American Indian Sovereignty and the U.S. Supreme Court
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“Controversies” were inevitable and immediate. The Cherokee Nation, through its National Council, enacted a resolution on December 12, 1884, in which they “solemnly protested” the act and filed their protest with the secretary of the interior. Simultaneously, the Cherokee legislature sent instructions to its delegates in Washington to “resist the claim of right or authority on behalf of any railroad corporation to build or maintain any railway through the territory or domain . . . without its consent.”71 The Cherokee Nation argued, more specifically, that “no jurisdiction or authority remained in the United States to grant such right of way . . . nor did the right of eminent domain over such territory remain in the United States, but that by its treaties and patents aforesaid remained solely in your complainant, The Cherokee Nation.”72
The federal government, through the secretary of the interior, ignored the official pleas of the Cherokee and advised the Cherokee National Council in April 1886 that the secretary had received a map from the SKRC that plotted the construction routes. Again, the Cherokee protested. Rather than accede to their legitimate complaints, the President responded by utilizing a section in the law which authorized him to appoint referees who would provide an analysis of the conflict and render an assessment. Of course, the referees were not Indian, and it was clear in which direction the allegiance of these presidential appointees would tilt.73 They met in Topeka, Kansas, in August 1886 and made their way to Indian Territory, completed their work within a month, and issued a report to the President on September 25, 1886. They concluded that “said Nation was entitled to receive as adequate compensation for such lands and for damages . . . the sum of $93.00 for each mile, aggregating for the whole distance $3301.50.”74 They also found that in recompense for the lands taken for the branch line, the tribe should receive $4051.44 for 112 miles of line. The commissioners ordered that Southern Kansas Railway, once in receipt of the report from the secretary of the interior, should deposit the amount awarded in the federal treasury.75
The Cherokee Nation was notified of the referees’ report by the commissioner of Indian affairs on October 29, 1886. Their response, by an act dated December 17, 1886, approved by the Cherokee Senate and concurred in by their House, “dissented from and rejected as unjust, inequitable and without authority of law,” the commissioners’ award.76 In particular, the Cherokee lawmakers, led by Principal Chief D. W. Bushyhead, stated that the Nation did not “concede to the United States the rightful power, through its constituted authorities, to authorize any private individual or corporation to enter upon, appropriate, and use any lands belonging to said nation without first obtaining the consent of the constituted authorities of said nation,” and was therefore protesting “the action of said Southern Kansas Railway Company in entering upon and appropriating the lands of the Cherokee Nation as an arbitrary and unjust violation of the guaranteed rights of said nation.”77 They also notified the federal government that the referees’ award was “insufficient and inadequate . . . the same is reasonably worth the sum of $500.00 per mile.” Principal Chief Bushyhead was empowered by the Council to file a lawsuit in the Circuit Court of the Western District of Arkansas against the railway company in an effort to “vindicate the absolute title of the Cherokee Nation to all lands within her borders, and to obtain redress from said company for such damages as may have been sustained by said nation by means of the location and construction of said railroad: Provided, that nothing herein shall be so construed as an acknowledgment by the Cherokee Nation of the right of the United States to appropriate the lands of the Cherokee Nation for the benefit of private corporations without its consent.”78
These passages evidence the Cherokee officials’ clear understanding of their vested aboriginal and treaty-defined property rights, and their keen awareness of the crucial political doctrine—consent. The Cherokee case was filed in District Court on January 26, 1887. Interestingly, the SKRC brought forward another monetary offer. They said that they were willing to double their offer for the purchase of the Cherokee’s right-of-way, for a grand total of $14,705.98. The Cherokee declined the offer. The SKRC’s attorneys then filed a demurrer to the Cherokee bill, signifying that while the company admitted the matters of fact brought by the Cherokee Nation, they did not believe sufficient grounds existed for the Cherokees to proceed with their case.
Judge Isaac C. Parker, the infamous “hanging judge”79 who presided over the Fort Smith District Court from 1875 to 1896—a district which included Indian territory—ordered that the demurrer be sustained, denied the injunction sought by the Cherokee Nation, and refused to hold a hearing on the question of damages requested by the Cherokee. Judge Parker perfunctorily dismissed the Cherokee bill and ordered the Cherokee to pay the SKRC five hundred dollars in litigation costs and the costs of an appeal to the Supreme Court, if the appeal was found to be “wrongfully taken.”80 In Judge Parker’s opinion: “The controlling question in this case is, did the congress of the United States have the right to grant to defendant a right of way for its railroad across or over the land of the Cherokee Nation, the defendant paying the nation for the same and individual occupants for their improvements?”81 If Congress had the right, then the Cherokee had no case. And if not, the entire act authorizing the railroad would be void.
Parker, echoing the nationalist/federalist sentiment of the day, and in the Kagama tradition, elaborated on the alleged “dependent” status of tribes, saying, “If they are a dependent nation, upon whom are they dependent? Not upon the states, but upon the United States. This dependence is a political one, and its very existence implies political control in some other power than their government.”82 Having placed the Cherokee Nation in an inferior political status, Parker then easily surmised that the federal government had the power of eminent domain and could appropriate Cherokee territory even while title was vested in the Cherokee Nation.
