Continuing his discussion, Taney, in language which served as a precursor to the plenary power notion104 that would be definitively unleashed in United States v. Kagama (1886; see Chapter 3), said that “from the very moment the general government came into existence to this time, it has exercised its power over this unfortunate race in the spirit of humanity and justice, and has endeavored by every means in its power to enlighten their minds and increase their comforts, and to save them if possible from the consequences of their own vices.”105 The Chief Justice had not only reinvented history—wrongly asserting that the federal government had always wielded unlimited power over tribes—but had also belittled the Indians with the language of cultural stereotype.
Taney then interjected what would later become one of the Supreme Court’s most effective doctrines not only to deny tribal nations justice but, perhaps more accurately, to prevent their even having a forum for the airing of tribal or individual Indian grievances against federal, state, corporate, or private interest in judicial corridors. Taney articulated the “political question” doctrine as follows:
But had it been otherwise, and were the right and the propriety of exercising this power now open to question, yet it is a question for the law-making and political departments of the government, and not for the judicial. It is our duty to expound and execute the law as we find it. . . .106 (emphasis mine)
With this somewhat inarticulate but nonetheless effective pronouncement, the federal government had bestowed upon itself virtually unconstrained power to do what it wanted to anyone in Indian territory. Taney was now saying that even if Rogers or other parties had a case, the political question doctrine precluded the Court from even hearing the claims. Taney’s disclaimer of judicial initiative effectively masked his own actions. He was not merely expounding or executing the law; he and the rest of the Court had vigorously stepped outside that purely interpretive role and had dramatically redefined tribal political and property status.
The political question doctrine warrants immediate analysis because it ranks alongside the plenary power concept as one of the most effective judicial strategies utilized by the Supreme Court to diminish and in some cases to eradicate tribal rights. But while plenary power may be defined in a constructive way—as exclusive or preemptive—to protect Indian rights from state advances, the political question construct has no such redeeming definitional value from a tribal standpoint. It has received ample scholarly attention,107 and rightfully so, because it was a favorite judicial tactic from the time of this case until its demise in 1980 with United States v. Sioux Nation.108
To restate, the commerce and treaty-making clauses of the Constitution extended to the political branches of the federal government precise and exclusive authority to regulate the federal government’s affairs with Indian tribes. Because of this constitutional allocation of authority, the Supreme Court generally deferred to the legislative and executive branches in the area of Indian affairs.109 In fact, the power of judicial review over the substantive content of federal Indian policy was limited to the same extent as was judicial power to review foreign affairs decisions. “In analogy to legal concepts governing foreign relations, the federal government’s power to make treaties with the Indians was considered a political question, beyond judicial examination.”110 In other words, the Court’s only legitimate concern is whether the political branches of government, federal or state, have exceeded constitutional limitations. And as long as the political branches act within their constitutional powers, “whether they have done wisely or well is a ‘political question’ which is not for the courts to consider.”111
Prior to its negation in 1980, the political question rule had been used frequently by the Supreme Court as a rationale to exclude from review the following issues of critical importance to American Indian tribes: the status of Indian nations, the validity and operation of Indian treaties under international law and foreign constitutional law, the power of Congress to legislate over Indian people and their territory, the historical claims of tribes against the United States, and the title to Indian lands.112
Although the political question doctrine is now defunct, there is nothing in the current canon of “Indian law” to prevent its resuscitation. Moreover, the Court still maintains—though on a more selective basis today because of the Rehnquist Court’s willingness to act in a powerful policymaking capacity—a deferential position to Congress in the field of Indian affairs. While this deference may have been understandable so long as tribes were dealt with as foreign nations and so long as challengers—states or individuals—were often confronting federal authority, it is unclear why the Court is presently unable to “define the extent of Congress’s power over Indian affairs.”113 The result of this failure to restrain Congress has only encouraged further unrelenting assertions of congressional power over tribal nations.
