After the Civil War, industrial capitalism advanced significantly. Important political changes included developments that involved the role of the federal government and “big property.” A good example is the railroads, which received massive grants of land (in many cases tribally owned and inhabited), financial support, and property in the public domain. Similar developments occurred for timber and mining interests.
As the country’s political structure struggled to mature in the last quarter of the nineteenth century, several key concepts emerged that would influence the shape and direction of nationalism. These included political democracy, political stability, political culture, political institutions, political participation, and political integration.43 While each of these is an important concept, it is integration that bears special significance for the status of tribal nations in the United States. Political integration generally refers to the holding together of a political system; specifically, the two types relevant to this study are national integration and territorial integration. National integration is the “process of bringing together culturally and socially discrete groups into a single territorial unit and of establishing a national identity. This also involves plural societies, with distinct ethnic, religious, linguistic, or other groups and strata.”44 Territorial integration, on the other hand, is the establishment of “national central authority over subordinate political units or regions. [It] means objective territorial control.”45
The United States has historically had an assimilative political culture in a hierarchical structure (white in relation to blacks, Indians, and Asian Americans), within which there have also been parallel ethnic relations (WASP, Irish, Italian, Jewish, etc.). Political development has generated various responses to the problem of the national integration of indigenous groups: social engineering, assimilation, cultural genocide, partition (segregation), and expulsion.46 Of these, assimilation, or the effort to induce the merger of a politically subordinate cultural group into the politically dominant cultural group, has been the most persistent response. And the Supreme Court has occupied a central role in this assimilation campaign.
The Supreme Court’s utilization of “the law” served not only as an instrument of “civilization,” but also as the federal government’s most vital and effective “instrument of empire building.”47 Hence, some of the cases that came before the Court involved questions relating to the diminished status of tribes, a status that often was denied any existence whatsoever. Related to this is a theory of federalism in which the Supreme Court, acting as a coordinate branch of the federal government, clearly identifies Congress as the only constitutional source entitled to deal with tribes. This policy development is in direct contrast to what African Americans have experienced. There, at least historically, the states were granted virtually free reign to assert their dominance over blacks. Tribal nations, on the other hand, were generally shielded from the states, though the shielding device used by the federal government was effective congressional omnipotence over Indian sovereignty and Indian civil, political, and property rights.
This legal consciousness used two different kinds of masks for the parties involved. The mask worn by federalizing agents viewed the United States as the core unit such that nonfederal entities must either be absorbed or vanquished. The masks applied by the Court to the tribes divided them according to degree of “savagery,” as described above, into the assimilable and unassimilable, tribal nations that were deemed capable of being Americanized (from a Euro-American perspective) and joining the United States as separate, though integrated, political entities48 versus those mostly western tribes that were caricatured as “wild” and “uncivilized.” In masking the legal process, Law was clearly an agent of national unity. During the late 1800s and well into the twentieth century, the Court rendered a number of decisions indicating a clear intent to dilute the extraconstitutional status of tribes by unilaterally declaring them “wards” of the government and disavowing their separate, independent status. The assertion of congressional power over tribal lands, resources, and rights is evidence of this nationalizing effort.
The three types of legal consciousness I have described are hypothetical, ideal concepts which rest on facts and assumptions that come directly from observation. They reflect the broadness of the continuum on which the Supreme Court operates. It should be pointed out that some cases will exhibit more than one form of judicial consciousness, and many will employ more than one set of masks.
By identifying the prevailing judicial consciousness and the attendant masks utilized by the Court which have served to deny or constrain the inherent sovereignty of tribal nations, I hope to establish a sense of the moral basis of law, the critical element that has seemingly been abandoned in American jurisprudence but is still fundamentally recognized by tribal nations in their understanding of treaties and federal statutes.49 In basic moral terms, tribal nations understand that their governmental powers, in the words of Milner Ball, “cannot simply evanesce and reappear in the hands of another nation’s government.”50 Nevertheless, during the course of the past two centuries, indigenous nations have often seen the Supreme Court’s decisions work grave injustices against them, their lands, their political powers, and their cultural systems.
Tribal nations, we shall see, are fundamentally different from their neighboring sovereigns: “. . . different, not less developed: 806 different languages, a different spirituality, different aesthetics, different ways of living on and with the earth, different ways than capitalism and Marxism for putting people to work.”51 The Supreme Court, however, often chose to deny or alter indigenous reality by legitimating federal and, in some cases, state, political goals which aimed at the eradication or transformation of indigenous differentness through the indeterminate language of the law.
This study is divided into seven chapters. Chapter 2 analyzes three cases, Johnson v. McIntosh, United States v. Rogers, and The Cherokee Tobacco case. Thematically, these three opinions dealt with aboriginal land title, defined the political status of tribes, provided justification for the notion of manifest destiny, and established the historic precedent that Indian treaties could be unilaterally overridden despite objections by any tribal nation.
