US Supreme Court:
Native Americans
The legal relationship between the United States and the Indian nations is both unique and complex. From the early nineteenth century the Supreme Court has played a major role in defining this body of law, often working at odds with Congress and the executive branch. The Indian nations are “domestic dependent nations” with Indian law based on this political status rather than on race. The Indian nations, together with the states and the federal government, constitute the three components of American federalism, of coexisting legal and political sovereignties, that define the United States.
This body of law has evolved over more than two hundred years, and is not easily described, nor consistent. Scholars of federal Indian law (ordinarily distinguished from Native American law, the law of the Indian nations themselves), have characterized it in different ways. Rennard Strickland, a leading scholar, has termed it “genocide at law,” referring to the many ways that the imposition of federal Indian law on the Indian nations both pushed Native law and tradition to the side. Such law accompanied social, economic, political, and military attacks on the Indian nations, killing their people and taking their land. Another view is that the policy was paternalistic, perhaps even rooted in Chief Justice John Marshall's personal sympathy for Native Americans, caught up in American political and economic forces relentlessly driving west.
The Constitution and the Foundational Federal Indian Law Cases
In an opinion by Chief Justice Marshall, the Supreme Court in Johnson v. M'Intosh (1823) for the first time directly addressed the issue of the legal status of Native Americans. Relying on international law, English common law, civil law, and what is now somewhat ironically called the “weight of history,” the Court unanimously decided that, while the Indians held right of occupancy to their lands based on their long‐term use, they did not own their lands in fee simple and therefore could not sell their title except to the United States. This decision put Indian land rights on a legally inferior basis to European land title regimes, setting the stage for the wholesale extinguishment of Indian title across the American continent. Since the Indian nations could only sell to the United States, they were forced into a treaty‐based land cession process in which the American government “purchased” these lands in hundreds of treaties, negotiated “nation to nation” but in unequal processes. The recognition of the Indians as “nations” thereby also provided a legal framework for taking their lands. Finally, Marshall put the federal government in control of Indian affairs, with sole right to purchase Indian lands, a position that weakened the power of the states over land, the major source of wealth and political power in early‐nineteenth‐century America.
The U.S. Constitution did not directly give the federal government exclusive authority over the Indian tribes, but this has been consistently held from the earliest cases, and was probably the intent of the original framers. Indians are referred to only three times in the Constitution. The federal government, in the Commerce Clause, is given authority to regulate trade among the states and with the Indian tribes, the so‐called Indian commerce clause, still a basis for much federal authority over Indian nations. “Indians not taxed” are excluded from apportioning taxes and representatives in Congress by both Article I and the Fourteenth Amendment, a recognition of their separate status.
Cherokee Nation v. Georgia (1832) and Worcester v. Georgia (1834)—known collectively with a third case, Corn Tassel (1831), as the “Cherokee Cases”—brought the conflict between the federal government and the states to the center of federal Indian law, with Chief Justice John Marshall once again setting out a legal relationship that largely endures to this day. The State of Georgia was encroaching on Cherokee lands, through white settlement, caused in part because gold had been discovered there. The Cherokees took their case to the Supreme Court. President Andrew Jackson strongly supported states rights, and the settlers against the Indians. William Wirt, formerly attorney general under John Quincy Adams, represented the Cherokees and the position that the Cherokees were a sovereign nation, entitled to federal protection of their rights against state incursions. The cases began badly as Corn Tassel, a Cherokee seized by Georgia authorities and tried for murder and sentenced to death by a Georgia court, was hanged in defiance of a writ of mandamus issued by Marshall, stopping the execution.
In Cherokee Nation v. Georgia the Cherokees argued that they were an independent nation, protected by treaties negotiated with the United States, and entitled to the protection of the United States in keeping Georgia off its lands. In a hopelessly divided opinion, now overshadowed by Worcester v. Georgia, the Supreme Court divided three ways over this issue. Two justices, led by Joseph Story, wrote that the Cherokees were, in fact, sovereign nations, a high watermark of tribal sovereignty in American law. Two justices, led by John Marshall, held that the Cherokees were not sovereign nations, but held a lessor kind of national status, under the protection of the United States. Two other justices denied that the idea of Cherokee national sovereignty was possible. Because jurisdiction in the case was based on the Supreme Court's original jurisdiction in cases involving foreign governments and American states, the case was dismissed—the two latter positions, while very different, agreed on this issue.
