The Masks of Dependency, Security, and Christian Morality
On the status of tribal lands, White first cited prior language in which the Court had equated Indian title with fee-simple title, and then proceeded to set up a situation in which he was able to circumvent these decisions. He said, “In none of these cases was there involved a controversy between Indians and the government respecting the power of Congress to administer the property of the Indians.”206 This is correct, as written. Prior to this date, Congress had historically acknowledged that it had no right to challenge treaty-recognized property rights which, despite what White said, did indeed vest in the retaining party. One of the cases cited by White, however, Beecher v. Wetherby (1877), had stated that the United States had a superior authority over Indians based on guardianship and that such authority “might be implied, even though opposed to the strict letter of a treaty with the Indians.”207 This “abrogation by implication” argument was then meshed with another Beecher precedent: that the United States’ actions regarding tribes would be governed “by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race.”208 Here we see Christian theology being used to rationalize violations of constitutionally recognized treaty rights.
Displaying a lucid and self-contradictory ability to rewrite history in a way that legitimized congressional power over tribes, Justice White asserted that “[p]lenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to the control of the judicial department of the government.”209 Both of these statements are judicial myths, without historical justification. Congress has not had plenary power over the tribes from the beginning; nor has the power always been determined to be political.
White apparently said Congress always had plenary authority not subject to judicial review because the Court was intent on legitimating the congressionally inspired and presidentially executed breakdown of communally held tribal lands which, the Court had determined, was essential before Euro-American civilization could be approximated by detribalized Indian individuals.
For White, as for the Kagama Court, the 1871 treaty-ending law was pivotal. Until that year, “the policy was pursued of dealing with the Indian tribes by means of treaties, and, of course, a moral obligation rested upon Congress to act in good faith in performing the stipulations entered into on its behalf.” White then cited Ward and The Cherokee Tobacco as support. He was asserting that after 1871 Congress could selectively decide whether it wanted to act in a morally responsible way by fulfilling the provisions of extant treaties. White then stated the most powerful lines of the decision:
The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians.210 (emphasis original)
White does not define the “contingency” spoken of or what the considerations of “governmental policy might be,” or how overt treaty abrogation can be consistent with “perfect good faith” toward Indians when the Indians consider it a direct exercise of bad faith and a contravention of their treaty rights. This is a prime example of the Court’s use of legal masks to deny the humanity of the Indians and mask their own violations of the law. The judiciary, acting purely and deferentially as a legitimator of congressional policy, simply “presumed” that Congress had acted in good faith in dealing with the tribes because subsequent to the treaties’ ratification it could find no historical or legal assurance that Congress had “in reality” acted in good faith.
Congress, said the Court, had not only unlimited but unreviewable authority over Indian tribes, their treaties, and their properties. White and the Court were acknowledging that even if Congress had violated the treaty, had violated the Constitution’s Treaty Clause, and had violated the principles of consent, fairness, and justice, the judiciary would not look behind the actions of the legislative bodies.
White concluded by reiterating his presumption of good faith in Congress’s right to exercise plenary authority to transform tribal communal lands to individual parcels—a transformation Indians could not resist by challenging the government’s actions in Court. As in The Cherokee Tobacco, the Indians learned that to gain any measure of justice they would have to petition Congress, the very branch intent on destroying the basis of tribalism—tribal lands. In White’s words:
The controversy which this case presents is concluded by the decision in Cherokee Nation v. Hitchcock . . . decided at this term, where it was held that full administrative power was possessed by Congress over Indian tribal property. In effect, the action of Congress now complained of was but an exercise of such power, a mere change in the form of investment of Indian tribal property, the property of those who, as we have held, were in substantial effect the wards of the government. We must presume that Congress acted in perfect good faith in the dealings with the Indians of which complaint is made, and that the legislative branch of the government exercised its best judgment in the premises. In any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation. If injury was occasioned, which we do not wish to be understood as implying, by the use made by Congress of its power, relief must be sought by an appeal to that body for redress and not to the courts. The legislation in question was constitutional, and the demurrer to the bill was therefore rightly sustained.211 (emphasis mine)
In sum, Lone Wolf mangled tribal sovereignty. Congressional plenary power, unconstrained by the Constitution, was interwoven with the political question doctrine and judicial deference to the legislature to form an almost impregnable shield which ignored the fact that tribal interests and federal interests could be in fundamental conflict. Although the Supreme Court had asserted that Congress’s action was for a public purpose, one could powerfully argue that this was not the case since the lands taken were sold to white homesteaders. The 1900 agreement, therefore, “probably would not have been constitutional had the property been held by non-Indian owners.”212
A month after the decision, Senator Orville Platt (R., Connecticut) requested that extra copies of the decision be printed as a Senate document because “there is a great demand for it.”213 When the Senate could not agree on the number of copies to be printed—500 or 1,000—Senator Matthew Quey (R., Pennsylvania) stepped forward and insisted that 1,000 copies were needed. His justification: “I think we better make the number of additional copies 1,000. It is a very remarkable decision. It is the Dred Scott decision No. 2, except that in this case the victim is red instead of black. It practically inculcates the doctrine that the red man has no rights which the white man is bound to respect, and, that no treaty or contract made with him is binding. Is that not about it?”214
CONCLUSION
As federal political, economic, and military power waxed in the late nineteenth century, with the corresponding waning of tribal power in these areas, there was a change, sometimes gradual, sometimes abrupt, in the way tribal sovereignty was conceptualized by the Supreme Court. In Barsh and Henderson’s words, by the time of Lone Wolf, “[t]ribal domestic sovereignty had been surreptitiously transmogrified, from exclusive to residual, from presumptively inherent to presumptively delegated.”215 The concept “guardianship/wardship” was a principal element in this legal transformation.
