The justices continued their journey through the unusual world of morality divorced from reality: “It is most unfortunate to try to measure this moral duty in terms of legal obligations and ask the Court to spell out Indian legal rights from written instruments made and probably broken long ago and to put our moral duty in figures as legal damages. The Indian problem is essentially a sociological problem, not a legal one. We can only make a pretense of adjudication of such claims, and that only by indulging in the most unrealistic and fictional assumptions.”150
From the unusual bifurcation of the federal government’s relationship to tribes into (1) moral obligations and (2) legal obligations; to the justices’ harmful assertions that Indian issues were sociological and not legal in nature; to their conclusion that any judicial effort to ameliorate these issues could only take place by indulging in “unrealistic and fictional assumptions,” this passage shows that even those justices harboring some degree of sympathy for American Indian rights were overwhelmed by the masks applied to the Indians by the justice system and thus had failed to understand the basic political relationship between indigenous groups and the United States. For example, Jackson’s statement that the Court could not deal with Indian claims without delving into “unrealistic and fictional assumptions” is problematic. We are not told what these “assumptions” are, though Jackson did hint that they had something to do with time and Indian treaties. Jackson wrote as if the 1863 treaty were actually a document of remote antiquity in a language he was unfamiliar with. What else explains this statement: “Here we are asked to go back over three-quarters of a century to spell out the meaning of a most ambiguous writing made in 1863.”151 As seen above, there was nothing ambiguous about the treaty, and the Court is frequently called upon to revisit events of the eighteenth and nineteenth centuries to interpret provisions of the federal and state constitutions and other documents and prior precedent, which happen to have been written in the same “ambiguous” language as the treaty—English.
“Even if the handicap of time could be overcome,” said Jackson, “we could not satisfactorily apply legal techniques to interpretation of this treaty.”152 In Jackson’s words, legal interpretation would not be possible because the Shoshone were racially and socioculturally inferior. “The Indian parties to the treaty were a band of simple, relatively peaceful, and extremely primitive men.”153 The allegedly inferior status of the Shoshone was worsened by their numerical inferiority—1,500 Indians occupying 15 million acres of land. This dual “inferiority” made it easy, according to Jackson, for the “more aggressive and efficient whites” (he distributed the stereotypes evenly enough) who happened to be “better killers” to come to dominate the Shoshone.154
Jackson then examined the doctrine that Indian treaties were to be construed as comparable to contracts between whites. He agreed that in some simple cases this was practicable but called it “far fetched” for the case at hand. It was far-fetched, in Jackson’s opinion, because the Shoshone lacked equal bargaining power. Very few historians would argue that in 1863 the Shoshone had the military muscle of the federal government. But, as John Marshall said in Worcester v. Georgia in 1832, “the law of nations is that a weaker power does not surrender its independence—its right to self-government, by associating with a stronger and taking its protection.”155 It is the end result—the treaty which emerges—that matters and is legally enforceable.
Jackson went on to describe how “dominant, powerful, shrewd, and educated” were the whites, in contrast to the “destitute, illiterate Indians.”156 Indeed, if the tribe were so disadvantaged, should its weakness not give all the more reason for the Supreme Court to adhere to the law as negotiated between the tribe and the federal government? Jackson seemed to be arguing that disparate and unequal relations allowed illegalities to be condoned. Jackson, like Reed, said that because the Indians were ignorant of certain western concepts like property ownership and land title, they were not entitled to legal protection:
Acquisitiveness, which develops a law of real property, is an accomplishment only of the “civilized.” Of course, the Indians may have had some vague idea that thereafter they were to stay off certain lands and the white man in return were to stay off certain other land. But we do not think it possible now to reduce such a nebulous accord to terms of common-law contract and conveyancing. The treaty was a political document. It was intended to pacify the Indians and to let the whites travel in peace a route they were somehow going to travel anyway.157
Jackson struggled in conclusion to find some way to acknowledge the loss to the Shoshone without according them any legal right to compensation. His compromised conclusion was as follows:
We agree with Mr. Justice Reed that no legal rights are today to be recognized in the Shoshones by reason of this treaty. We agree with Mr. Justice Douglas and Mr. Justice Murphy as to their moral deserts. We do not mean to leave the impression that the two have any relation to each other. The finding that the treaty creates no legal obligations does not restrict Congress from such appropriations as its judgment dictates “for the health, education, and industrial advancement of said Indians,” which is the position in which Congress would find itself if we found that it did create legal obligations and tried to put a value on them.158
JUSTICE DOUGLAS’S DISSENT
Justice Douglas issued a powerful dissent, which was joined by Frankfurter and Murphy. Murphy, however, opted to write his own opinion, which was then joined by Frankfurter and Douglas. Douglas essentially argued that when federal negotiators approached the Shoshone requesting, not demanding, safe passage for its settlers, seeking the right to establish military posts and the right to construct a railroad, as well as establish and maintain telegraph and stage coach lines, it was admitting to and recognizing Shoshone ownership of the lands they inhabited. And while the United States could have attempted to extinguish Shoshone title by military conquest or by purchase, they chose not to exercise those options. What the government did, as the historical record clearly showed, was to negotiate a treaty. Whether the treaty was negotiated by relative equals was unimportant. It was the act of negotiation, the subsequent ratification, and the proclamation of the document that vested or diminished rights in the respective parties.
