173. 28 F. Cas. 397 (1863).
174. 104 U.S. 621 (1882).
175. Wilkinson, American Indians, Time, and the Law, 88.
176. Ibid.
177. Cohen, Handbook of Federal Indian Law, 1992 ed., 116.
178. 358 U.S. 217 (1959).
179. 380 U.S. 685 (1965).
180. 411 U.S. 164 (1973).
181. 31 U.S. (6 Pet.) 515 (1832).
182. 358 U.S. 217, 220 (1959).
183. Ibid., 219.
184. 380 U.S. 685, 690 (1965).
185. 411 U.S. 164 (1973).
186. 448 U.S. 136 (1980).
187. Ibid., 142.
188. Ibid., 143.
189. Ibid.
190. Ibid.
191. 480 U.S. 202 (1987).
192. 471 U.S. 759 (1985).
193. Ibid., 765.
194. 480 U.S. 202, 215 n. 17.
195. 490 U.S. 163 (1989).
196. Ibid., 173.
197. 490 U.S. 163, 204.
198. 109 S. Ct. 2994 (1989).
199. Ibid., 3008.
200. Ibid.
201. 12 St. 951 (1855).
202. Washington State Constitution, Article XXVI, Provision 2. West’s Revised Code of Washington Annotated: Constitution of the State of Washington (St. Paul, Minn.: West Publishing, 1988).
203. See McDonnell, The Dispossession of the American Indian, 2.
204. 34 St. 182 (1906).
205. U.S. Commissioner of Indian Affairs, Annual Report (1918), 3.
206. Ibid.
207. McDonnell, The Dispossession of the American Indian, 108.
208. 44 St. 1247 (1927).
209. Cohen, Handbook of Federal Indian Law, 1972 ed., 259.
210. Ibid.
211. 48 St. 984 (1934).
212. U.S. Supreme Court, Records & Briefs, “Cross-Petition for a Writ of Certiorari,” R. Wayne Bjur, Attorney for Respondent/Cross-Petitioner (Confederated Tribes and Bands of the Yakima Nation), 6 n. 4.
213. McDonnell, The Dispossession of the American Indian, 121.
214. Ibid., 8.
215. U.S. Supreme Court, Records & Briefs, “Cross-Petition for a Writ of Certiorari,” R. Wayne Bjur, 7.
216. Ibid., 8.
217. 112 S. Ct. 683, 687 (1992).
218. U.S. Supreme Court, Records & Briefs, “Brief of Petitioners/Cross-Respondents, County of Yakima and Dale A. Gray, Yakima County Treasurer,” Jeffrey C. Sullivan, 4.
219. U.S. Supreme Court, Records & Briefs, “Brief of Respondents/Cross-Petitioner, Confederated Tribes and Bands of the Yakima Indian Nation,” R. Wayne Bjur, 9 n. 5.
220. An ad valorem tax is a tax on the value of property.
221. An excise tax is a tax on the manufacture, sale, or consumption of commodities or upon licenses to pursue certain occupations or upon corporate privileges.
222. 412 U.S. 481 (1973).
223. 425 U.S. 463 (1976).
224. 419 U.S. 544 (1975).
225. 425 U.S. 463, 479 (1976).
226. Ibid.
227. U.S. Supreme Court, Records & Briefs, Confederated Tribes and Bands of the Yakima Nation v. County of Yakima, Appendix D, United States District Court for the Eastern District of Washington, No. C-87–654–AAM (1988): 39a.
228. U.S. Official Transcript Proceedings Before the Supreme Court of the United States (Washington: Alderson Reporting Company, 1992), 8.
229. 903 F.2d 1207, 1215 (1990).
230. Blackmun’s was the lone dissent. Thurgood Marshall retired in 1991. He was replaced by Clarence Thomas, a conservative jurist, who had been narrowly confirmed by the Senate, 52–48. William Brennan, another liberal retiree, had been replaced in 1990 by a virtually unknown moderate-conservative, David Souter.
231. 17 U.S. 316 (1819).
232. 72 U.S. (5 Wall.) 737, 755–756 (1867).
233. Ibid., 757.
234. 224 U.S. 665 (1912).
235. 35 St. 312 (1908).
