How is it possible to account for these seemingly disparate opinions delivered the same day, by the same verdict, by the same justice? The most plausible explanation is that Nice involved, from Van Devanter’s perspective, the power relationship between Congress and the tribes (Congress must always be dominant); whereas Quiver dealt with what Van Devanter considered a strictly internal tribal issue posing no threat to federal authority or any federal interest. Also, by this period, the Christian reformers who had played a major role in the development of federal Indian policy since the late 1800s had lost their “privileged place.”41 Although federal Indian policy for a number of years continued to focus on the individualization of American Indian rights, its “strongly religious orientation . . . had faded away.”42 Thus, there was less overt moral pressure to dismantle Indian customs or traditions which were said to violate the Judeo-Christian ethic.
MASKING WITHIN THE DECISION: THE OPINION
Van Devanter indicated his position early on by stating that Nice’s liquor sale was to Cartier, “a member of the Sioux tribe, a ward of the United States, and under the charge of an Indian agent.”43 However, under the Heff rule, Cartier was not a ward despite his continued tribal membership and relationship with an Indian agent. The fact that Van Devanter asserted as much at the beginning of the decision colored the rest of this opinion since his premise was that of Indian wardship and not citizenship.
Van Devanter then moved to an analysis of exactly what allotment of the Rosebud Reservation meant and whether individual Indian allottees were immediately enfranchised. Despite the explicit language of section 6 of the General Allotment Act of 1887 and the Heff precedent, Van Devanter manipulated the language of section 11 of the Rosebud Allotment Act of 1889 “which provided that each allotment should be evidenced by a patent, inaptly so-called [emphasis mine], declaring that for a period of twenty-five years—and for a further period if the President should so direct—the United States would hold the allotted land in trust for the sole use and benefit of the allottee. . . .”44 Why did Van Devanter say that the patent was “inaptly” termed? It may be because he was trying to divert attention from the fact that a patent provides an exclusive ownership right in the patentee, which according to the terms of the allotment policy was to form the basis of the right to citizenship. He was, in other words, attempting to minimize the significance of the term by unilaterally and retroactively saying that the government did not really intend to give a patent. If he could successfully make the argument that the United States still retained title over the allotment, this would entitle the government to continue to govern the allottees and treat them as wards with diminished citizenship rights. Van Devanter, before reaching the questions involved in the case, asserted that neither the 1889 Rosebud Allotment legislation nor the 1887 General Allotment Act intended to immediately dissolve the “tribal relation” which “while ultimately to be broken up, was not to be dissolved by the making or taking of allotments. . . .”45
The express congressional goal, especially in the late 1880s, for Indians was “to promote the speedy transition of Indians into industrious self-supporting citizens, free from government supervision.”46 By the early part of the twentieth century, however, and as the general assimilation campaign continued, it became evident to many federal policymakers and administrators that Indians could not and would not be so easily transformed and that the “complete” assimilation goal of the late nineteenth century would not be realized as quickly as they had envisioned. “The problem,” as Hoxie noted, “. . . was to devise a means of providing greater federal protection without appearing to retreat from the government’s commitment to Indian citizenship.”47 The solution was Van Devanter’s remarkable Nice precedent—Indian citizenship is perfectly compatible with Indian wardship.
Tribal v. Individual Indian Status
Van Devanter raised the first two of three questions for the Court’s consideration: “What was the status of this Indian at the time the whiskey and other liquors are alleged to have been sold to him? And is it within the power of Congress to regulate or prohibit the sale of intoxicating liquors to Indians in his situation?”48 Van Devanter wasted little time in declaring that Congress’s power to regulate or prohibit the traffic in liquor to “tribal Indians” whether on or off a reservation was self-evident. This political power, said Van Devanter, had both a constitutional (Commerce Clause) and an extraconstitutional (so-called dependent relationship) base. In describing Congress’s power base, Van Devanter expressly said that this power was over “Indian tribes.” This was problematic, since the Commerce Clause only authorizes Congress to regulate commerce “with” tribes, and tribes never consented to a loss of their rights based on the federal government’s unilateral declaration that tribes were in a “dependent relationship.” But what was more troublesome was that “tribes” were not even involved in this case. That it focused on the rights of an individually allotted Indian to purchase and drink liquor rather than the rights of tribal nations points out a major fallacy in Van Devanter’s reasoning.
Having established a questionable basis for congressional power—and over tribes, not individual Indians—Van Devanter then laid out the essence of his conception of Indian status:
Of course, when the Indians are prepared to exercise privileges and bear the burdens of one sui juris, the tribal relation may be dissolved and the national guardianship brought to an end, but it rests with Congress to determine when and how this shall be done, and whether the emancipation shall at first be complete or only partial. Citizenship is not incompatible with tribal existence or continued guardianship, and so may be conferred without completely emancipating the Indians or placing them beyond the reach of congressional regulations adapted for their protection.49 (emphasis mine)
Van Devanter spoke as if Congress had not already acted on this issue, when in fact it had. Congress in 1887 had determined that the “tribal relation” would be dissolved once reservations were allotted. As described earlier, however, by the early 1900s Congress’s views on Indian citizenship had substantially changed, as evidenced in the Burke Act of 1906, which withheld citizenship until the end of the twenty-five-year trust period or until individuals were declared “competent.” But more important was the definition of “citizenship” being employed by Van Devanter.
