Judicial Accretion and Lost Tribal Ground
After laying out the details of the Box Elder Treaty, the Court made its most astounding assertion on how the land in dispute came to “belong” to the United States. “Without seeking any cession or relinquishment of claim from the Shoshone [except of the Eastern band in 1868], . . .” said Reed, “the United States has treated the rest of the Shoshone territory as a part of the public domain.”123 Using the rationale put forth by Milner Ball, “if an Indian nation is a nation, then its governmental powers cannot simply evanesce and reappear in the hands of another nation’s government.”124 Such a statement is even more true for a tribal nation’s property. If the tribe has not lost their lands by treaty provision (and Reed admitted that the 1863 treaty was not a land cession agreement); and if they had not lost their lands through conquest (which Reed never suggested); and if the tribe had not lost their lands by statute (Reed said this had not happened); then on what basis did he claim that the federal government had acted as if the land belonged to them? As proof of federal dominion, Reed said that school lands had been granted, that a national forest or two was established, and that the lands were opened for settlement under federal homestead laws. “Thus,” said Reed, “we have administration of this territory by the United States proceeding as though no Indian land titles were involved.”125
Here the Court simply asserted, on behalf of the United States, that all of Shoshone territory simply dissipated like vapor and reappeared under federal dominion. The Court’s anomalous action in this instance seems to call for the coining of a phrase: I submit judicial accretion. In water law, the term accretion means a gradual, incremental increase of land along the shores of a body of water. In biology, it refers to any growing together of plant or animal tissues that are normally separate.
In this manifestation of judicial accretion, the Supreme Court unilaterally provided a nonlegal and ahistorical rationalization for the gradual extension of federal sovereignty over tribal lands without the essential support of a constitutional foundation. Changes in the political relationship between tribes and the U.S. might legitimately occur through a legal transmittal (via treaty or statute), a conquest, a voluntary cession, or the extinction of one of the parties. None of these situations had transpired between the Shoshone and the federal government.
The model of judicial accretion, in which the Court vests the United States government with virtually unlimited authority, is an imposing display of judicial deference to the political branches, for by it, the Court simply and semantically can grant to the federal government whatever is in dispute—whether it is lands, powers of government, or rights and responsibilities. The second party, the Northwestern Shoshone Nation in this case, is treated as a nonentity. In effect, the Shoshone were denied any credibility as a viable actor. This model of a gradual, incremental usurpation of tribal lands, power, or rights without corresponding legal or political authorization unfortunately has wide applicability to a number of subsequent Supreme Court opinions.
The Court, having artfully legitimated the federal accretion of assumed sovereignty over Shoshone lands, could have rested. Reed, however, felt the need to expand his already peculiar opinion in directions that added more layers of myth over tribal standing. He proceeded to further blame the tribal victims by fixing the burden of proof on the Shoshone Nation to show that the land actually belonged to them. Reed set this up by noting that “[w]hether the issue as to acknowledgment by a treaty of Indian title to land is treated as a question of fact, like Indian right to occupancy itself, . . . or as a matter of inference to be drawn by the trier of fact from the treaty and surrounding circumstances or as a conclusion of law to be reviewed by this Court upon the record, this finding places the burden on petitioners [the tribe] to overthrow the judgment of the Court of Claims.”126
Next, Reed considered the specific phraseology of the 1863 treaties of the Shoshone Indians. Although admitting that the Government’s treaty commissioners had clear instructions to negotiate not for the termination of Shoshone land rights, but only for route security, Reed still pursued his own arguments that the Northwestern Shoshone band’s treaty, by not providing a “specific acknowledgment of Indian title,” which was never its purpose, was therefore deficient and could not serve as a basis for compensation to the Indians. For Reed, Shoshone boundary uncertainty, as defined by federal officials, meant the complete loss of tribal lands.127
Once again, the “myth of the nomadic homeless Indian,” worked to the stark detriment of Indian rights. As Cohen has observed, “on the whole each Indian group knew its own territory and the life of each of its members depended upon an exact knowledge of the boundaries and resources of a particular area.”128 The semiarid conditions that predominated in many of the western states were simply unsuited for permanently established communities, and seasonable moves were often necessary. Such periodic moves did not mean that indigenous peoples lacked recognized homes for the different seasons. Many traditional Navajo, for example, still connected to a pastoral lifestyle in a semiarid environment, have separate summer and winter homes. The practice of owning more than one home did not cause indigenous peoples to lack a clearly defined sense of property rights. It was simply a different property, in kind, from that of their industrialized neighbors.
The Shoshone argued that the federal government, in seeking permission to travel through Shoshone country and for the construction of telegraph and transportation facilities, had implicitly recognized their land title. The very act of seeking permission for land use is an acknowledgment by the seeker of the inherent right of the one who owns or controls the land in question. The Shoshone attorneys quoted a passage from John Marshall’s important Worcester v. Georgia decision of 1832 in which the Cherokee had been asked to grant safe passage for whites. Marshall said that “the acceptance of these cessions [was] an acknowledgment of the right of the Cherokees to make or withhold them.”