236. Grant Foreman, “The U.S. Courts and the Indian,” The Overland Monthly 61 (1913): 578.
237. 224 U.S. 665, 673 (1912).
238. Ibid., 673.
239. Ibid., 674.
240. Ibid., 677.
241. Ibid.
242. 72 U.S. (5 Wall.) 737, 756 (1867).
243. 34 St. 187 (1906).
244. Justice Thurgood Marshall used this phrase in McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973).
245. 112 S. Ct. 683, 688.
246. Ibid., 688–689 n. 2.
247. Ibid., 689 n. 2
248. Ibid., 690.
249. Ibid., 691.
250. Ibid.
251. Ibid., 693.
252. Ibid.
253. Ibid.
254. Ibid., 693.
255. Ibid.
256. Ibid., 692–693.
257. Ibid., 693.
258. Ibid., 694.
259. Ibid., 698.
260. Ibid., 696.
261. Ibid.
262. Ibid.
263. Ibid., 695.
264. Ibid., 696.
265. Ibid.
266. Ibid., 698.
267. Ibid.
CHAPTER 7
1. As quoted in Ephraim London, ed., The World of Law: The Law in Literature, vol. 1 (New York: Simon & Schuster, 1960), xviii.
2. David Kairys, With Liberty and Justice for Some: A Critique of the Conservative Supreme Court (New York: The New Press, 1993), 182.
3. Ibid., 183.
4. Ibid., 187.
5. 307 U.S. 496 (1939).
6. 112 S. Ct. 2701 (1992).
7. Ibid., 188.
8. Ibid.
9. Petra T. Shattuck and Jill Norgren, Partial Justice: Federal Indian Law in a Liberal Constitutional System (Providence, R.I.: Berg Publishers, 1991), 190.
10. Ibid., 194.
11. Ibid., 191.
12. Ibid.
13. In 1995, two federal appellate court decisions were handed down which indicate that conservative ideology is now the dominant paradigm of judges at that level. On November 7, 1995, the Court of Appeals for the 8th Circuit in South Dakota v. United States Department of Interior (64 USLW 2316) held, in a remarkable opinion which places in doubt the status of all Indian land acquired by the government and placed in trust, that the section of the Indian Reorganization Act of 1934 which had authorized the Secretary of the Interior to acquire land in trust for Indians was actually an unconstitutionally delegated legislative power.
A month later, on December 26, 1995, the 10th Circuit Court of Appeals in an equally troubling decision, Crow Tribe of Indians and Thomas L. Ten Bear v. Repsis (73 F.3d 982), resurrected the repudiated doctrines of Ward v. Race Horse and held that Race Horse was “compelling, well-reasoned, and persuasive.” Thus, the State of Wyoming’s Game and Fish Commission had jurisdiction over Crow Indians even though they were exercising treaty-specific hunting rights.
14. 132 L. Ed.2d 400.
15. In diminishment cases, the Supreme Court has sought to answer the question whether allotment-era laws which opened reservations to non-Indian settlement worked to “diminish” the size of the reservation to encompass only the lands allotted to individual tribal members; or, on the other hand, whether the reservation boundary was left intact and simply allowed non-Indians to homestead within the reservation. For a good discussion of this important issue, see Robert Laurence, “The Unseemly Nature of Reservation by Judicial, as Opposed to Legislative, Fiat and the Ironic Role of the Indian Civil Rights Act in Limiting Both,” North Dakota Law Review 71 (1995): 392–413; and see the responses to Laurence’s piece in the ensuing pages by James A. Grijalva, Alex Tall-chief Skibine, Frank Pommersheim, and others.
The “diminishment” cases are: Seymour v. Superintendent, 368 U.S. 351 (1962); Mattz v. Arnett, 412 U.S. 481 (1973); DeCoteau v. District County Court, 420 U.S. 425 (1975); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977); Solem v. Bartlett, 465 U.S. 463 (1984); and Hagen v. Utah, 114 S. Ct. 968 (1994).
; 16. Pommersheim, Braid of Feathers, 152.
17. 62 USLW 4482.
18. 102 St. 2475 (1988). This act imposed upon those states which sponsor Class III gaming (e.g., slot machines, casino games, banking card games, dog racing, and lotteries) a duty to negotiate in good faith a tribal-state compact with those resident Indian tribes who also wanted to pursue Class III gaming ventures. It also authorized a tribe to bring suit in federal court against a state in order to force performance of that duty in the event the state chose not to negotiate in good faith.