In contrast to Reed, who had argued that the Shoshone’s right of occupancy to their lands was an inferior title to that of the United States, Douglas cited Mitchel v. United States (1835), wherein the Supreme Court unanimously held that Indian title was “as sacred as the fee simple of the whites.”159 Douglas also gave much greater weight to the Senate amendment, and to the little-discussed provision of the 1863 treaty which described “country claimed by Pokatello, for himself and his people. . . .”160 He stated that although the majority “brushed aside” the Pokatello provision, the fact was that “[i]f the standards of the frontier are to govern, his [Pokatello’s] assertion of ownership and its recognition by the United States could hardly have been plainer.”161
The Douglas dissent also reminded the majority about the canons of Indian treaty construction. “When the standard is not observed,” said Douglas, “what these Indians did not lose to the railroads and the land companies they lose in the fine web of legal niceties.”162 Douglas concluded by noting that for a pittance the Shoshone had granted not the land itself, but certain valuable rights in their lands, to the federal government. Quoting from the amicus curiae briefs of the attorneys general of Idaho and Utah, which had been filed on behalf of the Shoshone, Douglas opined that this denial of the Shoshone claim was “unworthy of our country.”163 “The faith of this nation,” said the amici, “having been pledged in the treaties, the honor of the nation demands, and the jurisdictional act requires, that these long-unsettled grievances be settled by this Court in simple justice to a downtrodden people.”164
JUSTICE MURPHY’S DISSENT
Murphy’s dissent focused on the meaning of the 1863 Box Elder Treaty. The question, he said, was whether the treaty recognize
d the Shoshone claim to land which, if recognized, would make them eligible for compensation under the 1929 jurisdictional act. Murphy said there was no doubt that the treaty provided such recognition, based both on the clear language of the treaty and on the circumstances preceding and succeeding the treaty’s negotiation and ratification.
Justice Murphy gave a political and historical analysis examining the significant evidence in which various government officials had openly said that the lands involved were “owned by the Indians.”165 He quoted liberally from reports and communications of the secretary of the interior, the commissioner of Indian affairs, the House Committee on Indian Affairs, the treaty commissioners, and Congress itself. “The fact,” said Murphy, “that the United States thought it necessary to make a treaty concerning rights of way and the fact that the United States expressly did not desire to negotiate ‘with a view to the extinguishment of the Indian title to the land’ strongly indicate that the United States considered the Indians as owners of this ill defined area of land.”166 More to the point, the securing of rights-of-way “would have been a needless formality had title to the underlying land been thought to be in the name of the United States.”167
Murphy briskly continued his assault on the majority’s ruling by stating the obvious: “The Box Elder and the four other treaties would have been meaningless had the United States not recognized the Indian title to the land claimed.” It also did not matter, according to Murphy, whether the land in question was based on aboriginal possession or whether it had been expressly set aside. And Murphy deemed it “immaterial that the main purpose of the treaties was to secure rights in the land rather than to acknowledge or secure title. The securing of those rights necessarily presupposes Indian title and necessarily recognizes such title.”168
For Murphy, the established rule of canons of construction, that ambiguities in Indian treaties were to be resolved in favor of the Indians, demonstrated that the United States had recognized Shoshone title. In closing, Murphy chastised Jackson who, in his dissent, had expressed qualms that the money, if it had been secured, would not have been directly sent to the Shoshone but would have been deposited in the United States treasury. While concurring in this prediction, Murphy declared that such an eventuality “does not justify ignoring the rights of the Shoshone Indians recognized under solemn treaties entered into with the United States.”169 Moreover, noted Murphy, “[i]t does not command us to overthrow the moral obligation of the United States to fulfill its treaty obligations. And it does not warrant the application of narrow principles of construction to the injury of the Indians’ interest. If Congress desires to place in the Treasury any money that might be recovered by the Indians in this suit that is the business of Congress, not ours.”170
THE AFTERMATH
There was an immediate outcry on behalf of the Northwestern Shoshone by a variety of individuals, organizations, and political groups. Requests for a rehearing of the case were filed by the tribe’s attorneys, the House and Senate Committees on Indian Affairs, Judge Manley O. Hudson of the Permanent Court of International Justice, the Department of the Interior, the American Civil Liberties Union, the fledgling National Congress of American Indians, and the attorneys general of Utah and Idaho—a diverse assortment, to be sure. Such requests for rehearing are not unusual. Only rarely, however, are such rehearings granted.171 Some of the arguments invoked by the Shoshone and their advocates warrant attention.
