At times, the Court contrives a scenario in which it pits one law or treaty provision against another and then “chooses” the one most likely to effect whatever political ends it is striving to accomplish. This approach was used in Rogers (federal law v. treaty), The Cherokee Tobacco (treaty provision v. law), and Race Horse (treaty provision v. statute). In each case, the tribal treaty right was defeated by the application of other laws which in their conception had nothing to do with tribes, individual Indians, or their treaty rights. Often, the Court links this adversarial tactic with a manufactured intent, as in The Cherokee Tobacco, where the treaty right of tax exemption was defeated by the general revenue law enacted by Congress, although the revenue law did not explicitly apply to Indian territory. In those situations, tribal nations, and sometimes individual Indians, invariably lose.
Finally, an important tool in its manipulation of “intent” and adversarial or competing laws and treaty provisions is the Court’s willingness and its rhetorical ability to retroactively generate an interpretation of historical events that contradicts the actual occurrence. For instance, in Johnson, Marshall retroactively read discovery and conquest principles into the history of the relations between the tribes and the United States. In The Cherokee Tobacco, the Court retroactively invented a congressional intent for its reading of the revenue law that had been nonexistent at the actual time of the law’s enactment.
In Kagama, the Court retroactively asserted that individual Indians were, and had always been, wards of the United States. In Race Horse, the Court retroactively read an intent into Wyoming’s enabling legislation that had not been there in the creation of the state. And in Lone Wolf, the Court spoke as if the Congress had wielded plenary power over tribes since the beginning of the Republic, a grossly inaccurate supposition. In sum, the Court used retrohistory to erode the rights of individual Indians in Nice and, most recently, in Oliphant and Yakima, where it went so far as to resurrect a repudiated policy, allotment, and a dead law, the Burke Act’s proviso.
IS AN UNMASKING POSSIBLE?
Petra Shattuck and Jill Norgren in their 1991 study, Partial Justice, argue that there is a two-tiered structure to federal Indian law9 which, they assert, “explains the paradox of decisions that allow tribes . . . to seek enforcement of hundred-year-old promises in court but that will not bar Congress from changing its promise ex post facto; that narrowly interpret congressional legislation asserting federal power over internal tribal affairs but confirm at the same time that Congress is free to extend its authority as far as it pleases; that sanction the extinguishment of Indian title at will but demand compensation.”10
The upper tier of Shattuck and Norgren’s system involves the Supreme Court’s articulation of principles which describe the exceptional nature of the tribal-federal relationship. This relationship is exceptional because it is exempt from ordinary constitutional standards and procedures. The reification of the doctrines of plenary congressional power, the political question, and judicial deference meant that Indian affairs operated in an extraconstitutional framework. Simultaneously, the development and transmogrification of the “trust” theory gave the United States virtually unlimited authority over tribal national sovereignty, their political rights, and their properties.
On the lower tier, the Court occasionally imposes a set of legal “standards of regularity, calculability, and due process consistent with liberal principles of formal legal rationality.”11 On this level, the administration and enforcement of federal policies are subject to strict judicial scrutiny. Hence, canons of treaty and statutory interpretation (e.g., treaties and laws should be interpreted as Indians would understand them, etc.); insistence that congressional abrogation of treaties be based on explicit statements; and certain constitutional safeguards of individual Indian property rights, etc., have been developed and have produced a number of hard-fought legal victories for tribes or individual Indians.
Of great significance from the Indian perspective, however, is that judicial decisions on the second tier, which impose legal principles of fairness and due process in how the federal government carries out its policies for tribes, “can never breach the larger framework—the first tier—of the unlimited power of the federal government over Indians.”12
Several of the Supreme Court’s and lower federal courts’13 most recent Indian law decisions provide substantial evidence which tends to support this two-tiered theory of federal Indian law. Regarding the second tier, on May 17, 1993, in Oklahoma Tax Commission v. Sac and Fox Nation, the Court unanimously upheld tribal sovereign immunity and voided the state’s tax laws aimed at tribal members. “Absent explicit congressional direction to the contrary,” said O’Connor, “it must be presumed that a State does not have jurisdiction to tax tribal members who live and work in Indian Country.”
Similarly, on June 14, 1995, in Oklahoma Tax Commission v. Chickasaw Nation,14 the Supreme Court held that the state was disallowed from imposing its motor fuels excise tax on fuel sold by tribal businesses in Indian country; but that the state was authorized to impose its income tax on the wages of tribal members who resided outside of Indian country.
In contrast the Supreme Court recently rendered additional first-tier cases that do not bode well for the continuation of tribal treaty rights or for retained tribal sovereignty. In the 1993 case South Dakota v. Bourland, one of six diminishment decisions,15 Justice Clarence Thomas said that the 1868 treaty rights of the Cheyenne River Sioux had been “implicitly” abrogated and that they had lost the power to regulate non-Indian hunting and fishing on Indian lands when Congress enacted a law which called for a taking of over 104,420 acres of Cheyenne River Sioux tribal trust land for the construction of the Oahe dam. Although neither of the congressional acts which took the land and set compensation expressly ended tribal jurisdictional authority over the land, Justice Thomas, in his first Indian law opinion, “presumed no tribal jurisdiction, paid no apparent heed to treaty rights, seemed untroubled by the fact that no individual non-Indian property rights were involved, and scarcely mentioned the canon of construction that requires treaty ambiguities to be construed in favor of Indians.”16 “Congress,” said Justice Thomas, “has the power to abrogate Indians’ treaty rights . . . though we usually [emphasis mine] insist that Congress clearly express its interest to do so.”
