Вы находитесь на странице: 1из 35

§3.

2 NATIVE AMERICANS

Building on models already tested by the Spanish, the French, and the British,

America advanced its takeover of the lands held by Native Americans1 through resort to

treaties — easily made and as easily abandoned — open warfare waged with, first,

superior weapons and, later, with overwhelming numbers, and, ultimately, through

genocide. 2 Writing in the mid-1830s, Alexis de Tocqueville contrasted the outright

policies of the Spanish, who tracked and exterminated the Indians as they would wild

beasts, with those of the Americans, who accomplished the same end “with singular

felicity, tranquilly; legally, philanthropically, without shedding blood, and without

violating a single great principle of morality in the eyes of the world. It is impossible to

destroy men with more respect for the laws of humanity.”3 De Tocqueville’s observation

is obviously tongue-in-cheek, because there was, in fact, great bloodshed and great

savagery directed at those deemed to be savages. His description does encompass how

the law was manipulated to justify whatever was necessary to get rid of the Indians, who

1
There is much discussion about what term should be used to refer to Native American peoples. Many
people, including people who are themselves Native American, choose to use the term “Indian” or
“American Indian” and see such use as a reclamation of an oppressive colonial nomenclature. Others prefer
“Native American” or “First American.” This author, as a non-Native American, has chosen to use the term
“Native American” as it reflects the fact that Native peoples are indigenous to America and moves away
from the often stereotypical term “Indian.” When other scholars or sources are cited, the terms they use are
not altered, which accounts for the variation throughout the chapter.
2
The traditional myths about the winning of the West have been deromanticized. The virtual eradication of
the Western Indian is painfully detailed, for example, in Dee Brown, Bury My Heart at Wounded Knee
(1970). Indian politics is surveyed with insight, wit, and militancy in Vine Deloria, Custer Died for Your
Sins (1969).
3
Cited in Rennard Strickland, Genocide-At-Law: An Historic and Contemporary View of the Native
American Experience, 34 U. Kans. L. Rev. 713, 718 (1985-1986). A more recent commentator observed:
“[H]eavy reliance on law is characteristic of many colonial societies that are typified by . . . extreme
imbalances of power. The use of law by colonizers to execute and rationalize oppressive policies, notably
the acquisition of native lands for European settlement, is poorly explained as an effort to gain the consent
of thoroughly dominated indigenous populations. Rather, . . . the use of law under such circumstances
reflects the needs of dominant colonial groups to maintain internal cohesion and morale, and, to a lesser
extent, to gain international approval for their policies.” George E. Bisharat, Land, Law, and Legitimacy in
Israel and the Occupied Territories, 43 Am. U. L. Rev. 467, 470-471 (1994).
refused to depart from what whites felt were lands that were part of the “manifest

destiny” of this nation. Indeed, American Indian law developed with and was closely tied

to the means by which whites displaced Indians. The Court adopted a number of policies

that to the observant were hardly more than rationalizations for that displacement. As one

article put it, a cynic would not be far off the mark who defined Indian law as based on

the separative premise when it was possible to move the Indians to other territory and on

the assimilative premise when land scarcity required that the Indian and his lands be

brought into the totally alien private-property system of the white man, where the Indian

could easily be dispossessed by such devices as inflated tax appraisals and long-term

leases returning minimal rents.4

Comedian Dick Gregory, fresh from a lengthy lecture on how American law dealt

with Native Americans, went outside and said, “Hey, look at that beautiful Cadillac car. I

think I will discover it.”

§3.2.1 Federal Power over Indians: Its Sources, Scope, and Limitations5

The mystique of plenary power has pervaded federal regulation of Indian affairs from

the beginning. While the Articles of Confederation contained a general power over Indian

affairs, the Constitution enumerates only one power specific to these affairs: the power

“[t]o regulate Commerce . . . with the Indian tribes.”6 The Plenary Power Doctrine, a

4
Red, White, and Grey: Equal Protection and the American Indian, 21 Stan. L. Rev. 1236, 1238-1240
(1969). Chief Joseph, one of the last great Indian leaders observed, “The white men made us many
promises. They only kept one. They said they would take our land and they took it.”
5
Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev.
195 (1984). In a lengthy article, a major portion of which is excerpted here with her permission, University
of Denver Law School Dean Newton traces the judicial “flexibility” that categorized American Indian law.
Footnotes, where included, are renumbered to conform with those in this chapter.
6
U.S. Const. art. I, §8, cl. 3.
fixture of American Indian law since John Marshall provided its first justification in

1832,7 can be traced not only to this commerce power but also to the treaty, war, and

other foreign affairs powers, 8 as well as to the property power. 9 Each has been

characterized, historically, as vesting Congress (or the President) with almost unlimited

power in contexts not involving Indians.