Chapter 3 also focuses on three cases: United States v. Kagama, Ward v. Race Horse, and Lone Wolf v. Hitchcock. These cases established and reaffirmed the doctrine of congressional plenary power over tribes and their resources, sanctioned state authority over tribes, and articulated the precedent that treaties were merely “temporary privileges” that could be disallowed by the federal government.
In Chapter 4, three crucial cases are reviewed—United States v. Nice, Northwestern Bands of Shoshone Indians v. United States, and Tee-Hit-Ton Indians v. United States. Nice dealt with the status of Indian allottees, while Shoshone and Tee-Hit-Ton involved unsuccessful tribal efforts to protect aboriginal land holdings.
Chapter 5 scrutinizes Oliphant v. Suquamish Indian Tribe and United States v. Sioux Nation of Indians. Oliphant involved the question of a tribe’s power of criminal jurisdiction over non-Indians, while Sioux Nation, the one case among my selections that has been interpreted as a “victory” for the tribal party by some commentators, involved land title and treaty rights.
Chapter 6 entails the three most recent cases: Lyng v. Northwest Indian Cemetery Protective Association, Employment Division, Dept. of Human Resources v. Smith, and County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation. These cases are powerful and traumatic examples of judicial decision-making involving tribes and individual Indians who are seen as lacking constitutional or statutory rights to freedom of religion. The growing issue of state/county jurisdiction over Indian-owned land is evident as these cases dictate a look into the future.
In a concluding chapter, I will bring this study to closure by highlighting the major themes and premises discerned and by taking a serious look at the short- and long-term implications of these historic Supreme Court
decisions for tribes who persist in arguing that they retain an extraconstitutional standing as distinctive polities. In a modern democracy struggling to deal with issues of pluralism and multiculturalism, the issue is relevant. As Ball notes, “The very basic differentness of Indians is itself a source of instruction, a particularly important one for a powerful nation like the United States that finds itself needing to learn survival in a world composed of many nations whose unlikenesses are more and greater than their likenesses. Non-Indians have much to receive from Indians across the distance of their difference.”52
CHAPTER 2
The Era of Defining Tribes, Their Lands, and Their Sovereignty
Indigenous nations are often classed alongside African Americans, Asian Americans, and Hispanic Americans as among the more vulnerable racial and ethnic minorities in the United States. American Indian peoples make up less than one percent of the nation’s population, slightly fewer than two million. Like the other groups mentioned, most tribal nations are severely disadvantaged economically and have astounding levels of unemployment and poverty.1 But although tribal nations share some socioeconomic characteristics with other minority groups,2 the differences distinguishing tribes from the other groups profoundly exceed any parallels that might be drawn.
Tribes enjoy cultural traits and practices which differ from predominant Euro-American cultural characteristics and those common to other ethnic and minority groups. Because of the tremendous level of cultural and political differentiation, tribal nations have had difficulty developing long-term political alliances with each other or with other racial, ethnic, or special interest groups.3 Indigenous nations, in short, fall easily within the purview of the Court as “discrete and insular” groups which sometimes require special protection from discrimination.
To define their status, it is important to identify certain characteristics of tribal nations. First, and most obvious, tribal nations are indigenous to the United States, while all other individuals and groups are immigrants. Second, “tribalism” or “tribal status” is a unique concept emphasizing collective or group rights and affirming the sovereign status of the group, unlike liberalism which celebrates individualism and individual rights.4 Third, the concept of “expatriation” is uniquely relevant to tribes and their members as a result of the political dimension of their identity and their multiple-citizenship status.5 In Standing Bear v. Crook (1879), for example, a federal court held that Indians had the right to withdraw from their tribe—to expatriate from their nation and live apart—if they so desired.
In sum, the coupling element for the above characteristics is that tribal nations still have and exercise a measure of inherent sovereignty. There is, of course, a bewildering array of interpretations of the nature and extent of tribal sovereignty. But, as Chaudhuri notes, “This question like so many others is affected by cultural presuppositions without the benefit of clear formulations of comparative law. As in other culturally defined questions of Indian policy, the dominant influence is that of Anglo-American legal culture rather than aboriginal perspectives on authority.”6 And although Chaudhuri characterizes the body of case law on Indian sovereignty as a “middle-eastern bazaar where practically anything is available to those who are eager and earnest and have the resources for persisting in the adversary system of justice,”7 this text accepts as a foundational postulate that tribal sovereignty does exist and that it has been recognized, even if sporadically and across time, in many of the basic political acts of the federal government.
