The Mask of Denied Tribal Sovereignty
In this radical opinion, which in effect would culminate in a startling precedent—the sustaining and judicial embellishment of federal legislative authority over tribes without a constitutional basis—Miller noted: “While we are not able to see, in either of these clauses of the Constitution and its amendments, any delegation of power to enact a code of criminal law for the punishment of the worst class of crimes known to civilized life when committed by Indians, there is a suggestion in the manner in which the Indian tribes are introduced into that clause, which may have a bearing on the subject before us.”46 Since Miller had discarded the Constitution as his guide, he had, as the Bailey Court predicted, effectively unleashed himself and the government from the restraint of democratic principles and the rule of law and instead fell upon the “law of necessity,” which only “affords a pretext for the usurpation” of legitimately derived rights.47
Miller could now freely roam the linguistic landscape and suggest any language as justification for federal criminal jurisdiction over Indians. The constitutional void was displaced by the manufacture of several legal masks held together by a consciousness that was grounded in nationalism/federalism and steeped in ethnocentrism. The masks included geographical incorporation, Indian wardship/dependency/helplessness which necessitated federal guardianship, plenary power, and the discovery doctrine. Before launching into his theory of unlimited federal authority over limited tribal polities, Miller prefaced his most-cited passage of alleged Indian wardship, dependency, etc., by semantically reducing the constitutionally recognized political standing of tribes. This is the same rhetorical tactic John Marshall employed in the Cherokee Nation case to deny the Cherokee’s legal standing to sue in the Supreme Court by declaring them “domestic-dependent nations.” Miller couched his diminishment of tribal sovereignty thus:
The commerce with foreign nations is distinctly stated as submitted to the control of Congress. Were the Indian tribes foreign nations? If so, they came within the first of the three classes of commerce mentioned, and did not need to be repeated as Indian tribes. Were they nations, in the minds of the framers of the Constitution? If so, the natural phrase would have been “foreign nations and Indian nations,” or, in the terseness of language uniformly used by the framers of the instrument, it would naturally have been “foreign and Indian nations.”48
The Court completely denied the territorial sovereignty of the Hoopa Reservation by drawing upon the geographical incorporation argument of U.S. v. Rogers, and the decision synthesized with the spirit of nationalism that was surging in Washington, D.C., and throughout the nation. The Court stated: “But these Indians are within the geographical limits of the United States. The soil and the people within these limits are under the political control of the Government of the United States, or of the States of the Union. There exist within the broad domain of sovereignty but these two.”49
Clearly this is a false argument—that either the United States or the individual states have sovereignty over tribes—entirely ruling out tribal sovereignty; however, it was a principal ploy used by the Court. Miller expanded the position of the Court by noting that Congress’s power to organize territorial governments—he was treating tribes, at least for the moment, as territories—and make laws for territorial inhabitants, was derived not from the Commerce Clause or the Property Clause but arose “from the ownership of the country in which the Territories are, and the right of exclusive sovereignty which must exist in the National Government, and can be found nowhere else.”50
In other words, Miller was saying that, based on the mere ownership of land, an ownership based on the problematic doctrine of discovery announced in Johnson and refurbished in Rogers, the federal government had secured virtually an unlimited—since it was bound by no constitutional constraints—power over tribes and their sovereign political and civil rights. Standing alone, this is an astonishing declaration: that land ownership generates unfettered power. Miller then restated the relevant doctrines advanced in Rogers—the discovery doctrine, the political question doctrine, and the rudimentary idea of federal plenary power that Taney had crafted. He combined these with the idea that the Hoopa Reservation was land “owned” by the United States since it was geographically located in the state of California which had been purchased from Mexico by the United States.
In the final section of his opinion, Miller revisited and dramatically restated John Marshall’s analogy in the Cherokee Nation case that the Indian’s relations to the United States “resemble those of a ward to his guardian.” In his drive to rationalize his judicial and nonconstitutional construction denying tribal sovereignty and supporting federal rather than state sovereignty over Indian tribes, Miller claimed that this power had to be in the “competency of Congress” because “these Indian tribes are the wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights”51 (emphasis original). This plenary “dependency” necessarily mandated, in Miller’s ideology, a plenary congressional authority to protect and defend the tribes.
In one of the Court’s most-quoted statements, often used, ironically, by Indians or Indian advocates in support of tribal independence from states, Miller said: “They [the Indian tribes] owe no allegiance to the States, and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen.”52 The crux of the case was this: Miller had elevated the Congress to a position as a plenary paternal entity over allegedly plenary “dependent” tribes. Such an action was possible because the Court had abandoned the idea of the existence of tribal political or territorial sovereignty, and because the central government felt compelled to reassert its preeminent position vis-à-vis tribes. The Court so ruled even though there was no evidence that the State of California was seeking to assert criminal jurisdiction over the Indians at that time. It is interesting that Miller would admit that the tribes’ weaknesses were a direct result of activities of the very government which had now received the legal sanction of the Supreme Court to wield even greater—and nonconstitutionally derived—power over Indians.
