This extended quotation reveals how entrenched and seemingly perpetual Indian “wardship” status was in the Court’s opinion. Citizenship, theoretically, involves three separate components—civil, political, and social rights. But, as Judith Shklar recently noted, “there is no notion more central in politics than citizenship, and none more variable in history, or contested in theory. In America it has in principle always been democratic, but only in principle, . . . The equality of political rights, which is the first mark of American citizenship, was proclaimed in the accepted presence of its absolute denial.”13
No African slave, until after the Civil War, would become a citizen. And individual Indians, as citizens of separate nations, were certainly not American citizens, even though the Indian situation was much more complex than that of African Americans. An overwhelming majority of African Americans have, over most of their history in the United States, pursued or even demanded inclusion in the American polity. Conversely, a majority of Indians have sought to maintain their exclusion from the American political system. And often when federal and state citizenship rights have been extended to them, Indians have learned, as did the Sisseton and Wahpeton Sioux in Farrell, that their social rights lagged far behind the civil and political rights they allegedly secured upon their enfranchisement.
Sanborn brought forth cultural and moralistic reasons to deny Indians their legal, social, and political rights; but four years later Sanborn’s citizen-subject depiction of Indians was shattered by the Supreme Court in the decision Matter of Heff (1905). The Supreme Court held in Heff that upon receiving an allotment, an Indian immediately became an American citizen, and therefore federal laws prohibiting liquor sales to Indians were declared unconstitutional. Contrary to the Farrell case, Justice David J. Brewer said that Congress’s commercial and guardianship power over tribes was not meant to last indefinitely. “Can it be,” said Brewer, “because one has Indian blood, and only Indian blood in his veins, he is to be forever one of a special class over whom the General Government may in its discretion assume the rights of guardianship which it had once abandoned, and this whether the State or the individual himself consents? We think the reach to which this argument goes demonstrates that it is unsound.”14 The Court carefully distinguished Indian property rights from the civil or political status of allottees, and held that even if preconditions were attached to the allottees’ lands this did not affect the allottees’ political status. In closing, the Court said: “. . . [W]hen the United States grants the privileges of citizenship to an Indian, gives to him the benefit and requires him to be subject to the laws, both civil and criminal, of the State, it places him outside the reach of police regulations on the part of Congress. . . .”15
The outcry from many federal policymakers over this straightforward ruling was immediate and vehement. In the words of Commissioner of Indian Affairs Francis Leupp, the decision “startled the country.” Although Leupp admitted the ruling was “eminently logical” he maintained that the decision “simply places the ignorant, incapable, and helpless Indian citizens at the mercy of one class of evil doers.”16 Congress also reacted swiftly and the following year passed the Burke Act.17 This act effectively circumvented but did not overthrow the Heff principle. It withheld citizenship from allotted Indians until the twenty-five-year trust period had expired and the allottees had secured a fee patent to their acreage. The secretary of the interior, however, enjoyed the discretion to bestow citizenship and fee-simple title at any time if he determined that an allottee was “competent” to manage his own affairs.18 Additionally, subsequent Supreme Court cases began to narrow the broad Heff precedent.19 Hence, by 1916, Heff‘s principle had been considerably diluted. United States v. Nice represented the death sentence for Heff and would enigmatically thrust together the two incongruous perspectives noted by Representative Bailey in the 1897 congressional exchange reproduced above and echoed by Judge Sanborn in Farrell: Indians as citizens and Indians as dependent peoples.
HISTORICAL BACKGROUND
In this case, Fred Nice, a white from the town of Carter in Tripp County, South Dakota, had been indicted for selling liquor to George Cartier, a Rosebud Sioux. This sale was alleged to be a violation of an 1897 law which prohibited the sale of liquor to Indian allottees whose land was still held in trust by the United States, or to Indians adjudged to be “wards” under Indian agents, or any other Indians of full or mixed blood “over whom the Government, through its departments, exercises guardianship.”20 The Rosebud Reservation had been allotted under an 1889 law,21 and Cartier had received his allotted acreage on April 29, 1902. Nice filed a demurrer on the grounds that the charges were “not sufficient in law, and that the said Fred Nice is not bound, by law, to answer the same; and that said indictment does not state facts constituting a public offense against the laws of the United States.”22
Judge James D. Elliott of the Federal District Court of South Dakota issued a ruling on September 8, 1915, sustaining Nice’s demurrer to the indictment on the grounds that the 1897 statute “insofar as it purports to embrace such a case, is invalid, because [it was] in excess of the power of Congress.”23 In other words, based on the Heff precedent, the General Allotment Act of 1887, and the Burke Act of 1906, the 1897 law was unconstitutional and Congress did not have jurisdiction over Nice or the offense he was charged with. Cartier, in short, was within his rights as an American Indian citizen of the United States to buy liquor, and Nice by extension, had the right to sell liquor to an allotted Indian.