From an indigenous perspective, then, tribal sovereignty has several manifestations. First, from both an internal and intergovernmental perspective, it entails a political/legal dimension—including, but not limited to, the power to adopt its own form of government; to define the conditions of citizenship/membership in the nation; to regulate the domestic relations of the nation’s citizens/members; to prescribe rules of inheritance with respect to all personal property and all interests in real property; to levy dues, fees, or taxes upon citizen/members and noncitizen/nonmembers; to remove or to exclude nonmembers of the tribe; to administer justice; and to prescribe the duties and regulate the conduct of federal employees.8
Second, and more broadly, tribal sovereignty entails a cultural/spiritual dimension. Sovereignty “can be said to consist more of continued cultural integrity than of political powers and to the degree that a nation loses its sense of cultural identity, to that degree it suffers a loss of sovereignty.”9 Corroborating this culturally and spiritually based perspective is the recent work of Gerald Alfred, a Mohawk political scientist who asserts that for the Kahnawake Mohawk the Euro-American conception of “sovereignty” has been abandoned “in favour of an indigenous reformulation. It is based instead upon a mutual respect among communities for the political and cultural imperatives of nationhood—a flexible sharing of resources and responsibilities in the act of maintaining the distinctiveness of each community.”10 In its simplest terms, says Alfred, Kahnawake Mohawk express their sovereignty through the Mohawk word tewatatowie, ‘we help ourselves.’ Mohawk sovereignty, then, is seen as much more than interests and boundaries; it has to do with the balance and harmony between the various human communities, between the Mohawk people and the land, and between the Mohawk and other communities.
This tribal sovereign status was not delegated to the tribes by the courts, the federal government, or the states. It is original and inherent, though it has been directly impacted by various federal and state laws, policies, and regulations. Tribal sovereignty has been recognized by several European nations; the federal government through hundreds of treaties, nearly 400 of which were ratified by the Senate and proclaimed by the President; and by the states, who were forced to concede that as a result of the Commerce Clause of the Constitution they lacked authority to deal with tribal nations. Thus, fundamentally, the tribal relationship to the United States is a political one, although it is a relationship affected by tribal culture. One noted legal scholar puts it this way: the tribes’ legal status “is not a matter of race or birth but is a matter of contract or consent.”11 Therefore, the legal status of tribal nations derives from their recognized cultural and political citizenship in a tribal nation, which is wholly unlike the status of other minority groups in the U.S.
TRIBES AS EXTRACONSTITUTIONAL ENTITIES
Chief Justice John Marshall said in 1831 that “the relation of the Indians to the United States [was] marked by peculiar and cardinal distinctions which exist no where else” (Cherokee Nation v. Georgia, 1831). In penning this striking passage Marshall was attempting to define, for the federal government, the novel political relationship of the tribal nations with the United States. This case and Marshall’s inventive passage are frequently cited today by policymakers, commentators, and scholars who wrestle with the existence of racially based tribal nations, the majority of which are completely landlocked by both state and federal jurisdictions. Most tribal nations operate under their own constitutions and exercise a multitude of governmental powers, some of which legally conflict with the Federal Constitution.12
Marshall’s phraseology compels one to seek the parameters within which tribal-federal relationships exist in this modern democracy. Succeeding generations of scholars, politicians, administrators, and jurists have confirmed that “peculiar and cardinal distinctions” do indeed mark the tribal-federal relationship. Among the numerous peculiarities to be explored are the racial dimension; the distinctive governmental dimension of tribal life and the pre- and extraconstitutional connection tribes have to the federal government, evidenced by the bilateral treaty process; and the sheer numbers of separate tribal groups and nations.
These peculiarities and distinctions have combined to create an exotic juridical potage seasoned by the Court’s innovative development of legal doctrines justifying, on the one hand, the imposition of federal authority over tribal lands and Indian citizens and, on the other, creating a set of legal (some say moral, e.g., “trust doctrine”)
barriers designed to protect tribes from federal agencies, states, and private parties. For example, the trust doctrine has been used to justify racial discrimination against Euro-American employees of the Bureau of Indian Affairs (Morton v. Mancari, 1974).
Marshall, of course, because of his enormous intellectual gifts, his belief in federal supremacy over states’ rights, his compassion for tribes, and his position in time, appears to bear primary responsibility for the current confused state of tribal-federal relations. A number of scholars have critically analyzed Marshall’s comments in Cherokee Nation and his other important Indian law decisions.13 Though differing, sometimes vehemently, in their interpretations of Marshall’s doctrines, they concur, generally, in the opinion that he blended his federalist convictions and his sense of moral obligation to Indians with a pragmatic need to reconcile tribal status within the constitutional framework of the United States. He was not, however, particularly successful in his efforts to fit tribal nations into the American political framework, as this study will show.
While scholars and policymakers will continue to debate the meaning of tribal sovereignty as it emerged from the Marshall court era, one could credibly argue that tribal nations, in the words of Justice Smith Thompson, who dissented in the Cherokee case, were indeed “foreign” to the United States in their political relationship. Thompson said: “It is their political condition that constitutes their foreign character, and in that sense must the term foreign be understood as used in the Constitution. It can have no relation to local, geographical, or territorial position. It cannot mean a country beyond sea. Mexico or Canada is certainly to be considered a foreign country, in reference to the United States. It is the political relation in which one government or country stands to another, which constitutes it [as] foreign to the other” (emphasis original).14 Thompson’s dissent played a pivotal role in Marshall’s Worcester (1832) opinion, which recognized the political distinctiveness of the Cherokee Nation and the supremacy of Indian treaties over state laws.
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