Reed was unable, however, to avoid the fact that the Tillamook were still entitled to recovery based on their aboriginal title. He skirted this and the discussion which focused on the nondistinction between “recognized” and “original” Indian title and instead emphasized that the Tillamook could not recover interest, and that Congress had allowed for recovery under a jurisdictional act. While both of these later statements are undeniably true, they do not diminish the reality that the Tillamook’s aboriginal land rights had received judicial approval.
Communal Ownership: An Oxymoron?
In Reed’s opinion, aboriginal land title of an unrecognized character was no title whatsoever. “This was true,” said Reed, “not because an Indian or an Indian tribe has no standing to sue or because the United States has not consented to be sued . . . but because Indian occupation of land without government recognition of ownership creates no rights against taking or extinction by the United States protected by the Fifth Amendment or any other principle of law.”244 Reed had fabricated such a broad rule that under it, the Alaskan native groups, and by extension all other tribes without explicit treaty guarantees, had no property rights whatsoever. Earlier it had been a Fifth Amendment question; Reed expanded it to an unlimited realm by noting that no “other principle of law” could protect them either.
Not content with this unprecedented assault on Indian property rights, Reed attempted to justify his opinion with a sociocultural assessment of the Tee-Hit-Ton. In Reed’s view, the reality that the Tee-Hit-Ton band held the land communally and not individually was enough to doom them. “Tribal” claims to lands, maintained Reed, in contrast to individual property claims, represent more “a claim of sovereignty than of ownership.”245 Using the same rationale he had used to defeat the Shoshone claims, Reed contended that “the Tee-Hit-Ton were in a hunting and fishing stage of civilization, with shelters fitted to their environment, and claims . . . identified territory for these activities as well as the gathering of wild products of the earth.”246 Although the tribe’s attorneys had sought to distinguish the Tee-Hit-Ton from tribes in the lower forty-eight states, Reed insisted that the tribe’s “use of its lands was like the use of the nomadic tribes of the State’s Indians.” This is in interesting contrast to his earlier statements that from a legal and political standpoint the Tee-Hit-Ton were entirely different from the tribes of the “lower forty-eight.”
Again, the Court was acting less as a court of a law and more as an anthropological assessment team. Somehow, the Tee-Hit-Ton’s subsistence lifestyle was interpreted in a way that diminished their legal and property rights. Reed was denying the Tee-Hit-Ton their property rights based on their alleged “stage of evolution.”
In an extended footnote, Reed proposed the Pueblo Indians as the lone exception to the general “nomadic” tribal mode he had attributed to Indians in general. He contrasted the Pueblo’s so-called “sedentary agricultural and pastoral life” with that of the “nomadic” Alaskan tribal communities.247 In addition to the Pueblo’s allegedly stronger “cultural” claims to property, Reed indicated that their land claims were also based upon “stronger legal and historical basis than the Tlingits.”248 This is an interesting comparison in that Reed employed the same tactic used by his nineteenth-century predecessor Chief Justice Roger Taney, who in the pivotal 1857 Dred Scott decision engaged in a selective and distorted comparison of blacks and Indians in a way which used Indian culture and political status as a foil of superiority to justify treating African Americans as inferior beings. It is important to recall that just eleven years before Dred Scott, Justice Taney and the Court in U.S. v. Rogers had shown virtually no respect for tribal culture and sovereignty when rendering a decision that seriously undermined the rights of Indian tribes. The Court, in other words, is sometimes pleased to use what we will call the mask of selective and distorted comparison in which the justices, both individually and as a collective body, carefully seek to maintain the legitimacy of their rulings by appearing not to denounce all minorities or disempowered peoples, only those who do not, for the purposes of the case at hand, meet the Court’s particular standards of what it determines is just and fair.
