Swayne attempted to soften this bludgeoning precedent by saying that the revenue law extended over the Indian territories “only as to liquors and tobacco. In all other respects the Indians in those territories are exempt.” If tribes are exempt from all other revenue laws, then why not those applying to liquor and tobacco? Swayne rationalized it this way: “Revenue is indispensable to meet the public necessities. Is it unreasonable that this small portion of it shall rest upon these Indians? The [fraud] that might otherwise be perpetrated there by others, under the guise of Indian names and simulated Indian ownership, is also a consideration not to be overlooked.”159 Tribes, however, were not a part of the public. They did not then receive services or benefits as part of that population, receiving instead only what they were entitled to under treaties and the political relationship.
Finally, Swayne, who seemed to be personally acquainted with Boudinot, concluded his opinion by stating that while the two had acted under a “misapprehension of their legal rights,” there was nothing impugning their “integrity or good faith.”160 While this statement appears somewhat trivial, it is actually quite important. Swayne and the Court had conflated the individual rights of Boudinot with the collective rights of tribes. All tribes have suffered as a result of this misperception, notwithstanding the high-sounding comments made about the individual claimants.
THE DISSENT OF JUSTICES BRADLEY AND DAVIS
Felix S. Cohen, an authority in the area of Indian policy and law, suggested in his classic work, Handbook of Federal Indian Law, that the precedent in The Cherokee Tobacco was implicitly overruled in the 1912 case Choate v. Trapp, which involved the state of Oklahoma’s futile attempt to tax individual Indian lands. He based his observation on the fact that the Choate opinion was unanimous, while The Cherokee Tobacco was a four-to-two decision with three justices not involved in the decision.161 This is still unresolved, but it is obvious that the dissent by Justice Joseph P. Bradley, concurred with by his brother David Davis, contained a vastly different interpretation of the doctrine of congressional intent and what was necessary to abrogate Indian treaty provisions.
Bradley began the dissent by emphatically noting:
In my judgment it was not the intention of Congress to extend the internal revenue law to the Indian territory. That territory is an exempt jurisdiction. Whilst the United States has not relinquished its power to make such regulations as it may deem necessary in relation to that territory, and whilst Congress has occasionally passed laws affecting it, yet by repeated treaties the government has in effect stipulated that in all ordinary cases the Indian populations shall be autonomies, invested with the power to make and execute all laws for their domestic government. Such being the case, all laws of a general character passed by Congress will be considered as not applying to the Indian territory, unless expressly mentioned.162
Bradley’s statement acknowledges that nothing in the federal Constitution or in any law or treaty vests in Congress power over Indian Territory, though he insinuates that the legislature may act if it so desires. Bradley’s reliance on and deference to the treaty-established rights of the tribe sanctioned by the Senate and the President is an important reminder that organic tribal law is derived from an entirely different source than that of the United States or the individual states. He and Justice Davis accepted the argument raised by Boudinot and A. H. Garland (Boudinot’s attorney) that “the United States have never asserted a right to levy taxes upon the property of Indians, within the Indian Country. No treaty has ever stipulated such a right. No one ever imagined that any such right existed, or anticipated that it would ever be presented.”163
Bradley’s second principal disagreement with the majority, one that would be utilized on many occasions in future Indian law cases, centered on the “implied” nature of the abrogation of an expressed treaty provision. As he said: “An express law creating certain special rights and privileges is held never to be repealed by implication by any subsequent law couched in general terms, nor by any express repeal of all laws inconsistent with such general law, unless the language be such as clearly to indicate the intention of the legislature to effect such appeal.”164 Briefly put, Bradley was saying that specific legal rights could not be overridden by general statutory laws.