In the last section of his opinion, Chief Justice Taney introduced and elaborated what “the law” mythically denies—an explicit racial standard and classification system in a political context. The question of Rogers’s status as a Cherokee was the key. If he was a recognized Cherokee, then under the 1834 non-Indian Intercourse statute, the Cherokee Nation had jurisdiction. If he was white, however, then federal law applied. Taney, of course, had already vested in Congress what it had never before possessed—a virtually absolute power over Indians, their territory, and Indian Country’s residents—completely unconnected to treaty or constitutional law. And in so doing, he cleared the way for the next step, which was to proclaim “that the Indian tribes residing within the territorial limits of the United States are subject to their [U.S.] authority, and where the country occupied by them is not within the limits of one of the States, Congress may by law punish any offence committed there, no matter whether the offender be a white man or an Indian.”114
But Taney did not stop even there. He proceeded to involve the Supreme Court in a pseudoscientific anthropological exercise to determine who could be recognized as a Cherokee Indian:
Consequently, the fact that Rogers had become a member of the tribe of Cherokees is no objection to the jurisdiction of the court, and no defence to the indictment, provided the case is embraced by the provisions of the act of Congress [1834]. . . . And we think it very clear, that a white man who at mature age is adopted in an Indian tribe does not thereby become an Indian, and was not intended to be embraced in the exception [1834 Indian-on-Indian Crimes] above mentioned. He may by such adoption become entitled to certain privileges in the tribe, and make himself amenable to their laws and usages. Yet he is not an Indian; and the exception is confined to those who by the usages and customs of the Indians are regarded to belonging to their race. It does not speak of members of a tribe, but of the race generally, of the family of Indians; and it intended to leave them both, as regarded their own tribe, and other tribes also, to be governed by Indian usages and customs.115
This definition of the Indian “race” has little to do with “law.” Mere pseudoanthropology in legal raiment, it does, however, have much to do with a convoluted theory of race. Of equal importance is the basis on which the Supreme Court denied Rogers’s status as an Indian, especially in light of the Court’s failure to contact the Cherokee Nation’s office, who could have verified or denied Rogers’s citizenship in the tribe. Without jurisdiction, the court acted to deny the political status of tribes, a status long recognized in treaty, historical, and constitutional circles.
In a subsequent passage, Taney said it would “perhaps be found difficult to preserve peace among them, if white men of every description might at pleasure settle among them, and, by procuring an adoption by one of the tribes, throw off all responsibility to the laws of the United States, and claim to be treated by the government and its officers as if they were Indians born.”116 This is probably the most substantive issue behind the Court’s ruling. Taney was worried, and understandably so, that whites would use Indian territory as a refuge to which they could return a
fter committing their crimes. But neither the government nor the Court made an effort to consult with the Cherokee Nation’s officials although the crime had occurred on their land. The territorial sovereignty of the Cherokee Nation was thus denied. Rogers, according to Taney, was purportedly one of a class of men “who are most likely to become Indians by adoption, and who will generally be found the most mischievous and dangerous inhabitants of the Indian Country.”117 But Rogers had lived in Cherokee country for nearly a decade, had married into the nation, and was in the process of raising a family. Taney had no objective basis for predicting that members of this ambiguous class would all be “mischievous and dangerous” persons. This fabricated argument, passed off as a legal fact, was added to the body of legal fictions that gained respectability as legal concepts.
Taney concluded the decision by evoking the 1835 Cherokee Treaty of New Echota from which he cited a portion of article 5 recognizing Cherokee self-government, but he maintained that the treaty provision was not in conflict with his interpretation of the 1834 Intercourse law. Taney insisted, however, that there was a conflict between a portion of article 5 of the Cherokee treaty and that section of the provision which said that Cherokee authority could not be “inconsistent with the U.S. Constitution” or other federal laws. There was no conflict, however, between the treaty provision and the 1834 statute as to the question of whether Rogers was a Cherokee citizen. If he was, as the evidence strongly suggested, then the treaty provision should have held. Justice Taney would not be dissuaded by Cherokee sovereignty, treaty law, or historical facts. He insisted that regardless of Rogers’s having assumed responsibilities as a Cherokee, “his responsibility to the laws of the United States remained unchanged and undiminished. He was still a white man, of the white race, and therefore not within the exception in the act of Congress.”118
WILL THE REAL TANEY PLEASE STAND UP!
Four short years later, the Supreme Court once again had an opportunity to comment on the political status of the Cherokee Nation. Parks v. Ross119 involved an action brought by George Parks, the administrator for Samuel Parks, against John Ross, principal chief and superintending agent of the Cherokee Nation, for services (namely the provision of wagons and teams for relocating Cherokees) rendered by Samuel Parks (a Cherokee citizen) to Ross and the Cherokee Nation, who had been forced to remove from Georgia between 1838 and 1839. The facts of this case are less important than the following passage, written by Justice Robert Grier, who delivered the opinion for the unanimous court. Grier said:
The Cherokees are in many respects a foreign and independent nation. They are governed by their own laws and officers, chosen by themselves. And though in a state of pupilage, and under the guardianship of the United States, this government has delegated no power to the courts of this district to arrest the public representatives or agents of Indian Nations who may be casually within their local jurisdiction, and compel them to pay the debts of their nation, either to an individual of their own nation, or a citizen of the United States.120 (emphasis mine)
Still more revealing would be the language used by Chief Justice Taney in the crushing Dred Scott v. Sandford (1857).121 That case had held that blacks had no rights which whites had to respect; they could not be citizens; and slavery could not be banned in unsettled territories. The following passage not only provides a much more accurate appraisal of tribal standing than did his opinion in Rogers, it also documents Taney’s awareness of the facts that were masked in Rogers and his disingenuousness in employing them only when it suited his purpose to do so.