In closing, Reed inaccurately announced that “the line of cases adjudicating Indian rights on American soil leads to the conclusion that Indian occupancy, not specifically recognized as ownership by action authorized by Congress, may be extinguished by the Government without compensation.”249 It is significant that Reed neglected to name the cases in this “line.” In his footnote to this quote, he cited several reports by executive agencies—Interior, Agriculture, and Justice—the same agencies which in the Shoshone case had provided solid documentary evidence affirming Shoshone land boundaries. In that case, though, Reed had called the evidence “inferential,” “secondary,” and “not authoritative.” Continuing, and in what has become one of the most repeated passages of any Indian Supreme Court case, Reed made a staggering announcement:
Every American schoolboy knows that the savage tribes of this continent were deprived of their ancestral ranges by force and that, even when the Indians ceded millions of acres by treaty in return for blankets, food, and trinkets, it was not a sale but the conquerors’ will that deprived them of their land.250
Doubtless this statement is one of the most glaring misrepresentations of fact ever uttered by a Supreme Court justice. There is little in the historical record to corroborate what Reed said here; federal Indian policy and the history of treatymaking give ample evidence to the contrary. Reed quoted from Justice Jackson’s concurrence in the Shoshone case where Jackson had said that while the Shoshone had no legal treaty rights to land, they had certain moral rights. But Reed was firmly in concurrence with the prevailing economic developmental sentiment in Washington and in the Territory of Alaska, notwithstanding the extant aboriginal interests and property claims of the Alaskan Natives. Reed believed that indigenous claims to territory, which lacked any substantive merit anyway, could not be allowed to hinder the economic growth of the nation or the Alaskan Territory, and that the government was only obliged—but certainly not obligated—to make some “congressional contributions,” that is, in kind rather than in dollars, for indigenous lands taken. There was, in Reed’s view, no compelling obligation on the part of the government to pay the Alaskan Natives for their homeland.251 American expansion in Alaska would not be held up by a small band of culturally backward, treatyless natives.
“Our conclusion,” said Reed, “does not uphold harshness as against tenderness toward the Indians, but it leaves it with Congress, where it belongs, the policy of Indian gratuities for the termination of Indian occupancy of Government-owned land rather than making compensation for its value a rigid constitutional principle.”252 This is a definitive passage. Reed combined the political question doctrine with American technical and legal supremacy and moralism, and with Indian tenancy-at-will, to crush aboriginal property rights. The passage harks back to Johnson v. McIntosh and continues to represent a viable threat to the property of all indigenous peoples. The gist of Tee-Hit-Ton was stark and ominous—“Native Americans with treaties held certain privileges that may or may not be retained over time; tribes without treaties simply had no legal footing. In effect, all tribes, even those with treaties, were subject to termination.”253 The combination of the Lone Wolf precedent—Indian treaty—defined property rights can be confiscated—and the Tee-Hit-Ton precedent—Indian aboriginal (nontreaty) property rights can be confiscated—left tribes contemplating their extraconstitutional standing, even when the members allegedly had constitutional rights as American citizens.
JUSTICE DOUGLAS’S DISSENT
Joined by Chief Justice Earl Warren and Justice Felix Frankfurter, Justice William Douglas authored a dissent. Even the dissent agreed that unrecognized aboriginal title was not protected by the Fifth Amendment; rather, Douglas asserted that the Tee-Hit-Ton held recognized title under the Alaskan Organic Act of 1884. Section 8 of that Act stated that the
Indians “shall not be disturbed in the possession of any lands actually in their use or occupation or now claimed by them.”254 This excerpt, along with the congressional debate about the 1884 act, indicates that it was Congress’s intention to “protect to the fullest extent all the rights of the Indians in Alaska and of any residents who had settled there,” while at the same time allowing for the development of mineral resources by Euro-American miners.
After analyzing congressional intent surrounding Alaska’s admission as a territory, Douglas said, “The conclusion seems clear that Congress in the 1884 Act recognized the claims of these Indians to their Alaskan lands.”255 The dissent refused to speculate on precisely what was meant by the Indian right of “use and occupancy.” They preferred to let the Court of Claims make that determination. It was obvious, however, to the minority that the 1884 Act entailed a distinct recognition of some sort of title.