And, in the 1994 case Department of Taxation and Finance of New York v. Milhelm Attea & Brothers17 the Supreme Court gave states a significant boost in their efforts to prevent non-Indian state citizens from avoiding cigarette taxes by shopping on nearby Indian reservations. The Court unanimously reinstated New York State regulations which limited wholesalers to providing Indian retailers with only enough untaxed cigarettes to supply that reservation’s residents. Justice John Paul Stevens, writing for the Court, said the state regulations “do not unduly interfere with Indian trading,” even though evidence suggests that the lucrative tribal business in cigarettes will undoubtedly be affected.
Finally, on March 27, 1996, in yet another tier-one decision, the Supreme Court in Seminole Tribe of Florida v. Florida (No. 94-12), held in a case with important intergovernmental and economic implications that notwithstanding Congress’s clear intent to abrogate the states’ sovereign immunity in the Indian Gaming Regulatory Act (IGRA),18 the Eleventh Amendment to the Constitution prevents Congress from authorizing suits by Indian tribes against states. Although four justices (John Paul Stevens, David Souter, Ruth Ginsburg, and Stephen Breyer) thought this decision was “fundamentally mistaken” and “profoundly misguided,” the majority opinion, written by Chief Justice Rehnquist, maintained that the Eleventh Amendment prohibited Congress from enabling the State of Florida to be sued in federal court.
Justice Stevens, who concurred with Souter’s dissent, nevertheless authored a separate dissenting opinion. He said that “the shocking character of the majority’s affront to a coequal branch of our Government merits additional comment,” and proceeded to chide the majority for re
ndering a broad opinion which prevents “Congress from providing a federal forum for a broad range of actions against States, from those sounding in copyright and patent law, to those concerning bankruptcy, environmental law, and the regulation of our vast national economy.”
Shattuck and Norgren’s theory fits in very well with the Supreme Court decisions here grouped under the headings of civilizing/paternalistic and nationalist/federalist; however, it cannot explain the third set of cases, which I referred to as constitutional/treaty decisions in Chapter 1 but did not include in this study. The constitutional/treaty consciousness generally produces opinions which affirm tribal sovereignty by perpetuating, and sometimes enhancing, tribal treaty rights, and by recognizing the federal government’s legal and moral obligations to tribal nations.
Accompanying this legal consciousness are masks which reflect the Court’s genuine, if sometimes stilted, efforts to comprehend and shield tribal rights from private, state, and even federal infringement by recognizing what Sidney Harring termed the “pluralist legal tradition in the United States”—the notion that tribal nations are the original sovereigns in the United States and are not beholden to the U.S. Constitution or the states for their existence.19 Shattuck and Norgren would most likely posit that these favorable rulings should be grouped under tier two, but I think they represent critical, if abbreviated, moments when the Court genuinely struggles to find a way to acknowledge the extraconstitutional standing of tribes.
The foundational case of such judicial acknowledgment is, of course, Worcester v. Georgia (1832), which forcefully construed tribal nations as inherent sovereigns largely independent of state law. Several other important cases contain express language recognizing the distinctive culture and separate political character of tribal existence, which cannot be modified except by mutual treaty stipulations or the tribes’ voluntary abandonment of their political organization. In The Kansas Indians (1866), the Court noted that “the conduct of Indians is not to be measured by the same standard which we apply to the conduct of other people.”20 In Ex parte Crow Dog (1883) the Court unanimously recognized tribal sovereignty and declared that the federal courts lacked criminal jurisdiction over Indian-on-Indian criminal offenses. Said Justice Stanley Matthews,
It is a case where, against an express exception in the law itself, that law, by argument and inference only, is sought to be extended over aliens and strangers; over the members of a community separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it.21 (emphasis mine)
In Talton v. Mayes (1896), another criminal law case involving an intratribal dispute, the question was whether the U.S. Constitution’s Fifth Amendment grand jury provision applied to tribal nations. Justice Edward White stated for a unanimous court that the key to this decision depended upon an understanding of where Cherokee powers originated. If Cherokee powers of self-government were considered as “federal powers created by and springing from the Constitution of the United States” then they were controlled by the Fifth Amendment. On the other hand, if Cherokee sovereignty was original, then the tribe’s criminal proceedings were not subject to the U.S. Constitution.