A. The Treaty Era: Foreign Affairs and Indian Commerce (1776-1871)

The absence from the Constitution of a general power over Indian affairs is not

surprising to students of history, for at the time the Constitution was drafted, the Framers

regarded Indian tribes as sovereign nations, albeit nations that would soon either move

west, assimilate, or become extinct. Thus, the same powers that sufficed to give the

federal government a free rein in the international arena were viewed as sufficient to

enable the new government to deal adequately with the Indian tribes. In formulating

federal policy toward Indian tribes in the early years of the Constitution, President

Washington and Secretary of War Knox followed the policy promulgated by the British

Crown — though not always followed by individual colonies — of dealing with Indian

tribes as sovereign nations. Their principal reason was practical: Earlier attempts by

individual colonies and some states under the Articles of Confederation to assert power

over Indian tribes, especially the power to seize tribal lands, had caused conflicts.

According to one historian, “[T]he country, precariously perched among the sovereign

nations of the world, could not stand the expense and strain of a long drawn-out Indian

7
Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557-562 (1832).
8
U.S. Const. art. II, §2 (treaty); id. art. I, §8, cls. 11-16 (congressional war powers).
9
U.S. Const. art. IV, §3 (property clause).
war.”10 Washington and Knox advocated a policy of respect for existing treaty promises.

In addition, they recommended that a series of new treaties be negotiated for the purpose

of acquiring Indian land by consent in an orderly fashion; the treaties would contain

promises to protect Indian tribes and tribal land from white incursions in exchange for the

land cessions. This policy of dealing with Indian tribes as nations capable of executing

treaties continued until 1871.

The treaty powers of Congress and the executive branch were sufficient to carry out

this early policy. In addition to ratifying treaties, Congress also affected Indian affairs by

means of the Trade and Intercourse Acts, first enacted in 1790. These laws originally

were designed to effectuate treaty promises of protection by imposing sanctions on

individuals and states who had infringed on Indian land or dealt with Indians in violation

of treaties.

The judiciary further solidified the analogy of Indian affairs to foreign affairs. In

Worcester v. Georgia,11 Chief Justice John Marshall upheld the supremacy of federal over

state power regarding Indian tribes, an issue that threatened to split the nation apart at that

time, but which has never seriously been open to question since then. Chief Justice

Marshall premised much of his eloquent defense of federal power on his view of the

Indian tribes as sovereign nations whose rights of self-government predated the

Constitution and whose dealings with the United States were governed by principles of

international as well as constitutional law.

10
Francis Prucha, American Indian Policy in the Formative Years 44 (1962). See also A. Wallace, the
Death and Rebirth of the Seneca 159-162 (1969) (Indian battles resulting in high U.S. casualties).
11
31 U.S. (6 Pet.) 515 (1832). Georgia had attempted to assert jurisdiction and ownership rights over the
gold-rich lands of the Cherokee Nation. Invalidating the Georgia law, the Court held that the Constitution
assigned to the federal government exclusive power to deal with Indians. Consequently, the Court
concluded that the exclusivity of federal power alone would bar any state law and that federal laws as well
as treaties preempted state laws. Id. at 561-562.
Although the Court in Worcester recognized that Indian tribes possess inherent

sovereignty rights, the decision was really a defense of federal over state power, not a

defense of Indian tribal sovereignty — the tribe was not even a party to the suit. Indeed,

by relying on federal foreign relations power to free tribal sovereignty from state control,

Worcester subjugated that sovereignty to the will of Congress. This set the stage for a

tradition of deference to Congress in Indian affairs analogous to that deference accorded

Congress (or the President) in foreign affairs.