The United States through its attorney, Richard P. Stewart, took exception to this decision and immediately filed a writ of error to the Supreme Court. This was not surprising, considering that since the Heff case, the federal government, beginning with Theodore Roosevelt’s administration in 1905, had decried the idea that Indian allottees were equal citizens no longer subject to federal control. Roosevelt asserted that the Heff ruling had “struck away the main prop on which has hitherto rested the Government’s benevolent effort to protect [the Indian] against the evils of intemperance.”24
Moreover, the acting attorney general was asked in May 1905, a month after Heff, to issue an opinion on the impact of the Heff case on the sale of liquor to both reservation and nonreservation Indians, since Heff had involved an allotted Indian purchasing liquor in a town off the reservation. The attorney general opined:
The [Heff] decision is undoubtedly conclusive as to the want of power in Congress to exercise police jurisdiction over Indian allottees off the reservations in the States. But its jurisdiction over the reservations is a very different thing. . . . The most that can be claimed for the Heff decision is that it holds that, by making Indian allottees citizens and subject to the laws of the State, Congress has divested itself of this purely personal jurisdiction over them. But the jurisdiction which Congress exercises over them upon the reservations is authorized by the fact that they are inmates, so to speak, of Federal institutions; and, while subject generally to State jurisdiction, that jurisdiction can not be exercised so as to interfere with the conduct of these institutions or to defeat the treaty stipulations which the United States may have made with the Indians.25
Although all Indian allottees, regardless of their location, after Heff may have initially felt that they finally had some civil and political rights equal to those of whites, it was clear from the interpretation of that decision and the responses of the President, the Department of the Interior, the Commission of Indian Affairs, and the Justice Department, that Indians on reservations and in territories were still largely devoid of those same rights despite what the Supreme Court had explicitly held in Heff. Hence, the United States, through its principal administrators of the federal government’s affairs with tribes, had already cut deep swaths in the Heff ruling, as had subsequent Supreme Court rulings.
Assistant Attorney General Charles Warren, in his brief before the Nice Court, could therefore vigorously contend that the Heff case had been substantially overruled by a 1
914 decision, United States v. Pelican. That decision held that the allotted land where an Indian had been murdered by a white man was still considered Indian Country and that federal rather than state law applied. Warren’s argument was that “if an allottee Indian is still capable of protection by Federal law against murder, as a ward, he is capable of protection, as a ward, by Federal law against sale of liquor.”26
Attorney General Warren’s sixty-page brief (compared to the one paragraph brief of Nice’s attorneys) opened with an argument that Congress’s power over tribes was derived from three sources. First, Warren said that congressional power came from the constitutional clause giving Congress the right to make all “needful rules and regulations respecting the territory or other property belonging to the United States.” The second source was the oft-mentioned Commerce Clause. But it is the third source that is most interesting since it lacks a substantial political or legal foundation. This form of congressional power over Indians “is of an anomalous character and has arisen out of the necessities of the situation rather than from any express constitutional sanction [emphasis mine]. It involves the conception of the Indians as dependent peoples in a state of pupilage under the guardianship of the Federal Government. When the Indians are spoken of as ‘wards of the government,’ it is with this peculiar conception in view.”27
Attorney General Warren credited the Kagama decision for establishing this extraconstitutional plenary power which, as he said, is “not referable to the powers of Congress under the Commerce Clause. . . .”28 This “theory” of Indian wardship which arose from the idea of the “necessities of the situation,” generated solely by the United States between tribes and the United States, would figure prominently in Van Devanter’s final opinion. In the face of such tenuous legal arguments, Attorney General Warren resorted to more moralistic and paternalistic reasons in an effort to win the suit. “No sooner was the Heff decision made,” said Warren, “than its injurious effects were at once shown. The State, having no power to tax these Indian allotments, had no particular interest in the Indian’s welfare; the State, county, and municipal authorities were somewhat apathetic; they were loath to give the Indian the benefit of their schools and other public institutions or to incur the expense of prosecuting offenses in his behalf.”29 What followed, according to Warren, was the “usual cycle of dissipation, drunkenness, disease, disaster, and death.”30 These so-called Five-D’s were explicitly associated with Indians and alcohol, according to the government. After reciting a litany of other arguments, Warren arrived at his most definitive position:
The grant of citizenship does not ipso facto terminate tribal status. . . . It will thus be seen that citizenship and tribal status are entirely distinct subjects, and not necessarily mutually exclusive. Both may coexist. The question whether Indians have become fully emancipated and merged into the uncontrolled citizenry of the country depends not on any grant of citizenship by Congress or on the status as recipients of allotments or of fee simple patents, but necessarily depends upon the question whether they are still recognized as a dependent people with continued tribal relations by the executive or legislative branches of the Government.31
Warren had made, and the Supreme Court would follow, a crucial blunder of fact and perception. He and the United States were equating the rights of individual Indians as citizens with the sovereign, collective status of tribes as political entities. A similar situation had arisen in The Cherokee Tobacco where, although the case had been taken to the Court by two individual Cherokees and tribes as sovereigns were not parties to the litigation, the collective treaty rights of the tribes were diminished.