Worcester v. Georgia is now seen as the foundational Supreme Court case in Indian law. Worcester, a Yankee missionary, was also a U.S. postmaster in the Cherokee nation. He was jailed by Georgia for aiding the Cherokees. The case posed a direct conflict between federal authority and states' rights that had no relationship to the Cherokee Indians—except that it occurred in their lands. Marshall rose to his highest legal powers in crafting his opinion, still cited in most Indian law cases. The Indian nations were of an anomalous status, held Marshall, using paternalistic language with the now classic phrase, “domestic dependent nations,” as the most important language of the opinion. Marshall's use of “nations” has given the Indian nations a legal framework for a “nation to nation” relationship to the United States, based on the inherent sovereignty of the Indian nations. But, that status is analyzed in a context of dependency and paternalism, focusing on the forced incorporation of the tribes within the geographical American nation, and their dependency on the federal government for protection.
The opinion, rich in historical references, contains many phrases that are frequently repeated in the thousands of subsequent federal Indian law cases. The Court held, for example, that “the Cherokee nation … is a distinct community occupying its own territory … in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter” (p. 561), a powerful attack on states' rights and still limiting the authority of the states over the Indian nations. Further, Marshall wrote, “The whole intercourse between the United States and this nation is, by our constitution and laws, vested in the government of the United States” (p. 561). This is an equally powerful statement of the power of the United States over the Indian nations.
In reaction to Worcester, President Andrew Jackson is supposed to have remarked, “John Marshall has made his decision. Now let him enforce it.” While this anecdote is time‐honored in teaching the relationship between the Constitution, the Supreme Court, and the separation of powers doctrine, Jackson may never have said it. Yet, Jackson's contempt for any hint of Indian sovereignty describes the next sixty years of American Indian policy, which derogated to Congress and the executive branch. Between the 1830s and the 1890s most eastern Indian nations were “removed” to the West; and dozens of Indian wars were fought from Florida to Minnesota to the Pacific Ocean. Thousands of Indians were killed; hundreds of thousands died of disease or starvation. Tribal cultures were attacked; children were removed from their families; Indian leaders were murdered—and the Supreme Court and U.S. law were irrelevant to these events. No law protected the Indian nations from these attacks. The few Indian law cases that reached the Supreme Court between Worcester and the early 1880s had to do with such matters as the taxation of Indian nations in the Indian Territory (Cherokee Tobacco, 1871); the right of Indian tribes to confer citizenship on whites (United States v. Rogers, 1846); and liquor sales on reservations (United States v. Forty Three Gallons of Whiskey, 1876 and 1883).
Crow Dog and Native American Law in the Indian Nations
The fundamental outline of federal Indian law was transformed in the late nineteenth century. In Ex parte Crow Dog (1883) the Supreme Court unanimously reversed the Dakota Territorial Court conviction and death sentence of Crow Dog, a Brule Sioux who killed his chief in a political dispute. The holding relied on Worcester in reaffirming the sovereignty of the Indian nations. While the prosecution argued that a line of federal treaties had limited Sioux sovereignty, the Supreme Court held that their sovereign status as nations inherently encompassed the right to be governed by their own laws.
While the Supreme Court had itself mischaracterized Brule law as a case of “red man's revenge” (p. 571), it was clear that Native American law was the appropriate law to govern sovereign Native American people. By the late nineteenth century, following years of an explicit policy of “assimilation,” it was politically controversial that the Indian nations retained their own law. But, at the same time, the existence of Native American law was itself testimony to the strength of the Indian nations.
Law, as a social institution, derives from the structure and social purpose of society. The law as practiced by the various Native American nations was as diverse as those nations themselves were. The Sioux had a highly developed law to structure a band‐based society, organized around the traditional buffalo hunt. Eastern nations had more sedentary and agricultural social structures, with legal systems that allocated clan‐based property rights to fields and hunting territories. A law of the fur trade had evolved in northern hunting and trapping nations. The nations of the Northwest Coast had a highly stratified legal order, based on an economy wealthy on salmon.
In general Indian nations had legal orders that were not rigidly separated from political or religious systems. The emphasis of law was on the preservation of social harmony, with reintegrative and restorative norms prevailing over the punitive norms characterizing English and European law. Disputes were processed quickly, but according to well‐defined principles. These principles, based on natural law, were deeply held. To this day the uncertain quality of American law is a puzzlement to the Indian nations: the idea that every legal principle can be balanced or compromised, and can change from context to context, strikes Indians as not being law at all. Native law is natural law; based on immutable principles passed down from generation to generation, but still adapted by tribal councils to reflect changing times. The Indian nations still adhere to their own law and more than four hundred tribal courts operate in the various Indian nations. Some of these legal systems, for example, in the Navajo nation, are highly developed, with appellate courts and reporting systems. Other Indian nations still use traditional courts, composed of tribal councils or elders, applying the law as has been handed down from generations immemorial. Decisions of these courts have the full force of law in the United States and federal and state courts, through the doctrine of comity, must recognize the judgments of tribal courts. Each Indian nation, as an attribute of its sovereignty, can apply its own law as it sees fit, subject to some restrictions placed on tribal courts by Congress, through the Major Crimes Act, the Indian Civil Rights Act, and other exercises of the plenary power doctrine.