THE AFTERMATH
In 1980, Nell J. Newton published a splendid analysis of the Tee-Hit-Ton decision pointing out that this opinion had stood for twenty-five years without serious scrutiny. She urged reexamination for three reasons: (1) because it implicitly authorized federal confiscation of Indian lands, including reservation land established by executive order or treaty—which posed a grave threat to many Indians; (2) because it affirmed virtually unlimited congressional power to confiscate Indian land without due process or just compensation, thus creating a fear of reprisal in many tribes who were reluctant to file claims against the United States; and (3) because the case established a construct of law that if left unbridled, could be used to justify other arbitrary congressional actions in “derogation of Indian tribal rights.”256
This case had sent shock waves throughout Indian country, particularly to the many tribes with claims pending before the ICC, many of which were based on aboriginal title. Implicitly, Reed had said that all cases involving Indian title would first have to be recognized by Congress before they could be submitted to the judicial process. More specifically, if the Tee-Hit-Ton precedent were strictly applied to the claims pending before the ICC, it was questioned “whether or not the decision might lead to exclusion of all cases of Indian title from the general jurisdiction of the commission.”257 However, in a case which had begun in the ICC in 1953, Otoe and Missouria Tribe of Indians v. United States, the ICC recognized the government’s liability under Indian title. That decision was appealed to the Court of Claims in 1955 after Tee-Hit-Ton had been decided.258 The Court of Claims held that Indians could indeed pursue claims in the Indian Claims Commission using original title or aboriginal title. Congress, said the Court of Claims, in enacting the general jurisdictional act—the ICC—had fulfilled provisions apparently lacking in the Tee-Hit-Ton case. The Supreme Court subsequently declined to review the case. This was an important, if narrow and constrained victory, however, since tribes basing their claims on aboriginal title still had to meet a number of Court-defined criteria.259
Despite the Tee-Hit-Ton attorneys’ call for a rehearing on the grounds that “this Court’s judgment rests upon an opinion which shows on its face complete misconception of the record, studied avoidance of even the slightest consideration of the chief proposition relied upon—and argued in extenso—by petitioner, utter ignoring of basic principles established by many decisions of this Court, and similar ignoring of the recognized principles of international law,”260 the decision was not reexamined and remains a legal fixture. Finally, aside from rejecting the Fifth Amendment constitutional rights of over 35,000 Alaskan natives to lands they had inhabited for thousands of years, the case effectively placed the issue of final settlement of Alaskan natives’ general land claims at the doors of Congress. Congress would not respond until 1971 with the enactment of the Alaskan Native Claims Settlement Act.261
CHAPTER 5
The Era of Judicial Backlash and Land Claims
The period from the end of the termination years in the 1960s to the self-determination era of the 1970s represented a pivotal time in tribal-federal relations. It was, by most accounts, an era when tribes and their members won a series of important political and legal victories in their efforts to reclaim a measure of self-determination.1
Many of these victories were a result of the legal and political activism exhibited by the tribes—from the Alcatraz occupation in 1969 to the 1972 Trail of Broken Treaties, to the 1973 occupation of Wounded Knee on the Pine Ridge Indian Reservation, to the untold fish-ins, marches, demonstrations, and boycotts. This indigenous activism, however, combined with the political and legal victories tribes had wrested from the Executive Branch,2 Congress,3 and the Court,4 sufficed to provoke a sizable backlash among disaffected non-Indians.