After having closely examined all the evidence, Bradley concluded that the case involved much more than the mere alleged conflict between two comparable laws:
The case before us is, besides, a peculiar one. The exempt jurisdiction here depends on a solemn treaty entered into between the United States government and the Cherokee Nation, in which the good faith of the government is involved, and not on a mere municipal law. It is conceded that the law in question cannot be extended to Indian territory without an implied abrogation of the treaty pro-tanto. And the opinion of the court goes upon the principle that Congress has the power to supersede the provisions of a treaty. In such a case there are peculiar reasons for applying with great strictness the rule that the exempt jurisdiction must be expressly mentioned to be affected.165
Here again we see the phrase “peculiar” being applied to the indigenous-federal relationship. In this situation Bradley seems keenly aware of the extreme political disadvantage tribes were being placed in by this decision, and he was concerned about what it said about the moral character of the United States, which was violating its own laws. This is more eloquently stated by Albert Pike and Robert W.Johnson in their brief for Boudinot:
On National Character
The United States is a great nation, able to dictate its own terms to a feeble people, under its protection, with which it was treating; and by a law of natural justice which can never be abrogated, it cannot demand that doubts as to the meaning of the language used by itself shall be resolved in its own favor. It was within its power to express itself to clearly . . . restrict them in the exercise of any of the rights before enjoyed by them, or impose new burdens on them. . . .166
On Treaty Abrogation
Certainly, as to treaties with foreign powers, the proposition that we have supposed above is true. The parties there are equal. There is no arbiter between them, and no tribunal before which one of them can enforce the contracts of the other. There are no antecedent relations of trust and confidence between them that qualify the treaty, and make it inviolable. . . . But an Indian treaty is one made with a small people that has accepted the protection of the United States. It is less a treaty than a compact . . . between guardian and ward. It is even more sacred than a formal compact made by the government with its own citizens; . . . To them [the Indians] the United States are pledged, by every tie of honor and good faith that human ingenuity can invest, not to violate the treaties and agreements made with them . . . It is not a question, therefore, of repealing one law by another law. It is a question of repealing a contract lawfully made, by the protector with those under its protection. . . .167 (emphasis original)
Lastly, Bradley observed that other territories, such as Alaska, were exempted from the 1868 internal revenue law. Since Alaska was exempt, and there was nothing in the act that specifically excluded that territory, he wondered how tribes, who were also excluded and who, in addition, had explicit treaty provisions, could be held subject to the revenue law.
CONCLUSION
Elias Boudinot eventually secured some financial relief from Congress and the Court of Claims for the material losses he endured.168 However, the political and legal losses sustained by tribes as a result of this decision have yet to be rectified. Since tribal rights were defined by treaties and not by the Constitution, and since treaty rights—frozen in 1871—could now be eradicated by “later” and implicit congressional laws, tribal political standing and treaty-based rights have remained tenuous at best.
CHAPTER 3
The Era of Congressional Ascendancy over Tribes: 1886–1903
The four cases under examination in this chapter—United States v. Kagama, Cherokee Nation v. Southern Kansas Railway Company, Ward v.
Race Horse, and Lone Wolf v. Hitchcock—were considered during the period from 1886 to the early 1900s, which encompassed the most onerous and vicious years of federal Indian policy. It was a policy era bent on the destruction of tribes as identifiable cultural, sociological, and religious bodies. In the years from 1871 to Kagama, and in the two decades after the Kagama decision, “Congress exercised powers over Indians which, if asserted against State citizens, would not have survived constitutional challenge. Confiscation of property, restrictions on the Indians’ use of their property, and supervision of tribes’ political affairs violated even the somewhat looser First and Fifth Amendment standards applicable to the territories. . . .”1
The congressional acts and policies responsible for most of these vast reductions of tribal sovereignty, property, and civil and political rights included the assignment of Indian agencies to religious societies; the establishment of the Courts of Indian Offenses; the Major Crimes Act of 1885;2 the General Allotment Act of 1887;3 the 1891 amendment to the General Allotment Act;4 the Curtis Act of 1898;5 and the Burke Act of 1906.6 It will become evident after studying these cases that the Court, as a partner alongside the political branches, maintained an extremely deferential position to the legislative branches, which adopted policies and laws focused on the detribalization and assimilation of Indians into American society, treaties and tribal extraconstitutional rights notwithstanding.
