In his extended footnote accompanying his Choctaw treaty discussion, Rehnquist averred that the Indian treaty process was consistent with the theory that Indian tribes lacked criminal jurisdiction over non-Indians, unless Congress had granted “permission.” Rehnquist was hard-pressed to support this radical and incorrect view of tribal-federal relations. In fact, he was compelled to admit that several other early treaties contained language which specifically said that any American citizens settling on Indian land would thereby forfeit the protection of the United States and could be punished by the tribe “as they please.” Rather than accept this statement for what it was, a stark reminder that tribal lands were separate countries, jurisdictionally speaking, Rehnquist maintained that “[f]ar from representing a recognition of any inherent Indian criminal jurisdiction over non-Indians settling on tribal lands, these provisions were instead intended as a means of discouraging non-Indian settlements on Indian territory, in contravention of treaty provisions to the contrary.” These treaty provisions, however, were definite affirmations of Indian territorial sovereignty. Rehnquist’s manipulation of language could not change the clear language of the treaty provisions.
At the end of his footnote, Rehnquist falsely maintained that “only one treaty” with a tribe (the Delaware Treaty of 1778) ever provided for tribal criminal jurisdiction over non-Indians. As the solicitor’s opinion noted to the contrary, the 1791 Choctaw treaty also directly addressed tribal criminal jurisdiction. But even in the Delaware Treaty, Rehnquist cited additional language which he interpreted to show that the tribe could still not try whites except “under the auspices of the United States. . . .”77 Rehnquist was, again, editing the actual language of the treaty. He deleted a crucial phrase from the last line of the treaty provision which prominently required the mutual consent of the parties.78
In sum, Rehnquist drew his information from six carefully selected and edited treaties out of a possible 366. More important, “none of the articles he quoted appear on examination to have been representative; one treaty he relied on is unique, while another has been materially misquoted. From this insubstantial foundation, Justice Rehnquist concluded that tribal treaties acquiesced in a historical federal policy against tribal criminal jurisdiction over non-Indians.”79
In search of judicial support to buffer his fragile legal position, Rehnquist could cite only a single 1878 federal district case, Ex Parte Kenyon,80 which was written by the infamous western “hanging judge,” Isaac C. Parker. In Kenyon, Parker had said that tribal courts only had jurisdiction over Indians. Rehnquist was perhaps unaware that a few years after Kenyon, the Supreme Court in Elk v. Wilkins had commented on Kenyon, noting that the decision had depended on the fact that both parties were white and that, more importantly, “the crime occurred outside the boundaries of the reservation.”81 In Oliphant, the crimes had occurred inside a reservation’s borders.
Rehnquist asserted that Parker’s opinion had been reaffirmed as recently as 1970 in a solicitor’s opinion but acknowledged that the “1970 opinion of the Solicitor was withdrawn in 1974 but has not been replaced.”82 “No reason,” he said, “was given for the withdrawal.”83
The Mask of “Invented Congressional Intent”
Justice Rehnquist opened this section of his opinion with a statement that must rank among the most egregious for its mischaracterization of history:
While Congress was concerned almost from its beginning with the special problems of law enforcement on the Indian reservations, it did not initially address itself to the problem of tribal jurisdiction over non-Indians. For the reason previously stated, there was little reason to be concerned with assertions of tribal court jurisdiction over non-Indians because of the absence of formal tribal judicial systems.84
The text is riddled with errors, beginning with Rehnquist’s opening line, which reveals his unfamiliarity with basic federal Indian policy. He said that Congress “almost from its beginning” was concerned about reservation law enforcement. The Continental Congress was established in 1774, and, although the reservation concept was known during these early years, reservation establishment as a general federal policy did not materialize until the 1860s.85 This is because in between the formation of the federal government and the reservation years there was a traumatic period of Indian removal—1830s–1850s—in which dozens of tribes were removed and resettled to what was then ill-defined as Indian territory. Theoretically, this Indian territory was tribal land that was to be protected from white intrusion.