This equating of individual rights with tribal sovereign rights actually dates back to Cherokee Nation v. Georgia in 1831. In Cherokee Nation, the question that should have been the focus throughout was did “the Cherokee Nation constitute a foreign nation as defined by the constitution?” Instead, Marshall and the majority waffled—sometimes treating the Cherokee tribe as a political entity in a corporate sense and sometimes treating the tribe merely as a conglomeration of individuals.
When Indian allottees secured their individualized share of tribal property, they were individually recognized as federal and state citizens. Attorney General Warren, however, inaccurately maintained that the question of enfranchisement depended on whether “they are still recognized as a dependent people with continued tribal relations.” It was not tribes that received the franchise and allotments, but individual Indians. The two are not synonymous, yet Warren and the Court would treat them synonymously.
The government’s argument also reflected a significant change in the federal attitude about the continuation of tribal polities. Historically, some early treaties between the United States and tribes contained provisions granting federal citizenship to individual Indians provided they met certain conditions—that is, they accepted an allotment, physical removal from communally held tribal lands, or the adoption of Euro-American values and lifestyle. This early arrangement implied that “citizenship was incompatible with continued participation in tribal government or tribal property.”32 By the 1880s, however, the government had arrived at conflicting variations on when and how tribal status ended and federal/state status began; Elk was followed by the General Allotment Act, Farrell, and Heff. But after Heff (1905), a majority of the important players involved in Indian affairs had arrived at the unique position that federal citizenship was no longer incompatible with tribal status. That Indians could, in fact, be treated simultaneously as wards and as citizens.
Nice’s attorneys, in contrast to the extended brief presented by the federal government, succinctly asserted that the Heff decision was controlling and that Nice was therefore innocent of any crime against the United States.
VAN DEVANTER AND INDIAN LAW
Willis Van Devanter, the former chief justice of the Wyoming Supreme Court and later an assistant attorney general in the Department of the Interior specializing in matters involving public lands and Indian affairs, was a rigid conservative in his views respecting constitutional interpretation and Indian rights.33 Recall that Van Devanter, a Republican, was the prosecuting attorney who argued against the hunting rights of the Shoshone-Bannock Indians in Ward v. Race Horse. Before his appointment to the Supreme Court, Van Devanter had developed a long-standing association with powerful western business interests. In his twenty-six years on the bench (1911–1937), Van Devanter actually wrote “fewer opinions not only than any other justice that served with him, but also than any justice appointed between 1853 and 1943.”34
Van Devanter’s judicial disengagement from other subjects and matters of law did not, however, spill over into the area of Indian law. In fact, Van Devanter seemed to save his most virulent views and opinions for Indian cases. His arguments as a prosecutor in Ward reflected his conservative, business-oriented approach, as did his tactics as an assistant attorney general opposed to Indian treaty rights in Cherokee v. Hitchcock (1902) and Lone Wolf v. Hitchcock (1903). On the other hand, in another 1903 case, United States v. Rickert, Van Devanter argued for the government that neither individual allottees’ lands, their personal property, nor their permanent improvements were subject to state or local taxation during the twenty-five-year trust period. While seeming to signal a victory for individual Indian rights, the language used by the justices actually masked a victory for the U.S. policy of assimilation since, according to Justice John M. Harlan, “these lands are held by the United States in execution of its plans relating to the Indians—without any rights of the Indians to make contracts in reference to them or to do more than to occupy and cultivate them—until a regular patent . . . was issued.”35 Harlan further stated that taxing these lands would be tantamount to taxing “an instrumentality employed by the United States for the benefit and control of this dependent race. . . .”36 The Van Devanter Court’s basic contention was that Indian allottees as “federal instrumentalities” could not be taxed. The Court, in other words, was defendi
ng a vested federal right, not an Indian right per se. As a Supreme Court justice, Van Devanter wrote similar opinions usually deferring to the “superior” Congressional power to oversee the inevitable transformation of tribes from their “inferior” political and cultural status to that of a civilized people.37
A notable exception in Van Devanter’s Indian track record was his opinion for a unanimous Court in United States v. Quiver (1916), issued the same day as Nice. Quiver involved the offense of adultery committed between two Indians on an Indian reservation. The Department of Justice argued that federal courts should have jurisdiction over such crimes. Van Devanter, however, emphatically held “that the relations of the Indians, among themselves—the conduct of one toward another—is to be controlled by the customs and laws of the tribe, save when Congress expressly or clearly directs otherwise.”38 Having perused all the relevant statutes, including the Major Crimes Act of 1885, Van Devanter concluded that none dealt with bigamy, polygamy, incest, or adultery, “these matters always having been left to the tribal customs and laws. . . .”39 Without so stating, Van Devanter’s opinion expressly reaffirmed the theory of exclusion, a long-standing principle of law: a general act of Congress is inapplicable to tribes unless it expressly includes them.40
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