These cases exemplify the brand of legal consciousness earlier described as nationalist/federalist. In this type of consciousness, the concepts of political development, nation-state, nation-building, nationalism, and national integration are defined by the Court in such a way that there is no room for, sometimes not even any acknowledgment of, any other sovereign than that which is the sole expression of national unity (i.e., the federal government and the constituent states). Thus, the stark denial followed by the virtual elimination (usually by cultural and structural assimilation) of tribes as distinctive polities was considered an essential element in the nation-building process occurring in the United States after the Civil War. The goal was the assimilation of tribal members, followed by the imposition of a single view of political democracy that everyone in the nation was subjected to, both the dominant and the subordinate groups.
In an article written in 1934, W. G. Rice attempted to explain the anomalous legal position of American Indians. He noted: “The law has long been uncertain and its future is uncertain chiefly because the fundamental question of whether destruction of tribal life is to be encouraged is undecided.”7 There was at that time, said Rice, “no sure aim either to preserve tribal culture or, on the contrary, to melt it down in the great cauldron of American life.”8 Rice’s depiction is not only simplistic, it is also deeply ethnocentric. Nevertheless, the “either-or” scenario he drew was nonchalantly accepted at the time and, unfortunately, still pervades the thinking of many federal officials.
Scholars and government officials alike have argued that it was perfectly permissible for Congress to act without regard for the Constitution in its dealings with tribes precisely because tribes were extraconstitutional. As expressed by Canfield: “The Constitution was an instrument framed for a nation of independent freemen, who had religious convictions worth protecting . . . To suppose that the framers of the Constitution intended to secure to the Indians the rights and privileges which they valued as Englishmen is to misconceive the spirit of their age, and to impute to it an expansive benevolence which it did not possess.”9
The legal consciousness known as nationalist/federalist led to a major assault on the sovereignty and property of the previously favored “Five Civilized Tribes.” The Five Tribes, and several others, were originally excluded from the provisions of the 1887 Dawes Severalty Act (a.k.a. the General Allotment Act). This act entailed the individualized distribution of tribal lands into private tracts in various amounts (heads of household received 160 acres, single persons were entitled to 80 acres, and all others received 40-acre allotments). This privatization of Indian land was considered essential for the rapid assimilation of Indians into Euro-American culture; but it also served the interest of the burgeoning Euro-American population, who could purchase the “surplus” (Indian land left after allotment) land for settlement purposes.
The Five Tribes were excluded from the Dawes Act’s provisions because they held fee-simple titles to their communal lands. The first major threat to the autonomy of the Five Tribes came in the form of a special commission, authorized by Congress in 1893 and headed by Henry Dawes, the sponsor of the allotment act.10 The commission’s purpose was to force the Five Tribes to negotiate agreements with the federal government that called for the allotment of their lands. Not surprisingly, the tribal leaders fought against allotment and refused voluntarily to surrender their lands for individualization, despite the commission’s persistence.