Reed asserted that the Worcester case was somehow “inapposite” to the Shoshone situation because the Cherokee treaties had other provisions which “specifically set apart and solemnly guaranteed” them their lands and that “no such specific recognition” was found in the Shoshone treaty. This difference, he argued, occurred because the Cherokee had signed removal treaties, whereas the Northwestern Shoshone had merely signed a peace and amity treaty, therefore creating a very different sort of legal document.
In an effort to strengthen his frail legal position on the 1863 Box Elder Treaty, Reed ventured into the realm of philosophy with the speculation that “[t]he United States undoubtedly might have asserted, at the time of the treaty, its purpose to extinguish Indian title or it might have recognized Indian title or it might, as the Court of Claims held, have sought only freedom from hostile acts. . . . The treaties were made in the midst of Civil War and before the outcome of that conflict was clear.”129 What the United States theoretically might have done, however, was irrelevant. The Court might have focused on what was done, on what the treaty actually said, on what the United States actually gained. Had it done so it would probably have had to admit that the federal government only secured certain rights-of-way through Shoshone territory. Reed’s gratuitous comment about the uncertainty of the Civil War’s outcome and his use of the expression “undoubtedly might have” speak volumes about the precision of his legal arguments.
In several succeeding paragraphs Reed challenged Shoshone arguments that their presence and early departure at the 1851 Fort Laramie Treaty provided implicit recognition of their title. If a treaty is a “grant of rights from the Indians, a reservation of those not granted away,”130 then clearly the Shoshone lost no rights by either the Fort Laramie or the Box Elder treaties.
More disturbing evidence in Reed’s discussion on these points is found in footnote number 8, where he casually remarked: “We note but consider unimportant, because this issue was not involved, casual references by this and other courts that the Shoshone treaties recognized
Indian title in the Shoshones.”131 He cited as evidence Shoshone Tribe of Indians v. United States,132 United States v. Shoshone Tribe,133 Shoshone Indians v. United States,134 and United States v. Board of Commissioners.135 It is perplexing that such prior references acknowledging Shoshone title by the Supreme Court and other federal courts could be called “unimportant.” This was, after all, the very crux of the decision. Reed continued his footnote by denying other crucial evidence provided by federal officials which recognized Shoshone land title: “We do not consider the references of the administrators in routine communications called for in the preparation of this case before the Court of Claims to the ‘Shoshoni Indian Reservation’ [Northwestern Band] to the fact that the territory of the Shoshone ‘was recognized by the United States’ or ‘set apart for the Shoshone Indians’ [to be] of any more weight.”136 “Nothing in these statements,” said Reed, “shows that the attention of the administrators was focused on the problem of recognition or that they reflected a contemporaneous interpretation.”137 Thus Reed brushed aside the federal government’s own primary Indian policy officials who, on numerous reported occasions, talked about the Shoshone as a tribe with recognized status.
At the end of the footnote, Reed derided the idea that the Court of Claims in refusing to consider administrative evidence in the form of maps of the territory in question had “abused its discretion.”138 In short, this single footnote contained substantial discarded, but highly credible, evidence recognizing Shoshone land rights. Reed and the majority were unwilling to let an array of solid documentary evidence stand in the way of their determination that the Shoshone had no land rights and were entitled to no compensation.
Justice Reed then challenged the Shoshone interpretation of the Senate amendment to the 1863 treaty. The Shoshone argued that the amendment showed that there would have been no need for the Senate to prescribe such a limitation had the treaty not recognized their preexisting land rights. Reed and the majority took the converse position. He said that “[w]hile such a limitation would not have been needed if the Senate of that day were positive, on weighing the issue as we now do, that the treaty was ineffective to give any additional color to Indian titles within or without the Mexican cession, it is unlikely that the ratifying body could or did appraise the several possibilities which are now presented”139 (emphasis mine). In this passage Reed, using a mid-twentieth-century interpretation of the Senate provision, seemed to be lecturing the 1860 Senate for their inability to do this, in effect disparaging the Senate of the 1860s for not being able to foresee the future.
Finally, Reed challenged one of the better-known legal rules of treaty interpretation, the canons of construction, which holds that treaty phraseology should never be construed in a way that is damaging to Indians because of their relatively disadvantaged linguistic and military position during the forging of the treaty. Nearly a half-dozen cases had followed this rule,140 although other cases ignored the principle.141
Reed’s interpretation of the principle went something like this: The Court should attempt to ascertain what the language used in the treaty means according to the tenor of the agreement. The judiciary should simply seek to gauge what both parties meant by their participation. The Court should not change the terms of the treaties to correct an alleged injustice. If this kind of “generosity” is to be wielded, it is for the Congress to act.142 Reed’s construction of the treaty rule, therefore, is at odds with that of a number of prior Courts, for he assumes an equitable negotiating position between tribes and the federal government. More worthy of consideration is the fact that there was very little ambiguity in the language of the Box Elder Treaty. The tone was straightforward and the tribe’s attorneys should not even have had to raise the rule of treaty interpretation. It was basically a document establishing peace and allowing sheltered passage for whites, their supplies, and their transportation and communication equipment.