The Court gave an in-depth analysis of Cherokee treaty law, applicable federal statutory law, and Cherokee legislative history, concluding that “as the powers of local self government enjoyed by the Cherokee nation existed prior to the Constitution, they are not operated upon by the Fifth Amendment [emphasis mine], which, as we have said, had for its sole object to control the powers conferred by the Constitution on the National Government.”22
In United States v. Winans (1905), involving the off-reservation, but treaty-recognized, fishing rights of Yakima Indians, the Court enunciated the reserved rights doctrine. “In other words,” said the Court, “the treaty was not a grant of rights to the Indians, but a grant of rights from them—a reservation of those not granted.”23
And in a 1982 tax decision, Merrion v. Jicarilla Apache Tribe, the Supreme Court laid out a clear understanding of the distinctive nature of tribal sovereignty. The Supreme Court held that the tribe had the inherent power to impose a severance tax on petitioners’ mining activities as part of its power to govern and to pay for the costs of self-government. Justice Thurgood Marshall’s comments on the nature of tribal sovereignty bear repeating:
To state that Indian sovereignty is different than that of Federal, State or local Governments, . . . does not justify ignoring the principles announced by this Court for determining whether a sovereign has waived its taxing authority in cases involving city, state, and federal taxes imposed under similar circumstances. Each of these governments has different attributes of sovereignty, which also may derive from different sources. These differences, however, do not alter the principles for determining whether any of these governments has waived a sovereign power through contract, and we perceive no principled reason for holding that the different attributes of Indian sovereignty require different treatment in this regard. Without regard to its source, sovereign power, even when unexercised, is an enduring presence that governs all contracts subject to the sovereign’s jurisdiction, and will remain intact unless surrendered in unmistakable terms.24 (emphasis mine)
These are important cases in which the Supreme Court wrestled with itself and American law and found a way to recognize the validity of tribal sovereignty, treaty rights, and tribal systems of governance although the Court’s interpretation sometimes clashed with powerful private, state, and, on occasion, federal political policy goals. “Tribes teach us,” said Milner Ball, “that the non-Indian system is not the only American way, that the dominant structures are contingent, an invention that can be reinvented. . . . By not recognizing and accepting the different Indian reality, we [non-Indians] deny ourselves its gifts and a wider horizon.”25
I believe, therefore, that it is an oversimplification to say as James E. Falkowski has done, that “Indian law is race law.”26 There is, however, ample evidence to support his historically accurate statement that from the earliest period of contact between indigenous people and “western” peoples, there were “two systems of law—one applying to ‘civilized’ peoples, and the other applying to the so-called ‘backward’ races.”27 Without doubt, over the past hundred years or so, the dynamics of cross-cultural and cross-political relations have served only to complicate the relationship between tribal nations and the United States government. This is evident in the diversity of legal masks created and adroitly wielded by the Supreme Court and federal lawyers, and in the dramatic ways that the Court’s legal consciousness—nationalist/federalist or civilizing/paternalistic—has manifested itself through the use of masks to erase, reduce, or belittle tribal rights, thus precluding the attainment of justice.
Federal Indian law, if we may try to pin down that ill-defined entity, includes a potpourri of western and indigenous actors, historical and current events, ad hoc federal Indian policies and tribal responses, myriad regulations on all levels, and an inconsistent assortment of case law, also on multiple levels. For the Indians, the wash of history has been a tidal flat with an ebb and flow of conflicting interpretations; and, in effect, the historical past serves both to haunt and to enliven the contemporary field of tribal-federal-state relations. Ghosts from this past convey paternalistic, sometimes racist, attitudes and policies on the part of non-Indians; the outmoded, though still accepted, theory of Social Darwinism; persistent challenges to the national government’s exclusive power to regulate governmental affairs with tribal nations; and threats to national security by other nation-states intent on colonizing Nor
th America. Their aura, on the other hand, illuminates the democratic ideals and principles (both tribal and American-derived) of consent; concern for justice and humanity; and tolerance of cultural and social diversity.
In this long-awaited era of close scrutiny of indigenous peoples worldwide, the developed nations of the globe have a moral and legal obligation to begin the process of rectifying many of the persistent disparities in political/legal/cultural/and economic power that still dominate indigenous/nonindigenous relations. To begin, the United States, but especially the Supreme Court, can disavow the use of plenary (read: virtually absolute) power and repudiate the despised, outmoded, and always inaccurate doctrine of discovery. As one commentator has observed: “Tribes offer the majority an important insight. Injustice is not peripheral or aberrational. It is built into the legal system. To recognize the validity of the insight would help to save us from idolatry. Tribes clarify for us how one of our great achievements—the constitutional legal system—is a fallen institution.”28
Furthermore, the Court can facilitate vastly improved intergovernmental relations by reminding both Congress and the president of the political and moral principles—especially that of consent—outlined in the Northwest Ordinance of 1787, which said in pertinent part that “the utmost good faith shall always be observed towards the Indians. . . .” Until these and other developments become reality, tribal peoples will remain locked in a grossly inequitable, politically dependent relationship sanctioned and legitimated by the United States Supreme Court, whose opinions handcraft—and are themselves covered by—legal masks and forms of consciousness that reflect the values, traditions, and institutions of the nontribal sector and, correspondingly, have tremendous difficulty coping with tribal values, traditions, and institutions.
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