Miller, besides shunning decades of laws and treaties which had affirmed the sovereign status of tribes, particularly over internal tribal matters, incorrectly asserted that this unlimited federal power had “always been recognized by the Executive and by Congress, and by this court.” Perhaps Miller relied upon the statement that the United States in many treaties and in various laws often acknowledged its moral and legal duty to “protect” Indian tribes. Until this decision, however, the concept of “protection” had not been used to legitimate such an unwarranted and extralegal intrusion into intratribal affairs.
Capping off his novel pronunciation of congressional plenary power, laid out meticulously by a Court exercising unlimited interpretive power, Miller concluded his opinion as follows:
The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes.53
The Mask of Judicial Plenary Power
The Miller Court in the span of a few short pages had cleverly and extraconstitutionally found a way to preclude a nonexistent state threat to exert its jurisdiction over Indians. In so doing, the Court had also given itself and th
e legislative branch carte blanche to exercise whatever power it believed necessary in the best interests of its “helpless wards.” Most contemporary Indian law scholars, political scientists, and historians familiar with this seminal case assert that it is the fountain of congressional plenary and judicial plenary interpretive power, although the word “plenary” never appeared in the decision. These commentators have pointed out the multitude of untenable errors lodged in the Court’s statements.
First, how could Congress legitimately apply its laws to tribes which “until that time had not been subject under the Constitution to its legislative jurisdiction?”54 Second, if the Constitution limits, as Bailey had said, the authority of the various branches to enumerated powers, why did the Court cite extraconstitutional reasons for holding a statute to be constitutional?55 Third, “consent of the governed” is a treasured democratic principle; however, the fact that most Indians were not citizens and were thus unable to vote seemed irrelevant to the Court. As Newton suggests: “Concentrating on justifying federal power the Court reinforced earlier precedents abdicating its role in accommodating the legitimate but competing interest raised by the federal government’s interference with tribal rights. Such accommodation was left to the political arena—an arena from which Indians were excluded.”56
Congress’s Major Crimes Act presaged an impressive transformation in the relationship between the tribes and the federal government; however, it was restricted legislation, applying only to seven crimes. Furthermore, some scholars have suggested that theoretically tribal courts still may exercise concomitant jurisdiction along with the United States and that, in fact, the Major Crimes Act merely added federal jurisdiction to preexisting tribal jurisdiction.57 Finally, while the act was ostensibly comprehensive, the Five Civilized Tribes, as noted earlier, were actually exempted from its provisions. With this major exemption in mind, one is compelled to ask: Who actually determines how a law that involves tribal nations is to be applied? The Congress? The President? The courts? Or local federal bureaucrats?
In Kagama the Court went far beyond merely “expounding and executing.” Instead, it exercised an interpretive power that very nearly supplanted tribal sovereignty, that completely omitted the doctrine of enumerated powers, and that elevated a simple analogy to wardship into a newly created extraconstitutional power to regulate even internal tribal affairs—the so-called guardianship power.
What accounted for this transformation in the legal consciousness of the Miller Court? All it had been asked to do was simply determine the constitutionality of a single piece of legislation. Yet, it abruptly and inexplicably vested in Congress an unlimited and unauthorized power not connected to any constitutional provisions. In the 1883 Supreme Court opinion The Civil Rights Cases, the Court had properly noted that the Commerce Clause gave Congress the exclusive power to deal with tribes. Furthermore, in the case In re Sah Quah, decided May 8, 1886, two days before Kagama, a federal district court held the following: “From the organization of the government to the present time, the various Indian tribes of the United States have been treated as free and independent within their respective territories, governed by their tribal laws and customs, in all matters pertaining to their inherent affairs, such as contracts and the manner of their enforcement . . . and the punishment for crimes committed against each other.”58
Broadly put, the answer to this sudden transformation in Supreme Court thought and policy occurred to legitimize the congressional policy of forced assimilation and acculturation of tribal citizens into American society. As Indian Affairs Commissioner John Oberly noted in his 1888 Annual Report, it was essential that the Indian “be imbued with the exalting egotism of American civilization, so that he will say ‘I’ instead of ‘we,’ and ‘this is mine’ instead of ‘this is ours’.”59 The Miller Court, in its efforts to legitimate the federal government’s policy on Americanization and assimilation, developed the extralegal sophistry of “wardship” to further the assimilative process but also to allegedly “protect” Indian people from state interests as well. The Court’s extraconstitutional principles sent a message to those seeking to intrude into tribal affairs, excepting the federal government, of course, that unconstrained federal authority over Indian affairs would be used “precisely because [Indians were] outside the protection of the Constitution” and because Congress “needed to be immune from ordinary challenges which might otherwise hamper the wise administration of the affairs of Indians.”60 Unfortunately, the absolute power which the Court arrogated to itself and Congress in Kagama set a destructive precedent for tribal nations that continues to affect their daily operations and intergovernmental relations. There is, in the tribes’ legal and political reality, no obvious limitation on Congress’s presumed plenary power regarding tribal sovereignty “except the moral sensibility of Congress.”61
Cherokee Nation v. Southern Kansas Railway Company
THE RAILROADING OF TREATY RIGHTS
Congress passed the General Allotment Act62 in 1887, a year after Kagama. Actually a major policy directive, it was hailed, and accurately so, as a “mighty pulverizing engine to break up the tribal mass.”63 By 1934, when the allotment policy was finally stopped, “the government had allotted 118 out of 213 reservations and brought over three-fourths of the Indians under the provisions of the Dawes Act.”64 Again, the Five Civilized Tribes were originally exempt from the act’s provisions because they held their territory in fee-simple title as a result of their removal to the Indian Territory under treaties and the Indian Removal Act of 1830.
