American Indian Sovereignty and the U.S. Supreme Court

by David E. Wilkins

  The Court of Claims ruled in 1942 that the Shoshone were not entitled to any recovery under the treaty of July 3, 1863, or any other treaty for a taking of any portion of their lands described in the agreements. The Shoshone were initially informed that they were entitled to recover $10,800.17 for unfulfilled treaty annuities. But, upon a further hearing, even this amount was dismissed on the grounds that the United States’ gratuitous expenditures offset this amount. The Court of Claims, in a strange twist of logic, said:

  Although the plaintiff bands . . . may have exclusively occupied and used all or a portion of the territory involved in their present claim as their aboriginal home (and the record is sufficient to show that they did), they are not entitled to recover for the reason that the jurisdictional act only authorizes this court to consider, adjudicate, and render judgment on a claim “arising under or growing out of the treaty” with them. Such a claim must be one that is within the terms of and supported by the provisions of the treaty. Aboriginal occupancy and use is not such a claim.97

  This statement, denying any legitimacy to aboriginal land rights and effectively diminishing the status of the 1863 treaty to the equivalent of a handshake, is one of astonishing dimensions. “It means,” one commenter has noted, “that the litigation of Indian rights begins with the proposition that Indians really have nothing. It also means that the task of courts and claims commissions is to find a way to justify present conditions by using words with apparent legal importance to cover up the very peculiar historical circumstances that determined in a large part the present status, lands and rights of the respective Indian tribes.”98 This was evident when the court acknowledged that, yes, the Shoshone had inhabited the lands in question since time immemorial, but no, this did not imbue them with any recognized rights to those lands, even when a treaty identifying their lands had been negotiated and ratified.

  The tribes’ attorneys, Ernest L. Wilkinson and Joseph Chez, shortly thereafter appealed to the Supreme Court. They maintained that the Court of Claims had erred in a number of ways: first, by failing to hold that the word “claim” as used in Indian treaties actually constituted an acknowledgment or recognition by the United States of Indian title; second, by holding that a “peace” treaty with a tribe did not constitute a recognition by the federal government of Indian title; and third, by holding that the Box Elder treaty with the Northeastern Shoshone was not an acknowledgment of their title to land. They noted several other mistakes in the Court’s decision but ended with what, to them, was the most flagrant error—that the Shoshone, under the treaty of 1863 and related treaties, were not entitled to recover damages for the taking of their lands.99

  “Despite the treaty,” said the attorneys, the court “disposed of the case as though petitioners were not under the treaty with the United States.” In doing so, it overlooked the normal principle of international law that a treaty necessarily implies some lawful national domain on the part of the respective parties.100 Charles Fahy (the solicitor general), Norman M. Littell, and Norman MacDonald for the federal government challenged the tribe’s petition for a writ of certiorari on the grounds that “a mere Indian title is subordinate to the United States title unless recognized as something more.” Furthermore, the opposition brief argued that “petitioners confuse aboriginal title with title valid as against the United States. The former was indeed extinguished; the question is whether the latter ever was created. The Court below correctly held that it was not.”101

  The prevailing sentiments of the Supreme Court at the time of the Shoshone case are well illustrated by the Court’s 1944 decision, Korematsu v. United States.102 In what was arguably the most unsettling use of executive military authority in U.S. history, President Roosevelt had ordered, and the military in California carried out, the compulsory evacuation of virtually all persons of Japanese ancestry. A sharply divided Supreme Court held in a 6–3 decision that this racially discriminatory mass evacuation of Japanese-Americans, many of whom were citizens, was a valid exercise of authority by the military branches of government. Justices Owen Roberts, Frank Murphy, and Robert Jackson wrote stinging dissents. Justice Murphy had this comment: “This exclusion of ‘all persons of Japanese ancestry, both alien and non-alien,’ from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over ‘the very brink of constitutional power’ and falls into the ugly abyss of racism.”103 Murphy robustly dissented from what he termed “this legislation of racism.”104