One legacy of Worcester, then, is that courts applied to Indian affairs doctrines

peculiar to the federal foreign affairs power without necessarily distinguishing the special

status of Indian tribes as domestic rather than foreign nations. Under the last-in-time rule,

for example, Congress can abrogate a treaty with a foreign country, merely by passing a

later statute conflicting with it. Early on, this doctrine was applied to treaties with

Indians; moreover, courts continue to apply the doctrine today when Indian tribes are no

longer regarded as foreign nations. 12 Another example of the uncritical borrowing of

foreign affairs doctrines was the frequent invocation of the political question doctrine,

relatively common in foreign affairs, as a justification for failing to question

congressional power in Indian cases,13 even those raising individual rights concerns.14 For

12
See, e.g., Yankton Sioux Tribe v. United States, 623 F.2d 159, 181 (Ct. Cl. 1980) (statute permitting
Secretary of Interior to pay out shares of tribal funds to individuals abrogated a treaty promise that payment
for land sale be held in a tribal trust fund); see also Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977)
(statutes opening parts of a treaty reservation to settlers disestablished reservation). For a thorough
discussion of this controversy, see Comment, Statutory Construction — Wildlife Protection Versus Indian
Treaty Hunting Rights, 57 Wash. L. Rev. 225 (1981); see also Charles F. Wilkinson & John M. Volkman,
Judicial Review of Indian Treaty Abrogation: “As Long as Water Flows, or Grass Grows Upon the Earth”
— How Long a Time Is That?, 63 Cal. L. Rev. 601 (1975).
13
See, e.g., United States ex rel. Hualpai Indians v. Santa Fe Pac. R.R., 314 U.S. 339, 347 (1941) (“The
manner, method and time of such extinguishment [of aboriginal Indian title] raise political, not justiciable,
issues.”); Beecher v. Wetherby, 95 U.S. 517, 525 (1877) (“[A]ction towards Indians with respect to their
lands is a question of governmental policy. . . .”).
instance, although the integrity of tribal sovereignty was protected from state incursions

in Worcester, the federal government later forced the Cherokee Nation to march to Indian

territory by negotiating a treaty with a minority faction of the tribe. 15 Despite the

immediate protest of nearly all of the Cherokee people to the President and to Congress,

removal was ordered. 16 Judicial recourse would have been unavailing: The political

question doctrine would have barred the courts from questioning the procedures leading

up to the treaty.

Although courts analogized Indian nations to foreign nations in finding congressional

power to deal with them, it is important to note that the Court did not view Indian tribes

as possessing all the attributes of sovereignty of a foreign nation. In the first Cherokee

case, Cherokee Nation v. Georgia,17 the Court held that Indian nations were not foreign

states for the purpose of invoking the Supreme Court’s original jurisdiction. The Court

reasoned that the Cherokee Nation was “a distinct political society, separated from others,

capable of managing its own affairs, and governing itself. . . .” Nevertheless, the nation

was neither a state of the union nor a foreign state, but a “domestic dependent nation”

14
See e.g., Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 281 (1955) (Indians not entitled to
compensation under Fifth Amendment for taking of timber by United States from aboriginal lands. The
“power of Congress is supreme.”).
15
Treaty with the Cherokees at New Echota, Dec. 29, 1835, 7 Stat. 478. The pressures from state and
public officials created two factions among the Cherokee Nation: the Treaty Party, comprising the elite
mixed bloods, and the Ross faction, supporters of Chief John Ross. Ross, who had the support of most of
the Cherokee people, was incarcerated while the Treaty Party representatives negotiated the treaty. The
treaty, ratified at New Echota, the capital of the Cherokee Nation, by only 20 persons, ceded all the tribal
land in Georgia in exchange for 7 million acres of land in Indian Territory. French, The Death of a Nation,
4 Am. Ind. J. 2, 3-4 (1978).
16
A petition protesting the treaty, signed by nearly sixteen thousand of the seventeen thousand members of
the Cherokee people, was presented to Congress. Grant Foreman, Indian Removal 269 (new ed. 1953).
More than four thousand of sixteen thousand Cherokees died in the camps where they awaited removal and
along the Trail of Tears, as the route to Indian Territory came to be called. Id. at 294-312; see also Grant
Foreman, The Last Trek of the Indians (1946).
17
30 U.S. (5 Pet.) 1, 16-17 (1831).
incapable of conducting foreign relations with countries other than the United States.