Through Reed, the claims door had been slammed in the face of the Shoshone on the grounds that their rights to property, which were not specifically determined, did not spring from the 1863 Box Elder Treaty. Hence, the Shoshone could hope for no recovery under Congress’s 1929 jurisdictional act, which was the original measure used by the Shoshone to bring their suit against the U.S. before the Court of Claims.143
The Concurring Opinion of Justices Jackson and Black
Jackson and Black’s concurring opinion was a remarkable one indeed. Unlike Justice Reed, who appeared to have virtually no regard, empathy, or even sympathy for the depth of the loss the Court was legitimating, these two justices, on first blush, had a clear sense of the injustice being leveled against the Shoshone and denounced it in vivid terms. Jackson and Black appeared to support Shoshone claims; however, in the end, they concurred with Reed’s opinion. Their arguments have been recycled in liberal quotations through the years and demand intense scrutiny, because they continue to resurface periodically as legal strategies which have sometimes benefited tribes but more often have worked to their disadvantage.
Jackson and Black set a somber and reminiscent tone for their concurrence by asserting at the start that the Shoshone grievance was not suited to a legal proceeding but rather to a congressional action. This harkens back to the Court’s telling Indian claimants with regularity that Indian claims were political questions which only Congress could address. The fact that Congress had already acted by passing the 1929 judicial act which allowed the Shoshone to sue in the Court of Claims seems to have slipped the attention of the two justices: “It is hard to see how any judicial decision under such a jurisdictional act can much advance solution of the problem of the Shoshone.”144 They feared that any judgment in the Shoshone’s favor would actually provide “neither lands nor money.”145 This statement is only partially correct. It is true that the Shoshone had no chance of reclaiming lost land, but the question of money is more complicated. If the tribe were to win the case, the 15 million dollars sought would be deposited in the Federal Treasury “for their benefit.” And, while they would not have had direct access to those funds, the money would have belonged to the tribe. Jackson and Black, however, attacked the jurisdictional act’s provisions that any funds tribes secured be placed in the United States Treasury for the benefit of the Indians, but subject to congressional appropriations. That it was Congress which denied the Indians the right to receive their monies was a direct result of the paternalism rampant throughout federal Indian policy channels which viewed Indians as incompetent to handle their own affairs. This seems not to have phased the concurring justices.
Jackson and Black also pointed out, in apparent irritation, that attorneys were the only parties who received cash payments in the event the Shoshone were successful. Again, this was a federally created problem, out of the tribe’s control. The issue of attorneys’ fees was also problematic for the Indian Claims Commission which was just gearing up.
Further evidence of the justices’ anger at both the lawyers and Congress is found in this passage: “After counsel are thus paid, not a cent is put into the reach of the Indians; all that is done for them by a judgment is to earmark some funds in the Treasury from which Congress may as it sees fit from time to time makes appropriations. . . .”146 But this has little to do with the actual Shoshone claim. It is not the normal business of the Court to determine how the United States administers its policies, at least that is what the Court had said in Lone Wolf; yet the concurring justices were questioning the congressional administration of Indian monies which, in this case, were not even forthcoming.
The justices proceeded to coin and rely upon what Felix Cohen called the “Myth of Moral Progress.”147 This myth allows Euro-America to attribute contemporary exploitations to their ancestors while continuing to “draw a profit therefrom.” It further maintained that all injustices committed against Indians were “ancient wrongs committed by our forefathers in the distant past against remote ancestors of the present claimants.”148 The Shoshone argued that although the wron
gs did indeed have a historical basis, history had done nothing to reverse the ongoing process of exploitation.
The moral progress myth was related to another crucial issue—the moral obligation of the United States to the tribes and the relationship, if any, of morality to legality. Jackson put it this way:
We would not be second to any other in recognizing that—judgment or no judgment—a moral obligation of a high order rests upon this country to provide for decent shelter, clothing, education, and industrial advancement of the Indian. Nothing is gained by dwelling upon the unhappy conflicts that have prevailed between the Shoshones and the whites—conflicts which sometimes leave one in doubt which side could make the better claim to be civilized. The generation of Indians who suffered the privations, indignities, and brutalities of the westward march of the whites have gone to the Happy Hunting Ground, and nothing that we can do can square the account with them. Whatever survives is moral obligation resting on the descendants of the whites to do for the descendants of the Indians what in the conditions of this twentieth century is the decent thing.149
The question of the federal government’s moral obligation to tribes is a recurring one. When the United States signed the various treaties with tribes, it drew upon its character as a political culture steeped in a moral tradition, with the assumption that morality and the democratic ideals acknowledged in the Constitution formed the basis of the political and legal obligations the United States has to tribes. Thus, the assertion that the national government has a moral obligation to provide housing, clothing, and education but is somehow not morally bound to uphold its legal and political obligations, as stated in treaties, gives evidence of a curious double standard at work in the minds of the justices.
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