Preceding and throughout this period of allotment, a multitude of interests, including the powerful railroad companies, were intent on securing right-of-way to tribal lands. By the mid-1880s there were four transcontinental railroad lines: the Union Pacific-Central Pacific; the Atchison, Topeka, and Santa Fe; the Southern Pacific; and the Northern Pacific. Each of these branch lines, along with many tributary lines coursing throughout the country, was already passing through Indian lands. Railroad companies, created by congressional law, occupied a special federal niche and thus were often favorably treated by lawmakers. While admitting that railroads had a critical role insofar as federal relations with tribes were concerned, a commissioner of Indian affairs observed, as early as 1872, that a railroad’s right-of-way request would not be considered if it appeared to be a “demand for the disruption of a reservation.” The commissioner noted that “the treaty-rights of the Indian are paramount, and must in all honor and conscience be preserved inviolate.”65
Despite the railroad lobby’s power, therefore, securing right-of-way through tribal lands was sometimes problematic. President Grover Cleveland, on July 7, 1886, had vetoed an act that would have granted railroads the right-of-way through a reservation in Montana. The President, while acknowledging the federal government’s right of eminent domain when exercised in the public interest, said that neither had the Indians given their consent to the right-of-way, nor had the tribal residents been consulted about the proposed railroad route.66 Cleveland emphasized that the act under review posed a serious threat to democratic principles. It was, he said, “a new and wide departure from the general tenor of legislation affecting Indian reservations. It ignores the rights of the Indians to be consulted as to the disposition of their lands, opens wide the door to any railroad to what, under the treaty covering the greater portion of the reservation, is reserved to the United States alone . . . [and] it invites a general invasion of the Indian country. . . .”67
The powerful railroad companies were not to be denied, and in 1899 Congress enacted an important measure, the Omnibus Railroad Act, which gave them a general right-of-way to construct lines through any Indian reservation, across Indian lands, and even through Indian allotments. All the company needed to do to secure this significant right was to show the secretary of the interior that it had made its “application in good faith and with intent and ability to construct said road” and pay an annual rental of at least 15 dollars fo
r each mile of rail laid “for the benefit of the particular nation or tribe through whose lands the road may be located. . . .”68 Only tribes within the Indian territory were entitled to receive such payments, presumably because they held their lands in fee-simple title.
HISTORICAL BACKGROUND
The Cherokee Nation was contesting a July 4, 1884, congressional act that had granted, without the consent of the Cherokee Nation, a right-of-way through Cherokee lands to the Southern Kansas Railway Company (SKRC).69 The act authorized the SKRC to construct the railway as well as a telegraph and telephone line through the heart of the Cherokee Nation’s lands. While the constitutionality of the act was itself of deepest importance to the Cherokee, it was section 3 on which some of the principal questions in the case depended. Section 3 stated that “before said railway shall be constructed through any lands held by individual occupants, according to the laws, customs and usages of any of the Indian nations or tribes through which it may be constructed, full compensation should be made to such occupants for all property to be taken or damage done by reason of the construction of such railways.”70
Other provisions of the act called for the President to appoint “disinterested referees” in the event agreement could not be reached on the amount of compensation to be paid the Indians; for the SKRC to pay the secretary of the interior, “for the benefit of the particular nation or tribes,” so much money per mile of track laid; for the company to develop maps showing the exact route of the lines to be constructed; and for the federal courts of Texas, Arkansas, and Kansas to have jurisdiction over any controversies that might arise between the Cherokee and the railroad.
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