In Marshall’s Cherokee Nation (1831) decision, there was an illusion of tribal wardship; b
eginning with Kagama (1886) and continuing, albeit inconsistently, throughout the next several decades, wardship had become a delusion. Marshall used the analogy of “Indians as wards” in 1831 to justify or rationalize the federal government’s self-imposed right or power to “protect” Indian tribes, both from states and foreign nations. He said that the relationship between tribes and the states “resemble[d] that of a ward to his guardian,” and that tribes, “as domestic-dependent nations,” were in a “state of pupilage.” In the Court’s legal consciousness, by the last two decades of the nineteenth century and into the first several decades of the twentieth century, tribes were, and according to Lone Wolf, “had always been,” wards subject to the plenary authority of the federal government, despite ample invalidating evidence. Reified in the Court’s consciousness, the justices employed masks like “wardship,” “dependency,” “savagery,” “primitivism,” “plenary power,” “political question” in various ways to achieve whatever ends they deemed viable. And it was the Court, not the tribe, the individual, the states, or even Congress, which retained plenary discretion to decide the scope of Congress’s powers, and the degree, if any, to which treaty tribal rights were to be protected.
CHAPTER 4
The Era of “Myths”: Citizenship, Nomadism, and Moral Progress
Derived from the work of Felix S. Cohen,1 the subtitling phrase for this chapter serves as a unifying factor for the cases discussed herein—from the muffled rights of individual Indians as federal citizens (United States v. Nice), to the denied treaty-based land claims of recognized tribes (Northwestern Bands of Shoshone Indians v. United States), to the violation of aboriginal land rights of some of Alaska’s indigenous peoples (Tee-Hit-Ton Indians v. United States). These cases are also different from the ones we have examined in that they are sandwiched around an era of congressional reform, commonly referred to as the Indian Reorganization period, 1934–1945, which represented a legitimate but inadequate effort on the part of Congress to protect, preserve, and strengthen tribal art, culture, and political and social organization. The Indian Reorganization Act (IRA)2 of 1934 officially initiated this era. The new federal philosophy, argued eloquently and forcefully by Commissioner of Indian Affairs John Collier, “offered an alternative answer to Indian dependency: reconstitution and strengthening of Indian tribes in some sort of autonomy, self-sufficiency, semi-sovereignty, or self-determination.”3
Although this short-lived era of Indian policy reform was effective in undercutting the previous era’s three federal goals of Indian acculturation, assimilation, and Americanization, it was not without its own set of inherent flaws and conflicts.4 But, as a number of scholars have observed, John Collier and the Indian Reorganization Act years succeeded in terminating the notorious allotment policy, gave rise to widespread empathy for Indian culture, allowed a measured degree of Indian self-government, and garnered congressional support for Indian education, Indian preference, and other necessary economic development projects.5
Notwithstanding this renaissance among Indian nations, the Supreme Court would continue along its singular path as a political-legal entity and would render the rulings that left both individual Indians and tribal collectives, as late as the 1950s, wondering why, despite years of progressivism, social reform, and the United States’ emergence as a dominant world power after World War II, they still had so little in the way of treaty and property rights.
United States v. Nice
SUBJECT CITIZENS
The 1887 General Allotment Act’s major provisions included (1) that formerly communal Indian lands be converted to individual ownership, after which a twenty-five-year trust period would follow in which the United States was to protect the allottee’s parcel against private or state encroachment; and (2) that citizenship be granted the patented allottee. It is this last issue—citizenship—which is the essential question in the 1916 case, United States v. Nice, that focused explicitly on the individual Indian’s status as a propertied American citizen.