Instead, “[t]heir relation to the United States resembles that of a ward to his guardian.”

In sum, from the beginning, Indian tribes were in a truly anomalous position.

Congress and the President viewed them as separate nations in some respects.

Furthermore, individual Indians were regarded as domestic subjects, more akin to aliens

than citizens, until Congress granted them universal citizenship in 1924.18 The judicial

deference traditionally accorded the political branches of the federal government in

conducting foreign affairs and dealing with aliens attached to federal regulation of Indian

affairs. As domestic dependent nations, Indian tribes possessed sovereignty, but could not

invoke the jurisdiction of the federal courts. Indeed, the broad language in Cherokee

Nation about the peculiar status of Indian tribes, created doubt that tribes had standing to

sue in federal court, a matter that was subject to some question for many years. In short,

the integrity of tribal sovereignty rested precariously on the whim of Congress, owing, in

the early years, to the Court’s extraordinary deference to the political branches’ exercise

of the foreign affairs power in their dealings with the Indians.

B. The End of the Treaty Era (1865-1871)

In the years preceding the Civil War, especially during the 1830s to the 1850s,

Congress had sought to remove the eastern Indian tribes west of the Mississippi, but as

settlers began opening up the west, continued removal began to be viewed as impossible.

After the Civil War and the pacification of the last tribes of the plains, a movement began

to assimilate Indians into American culture, by force if necessary. A policy of treating

18
Citizenship Act of 1924, ch. 233, 43 Stat. 253 (current version at 8 U.S.C. §1401(b) (1982)).
Indian tribes as separate nations with power over their own people on their own land was

seen as antithetical to this new policy.

Divergent groups coalesced for very different reasons behind this assimilationist

policy. Some regarded Indians as barbarians who had to be civilized for their own

security and the security of those living near them. It was believed that if Indians were

citizens, individually owning small tracts of land, they would come under the civilizing

effects of the life of a farmer or a rancher and would abandon their nomadic and barbaric

habits. Large portions of surplus reservation land could then be sold to settlers, who were

clamoring for it. In addition, with the end of the reservations, promises that reservation

land would never be contained within a state’s limits would become meaningless; thus,

for the remaining territories, individual ownership would remove this barrier to statehood.

Other advocates of assimilation, members of the “Friends of the Indians” movement,

were moved by more benign motives. They argued that only by becoming citizens, voters,

and individual landowners would Indians be able to protect themselves and their land

from the settlers and from the federal government’s dishonorable practice of “breaking . . .

several hundred treaties, concluded at different times during the last 100 years. . . .”19 The

House of Representatives ushered in the new “Era of Allotment and Assimilation,” when

it decreed in a rider to the Appropriations Act of 1871 that henceforth “[n]o Indian nation

or tribe within the territory of the United States shall be acknowledged or recognized as

an independent nation, tribe, or power with whom the United States may contract by

treaty.”20 The legislators were motivated by the belief that Indian affairs should no longer

be a matter of foreign affairs now that the last remaining Indian tribes of a warlike nature

19
Helen Hunt Jackson, A Century of Dishonor 26 (1881 & photo. reprint 1965). Jackson’s indictment of
federal policy sparked the reform movement.
20
Act of Mar. 3, 1871, ch. 120, §1, 16 Stat. 566 (codified at 25 U.S.C. §71 (1976)).
had been subdued. Thus, the treaty-making era came to an end. Indian law became more

a matter of domestic law, with Indians regarded as subjects to be governed, rather than as

foreign nationals.

With the end of the treaty-making era came statutes designed to implement the new

assimilationist policies. Many of these statutes could not be viewed as either effectuating

treaty promises or regulating trade. Thus the Court was forced to develop new rationales

to justify federal actions concerning Indians. From two concepts — property interest and

guardianship — the Court in the late nineteenth century gradually developed a

guardianship power over Indian tribes, a power that it frankly acknowledged to be

extraconstitutional.