  This Court’s decision of the Shoshone case was also deeply fragmented, but in an even stranger way. While technically a 5–4 decision, with Justices Stanley Reed, Wiley Rutledge, Robert Jackson, Hugo Black, and Harlan F. Stone concurring in the result and Justices Owen Roberts, William Douglas, Felix Frankfurter, and Frank Murphy in opposition, it was actually even more fractured than the raw number shows. For example, and most notably, the concurring opinion of Justices Jackson and Black actually read more like a dissenting opinion, until they concluded by saying that despite the injustice sustained by the Shoshone, they were not entitled to recover any damages. There were two dissenting opinions. The first, written by Justice Douglas, was joined by Justices Frankfurter and Murphy. Murphy, however, opted to write his own dissenting opinion which was then also joined by Frankfurter and Douglas.

  MASKING WITHIN THE DECISION: THE OPINION

  After briefly restating the background of the case, Reed noted, “Certiorari was granted in view of the importance of the question in Indian affairs.”105 This is an understatement. A solid case can be made that nothing less than the nation’s integrity was involved. Either the United States was bound and would support its constitutionally sanctioned Indian treaty commitments to a now impoverished and dependent nation, or it would not. Either tribes had preexisting rights based on their aboriginal standing and de facto existence, or they did not. These are not trivial concerns, nor are they simply questions of “Indian affairs.”

  Reed went on to observe that certiorari had been granted “to determine whether there was ‘recognition’ or ‘acknowledgment’ of the Indian title by this treaty through the language employed or by the act of entering into a treaty with the Indians as to the use by the United States of lands which were claimed by the petitioners.”106 In other words, did either the fact of the 1863 treaty’s negotiation and subsequent ratification, or specific language employed, affirm land rights of the Northwestern Shoshone?

  Other questions might have been considered by the Court, such as the very fact that the treaty process involves two separate nations, an acknowledgment of the distinctive political and geographical status of each nation. Moreover, if the treaty does not explicitly take away rights, then under the reserved rights doctrine established in U.S. v. Winans,107 and the tribes’ general understanding of treaty processes, they are retained by the tribe. The Court, therefore, could very easily have looked at what the United States sought in entering into treaty negotiations with the Shoshone, and what it specifically and broadly acquired as a result of that treaty.

  The Masks of Recognized versus Aboriginal Title

  Reed’s next step set an ominous tone that held throughout his opinion. He began by citing a 1937 ruling, Shoshone Tribe of Indians v. United States,108 which also involved the Shoshone people, specifically the band inhabiting the Wind River Reservation in Wyoming. In this case, an important victory for the Shoshone, a unanimous Court held that the United States had been wrong to settle a group of Arapaho on the Wind River Reservation without the consent of the Shoshone people and without just compensation to the latter. The federal government was compelled to pay the Shoshone over 4 million dollars plus interest. The Arapaho, however, were not relocated.

  One of the differences between the Wind River decision and the present case is that the Wind River Shoshone, by an 1868 treaty with the United States,109 had ceded over 44 million acres of their land in the high plains and the Rocky Mountains in exchange for a r
eservation of over 3 million acres in Wyoming. The Northwestern Shoshone, on the other hand, never had a reservation expressly created for them. Their territory was held under aboriginal (original or Indian) title, which exists where “it is established as a fact that the lands in question were included in the ancestral home of a tribe of Indians, in the sense that they constituted definable territory occupied exclusively by that tribe as distinguished from being wandered over by many tribes.”110

  Citing this decision, Reed stated that “[e]ven where a reservation is created for the maintenance of Indians, their right amounts to nothing more than a treaty right of occupancy.”111 Under Reed’s logic, if an established Indian reservation’s title is “nothing more” than a treaty right of occupancy, then surely a situation like that of the Northwestern band, whose 1863 treaty was neither a land cession or treaty establishing one, cannot be one which creates strong land rights. This, of course, is one of the perpetual debates in Indian law, as to precisely what the Indian right of occupancy entails. Is it a defensible and permanent title, or is it merely a temporary use permit? Reed obviously believed it was nothing more than a temporary right.