The Supreme Court and Federal Indian Law in the Assimilation Period
Congress, in 1885, passed the Major Crimes Act, specifically designed to prevent the application of Crow Dog in future Indian criminal cases. In the act, Congress established federal jurisdiction over seven “major” crimes when committed by Indians in Indian country: murder, kidnapping, robbery, rape, and similar serious crimes. While the timing of this act makes it appear that the main issue was congressional “outrage” over the result in Crow Dog, the actual context was a federal move to force “assimilation” of the Indian nations. By the late nineteenth century, following the end of the Indian wars, and the spread of the United States across the continent, the continued existence of Indian nations, practicing their own religion and their own law in their own land, was increasingly unacceptable to political interests rooted in the expanding West. The Dawes Act, “allotting” Indian lands in severalty to individual Indians in order to undermine “communistic” Indian social organization, then “selling” the rest to the federal government to “open” the West to settlement was passed a year later, in 1887.
The Supreme Court acquiesced to the will of Congress and paved the way for this assault on Indian land and Indian sovereignty. In United States v. *Kagama (1886), the Court upheld the constitutionality of the Major Crimes Act, articulating a new “plenary power doctrine” that, while based on the “domestic dependent” language of Worcester, undermined the “nation to nation” status that was fundamental to the balance struck in that case. Under the plenary power doctrine the authority of the Congress over the Indian nations was “plenary” or “complete” and all matters of Indian policy were subject to the will of Congress. This left no legal protection for the fundamental doctrine of Indian sovereignty.
Lone Wolf v. Hitchcock (1903), decided more than ten years later, upheld the forced sale of Indian land and the allotment process on the same basis that Kagama had upheld congressional authority over tribal law. Lone Wolf, sometimes referred to as the “Indian Dred Scott case,” held that Indian lands could be sold by the authority of Congress, in violation of existing treaty rights, and without being subject to the “just compensation” clause of the Fifth Amendment. This completed the logic of Johnson v. M'Intosh in refusing to recognize a fee simple title to Indian lands. Thus, both Indian law and Indian land could be disposed of at the political whim of Congress, with no further regard to Indian rights as protected by the Constitution. These were dark days for the Indian nations and these cases still represent a low point in Indian law before the Supreme Court.
The Supreme Court and Federal Indian Law in the Twentieth Century
In the twentieth century federal Indian law became more complicated as both politics and law changed. The best way to understand these developments is that the Indian nations refused to defer to what they saw as theft of their land, their law, and their culture. They began an unending series of lawsuits to defend their rights and their lands. The sheer volume of cases—thousands of cases filed in federal courts, with hundreds reaching the Supreme Court—speaks to this determination. To this day, Indian law is among the most litigated areas before the Court. These cases span the broadest possible range of issues, litigating every aspect of Indian/U.S. relations. Many have been won by the Indian nations, but many have been lost. Doctrinally, because so many issues are involved, the cases range all over the legal map, and defy simple doctrinal classification, but some patterns clearly emerge. There is a continuing tension between the “Indian sovereignty” line of cases stemming from Worcester, and the “Indians as dependents” line of cases, finding expression in the plenary power doctrine.
At the same time, the Indian nations themselves have a clear position: United States law, and the Supreme Court, do not define their legal status. Rather, it is one arena—albeit an important arena—where they must defend their legal rights. To the Indian nations, their legal status is as sovereign nations, existing since time immemorial, under their own laws.
Among the most contested of Indian law cases before the Supreme Court are issues involving access to natural resources. The Indian nations, besides occupying much land, also used natural resources. It should not be surprising that many cases involving claims against Indian use of resources have reached the Court. Two of the most important are United States v. Winans (1905) and Winters v. United States (1908). The Supreme Court held in Winters that the creation of an Indian reservation carries with it an implied reservation of sufficient water rights to fulfill the purpose of the reservation. In the water‐starved West, this means that each Indian nation holds extensive water rights, with “priority” dating from the creation of the reservation. In United States v. Winans the Court recognized that the United States had power to protect fishing rights reserved to Indians by treaty. This basic doctrine has been applied to other hunting and fishing rights as well. In Washington v. Washington State Commercial Passenger Fishing Vessel Association (1979) the Supreme Court relied on Winans in affirming a federal court decision that an undefined treaty “right of taking fish” was presumptively shared “50-50” between Indians and non‐Indians. The rights of Minnesota Chippewa to hunt, fish, and gather over much of northern Minnesota, as defined by an 1837 treaty, was upheld by the Court in Minnesota v. Mille Lacs Band of Chippewa Indians (1999).