MASKING WITHIN THE DECISION: THE OPINION
The Cherokee Nation was represented by attorneys J. F. McDonald, John C. Fay, and R. J. Bright, who were opposed by the SKRC’s lawyers, George R. Beck, A. B. Brown, and A. J. Britton. Justice John Marshall Harlan delivered the Supreme Court’s unanimous opinion. It is an opinion built, not surprisingly, on the faulty and startling illogic of Rogers and Kagama. Harlan began by describing the dual—equitable and legal—nature of the Cherokee’s course of action. On the one hand, said Harlan, the Cherokee wanted an injunction against the SKRC to prevent it from constructing the railroad, telegraph, and telephone line. This desire, he stated, was relief of an equitable nature. On the other hand, Harlan said, the Cherokees had joined this equitable claim with a legal one by asking for “just and adequate compensation” for the lands to be taken and the other “rights, easements, and franchises,” if their equitable claim were rebuffed.83
Harlan said the lower court had been right in concluding that these two causes could not be united in the same suit; however, he added that the district court had erred in dismissing the Cherokee claims “without making some provision, by appropriate orders, for the protection of its rights as against the Railway Company.”84 Harlan said while the equity suit would not be permissible, he saw no reason why under the terms of the legislation and of “the peculiar relations” which the Cherokee had with the federal government and the American people, “relations which forbid . . . the application of strict rules of interpretation,” the Cherokee claims could not be treated as an appeal on the issue of damages.85
The so-called strict rules of interpretation Harlan alluded to were also derived from another early Marshall case, Worcester v. Georgia (1832). There, Marshall explicitly said, “the language used in treaties with the Indians should never be construed to their prejudice. If words be made use of which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense. . . . How the words of the treaty were understood by this unlettered people, rather than their critical meaning, s
hould form the rule of construction.”86 Similarly, in The Kansas Indians (1867) the Supreme Court said “rules of interpretation favorable to the Indian tribes are to be adopted in construing our treaties with them. . . .”87 And in Jones v. Meehan (1899), the High Court reaffirmed Marshall’s original language and held that “the treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.”88
When this language is compared with that of The Cherokee Tobacco and then contrasted to the Court’s comments in Worcester, Kansas, and Meehan, the interpretation is not clear as to whom it favors. In this instance all we can surmise is that “it depends,” which means that the Court is not wedded to constitutional, treaty, or legal principles so much as it is to ad hoc decision-making based on issues, players, and political circumstances. An analysis of the language used by Harlan in Cherokee Nation v. Southern Kansas Railway vividly reveals as much.
Eminent Domain = Imminent Tribal Loss
In his opening lines Harlan had curtly discarded the most important Cherokee contention—the equity claim that the United States did not have the right to construct the railway on Cherokee land without their consent. He then set the Court up as an impartial entity willing, although not required, to consider the Cherokee Nation’s petition for monetary damages. With the Cherokee’s most vital rights to territorial sovereignty ignored, and having reduced their standing request, without any discussion, to a mere monetary debate for damages, Harlan proceeded to make a most interesting comment:
We have had some doubt as to whether, in the present attitude of the case, the reasons for this conclusion ought to be now given. But as the questions raised by the demurrer were elaborately examined by the Court below . . . and as the plaintiff ought not to be led to suppose that a new bill in equity, based upon the alleged invalidity of the Act of July 4, 1884, would avail any good purpose, we have concluded to state the grounds upon which we hold that Congress, in the passage of that Act, has not violated any rights belonging to the plaintiff.89
One wonders why the Court hesitated to reveal its reasons for a decision which flagrantly violated the fee-simple and treaty-guaranteed land rights of the Cherokee Nation. For instance, what does Harlan mean by saying that “the present attitude of the case” might normally preclude the Court’s explaining its decision? The official record does not reveal this. Congress, of course, had overtly violated the Cherokee Nation’s property rights. The Cherokee had explicit fee-simple title guaranteed by ratified treaties. The Court, however, in its own unique style, decided to “reveal” the reasons why it ruled the way it did. It appears that Harlan decided to discuss the reasons because he and the Court were embarking on the formation of extralegal reasoning to rationalize the power of the United States to confiscate fee-simple land.
Harlan began by inaccurately stating that “no allegations are made in the bill that would justify a decree perpetually enjoining the railway company from proceeding under the Act of Congress.” This statement overlooked the fact that the Cherokee Nation, as far back as 1884, had raised a number of viable points that should have immediately led to the revocation of the 1884 law. The Court simply chose to ignore or transmute the tribe’s allegations.