The Allotment policy’s provision granting immediate citizenship to Indian allottees was explicit. Section 6 stated:
That upon the completion of said allotments and the patenting of the lands to said allottees, each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside; and no Territory shall pass or enforce any law denying any such Indian within its jurisdiction the equal protection of the law. And every Indian born within the territorial limits of the United States to whom allotments shall have been made under the provisions of this act, or under any law or treaty . . . is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians, within the territorial limits of the United States without in any manner impairing or otherwise affecting the right of any such Indian to tribal or other property.6
This provision reflects general congressional sentiment that United States citizenship was conceived “as both a means to civilization, and an end to the civilization process.”7 The legislation was, in part, a direct congressional response to an earlier Supreme Court decision, Elk v. Wilkins (1884), in which John Elk had “voluntarily” left his tribe and moved to Omaha, Nebraska. Elk had registered to vote, but his application was rejected by Wilkins, the city registrar, because he was an Indian. The Supreme Court agreed with Wilkins’s decision and denied Elk’s citizenship request. It was held that Indians, like “the children of subjects of any foreign government” were not subject to the Fourteenth Amendment’s provision since they belonged to “alien nations, distinct political communities, with whom the United States might and habitually did deal as they thought fit, either through treaties . . . [or] legislation.”8 In effect, the court said that even if individual Indians met the same basic citizenship requirements expected of other noncitizens they still could not be enfranchised unless Congress made an affirmative declaration authorizing such a change in their standing.
When Congress responded with the General Allotment Act, it was thought that the issue of Indian citizenship had been settled. Such was not to be the case, however, as uncertainty prevailed among federal lawmakers regarding whether or not Indian citizens were still “wards.” The following passage, extracted from the Congressional Record of 1897, indicates the high degree of confusion on the precise political status of Indian allottees, especially as regarded the prohibition of liquor sales to reservation Indians.
Mr. Gamble: It occurs to me, as suggested by my friend from Nebraska (Mr. Meiklejohn), that the Indians are still wards of the Government [even after having received an allotment]. They simply hold a title under the jurisdiction of the Government, which may be extended even during twenty-five years.
Mr. Bailey: Will the gentleman permit an inquiry?
Mr. Gamble: Certainly.
Mr. Bailey: Does not the act provide that when they [Indian allottees] take this land in allotment, they become citizens?
Mr. Gamble: They become citizens.
Mr. Bailey: Then it is utterly impossible for them to be citizens and pupils of the United States at the same time. It is very clear that the Government has the right to continue them in the state of tutelage and dependence, but when it terminates that condition and makes them citizens of the United States, then it has no more power to legislate specifically for them than for any other citizens.
Mr. Gamble: This is entirely a question of jurisdiction. It is a matter that ought to be passed upon and determined by the courts.9
THE MASK OF INDIAN WARDSHIP: IN PERPETUITY?
Representative Robert Gamble’s (R., South Dakota) desire to have a judicial determination of this crucial question was first realized in a 1901 United States Federal Circuit Court of Appeals case, Farrell v. United States. In Farrell, the court adopted the pos
ition that the extension of federal citizenship to an individual Indian did not prevent the government from continuing to treat the Indian as a “ward” in need of “protection” from the evils of alcohol. Circuit Judge Walter H. Sanborn, who wrote the opinion, conceded that the Indian plaintiff (from the Sisseton and Wahpeton Band of Sioux) “was a citizen of the United States and the state of South Dakota in 1897, and that the argument . . . that he thereby became exempt from the jurisdiction of congress to regulate commerce with him is very persuasive and entitled to grave consideration.”10 However, Sanborn questioned whether the argument was “sound.” “May not,” he inquired, “the government confer all the privileges and immunities of citizenship upon its wards, and yet retain its power to regulate commerce with them; to protect them against their appetites, passions, and incapacity?”11 This opinion establishes the rationale—once a ward, always a ward—used by Sanborn, which is remarkably similar to that used much later by Justice Willis Van Devanter in Nice. Sanborn stated that Congress clearly retained the power to regulate liquor traffic among Indians. This was a power which had been originally sanctioned by tribal leaders in their efforts to keep liquor traders away from their people, but which the United States agents and Christian missionaries had unilaterally expanded to the point of declaring it illegal for individual Indians to drink, whether on or off Indian lands. Sanborn said:
These Indians are citizens, but they were originally wards. The nation had the right to prohibit the sale of liquor to them and to control and to superintend their acts and proceedings. They were reasonable, friendly, peaceable, when sober; wild, passionate, and dangerous when drunk. It adopted the settled policy of prohibiting the sale of intoxicating liquors to them to protect Indians and white men alike. Had it not the right to grant them all the privileges and immunities of citizens, and still retain its power to protect them and their neighbors from the baleful effects of intoxication? The question is susceptible of but one true answer. It had the same right and authority to retain this power of control over the commerce with these Indians that it had to retain the title to their lands in trust for them for 25 years or longer . . . The truth is that the deprivation of these Indians of the right to buy intoxicating liquors is not the taking away from them of any privilege or immunity of citizenship, but it is an attempt to confer upon them an additional immunity which some citizens do not possess, an immunity from drunkenness and its pernicious consequences.12
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