19. Sidney L. Harring, Crow Dog’s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century (New York: Cambridge University Press, 1994), 12.
20. 72 U.S. (5 Wall.) 737, 758 (1866).
21. 109 U.S. 556, 571 (1883).
22. 163 U.S. 376, 384 (1896).
23. 198 U.S. 371, 381 (1905).
24. 455 U.S. 130, 148 (1982).
25. Ball, “Constitution, Court, Indian Tribe,” American Bar Foundation Research Journal 1 (Winter 1987): 138.
26. James E. Falkowski, Indian Law/Race Law: A Five-Hundred-Year History (New York: Praeger Publishers, 1992), 2.
27. Ibid., 2.
28. Ball, “Constitution,” 137–138.
Glossary
Ad inconvenienti: Legal term meaning ‘from inconvenience.’ Describes an argument founded upon the hardship of the case and the inconvenience or disastrous consequences to which a course of reasoning would lead.
Aboriginal title (also known as Indian title or Indian right of occupancy): Broadly defined, this refers to ownership of the lands inhabited by a tribe based on immemorial rights arising long before contact with Euro-Americans. Under federal Indian law, there is contrary precedent on the actual status of aboriginally held Indian lands, with some decisions referring to Indian title as a “mere” right of occupancy and other cases describing it as a “sacred” right of occupancy. All federal case law does agree that while aboriginal Indian title involves the tribes’ holding an exclusive right of occupancy (a possessory interest), it does not involve the ultimate fee, which is said to reside in the United States, unless Congress has given title to the tribe or the land has been purchased outright by the tribe.
Ad valorem tax: A tax imposed on the value of property; a tax of a fixed proportion of the value of the property to be charged. The most common ad valorem tax is that imposed by states, counties, and cities on real estate.
Adversarial method: System of fact-finding used in American trials in which each side is represented by an attorney who acts as an advocate.
Affirm: In appellate court, to reach a decision that agrees with the result reached in a case by the lower court.
Affirmative delegation: Legal doctrine that tribes possess only those powers of self-governance specifically mentioned in treaties or which Congress has positively granted to them via statute.
Allotment policy (also known as General Allotment or the Dawes Act): Federal Indian policy initiated in 1887 (ended in 1934 with the enactment of the Indian Reorganization Act) designed to break up tribal governments, abolish Indian reservations by the allotment of communally held reservation lands to individual Indians for private ownership, and force Indians to assimilate into Euro-American cultural society.
Amicus curiae: Legal term meaning ‘friend of the court’; a person not a party to litigation who volunteers or is invited by the court to give an opinion on a case.
Appellate court: A court having jurisdiction of appeal and review; a court to which causes are removable by appeal, certiorari, error, or report.
Assimilation: The biological, cultural, social, and psychological fusion of distinct groups to create a new, ethnically homogenized society.
Balancing test: A process of judicial decision making in which a court weighs the relative merits of the rights of the individual against the interests of the government.
Brief: A written argument of law and fact submitted to a court by an attorney representing a party having an interest in a lawsuit.
Bureau of Indian Affairs (BIA): A federal agency established in 1824 and moved to the Department of the Interior in 1849. Originally, BIA personnel served as a diplomatic corps responsible for overseeing trade and other relations with Indian tribes. By the 1860s, however, it had evolved into the lead colonizing agent for the federal government and dominated virtually every aspect of tribal life within reservations. Today, the BIA is more involved in advocating programs focused on tribal educational, social, economic, and cultural self-determination.
Burden of proof: The need to establish a claim or allegation; in a criminal case, the state has the burden of proof.
Canons of construction: The system of basic rules and maxims which are recognized as governing the construction or interpretation of written instruments. In federal Indian law, for example, treaties, agreements, and laws are to be construed in a manner favorable to Indian tribes or their members. See also Treaty.
Categorical allowance: Legal mask which holds that state governments, despite evidence to the contrary, have been authorized by Congress to tax Indians in certain situations.
Certification, writ of: A procedure whereby a lower court requests that a superior court rule on specified legal questions so that the lower court may correctly apply the law.