  Evidence of this assumption is found in Reed’s next statement:

  Prior to the creation of any such area, formally acknowledged by the United States as subject to such right of Indian occupancy, a certain nation, tribe or band of Indians may have claimed the right because of immemorial occupancy to roam certain territory to the exclusion of any other Indians and in contradistinction to the custom of the early nomads to wander at will in the search for food. . . . This claim has come to be known as Indian title and is likewise often spoken of as the right of occupancy. To distinguish from a recognized right of occupancy, we shall refer to the aboriginal usage without definite recognition of the right by the United States as Indian title.112

  Here Reed accomplished two things. First, he quietly dichotomized Indian land title: recognized versus aboriginal title. Second, he raised an even more stunning premise: that because Indians were “nomads” and in his opinion “roamed” over vast acreage, they had diminished rights to the land. According to Felix Cohen, this “Myth of the Nomadic Homeless Indian” has frequently been “accepted as a fact even by judges who are trained in the difficult art of reserving judgment in the absence of evidence, outside the field of anthropology.”113 Both factors damaged Shoshone land claims, but the ambiguous classification of land title as “recognized” versus “aboriginal” has continued to haunt tribal nations. The search for what constitutes “recognition” necessitates finding out from the federal government who is empowered to act and in what way they do act when “recognition” is extended or denied. Pinning down who does the acting—the president, the Congress, the Supreme Court, the secretary of the interior, the commissioner of Indian affairs, or other governmental bureaucrats—is more difficult. Furthermore, if the national government has treated with a tribe, as in the case under discussion, how can such action be determined not to be recognition, particularly when such political treating is coupled with the reserved rights doctrine.

  Reed found support for his “Indian occupancy” theory in the Johnson v. McIntosh decision discussed in Chapter 1. Reed, however, gave Johnson a unique and questionable interpretation. He said that as a result of Marshall’s decision “the extinguishment of Indian title . . . has proceeded, as a political matter, without any admitted legal responsibility in the sovereign to compensate the Indian for his loss.” The post-Johnson historical record is replete with negotiations in which the United States paid out millions of dollars for the lands tribes had ceded. Cohen noted the vast extent of such purchases: “the purchase of the land of the United States from the Indians was, I suppose, the largest real estate deal recorded in the history of the world.”114 These dealings stretched over two centuries and involved expenditures of “several hundred million dollars.”115 Both the treaty process and history attest to the fact that although the federal government has often arbitrarily and nonconsensually appropriated Indian territory, it has not thereby acquired the lawful right to do so.

  But Reed turned aside from this body of historical fact and again quoted Marshall from Johnson: “Exclusive title,” said Reed, “passed to the white discoverers, subject to the Indian title with power in the white sovereign alone to extinguish that right by ‘purchase or conquest.’ . . . The whites enforced their claims by the sword and occupied the lands as the Indians abandoned them.”116 Reed acknowledged, moreover, that there had been no purchase of Northwestern Shoshone lands, nor had the Shoshone been “conquered” or “abandoned” their country. In fact, none of Reed’s contentions regarding the historical or legal record between the Shoshone tribe and the United States are supported by the facts.

  Reed then approached one of the more crucial issues. He stated that success for the Northwestern Shoshone was not contingent on the proof of their Indian title which, he said, “may be admitted,” but depended instead on whether that title had received recognition in the 1863 treaty.117 This new twist to make Indian title contingent upon express federal recognition of said title in a bilateral treaty, especially when the United States concedes preexisting proof of Indian title is interesting. To believe that the Shoshone did not have title questions the nature of the right-of-way for which the United States had treated with the Northwestern Shoshone originally. The federal government gained tangible rights through the treaty process which it immediately and subsequently exercised. So to argue that the Shoshone lacked recognized title despite the treaty would also mean that the government gained no substantive rights or should be required to return those it has exercised until and unless it properly acknowledges Shoshone land title. The very foundation of a treaty is that it typically involves the political give-and-take between two or more not necessarily equal nations. More often than not, as the Court said, it also involves a grant of rights from one or both parties and a reservation of rights not granted away, an affirmation of those rights expressly named. A nation does not make treaties with itself or non-nations.