C. Plenary Power: Its Genesis and Exercise (1870s-1930s)

The notion that the federal government had a property interest of some sort in Indian

land provided the central element in the analysis resulting in guardianship power. Thus,

to understand the guardianship power asserted by the federal government, it is necessary

to briefly trace the history of the Doctrine of Discovery, the source of the property

interest. Johnson v. McIntosh, 21 decided in 1823, was the first major case directly

concerning the validity of Indian property interests to reach the Court. Drawing

inspiration from international law regarding the sovereign rights of the nations that had

colonized the New World, Chief Justice Marshall held that by virtue of discovering a

nation inhabited by non-Europeans, the discovering nations (and America as their

successor) obtained a property interest, described as “ultimate title,” to that discovered


21
21 U.S. (8 Wheat.) 543 (1823).
land. According to Chief Justice Marshall: “[D]iscovery gave title to the government by

whose subjects, or by whose authority, it was made, against all other European

governments, which title might be consummated by possession.” This title gave the

government the preemptive right to purchase Indian land or to confiscate it after a war.

The Indians, on the other hand, remained “the rightful occupants of the soil, with a legal

as well as just claim to retain possession of it.” Until the sovereign exercised its

preemptive right to extinguish Indian title, the Indians’ right to the land was sacrosanct.

Thus, a purchaser from the Indians could not obtain a fee simple absolute title without

obtaining the government’s interest as well.

The Doctrine of Discovery protected federal, individual, and tribal interests. Federal

power to control acquisition of new land was supreme. Individuals tracing title to past

grants had their title confirmed, although, if Indians still inhabited the land,

extinguishment of the Indian title was necessary to perfect their interests. Finally, tribal

rights to aboriginal land were confirmed and protected to some extent.22 Although the

Doctrine of Discovery was a concept designed in part to protect Indian rights to land as

well as to protect the principle of federal exclusivity in dealing with Indians regarding

their land, later judicial misinterpretations of the doctrine are in large part responsible for

arguments in favor of virtually unreviewable federal power over Indian lands. These

arguments were prevalent in the late eighteenth and early nineteenth centuries and are

still present to some extent in Indian law today.

22
See Felix S. Cohen, Original Indian Title, 32 Minn. L. Rev. 28, 48-49 (1947); accord Russel Lawrence
Barsh & James Youngblood Henderson, Contrary Jurisprudence: Tribal Interests in Navigable Waterways
Before and After Montana v. United States, 56 Wash. L. Rev. 627, 635-636 (1981); Howard R. Berman,
The Concept of Aboriginal Rights in the Early Legal History of the United States, 27 Buffalo L. Rev. 637,
644-645 (1978). See generally Henderson, Unraveling the Riddle of Aboriginal Title, 5 Am. Indian L. Rev.
75 (1977).
While the early decisions of the Marshall Court viewed the government’s property

interest in land as a preemptive right to purchase, or a sort of glorified option to buy the

land, subsequent decisions denominated the government’s interest as a title interest and

the tribal interest as a possessory one. The more the government’s interest was

characterized as an ownership interest, the more it became possible to regard the

ownership of land alone as giving the government power to govern Indians.

Acknowledging that no existing constitutional provision granted Congress this right

to govern Indian affairs, the Court found it to be inherent, first by analogy to early

decisions regarding the power to regulate activities within the territories. Drawing

support from cases upholding congressional power to govern territories before statehood,

the Court in Kagama stated that the power over territories derived “from the ownership of

the country in which the Territories are.”23 The Court quoted an earlier opinion by Chief

Justice Marshall regarding territorial government: “[T]he right to govern may be the

inevitable consequence of the right to acquire territory.”24 By parity of reasoning, the

Court found inevitable the right to govern activities of reservation Indians whether within

or without state boundaries. The Doctrine of Discovery gave the United States “ultimate

title” over Indian land wherever located and the exclusive right to acquire that land. Thus

the federal government owned the country in which the Indian tribes lived, and this

ownership interest in turn vested the government with the right to govern them. Finally,

the Court relied on the history of federal supremacy over the states in Indian affairs and

the historic, protective role that the government played toward Indians. These Indian

tribes (the Court held) are the wards of the nation. They are communities dependent on

23
United States v. Kagama, 118 U.S. 375, 380 (1886).
24
Id. (quoting American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 542 (1828)).
the United States: dependent largely for their daily food and dependent for their political

rights. They owe no allegiance to the states and receive from them no protection. Because

of the local ill feeling, the people of the states where the Indians are found are often their

deadliest enemies. From the Indians’ very weakness and helplessness, so largely due to

the course of the federal government’s dealings with them and to the treaties through

which the government made its promises to them, there arises the duty of protection and,

with it, the power.