This backlash was spearheaded by several non-Indian organizations, a number of state officials, and some members of Congress from states where tribes were gaining positive legislative and judicial results. These tribal victories included the enactment of federal laws which affirmed long-standing treaty rights, upheld Indian claims to lands which had been illegally purchased or simply appropriated, and extended federal protection of historically disregarded Indian civil rights.5 The backlash, as it unfolded, gave voice to an almost sinister mood of anger and resentment. It advocated the abrogation of Indian treaties, the abolition of the Bureau of Indian Affairs, the termination of the federal trust relationship, the extinguishment of Indian hunting and treaty rights; and it tried to subject Indians to state and even local fish and game regulations.6
The two cases examined in this chapter, Oliphant v. Suquamish Indian Tribe (1978) and United States v. Sioux Nation of Indians (1980), are powerful cases which affected tribes in very different ways. Oliphant, in the words of a pair of scholars,7 moved definitively “in the direction of tribal termination” by articulating a dramatically diminished definition of tribal sovereignty, while Sioux Nation is the only case in this study which can be termed a legal victory for Indians, since it upheld the federal government’s obligation to compensate the Sioux Nation for the illegal taking of the Black Hills in 1877. It is not a definitive tribal victory, as the analysis will show, because the decision perpetuates and reinforces a host of legal masks and is steeped in a legal consciousness that can only frustrate tribes in their efforts to secure full justice.
Oliphant v. Suquamish Indian Tribe
THE JUDICIAL SHEARING OF A TRIBAL RIGHT
By the early 1970s, the nominally operative, if infrequently used, concept in federal Indian policy was that of Indian self-determination. Self-determination, for both tribes and individual Indians, was conceived as the linchpin doctrine of a new federal policy aimed at strengthening the concept of tribal self-governance while reinforcing the so-called trust relationship between tribes and the federal government.8 The concept of self-determination was first articulated by President Nixon when he stressed in his Indian policy statement “self-determination without termination.”9 The term was given legislative substance on January 4, 1975, with the enactment of the Indian Self-Determination and Education Assistance Act.10 This law authorized the secretary of the interior and the secretary of health, education, and welfare to contract with Indian tribal organizations for tribal operations and the administration of specified federally funded programs administered by these agencies.
The act was designed to provide “an orderly transition from Federal domination of programs for and services to Indians to effective and meaningful participation by the Indian people in the planning, conduct, and administration of those programs and services.”11 To its credit, the act permitted tribes, not the Bureau of Indian Affairs, to decide whether they wished to participate in a given program. Although a number of veteran observers of Indian affairs noted that “the statute was a thinly disguised version of Collier’s original program for the tribes in 1934,” it was at least a start in a more acceptable direction.12
Two days before the act was passed, the Senate had, by Joint Resolution 133 and at the behest of Senator James Abourezk (D., South Dakota), est
ablished the American Indian Policy Review Commission. Congress, declaring it both “timely and essential,” mandated this two-year, eleven-member commission to reassess the direction of federal Indian policy and to provide legislative recommendations. The commission was to conduct a “comprehensive review of the historical and legal developments underlying the Indians’ unique relationship with the Federal Government in order to determine the nature and scope of necessary revisions in the formulation of policies and programs for the benefit of Indians.”13 This was to be a bipartisan and interracial (Indian and non-Indian) commission, with six members from Congress and five slots reserved for Indians.
The commission was directed to appoint investigative task forces to study special problem areas; eleven task forces were formed, staffed mostly by Indians. They worked in areas ranging from trust responsibilities and tribal governments to federal administration and the structure of Indian affairs, issues of intragovernmental development, urban and rural nonreservation Indians, and terminated and nonrecognized tribes. It was hoped that by the end of the two-year period a “blue print for future Indian policy” would be produced.14 Instead, what emerged were 206 recommendations, “which resembled a bureaucratic shopping list rather than a high-level investigation. No philosophical overview or ideology emerged in spite of a continuous recital of the misdeeds of the federal government and the assertion of the ultimate sovereignty of tribes.”15 The final report was fragmented and highly politicized. As a result, the vice-chairman of the commission, Representative Lloyd Meeds (D., Washington) with the assistance of Frederick Martone and Neil Wake, submitted an animated dissent. They argued that the majority report, “hastily presented and hastily prepared,” was the “product of one-sided advocacy in favor of American Indian tribes” and that “the interest of the United States, the States, and non-Indian citizens, if considered at all, were largely ignored.”16
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