The “termination era” of the 1950s led to a shift in the direction of the Supreme Court's Indian law cases. In Tee‐Hit‐Ton Indians v. United States (1955) the justices denied the Tlingit nation any aboriginal land rights in the forests of southeastern Alaska that had been theirs since time immemorial, an injustice partially remedied by the Alaska Native Claims Settlement Act a generation later. The Court harkened back to the era of Lone Wolf and forced assimilation.
Arizona v. Williams (1959) marked a change in the Supreme Court's Indian law cases. For a run of about one hundred cases through the 1980s, the Supreme Court carried forward a policy of a “new” federalism in Indian/U.S. relations based on the doctrine that U.S. Indian law should, within the structure of the paradigm set out in Worcester, promote tribal sovereignty and the functioning of the Indian nations within the federal system. Williams involved a debt collection case on the Navajo nation, removed to the Arizona state courts. But, citing Worcester, the Court held that the courts of the Navajo nation were the appropriate venue. In light of the tension between Indian nations and states, this policy was necessary in order to promote Indian sovereignty and, incidentally, referring to the traditional tension between the Indian nations and the states that was the subject of Worcester 120 years before. This policy led to a number of decisions upholding the rights of Indian nations to act to support tribal sovereignty—the right to tax, to police, to regulate, to exercise local self‐government. These legal developments paralleled national politics as a civil rights era led to more consciousness of the right of Indians to simply be “left alone as Indians.” Their continued survival, in a multicultural United States, was seen as enriching our national heritage and their political and legal functioning carrying out important functions within American democracy. The rise of Indian gaming—upheld by the Court in Cabazon Band of Mission Indians v. Wilson (1986)—was one product of this era: sovereignty gave the Indian nations the right to control their own economies, within a broad national framework, as long as other federal interests were not impaired.
The intervention of the Congress in the gambling issue, requiring tribes that wish to operate gambling casinos to enter into “compacts” with the respective state governments, has highlighted another legal issue, one brewing since the Cherokee Cases. Traditionally, the Indian tribes were protected against the incursions of state authority by the federal government. But modern considerations of federalism often require that the states and the Indian nations, neighbors on the ground, enter into political relationships that are mutually beneficial—as basic as, for example, shared police and fire protection, ambulance services, zoning, and environmental protection. In Seminole Tribe v. Florida (1996) the Court ruled that under the Eleventh Amendment Congress could not authorize suits by Indian nations seeking to require states to carry out a legal obligation to negotiate with the Seminole over gaming activities.
Oliphant v. Suquamish (1981) heralded another change in Supreme Court Indian law jurisprudence to a line of cases inconsistent with Williams. Chief Justice William Rehnquist, an adopted Arizonan, brought a western anti‐Indian jurisprudence to the Court, a jurisprudence offended by rising Indian sovereignty and the increased political influence of the Indian nations, particularly in the West. In Oliphant, a young white man was convicted of drunk and disorderly behavior by the Suquamish Tribal Court. The chief justice, ordinarily a “law and order” conservative on criminal matters, overturned his conviction on the ground that the Indian nations in the exercise of their sovereignty had no criminal jurisdiction over whites. Rehnquist's analysis ignored the fact that any person who travels into the jurisdiction of any sovereign country is subject to their laws, whether the country be France or the Suquamish nation. Analytically, Oliphant departed from the sovereignty‐based focus of Williams and balanced tribal sovereignty factors against a broad range of other social factors, including the location of the Suquamish reservation, the number of whites who lived there, and the history of tribal jurisdiction over whites. The problem with such a “balancing test” is that tribal sovereignty often does not “balance” very well with the rights of the dominant white population, which is more numerous, more powerful, owns more land, has more money, and, generally, more interests to balance.
Oliphant since has been used many times by the Supreme Court in cases that overrule exercises of tribal jurisdiction in matters of commerce, taxation, regulation of hunting and fishing rights. Since lower federal and state courts follow these precedents, the damage done to Indian sovereignty has been considerable.
Bibliography
- Angie Debo, A History of the Indians of the United States (1970).
- Vine Deloria and Clifford Lytle, American Indians, American Justice (1983).
- David Getches, Charles Wilkinson, and Robert A. Williams, Jr., Cases and Materials on Federal Indian Law, 4th ed. (1998).
- Sidney L. Harring, Crow Dog's Case: American Indian Sovereignty, Tribal Law, and United States Indian Law in the Nineteenth Century (1994).
- Francis Paul Prucha, The Great Father: The United States Government and the American Indian (1984).
- Judith V. Royster and Michael C. Blumm, Native American Natural Resources Law (2002).
- Rennard Strickland, Felix S. Cohen's Handbook of Federal Indian Law, 3rd rev. ed. (1982).
- Rennard Strickland, Genocide at Law: An Historic Contemporary View of the Native American Experience, University of Kansas Law Review 34 (1986): 713–755.
- Charles Wilkinson, American Indians, Time, and the Law (1987).
- Robert Williams, Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (1990)
— Rennard J. Strickland
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