It logically follows that if there were no reservations and virtually no white presence in Indian territory, there could be no “special problems of law enforcement.” Rehnquist wrongly concluded that the absence of “formal tribal judicial systems” justified a lack of concern over tribal court jurisdiction. A strange, convoluted logic seems to be at work here: if Congress were genuinely concerned about tribes exercising power over non-Indians, it would seem that a primary concern would be the tribes’ lack of judicial systems comparable to those of the United States.
Wandering briefly into the realm of historical accuracy, Rehnquist remarked that Congress, since its inception, had been interested in protecting Indians and their territory from the lawless advances of whites into their country. He cited as an example the Seventh Annual Message of President George Washington, who was acutely aware of the intergovernmental problems generated by whites who were illegally trespassing in Indian country.86 But after citing supporting historical and legal evidence (e.g., the Trade and Intercourse Act of 1790 and an 1817 law, “An Act to Provide for the Punishment of Crimes and Offences Committed within the Indian Boundaries,” which extended federal jurisdiction over certain crimes except for Indian-on-Indian offenses), Rehnquist brought forth an 1834 congressional bill which had never been enacted—the Western Territory Bill—in an attempt to argue that Congress had never intended to allow Indian tribes to exercise criminal jurisdiction over whites.
Throughout its discussion of this unenacted bill, Congress had “proposed” to establish an Indian territory in the western regions of the frontier, which would have entailed a confederation of Indian tribes, with the ultimate goal of the territory’s becoming a state. In describing this bill, Rehnquist noted, “[w]hile the bill would have created a political territory with broad governing powers, Congress was careful not to give the tribes of the territory criminal jurisdiction over United States officials and citizens traveling through the area.”87 This is an interesting statement, as much for what it says as for what it ignores. In a footnote accompanying this excerpt, Rehnquist added, remarkably, that “[t]he Western Territory bill, like the early Indian treaties, . . . did not extend the protection of the United States to non-Indians who settled without Government business in Indian territory”88 (emphasis original).
Two things stand out in these two extracts. First, Rehnquist seemed unable or unwilling to distinguish an unenacted measure from constitutionally sanctioned Indian treaties. Second, he conceded by implication that nongovernmental officials were to be subject to tribal jurisdiction. That this admission is problematic for him becomes evident when he continues, “This exception, like that in the early treaties, was presumably meant to discourage settlement on land that was reserved exclusively for the use of the various Indian tribes.” But whatever was “presumably meant” by the passage, and however invalid it may be in its unratified state, the statement was an implicit recognition of tribal sovereignty over whites who “settled” in Indian territory.
Rehnquist closed out his footnote by moving from his discussion of that section of the 1834 bill which recognized tribal sovereignty over resident whites to a contemporary description of the Port Madison Indian Reservation. Rehnquist’s phraseology warrants yet another direct quote:
Today, many reservations, including the Port Madison Reservation, have extensive non-Indian populations. The percentage of non-Indian residents grew as a direct and intended result of congressional policies in the late 19th and 20th c
enturies promoting the assimilation of the Indians into the non-Indian culture. Respondents point to no statute, in comparison to the Western Territory bill, where Congress has intended to give tribes jurisdiction today over non-Indians residing within reservations.89
Rehnquist would have one believe that a nonenacted bill, even one containing a statement expressly acknowledging tribal sovereignty over all permanent “settlers,” was more important than the established doctrine of tribal sovereignty. Furthermore, after having affirmatively used the proposed 1834 Western Territory bill as “proof” that tribes lacked jurisdiction over non-Indians, Rehnquist was required to concede that the bill was considered too “radical” and was ultimately tabled. This is a revealing statement showing that Rehnquist had not strayed inadvertently into citing a bill that he thought had become law. He was clearly aware that this measure had no legal weight whatsoever, yet he insisted on treating it as if it were legal precedent.