The Cherokee had given five major arguments. First, that the Cherokee Nation was a sovereign state, recognized as such in twenty treaties, and as a sovereign it exercised the powers, jurisdiction, and function of a sovereign in the territory ceded to it under the treaty of February 14, 1833.90 Second, that in view of their sovereign status, the right of eminent domain remained exclusively vested in the Cherokee nation.91 Third, that in addition to the cession of the territory by the various treaties, a patent in fee-simple had been granted by the United States to the Cherokee Nation. And since those land rights had been vested, neither Congress nor the states could constitutionally impair those rights without the consent of the Cherokee Nation.92 The “title, then, being in the Cherokee Nation, the defendant [SKRC] took nothing by its grant of a right of way in the second section of the act. The United States had no land in the Cherokee Nation to grant.”93 Finally, that the United States had no remaining jurisdiction or authority to grant such a right-of-way through Cherokee territory; said jurisdiction and authority remained in the Cherokee Nation by its treaties and patents.94
Each of these arguments was historically accurate, legally valid, and, until this case, politically recognized. Nevertheless, Harlan spoke as if the arguments were inconsequential. In keeping with his radically revisionist history, focused myopically on national sovereignty vis-à-vis the states, Harlan stated the following:
The proposition that the Cherokee Nation is sovereign in the sense that the United States is sovereign, or in the sense that the several States are sovereign, and that that Nation alone can exercise the power of eminent domain within its limits, finds no support in the numerous treaties with the Cherokee Indians, or in the decisions of this court, or in the Acts of Congress defining the relations of that people with the United States.95
This statement is without merit and indicates the Court’s unwillingness even to acknowledge, much less recognize, the validity of the actual historical record between the Cherokee Nation and the United States. Appropriating selected excerpts and modifying them as he moved from John Marshall’s early decisions through the judicial landscape, Harlan said that “from the beginning of the government to the present time, they have been treated as ‘wards of the nation,’ ‘in a state of pupilage,’ [and as] ‘dependent political communities’. . . .”96 This statement also errs. There is nothing in the historical or judicial record, prior to the Kagama decision, that supports Harlan’s contention that “from the beginning of the government” Indians were treated as dependent wards.
Harlan then proceeded to contradict himself by correctly citing the Worcester precedent that tribes constitute separate and distinct peoples recognized as such by each branch of the federal government; however, he immediately reentered his fictionalized world devoid of tribal sovereignty. Even after quoting Worcester, Harlan asserted that the principle established in that case “falls far short of saying that they are a sovereign state, with no superior within the limits of its territory.”97 Harlan then briefly discussed the Cherokee treaties of 1835, 1846, and 1866, wherein the United States confirmed the Cherokee’s title to their lands. “But,” said Harlan, “neither these nor any previous treaties evinced any intention, upon the part of the government, to discharge them from their condition of pupilage or dependency, and constitute them a separate, independent, sovereign people, with no superior within its limits.”98 What “pupilage” or “dependency” is Harlan referring to? They were not “discharged” from dependency because they were never politically in a dependent status. In support of his questionable contention, Harlan quoted from both Rogers and Kagama, emphasizing the sections in those cases centering on the assorted “geographical incorporation” of tribes and their alleged “weakness” as somehow correlating with a gross reduction of tribal political rights.
At this point, Harlan felt comfortable enough to enunciate the destructive precedent that even the fee-simple patents—confirmed by treaty—were not strong enough to withstand federal confiscation:
The fact that the Cherokee Nation holds these lands in fee simple under patents from the United States is of no consequence in the present discussion; for the United States may exercise the right of eminent domain, even within the limits of the several States, for purposes necessary to the execution of the powers granted to the general government by the Constitution. Such authority . . . is essential to the independent existence and perpetuity of the United States, and is not dependent upon the consent of the State.99
The Court had effectively blamed the Cherokee’s loss of treaty-defined property rights and territorial jurisdiction on their purportedly “dependent” status. This wardship status, conjoined with the nation-building and territoria
l expansion of the United States, effectively deprived the Cherokee Nation of their land rights. One could ask why the Cherokee Nation’s property rights were considered “of no consequence.” It appears that economic development, under the guise of nationalistic expansion, had completely overwhelmed the “rule of law” as explicitly laid out in ratified treaties. The moral character of the United States was savaged in the name of corporate and national political development.
Building upon his nationalist/federalist apparatus, Harlan stressed that while the states also had a version of eminent domain, this could not restrict the supremacy of the federal government’s power of eminent domain. “It would be very strange,” said Harlan, “if the national government, in the execution of its rightful authority, could exercise the power of eminent domain in the several States, and could not exercise the same power in a territory occupied by an Indian nation or tribe, the members of which were wards of the United States, and directly subject to its political control.”100 The Cherokee’s lands, “like the lands held by private owners everywhere within the geographical limits of the United States, are held subject to the authority of the general government to take them for such objects as are germane to the execution of the powers granted to it; provided only, that they are not taken without just compensation being made to the owner.”101 Now that he had contrasted the states with the tribes, it was a simple step for Harlan to say that if the United States has power over the states, then surely it must have a similar authority over tribes.
Tribal nations, however, are not states. They are not subject to the United States Constitution as are the states. Tribal land title, once vested, cannot be legally confiscated by regular constitutional channels. Harlan circumvented this matter by relying upon the reified legal mask that Indian tribes were wards, which, of course, meant that the United States was already the implicit owner of the lands in question. In essence, Harlan was saying that while Indians may have title to their territory, this title was valid only so long as the federal government had no need of it. He was arguing that the tribes, even those with fee-simple title, were only temporary landholders with a secure title only so long as the government had not arrived at a “germane” reason to take it.