In March 1898, as the patience of certain powerful congressmen and bureaucrats ran low, the House Committee on Indian Affairs issued its findings and legislative recommendations in a report indicating the government’s frustration in the face of the political savvy and the determination of the tribes to resist efforts to abrogate their treaties, destroy their tribal governments, and radically reduce their land holdings. It stated:
It appears that the title to lands in the Indian Territory has been conveyed by patents to the tribes, and cannot be taken from them without their consent. There are about 20,000,000 acres of land thus owned. It is rich in mineral deposits, and contains a large area of splendid farming and grazing lands. . . . For the last few years the Dawes Commission has been endeavoring to secure agreements with the various tribes, but so far there has been little accomplished. Agreements were made with the commissioners of several tribes—all, in fact, except the Cherokees—but the Creek agreement was rejected by the tribes when the vote was taken upon it. The Chickasaws rejected the joint agreement with the Choctaws and Chickasaws. . . . In view of the fact that it is now impossible to secure agreements with the tribes, and the fact that the title is in the tribes, your committee has provided for the allotment of the exclusive use and occupancy of the surface of the lands of each of the nations. . . .11
What the committee “provided for” was a bill, which would become law three months later, entitled The Curtis Act.12 With this act, Congress unilaterally and in direct violation of treaty and statutory law, terminated the legal existence of the Five Civilized Tribes. This detailed measure provided for the establishment and regulation of townsites; for the management of leases of Indian mineral rights; authorized the Dawes Commission to create enrollment lists which would serve as the basis for deciding who received land allotments; prohibited the expansion of lands; and also abolished the court systems of the tribal governments in Indian territory. The United States also assumed gradual control over tribal revenues and the Indians lost control of their elaborate educational systems. These and other developments transformed the once independent and wealthy nations of the Five Tribes to a poverty status that would take decades for them to rise above. In the words of the most articulate chronicler of the woes of the Five Civilized Tribes, Angie Debo:
At the beginning of the present century about seventy thousand of these Indians owned the eastern half of the area that now constitutes the state of Oklahoma, a territory immensely wealthy in farmland and forest and coal mines, and with untapped oil pools of incalculable value. They ruled themselves and controlled this tribal property under constitutional governments of their own choosing, and they had attained a degree of civilization that made them at once the boast of the Indian Office and living examples of the benefits of travelling the white man’s road. Their political and economic tenure was guaranteed by treaties and patents from the Federal Government, and warned by the tragic fate of all Indians who had lost their homes, they insisted upon the observance of these conditions. But white people began to settle among them, and by 1890 these immigrants were overwhelmingly in the majority. Congress therefore abrogated the
treaties, and the Indians received their land under individual tenure and became citizens of Oklahoma when it was admitted to the Union in 1907. The orgy of exploitation that resulted is almost beyond belief. Within a generation these Indians, who had owned and governed a region greater in area and potential wealth than many an American state, were almost stripped of their holdings, and were rescued from starvation only through public charity.13
United States v. Kagama
THE MASKS OF PLENARY POWER, WARDSHIP, AND PROPERTY
Criminal law was a major arena for this conflict on whether to respect or obliterate tribal autonomy. Before the 1880s, relations between tribes and the United States were largely determined either by treaties or by the so-called Indian trade and intercourse acts. These intercourse acts, discussed in the previous chapter, were designed to regulate the general and commercial relations between tribes and Americans. Importantly, the Intercourse acts extended minimal federal jurisdiction over Indians and only in their affairs with whites. Internal tribal sovereignty, especially offenses committed by Indians against Indians, was not touched by the laws. According to Prucha, until the mid-1800s there were no federal treaty or statutory constraints on the internal affairs of tribes.14
The idea of imposing federal criminal jurisdiction over purely internal tribal disputes slowly gained momentum as western expansion inexorably led to the encirclement of tribal lands with the concomitant rise of a “reservation policy.” In fact, Commissioner of Indian Affairs George Manypenny bluntly stated in 1856 that “the conviction and execution, under our criminal laws, of all Indians guilty of the murder of Indians, would, it is believed, put a stop to the war parties.” Such a policy, the commissioner further observed, would be “an act of humanity,” with “a most salutary influence” on tribal behavior.15
By 1866 the arguments favoring federal jurisdiction were both refined and broadened. It was no longer simply a desire to “make an example” of one Indian for another’s benefit. The goal was the inevitable civilization of the Indians whether they wanted it or not. Commissioner D. N. Cooley resurrected Manypenny’s idea for the imposition of a federal criminal law code applicable to reservation Indians. Cooley alleged the following: “Retaliation is the law of the Indian; and if, in his early approaches to civilization, he is compelled to abandon that law, he looks for a substitute in the white man’s law.”16 The Board of Indian Commissioners declared in 1871 that until Indians were brought under “the domination of law, so far as regards crimes committed against each other,” the government’s best efforts to civilize the Indians would be handicapped.17
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