The situation of this population [African-American] was altogether unlike that of the Indian race. The latter, it is true, formed no part of the colonial communities, and never amalgamated with them in social connections or in government. But although they were uncivilized, they were yet a free and independent people, associated together in nations or tribes, and governed by their own laws. Many of these political communities were situated in territories to which the white race claimed the ultimate right of dominion. But that claim was acknowledged to be subject to the right of the Indians to occupy it as long as they thought proper, and neither the English nor colonial Governments claimed or exercised any dominion over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory, until the tribe or nation consented to cede it. These Indian Governments were regarded and treated as foreign Governments, as much so as if an ocean had separated the red man from the white; and their freedom has constantly been acknowledged, from the time of the first emigration to the English colonies to the present day, by the different Governments which succeeded each other. Treaties have been negotiated with them, and their alliance sought for in war; and the people who compose these Indian political communities have always been treated as foreigners not living under our Government.122 (emphasis mine)
These comments, like many of Taney’s remarks in Rogers, are dicta—that is, expressions which do not embody the determination of the Court. They were Taney’s individual views and were not binding in subsequent cases; however, they do succinctly demonstrate Taney’s dramatic vacillations from one case to the next. For example, in Rogers, tribes are not and have never been regarded as independent nations. Yet, in Ross and Dred Scott tribes are regarded as essentially the political equals of foreign governments. What is important is that it is the Rogers decision that has been the precedent cited in a multitude of cases which have adversely affected tribes by evoking a diminished, inferior tribal sovereignty, by the persistent use of the political question doctrine, and by the construction of a racial dimension to federal Indian policy and law.
In the summer of 1846, shortly after the Rogers pronouncement, the Senate Committee on the Judiciary convened and inquired into the “expediency,” not the constitutionality, of extending federal criminal laws over the Indian territory.123 The committee said the subject was one of “great interest and importance” because the 1834 law had been ineffective in controlling “crimes of the most shocking character. . . .”124 The committee instructed Commissioner of Indian Affairs William Medill, T. Hartley Crawford, and William Armstrong for their opinions on the matter. Commissioner Medill responded for the group and, drawing expressly upon Rogers, said the federal government had the “original power . . . to subject the Indian tribes within the limits of their sovereignty to any system of laws having for their object the prevention or punishment of crimes, or the melioration of the condition and improvement of the red race. . . .”125 “The correct doctrine on this point” was laid out, continued Medill, in the “views of the highest judicial tribunal of the land [and] must be deemed to be conclusive.”126
Medill went further and said that this federal power of guardianship was essential to Indian “civilization” and the “improvement of their moral and intellectual condition.”127 While acknowledging that the United States historically had not interfered with internal tribal matters, “as the guardian of the Indians, and responsible for their welfare and happiness, . . . the United States [has] not, in any case, wholly divested itself of the power to interfere, when the laws of a tribe have been oppressive and unjust, or have been so enforced as to excite domestic strife and bloodshed.”128
POST–CIVIL WAR INDIAN REFORM, 1866–1871: THE PRECURSOR TO CHEROKEE TOBACCO
Frederick Jackson Turner once remarked that by the end of the Civil War “the West would claim the President, Vice-President, Chief Justice, Speaker of the House, Secretary of the Treasury, Post-master General, Attorney-General, General of the Army, and Admiral of the Navy.”129 Turner hypothesized that this was because the West was the “region of action, and in the crisis it took the reins.”130 He described how the “free lands are gone, the continent is crossed, and all this push and energy is turning into channels of agitation.”131
The focus of much of this “agitated” behavior was tribal lands, tribal souls, and tribal culture. Within a spectacularly brief period, 1866–1871, there occurred several critical
shifts, as well as continuations, in federal Indian policy and law. First, those tribes who had sided with the Confederacy in the Civil War were compelled to negotiate new treaties by which they surrendered vast areas of land.132 Second, Congress authorized an Indian Peace Commission to negotiate peace treaties to end the growing hostilities between western tribes and Americans.133 Third, in 1869 a ten-member Board of Indian Commissioners was authorized. Composed of prominent philanthropists, this unpaid group of influential eastern citizens was to work closely with the secretary of the interior in administering the political relationship between tribes and the United States.134
Fourth, President Grant, in an effort to eliminate abuses in the Indian office, and as part of the larger plan to assimilate the tribes, laid out his famous “Peace Policy.” This policy assigned the Indian agencies scattered throughout the country to various Christian denominations. According to Grant, “No matter what ought to be the relations between such settlements and the aborigines, the fact is they do not harmonize well, and one or the other has to give way in the end.”135
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