  Reed followed with a perplexing statement which bears repeating:

  It is quite understandable from the point of view of both petitioners [Shoshone] and Congress that the Government should limit its submission to suits to claims under the boundaries if acknowledged by the treaty rather than to consent to judicial examination of claims for taking the unknown area of their possible Indian title. The Shoshone Indian title was in Indian country . . . and as a consequence [was] subject to all the uncertainties of definition of boundaries and difficulties of proof to establish aboriginal title for tribes with a shifting habitat.118

  Justice Stanley Reed appeared to be blaming the Indians for not having land boundaries delineated in a manner with which he was familiar. Furthermore, he was making prejudicial assertions to deny land rights to tribes who maintained what he termed a “shifting habitat.” Reed had now effectively collapsed both a purportedly legal standard—nonrecognition—with a sociological or demographic standard—shiftless nomads—to subjugate the land rights of the Northwestern Shoshone.

  Thus, by the time Reed finally raised what he termed “the decisive question”—whether the Box Elder Treaty of July 30, 1863, recognized “by implication” a Shoshone title to their admitted ancestral lands119—his answer was manifest. The Box Elder treaty provided no such recognition, according to Reed. Therefore, the Shoshone were not entitled to the 15 million dollars in compensation they had sought under the 1929 jurisdictional act. So clear was it that the majority were refusing Shoshone rights to compensation (the possibility of an actual recovery of land was never even broached) that Reed could use the phrase “by implication” without reservation. That the 1863 Box Elder Treaty had not been about land per se, since according to the United States’ own officers, they had no interest in securing any of the territory at the time of the treaty, seemed to be of no interest to the majority.

  Over the course of tribal-federal relations, tribes and t
he government have entered into a wide array of treaties and agreements—peace and friendship, military alliance, physical removal, boundaries, trade, land cession, reservation establishment, and continuation and protection of certain rights by either or both parties.120 Many treaties were negotiated for more than one reason. Essentially a treaty of peace and friendship, the Box Elder Treaty also contained reassurances, sought by the United States from the Shoshone, for the protection of ever-intrusive white settlers. The Box Elder Treaty was not about expanding, acknowledging, or curtailing Shoshone land title.

  Over the next several paragraphs, Reed injected his ethnocentric views of indigenous people into the law. He called the Shoshone “a nomadic Indian nation,” numbering fewer than 10,000, who “roamed over” 80 million acres of land in several western states. In his recounting of the intrusion of a multitude of gold-seeking whites upon Shoshone territory on their way to California, Reed stated that a result of this mingling was that the “Indians’ game disappeared from their hunting grounds.”121 “Racial relations,” said Reed, “degenerated to the point that Indian depredations interfered with travel and settlement, the overland mails and the new telegraph lines.”122

  Despite Reed’s acknowledgment of white blameworthiness in the struggle, a portrait emerged of the Shoshone as a sinister force, the whites as victims entitled to safe passage through Indian lands. In describing events leading to the 1863 Shoshone treaties, Reed noted that Congress was aware that the Shoshone lands were not deemed suitable for Anglo-American settlement. Thus, the treaty, as Reed acknowledged, was not about the extinguishment of Indian title but was actually designed to secure for whites freedom from Shoshone raids and an “acknowledgment . . . of the boundaries of the entire country they claimed. . . .” Despite this admission by Reed, he insisted upon describing the treaty as a document which, since it did not involve an express articulation of Shoshone land rights, could not be used as the basis upon which to recover compensation. In actuality, if the 1863 treaty did not extinguish the Shoshone title, then obviously that title still rested with the tribe. That Reed was able to draw any other conclusion defies logic.