Congressman Karl E. Mundt (R., South Dakota) was one of the first persons to register his displeasure with the Court’s opinion. In remarks logged in the Congressional Record on March 15, 1945, Mundt said that this decision was “one of the most complete reversals of form ever witnessed . . . reversing the policy of 150 years in liberally construing Indian treaties.”172 Mundt also inserted in the record an anonymous editorial entitled “Lo! The Poor Indian.” The editorial attacked the Court’s holding and ended by interjecting an international dimension: “Incidentally, these opinions, revealing as they do the shameful conduct of the master race in America toward conquered people, will make good reading for those critics who think that full justice in all parts of the world must be a condition precedent to our joining an international organization [the United Nations] to keep the peace.”173
Judge Manley O. Hudson of the Permanent Court of International Justice accused the majority of misconstruing and misapplying the Box Elder Treaty and pointed to the global implications of the issue in this case. “What is at stake here,” said Judge Hudson, “is the declared and historic policy of the United States in the treatment of a racial and linguistic minority. And this at a time when the whole world is aflame on the subject of the treatment of minorities.”174 Hudson also called for international recognition of indigenous rights by noting that the Shoshone had gone before the Supreme Court because they deemed it the only forum where their rights would be recognized. “It is,” he astutely remarked, “a tribunal of the other party to the treaty, but the petitioners have no other choice. No international tribunal exists to which they may have access.”175
Ironically, because tribes and states are often posed at opposite ends of frequently adversarial proceedings, one of the strongest and most moving arguments requesting a rehearing came from the attorneys general of Utah and Idaho. Grover A. Giles, the attorney general of Utah, and Frank Longley, Idaho’s attorney general, rendered a stirring, almost apologetic argument in support of the Shoshone claim:
The amici despair of being able to explain to petitioner Indians that they are without redress for the taking of their country because nothing in the records of the United States shows that the United States intended to recognize their title. . . . Specifically, how are these bands of Indians—as of the time of the Treaty of July 30, 1863 or at the present time—to understand that when they grant the United States a limited permission to use their country, the United States (in its own Courts) is not merely guiltless but guileless when it takes not only what it bargained for but the entire use and benefit of their country? How are the bands to understand that when they had their claim to their ancestral country set to paper by the representative of the United States and delineated with natural landmarks, nevertheless because they did not insist, in accordance with what this Court holds to be the white man’s law, that the United States agree never to take their land from under them, they have no substantive rights on their part as against the United States? . . . How can the bands—who in common with other Indian peoples of our country have relied on this Court of all Courts for an assessment of their rights in accordance with what they understood their treaty to provide—be expected to be convinced of the white man’s justice when their understanding, heretofore furnishing the rule, is now held to mean only what the “tenor of the treaty” as written and interpreted by the white man may indicate?176
They also challenged Jackson’s assertion that Congress could still be expected to provide for the health, education, and welfare needs of the Shoshone. “The fact is,” said Giles and Longley, “that Congress has done precious little for these wards. They are the object of charity; they have (except for those at the Fort Hall Reservation in Idaho) no Indian agent to communicate their needs; they have no program of government assistance in education or industry; they are scattered throughout the states we represent, truly men without a country of their own.”177
Lastly, the National Congress of American Indians (NCAI), which had been organized in 1944, then consisting of approximately fifty tribes (including the Northwestern Shoshone) in twenty-one states, was especially and understandably disturbed by this decision. The NCAI realized that “the language of the majority opinion here expressed may by analogy throw grave clouds upon the titles of these respective tribes and set up new tests that may have the effect of excluding recovery. . . .”178
Despite the force of these legal and moral arguments, and despite the breadth of dissent, the request for rehearing was denied without opinion. The massive and ongoing Shoshone land loss w
as let stand. Most disturbingly, by the 1940s there were actually fewer whites making their living in the disputed area than there had earlier been Shoshone, so in the long run the dispossession of the Shoshone served not even the goals of scientific exploration and national expansion that had dictated the decision. And finally, it must be remembered that although the Court of Claims and the Supreme Court assumed that the entire area of over 15 million acres had been taken as of the 1863 treaty, there was never a precise finding by the Claims Court of the actual amount of land taken or when it had been taken. In other words, the actual “taking” of Shoshone lands was an ongoing physical accretion process which was now sanctioned by the judiciary. As the tribe’s attorneys argued in their request for rehearing, “there is, therefore, no basis for the assumption that this is an ancient wrong. A considerable amount of land has been taken from the present generation.”179
Tee-Hit-Ton v. United States
THE MASKED “DISCOVERY” AND “LEGAL CONQUEST” OF ALASKAN NATIVES
By 1955 the federal government was well into what could rightly be termed the United States’ last systematic and well-defined Indian policy—the termination of the federal government’s lawful treaty and moral trust relationship with a host of tribal nations. Termination was forcefully begun in 1950 under Commissioner of Indian Affairs Dillon S. Meyer. He argued that Indians would have to be “moved to accept their status along side their non-Indian neighbors.”180 The government set about the task of divesting itself of its legal obligations and moral responsibilities to certain tribes in the nation when it was determined that they, in the words of Meyer, met the “qualifications to manage their own affairs without supervision by the Federal Government.”181
American Indian Sovereignty and the U.S. Supreme Court Page 23