Citizenship supposedly entitles citizens to protection by as well as from the government; it vests in citizens the right to acquire and possess property of all kinds. It entitles the holder to pursue and obtain happiness and safety. It gives the holder the right to travel from state to state, to petition Congress, and to act and to vote for national office.50 It also exacts commitments from the citizen; for example, the payment of taxes and military service if called upon. So it is unclear from the passage what rights allotted Indians could look forward to exercising. What is clear is that Van Devanter was speaking of a radically different standard of citizenship for Indians: a diminished citizenship modified by whatever conditions Congress decided to impose. Congress, in bestowing citizenship upon allotted individuals, often against their will, empowered itself with the right to set and, if necessary, to reset the conditions upon which that citizenship was received and which rights or privileges could thereafter be exercised.
After warning Indians that, should they become enfranchised, the constitutional protection they expected and were entitled to receive would not be forthcoming because of Congress’s self-declared right to enact laws “for their protection,” Van Devanter anticlimactically raised what he termed the “ultimate question” for consideration by the Court: whether section 6 of the General Allotment Act—the citizenship provision—had previously disbanded the tribal relation and extinguished federal guardianship? After having examined the entire act, albeit ignoring the plain import of section 6, Van Devanter would only say that while it was obvious that the breakup of tribes in the General Allotment Act was “in contemplation” by the government, such dissolution was not supposed to occur up
on the actual issuance of patented allotments. Van Devanter, in fact, also expressly analyzed section 5 of the Allotment Act which provided for Congress’s use of money received by a tribe in the sale of its surplus land to make appropriations “for the education and civilization of such tribe . . . or the members thereof.”51 This provision, along with the twenty-five-year inalienability provision, “show that the Government was retaining control of the property of these Indians, and the one relating to the use by Congress of their moneys in their ‘education and civilization’ implies the retention of a control reaching far beyond their property [emphasis mine].”52
The direct implication here was that Congress, according to the Court, had virtually unlimited authority over both the property and person of the Indian allottee. The actual language of the allotment law, however, actually said something quite different. The United States was supposed to protect the allottees’ lands and was to occasionally appropriate money for their education and civilization. This is not the language of perpetual bondage, yet Van Devanter’s reading of it would lead one to think that Congress had direct and implied power over Indian property and everything “beyond their property.” This was the Supreme Court’s way of providing carte blanche legitimization of whatever Congress intended for even individualized and theoretically constitutionalized Indians.
Finally, and in keeping with his vision of federal supremacy over states’ rights in the field of Indian affairs, Van Devanter had to deal with the clear wording of section 6 which stated that once allottees had received their trust patents, they immediately received the benefit of and became subject to the civil and criminal laws of the state they resided in. This explicit language was undeniable proof that Indian allottees received state citizenship in addition to federal citizenship. Van Devanter, however, minimized and redirected this section’s clear meaning. “But what laws,” said Justice Van Devanter, “was this provision intended to embrace? Was it all the laws of the State, or only such as could be applied to tribal Indians consistently with the Constitution and the legislation of Congress? The words, although general, must be read in the light of the act as a whole and with due regard to the situation in which they were to be applied.”53
This is another example of the Court’s retroactively reading its own intent into the allotment law. Van Devanter’s next statement is evidence of this: “That they [the words] were to be taken with some implied limitations, and not literally, is obvious.”54 Obvious to whom? The Congress, especially in Indian affairs, is presumed, as Lone Wolf held, to be not only the sole constitutional authority, but also the most knowledgeable source when it comes to the development and implementation of Indian policy. And it was apparent to nearly everyone in the articulation of federal Indian policy in the General Allotment Act in 1887 that Congress’s express desire was to dissolve tribes and assimilate the individualized Indians as rapidly as possible.
The fact that Congress had modified its policy views by the early 1900s, perceiving that the absorption of Indians would take much longer than originally forecast, is something the Court was most likely aware of. Several earlier decisions had distinguished and narrowed the original Heff ruling so that there was little reason to maintain the pretense that Congress had not intended to eliminate tribes in 1887, when that was the stated goal. The Court in this case was acting in a deferential manner to the political branch and did not want it to appear that Congress had made a mistake in wrongly estimating how and when tribes should be terminated, nor did it want to provide the states with any evidence that they could use to enhance their own political position with tribes.