While Rehnquist focused his attention on a bill with no legal identity, he ignored the 1834 House Report (H. R. No. 474) which had been issued by the Committee on Indian Affairs. The Committee’s report examined two other bills: “a Bill to provide for the organization of the Department of Indian Affairs,” and “a Bill to Regulate Trade and Intercourse with the Indian tribes.” Both were enacted into law in 1834. In his selective use of only that language which he believed supported his position that tribes lacked criminal jurisdiction, Rehnquist deliberately overlooked a more pertinent and lawful measure which directly addressed the subject of jurisdiction and openly discussed the actual bilateral relationship between the tribes and the United States:
In consequence of the change in our Indian relations, the laws related to crimes committed in the Indian Country, and to the tribunals before whom offenders are to be tried, require revision. By the Act of 3d March, 1817, the criminal laws of the United States were extended to all persons in the Indian Country, without exception, and by that Act, as well as that of 30 March 1802, they might be tried wherever apprehended. It will be seen that we cannot, consistently with the provisions of some of our treaties, and of the territorial act, extend our criminal laws to offenses committed by or against Indians, of which the tribes have exclusive jurisdiction; and it is rather of courtesy than of right that we undertake to punish crimes in that territory by and against our own citizens. And this provision is retained principally on the ground that it may be unsafe to trust to Indian law in the early stages of their Governments.90 (emphasis mine)
This is not the language of a dominant, coercive federal force dictating to tribes over whom it may or may not exercise jurisdiction. It is more the voice of a nation that had been granted a “courtesy” by some tribes to punish interracial crimes since those tribes apparently did not want to deal with the subject. It allowed for a future time in which tribes, when they felt they had developed legal systems comparable to the United States’, would be able to reclaim their inherent authority to try and punish non-Indians. On the other hand, Indian-on-Indian crimes were recognized as being solely within the province of tribes “at any place within their own limits.”91 This excerpt and the overall thrust of the House Report contradict Rehnquist’s assertion that “Congress shared the view of the Executive Branch and lower federal courts that Indian tribal courts were without jurisdiction to try non-Indians.”92
Rehnquist cited three more examples (the 1834 Trade and Intercourse Act, the 1885 Major Crimes Act, and an 1891 Supreme Court decision, In re Mayfield) which, in his opinion, supported his “unspoken assumption” that tribes lacked internal sovereignty over non-Indians. Each of these examples contributed to his formulation of a novel and logically insupportable principle of federal Indian law—implicit divestiture. “While Congress never expressly forbade Indian tribes to impose criminal penalties on non-Indians, we now may express our implicit conclusion of nearly a century ago that Congress consistently believed this to be the necessary result of its repeated legislative actions.”93 The Supreme Court, in this single statement, judicially usurped an inherent tribal power that had existed since time immemorial or, certainly, since the first whites settled in Indian country. This line of thought raises a series of unanswered and troubling issues. Is it possible that the Supreme Court can implicitly take away a power which, it has just alleged, had never explicitly been recognized to exist? How does a Supreme Court legitimately usurp tribal powers (assuming, as I do and as history and politics attest, that such powers exist), something which historically has not been accomplished except by direct Congressional action?
The Mask of “Undefined Treaty Rights”
In the second part of his opinion, Rehnquist opens his discussion with a minimalist definition of “Indian law.” According to Rehnquist, Indian law draws principally upon treaties drawn and executed by the Executive Branch and legislation passed by Congress.94 This abbreviated definition conveniently ignores other critical documents—agreements, judicial opinions, and administrative rulings—which have also been held to constitute Indian law.95 Rehnquist did mention that Indian treaties and statutes must be understood “in light of the common notions of the day and the assumption of those who drafted them.”96 This caveat would seem to bode well for tribes, especially when we consider that under the earlier constructed judicial canons, treaties were to be interpreted as the Indians would have understood them.