At first glance the practical solution seems a happy one. The states had proven

themselves to be the greatest enemies of the Indian tribes, and the federal government

had insisted on the exclusive right to deal with the tribes since the founding of the

republic. Moreover, the practical solution did no violence to the allocation of powers

between nation and states in the Constitution. Although the Court might have taken

greater care to demonstrate that the continued power to legislate regarding Indian affairs

was a necessary inference from the history and the text of the Constitution, still the

narrow result of Kagama — the supremacy of federal over state power — was a just one.

Yet the Court in Kagama failed to consider tribal rights. Consent of the governed had

been a cardinal principle of the founders. Nevertheless, that Indians were not citizens and

could not vote did not seem relevant to the Court. Once again, by concentrating on

justifying federal power, the Court reinforced earlier precedents abdicating its role in

accommodating the legitimate but competing interests raised by the federal government’s

interference with tribal rights. Such accommodation was left to the political arena: an

arena from which Indians were excluded.


Kagama and its nineteenth-century precedents reflect a laissez-faire judicial attitude

toward federal regulation of Indian affairs more than a prescription concerning the proper

balance of the interests at stake. It is unnecessary at this late date to argue that such a

deferential attitude was inappropriate in nineteenth-century jurisprudence, when

nonintervention in the cause of individual liberties was a hallmark of judicial policy.25

What is important, however, is the tenaciousness of the deferential attitude, manifested in

the Court’s subsequent reliance on Kagama well into the twentieth century.

From the time of Kagama until well into the twentieth century, policy makers denied

tribal Indians the basic freedoms accorded other Americans, on the theory that their

relation to the United States was “an anomalous one and of a complex character.”26 Even

now, an increasing number of Justices on the Supreme Court are getting distraught about

the anomalous nature of tribal sovereignty. 27 Although nominally protected by the

individual rights provisions of the Constitution, like other noncitizens, Indians and Indian

tribes in fact could not vindicate their rights in the courts. While the Fourteenth

Amendment had been held to guarantee all persons equal access to the state courts,

irrespective of their race, 28 Elk v. Wilkensn 29 and subsequent cases cast considerable

doubt on whether the Fourteenth Amendment’s equal protection clause extended to

Indians. Moreover, the 1866 Civil Rights Act guarantee that “citizens . . . shall have the

25
See, e.g., Mormon Church v. United States, 136 U.S. 1, 44 (1890) (upholding law breaking up Mormon
Church and providing for seizure of Church property); Dred Scott v. Sandford, 60 U.S. 393, 451-452
(1857) (fundamental property rights of slave owners); cf. William E. Nelson, The Impact of the Antislavery
Movement upon Styles of Judicial Reasoning in Nineteenth Century America, 87 Harv. L. Rev. 513 (1974)
(the formalistic “rules” approach of the late nineteenth century was in part a reaction to freewheeling
instrumentalist opinions like Dred Scott).
26
Kagama, 118 U.S. at 381.
27
Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 431
(2005).
28
Yick Wo v. Hopkins, 118 U.S. 356 (1886).
29
112 U.S. 94 (1884).
same right . . . to sue, be parties, and give evidence” explicitly excluded Indians from

citizenship. Even when access to the courts was granted, this lack of familiarity with state

law and procedures, state laws excluding them from juries and declaring them

incompetent as witnesses, and state juries’ anti-Indian prejudice were powerful

disincentives to their filing suit in state courts.

Access to federal courts was also problematic. First, being neither citizens nor true

aliens, individual Indians and Indian tribes could not sue in federal court on nonfederal

questions. Although Indian tribes and individuals bringing class actions on behalf of

tribes did raise federal questions in federal courts, their status as wards of the government

sometimes confused the issue of tribal and individual standing to sue.

Undoubtedly, racial and cultural prejudice played no small role in federal actions

toward Indians during this period. The reported justifications for these federal actions

rested on the guardianship theory of United States v. Kagama, cited frequently in the

cases of that era. Yet one key to the Court’s finding of a congressional guardianship

power over Indians was its view of their racial and cultural inferiority. Repeatedly, the

decisions of that era invoked this inferiority in terms that would be intolerable in a

judicial opinion today. The undisguised contempt for the native culture was unrelieved by

an open-minded assessment in any of the principal cases studied. Rather, the Indians

were described as semibarbarous, savage, primitive, degraded, and ignorant.