Evidence for the latter statement is found in this Van Devanter pronouncement:
The act also disclosed in an unmistakable way that the education and civilization of the allottees and their children were to be under the direction of Congress, and plainly the laws of the State were not to have any bearing upon the execution of any direction Congress might give in this matter. The Constitution invested Congress with power to regulate traffic in intoxicating liquors with the Indian tribes, meaning with the individuals composing them. That was a continuing power of which Congress could not divest itself. It could be exerted at anytime . . . .55 (emphasis mine)
This passage contains several startling revelations. First, Van Devanter had again equated the collective concept of the tribe with the individuals belonging to the tribe. A tribe, on the one hand, is certainly a conglomeration of all its individual citizens. But the constitutional recognition of tribes has a political basis, a corporate and collective connotation. If an individual Indian becomes a U.S. national via citizenship, then that single person, and not the tribe itself, has a new legal relationship which implies both a duty of allegiance on the part of the person and an obligation for protection on the part of the state. And while the concepts of nationality/citizenship are not restricted to people, since corporations or ships assume the nationality of the states that charter or register them, there has never been a law declaring tribes qua tribes to be citizens. By extension, the federal government’s treaty negotiations with tribes were conducted on a nation-to-nation basis, not a nation-to-individual basis.56 Van Devanter’s effort, therefore, to equate the two terms—tribe and individual—in the manner described is invalid.
Second, when Van Devanter stated that Congress’s “continuing power” over tribes could not be divested, he was contradicting himself. Earlier in the opinion, he had observed that the tribal relation could be terminated, but that such termination “rests with Congress to determine when and how this shall be done. . . .”57 In Nice, however, the Court maintained that the United States government, even after the granting of citizenship for individual Indians, retained boundless plenary authority over both tribes and their dual citizen members because of their allegedly “dependent” standing. The Court’s ruling is not supported by constitutional principles, theories of citizenship, or congressional laws. It is supported solely by puzzling judicial language bent on retaining federal guardianship over Indian citizen-wards regardless of the political or legal costs to the individual Indians.
When individual citizens of foreign nations or tribes are nationalized via U.S. citizenship, then, explicitly and implicitly, the relationship is dramatically transformed. The individual is now theoretically endowed with a set of constitutional rights which protect that person’s basic civil rights. Constitutionalism, in short, is the notion of a limited government whose ultimate authority is the consent of the governed.
In conclusion, Van Devanter restated that neither the General Allotment Act nor the Rosebud Allotment Act of 1889 was meant to dismantle the “tribal relation” or the “wardship of the Indians.” Therefore, “allottees remain tribal Indians and under national guardianship,” and Congress’s power to regulate the sale of liquor is “not debatable.”58 In candidly canceling out the Heff decision, the Court said, “after reexamining the question in the light of other provisions in the act [General Allotment] and of many later enactments clearly reflecting what was intended by Congress, we are constrained to hold that the decision in that case [Matter of Heff] is not well grounded, and it is accordingly overruled.”59 Nice was immediately hailed by Commissioner of Indian Affairs Cato Sells as a “very important” decision which would enable his office “more successfully to cope with the liquor situation among the Indians.”60 This case energized the BIA and reform organizations to renew their efforts to stop the consumption of liquor by Indians. (A contemporaneous national movement to address the alcohol issue culminated in the nationwide prohibition of alcohol which became effective in 1919 with the passage of the Eighteenth Amendment to the Constitution.)
Nice was decided three years before American Indian World War I veterans were given the opportunity of becoming citizens,61 and eight years before Congress enacted the general Indian citizenship law which mandatorily extended federal citizenship to all Indians who were not yet enfranchised.62 The veterans’ citizenship law declared that every Indian who
had served in the armed forces and who had received an honorable discharge should, “on proof of such discharge and after proper identification . . . and without other examination . . . be granted full citizenship with all the privileges pertaining thereto, without in any manner impairing or otherwise affecting the property rights, individual or tribal, of any such Indian or his interest in tribal or other Indian property.”63 More dramatically, the 1924 General Citizenship Act unilaterally declared all other noncitizen Indians as federal citizens, though the act retained the section which confirmed that such citizenship would not diminish the Indians’ right to tribal or other property.64
Clearly, Indians were not full citizens as Congress had declared. The citizenship they had secured, whether under prior treaty or later congressional legislation, was an attenuated, partial citizenship. While Congress inserted provisions in both the 1919 and 1924 laws protecting treaty-drawn property rights of Indians as citizens of their nations, these clauses have proven insufficient to protect the cultural, political, civil, or sovereign rights of individual tribal citizens. Paternalistic in tone and substance, Nice had legally mandated perpetual federal guardianship over citizen Indians who were still considered incapable of “handling liquor.” More dangerously, as Hoxie points out, since “individual liberties could be circumscribed in an area in which the Indian Office felt that Native Americans did not measure up to their fellow citizens, they could surely be limited in others.”65
Nice remains a legal travesty. This case sealed the Indians’ status as individuals in perpetual legal and political limbo as federal/state citizens with rights circumscribed by their alleged perpetual wardship status. In order for tribal members to receive any nontribal rights or privileges, they often have had to exhibit a desire to have their tribal identity liquidated, at which point they might be, but not necessarily, considered worthy or “competent” to receive their set of American political rights and privileges. Nice, moreover, dramatically informed these individuals that even direct receipt of federal citizenship would not afford them basic constitutional protections because they remained “Indians” over whom the government retained “a control reaching far beyond their property.”66
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