Certiorari, writ of: A writ issued from the Supreme Court, at its discretion and at the request of a petitioner, to order a lower court to send the record of a case to the Court for its review. There is a requirement that four Supreme Court justices agree to hear a case before it can be considered by the Supreme Court.
Circuit court of appeal: An intermediate level appellate court in the federal system having jurisdiction over a particular region.
Civil law: The body of law dealing with the private rights of individuals (e.g., negligence, contracts, property), as contrasted with criminal law.
Clan: A division of a tribe tracing descent from a common ancestor. Typically, a clan shares a common identity, level of organization, and property base.
Collateral estoppel: A legal rule that prohibits an already settled issue’s being retried in another form.
Commerce clause: The provision of the federal Constitution, Article I, section 8, clause 3, which gives Congress exclusive powers over interstate commerce. It states that “The Congress shall have the power to . . . regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This clause is one of the two bases (the other being the Treaty Clause) considered sufficient to empower the federal government to deal with Indian tribes.
Communal land ownership: A system of community ownership rather than individual possession.
Compelling state interest: One which the state is forced or obliged to protect. Term used to uphold state action in the face of attack grounded on Equal Protection or First Amendment rights because of serious need for such state action. See also Strict scrutiny test.
Concurring opinion: An opinion by a justice that agrees with the result reached by the majority in a case but disagrees with the Court’s rationale for its decision.
Conquest, doctrine of: Legal doctrine under international law which entails the acquisition of territory by a victorious state from a defeated state in warfare. The state acquiring by conquest is regarded as the successor to the rights and duties previously applicable to the territory.
Consent: A concurrence of wills. Consent always implies freedom of judgment, deliberation, and freely given acquiescence in what is considered desirable. Consent is a material element in the political relationship between tribal nations and the U.S. established in the 1787 Northwest Ordinance, which said that “the utmost good faith shall always be observed toward the Indians, their lands and their property shall never be taken from them without their consent. . . .” The political principle of consent holds that the U.S. may validly take political or legal actions towards tribal rights or resources only with the express consent of the tribe or trib
es involved.
Consent decree: A regulatory agency procedure to induce voluntary compliance with its policies. A consent order usually takes the form of a formal agreement whereby an organization or industry agrees to stop a practice in exchange for the agency’s cessation of legal action against it.
Criminal law: Law governing the relationship between individuals and society. It deals with the enforcement of laws and the punishment of those who, by violating laws, commit crimes.
Declaratory judgment: A court rule determining a legal right or interpretation of the law but not imposing any relief or remedy.
Demonstrably serious: Legal test which holds that states can exercise jurisdiction over fee land within a reservation unless the tribe can prove that the impact of the state action will be “demonstrably serious” and will imperil the political integrity, economic security, or the health and welfare of the tribal members.
Demurrer: A motion to dismiss a lawsuit in which the defendant admits to the facts alleged by the plaintiff but contends that those facts are insufficient to justify a legal cause of action.
Dependency status: Legal mask which unilaterally reduced tribes from a status as independent nations to a position of subservient dependency in their relation to the U.S. government. See also Guardianship/wardship.
Dichotomization of federal Indian law: Theory that tribal nations cannot expect any consistent political relationship with the federal government because of the conflicting goals, policy orientations, and legal perspectives wielded by the three branches of the federal government and the states (e.g., whether tribes are delegated sovereigns or inherent sovereigns; whether tribes are included in general congressional acts or are excluded from the force of those measures; whether tribes are incorporated in the U.S. constitutional framework or remain largely extraconstitutional polities in their relationship to the federal government.
Discovery, doctrine of: This doctrine was first fully articulated in U.S. law in the seminal Supreme Court case Johnson v. McIntosh in 1823. The Court held that European explorers’ “discovery” of land occupied by Indian tribes gave the discovering European nation (and the U.S. as successor) “an exclusive right to extinguish the Indian titles of occupancy, either by purchase or conquest.” This meant that the “discovering” nation had preempted other European powers’ involvement with the tribes in a particular geographic area. More importantly, as interpreted by western policymakers and legal scholars, this doctrine effectively excluded Indian tribes from direct participation as national entities in the process of international community development.
American Indian Sovereignty and the U.S. Supreme Court Page 49