Justice Rehnquist focused on the Suquamish treaty of 1855, which, he had already indicated, had not explicitly affirmed Suquamish criminal jurisdiction over non-Indians. While admitting that it appeared to be “silent as to criminal jurisdiction over non-Indians,” he found that the perspective afforded by history cast “substantial doubt upon the existence of such jurisdiction.”97 Rather than engage in a searching analysis of all existing Indian treaties, or the process of criminal jurisdiction over an extended period of time, Rehnquist, in footnote sixteen, simply described how treaty negotiators examined two other treaties—one with the Omaha, the other with the Otoe and Missouria—to get some idea as to how to draft the Suquamish treaty. Rehnquist conceded that neither of these treaties specifically addressed the issue of Indian criminal jurisdiction over non-Indians. The only evidence he could marshall was article 9 of the Suquamish treaty which stated: “The said tribes and bands acknowledge their dependence on the government of the United States, and promise to be friendly to all citizens thereof, and they pledge themselves to commit no depredation of the property of such citizens. . . . And the said tribes agree not to shelter or conceal offenders against the laws of the United States, but to deliver them up to the authorities for trial.”98 For Rehnquist, the crux of this article lay in “dependence” and “deliver them up to the authorities.” Admitting that “[b]y themselves, these treaty provisions would probably not be sufficient to remove criminal jurisdiction over non-Indians if the Tribe otherwise retained such jurisdiction,”99 Rehnquist persisted that the Suquamish were “in all probability recognizing that the United States would arrest and try non-Indian intruders who came within their Reservation.”100
A nation, however, does not surrender rights in a “probabilistic” manner. As the 9th Circuit Court had shown, and as Rehnquist had admitted, the Suquamish treaty was “silent” on the specific subject of criminal jurisdiction. District Judge Duniway had stated in his decision that the only “significant surrender of inherent autonomy” by the Suquamish was the extradition section of article 9 where the Suquamish were asked to “deliver up offenders.”101 This appears to be only an extradition statement and is silent about the power of the Suquamish to try non-Indians. The absence of express treaty or statutory language taking away Suquamish power over non-Indians, combined with the rule that treaties and laws affecting Indians were to be construed in their interest, should have protected the tribe’s right to pursue, arrest, detain, try, and convict criminal non-Indian offenders. Rehnquist maintained, however, that “an examination of our earlier precedents satisfies us that, even ignoring treaty provisions and congressional pol
icy,” Indians lacked such power over non-Indians “absent affirmative delegation of such power by Congress.”102 Intoxication with the extraordinary power he was wielding may be the best explanation for Rehnquist’s comment that although neither treaty nor statute had taken away this inherent authority of the tribe, “earlier precedent” had done so. By his own definition, “Indian law” entailed treaties and statutes; therefore, if there was no bilateral or legislative support for such a usurpation of tribal power, whence did such power derive?
At this point, Rehnquist refurbished the old “dependent” and “incorporated” status of tribes, first defined in Kagama and expanded in Lone Wolf, and quietly slipped it past all existing historical, political, economic, and cultural evidence to the contrary, to enunciate yet another novel principle. While acknowledging that tribes did retain some elements of “quasi-authority,” Rehnquist protested that these particular retained powers—which he did not articulate—were “not such that they [were] limited only by specific restrictions in treaties or congressional enactments.”103 In other words, tribes had certain inherent, fundamental, and apparently organic limitations on their efforts to practice their retained sovereignty. Here, Rehnquist managed to find a quote from Judge Duniway’s lower court ruling that he concurred with. Duniway had cited from the 1973 Supreme Court decision McClanahan v. Arizona State Tax Commission,104 in which the Court had held that a state could not impose an income tax on revenue earned by Indians from reservation sources. In Rehnquist’s recitation of the pivotal section of that generally pro-Indian case, “Indian tribes are prohibited from exercising both those powers of autonomous States that are expressly terminated by Congress and those powers inconsistent with their status.”105 Rehnquist did not attempt an explanation of a “tribal status” in which a recognized sovereign or even a semisovereign could be denied a basic and clearly essential law-and-order power. Moreover, he carefully referred to only the first part of Duniway’s statement while ignoring an important second part. Duniway, after quoting the “inconsistent with their status” passage, immediately followed up by stating that “surely the power to preserve order on the reservation, where necessary, by punishing those who violate tribal law, is a sine qua non of the sovereignty that the Suquamish originally possessed.”106 In other words, there was nothing “inconsistent” with Suquamish efforts to punish criminal offenders, despite the fact that they were an Indian tribe. In fact, just the opposite was true; this was a perfectly consistent course of action, necessary to their community’s safety and order.
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