets of masks were applied to tribal nations. The first caricatured certain tribes as “wild,” “heathenish,” or “savage” (tribes of the Great Plains, the Midwest, the Pacific Northwest, and the Desert Southwest—especially Navajo, Apache groups, Tohono O’odham, Ute, etc.). The second set portrayed the “Five Civilized Tribes” and others as “civilized,” “peaceful,” and “hardworking.” Gradations of “savagery” were applied to the various tribes, and the Court vacillated in the manner in which it employed these masks. The masks for the Supreme Court, on the other hand, portra
y it, and by extension the federal government, as deeply moralistic, Christian, and nearly always above reproach.
The Law is masked as an absolutely essential element in moving Indian persons and tribes from an uncivilized to a civilized state. The focus here was never on whether or not such a cultural transformation was justifiable; rather it was on whether it would take place gradually or rapidly. The paternalism that characterized federal Indian policy during this era, also known, in a legal error, as the “guardian/ward” relationship, had two faces—it could be benevolent (viewing Indians as helpless children or incompetent wards), or it could be malevolent (viewing Indian lands, resources, and political rights as commodities to be unilaterally and forcefully taken or abrogated).8
NATIONALISM/FEDERALISM
This third type of judicial consciousness holds at its core the assumption that law was conceived as a prime mechanism for furthering the political development of the United States as a nation-state. The process of political development is a topic of great interest for those attempting to shape their society, as well as for those attempting to understand the political world. Accordingly, one perspective holds that political development occurs “primarily in response to the development of the economic and social systems. Because of increases in the elements of modernization, such as greater economic development, urbanization, and social mobilization, there is a need for a more complex and more efficient political system.”39
Barrington Moore, for example, in his classic study Social Origins of Dictatorship and Democracy (1966),40 compared the three major roads taken by nation-states from the preindustrial to the modern world.41 He treated in detail the struggles of Great Britain, the United States, France, Japan, China, and India to achieve modernity. According to Moore, all the major capitalist democracies passed through a civil war or a period of revolutionary violence in which certain aspects of the old order were destroyed; he cites slavery and the Civil War (1861–1865) in the case of the United States. This transformation was necessary, Moore said, because slavery was incompatible with political development along democratic lines. In effect, the destruction of the institution of slavery made it possible for the social, political, and economic struggle to continue within a democratic framework.42
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