The relationship between the federal government and the Indian was frequently

termed as one between a superior and inferior. The white race was called more intelligent

and highly developed. The government’s representatives held the implicit belief that a

higher civilization justly replacing that of a passing race whose time was over and whose
existence could no longer be justified. The very weakness of the Indians in resisting the

tide seemed to be one of their greatest moral shortcomings, but one not as serious as the

Indian communal tradition. To the white observer, the lack of proprietary interest

generally displayed by tribal members was repulsive and backward. Removing the “herd”

instinct was deemed by some to be the key to civilizing the Indian. The ethnocentric

outlook of the times may well have tainted the Court’s view of the legitimacy of Indian

rights claims and may explain, if not excuse, some of the more egregious violations of

tribal and individual fundamental rights that have continued to occur.

Forced allotment of Indian lands and assimilation of Indians into the dominant culture

became the primary policy of the federal government during the years following Kagama.

Tribal land was subdivided, some apportioned to individuals with no compensation to the

tribe, and the rest sold to non-Indian settlers, often at far less than fair market value. The

Court aided this process, holding that the plenary power of Congress, derived from the

Indians’ “condition of dependency,” somehow converted Indian property, even fee

simple property, into quasi-public land “subject to the administrative control of the

government.” This authority permitted Congress, acting through the Secretary of the

Interior, to lease, sell, or allot any tribal land without tribal consent, even in violation of

solemn treaty promises. The money gained by these ventures was placed in trust funds

managed by the government and disbursed as the government believed wisest, often for

the purpose of assimilating and civilizing the Indians. For example, tribal trust money

was often spent to pay missionaries to educate Indian children in the ways of white

society and Christianity — without consulting the tribe. Furthermore, money promised
the tribe as an entity in treaties could be paid to members per capita, thus drastically

diminishing the tribe’s resources.

The Court supported these federal actions by eschewing any role in accommodating

the competing interests at stake. Congress had decided in 1871 to govern Indians by

statute, and its actions were not justiciable: Plenary authority over the tribal relations of

the Indians has been exercised by Congress from the beginning, and the power has

always been deemed a political one, not subject to be controlled by the judicial

department of the government. Indians abandoned the attempt to restrain federal action.

Instead, tribes used what resources they had to persuade Congress to pass statutes

permitting them to sue for compensation for land that was taken.

The legacy of Kagama dominated Indian sovereignty issues, and citation of Kagama

frequently signaled judicial deference to Congress. Chief Justice John Marshall had

regarded Indian tribes as possessing a “right of self-government” and having a

protectorate relationship with the federal government, like “that of a nation claiming and

receiving the protection of one more powerful: not . . . submitting as subjects to the laws

of a master.” Nevertheless, in Kagama, the Court interpreted the 1871 statute ending the

practice of making treaties with Indian tribes as establishing the premise that the federal

government intended to govern the tribes by acts of Congress. Thus, the Court upheld

federal power to take from Indian tribes jurisdiction over crimes among Indians, the first

major federal inroad into tribal internal affairs. The court subsequently invoked the

Kagama guardianship power and the political question doctrine as justifying judicial

nonintervention when Congress abrogated tribal self-government rights. Tribes largely


shunned litigation as a strategy to protect their political sovereignty interests after these

early judicial defeats.

Having obtained such a judicial seal of approval for the exercise of its power,

Congress proceeded to treat the previously semi-independent Indian tribes as subject

peoples. The dissolution of tribal governing structures was a cardinal aim of the

Allotment Period. For instance, in 1906, Congress denied the legislatures of the Five

Civilized Tribes the right to meet more than 30 days per year, and their legislative action

was made subject to veto by the President of the United States. Legislative intervention

even extended to federal power over tribal money. Statutes provided that money due to

tribes from tribal assets could be appropriated at the discretion of Congress. The

Secretary of the Interior’s power over disbursement of Indian money enabled him to

manipulate the tribe with a concomitant weakening effect on tribal sovereignty. Moreover,

Congress, not the tribes, had the ultimate authority to determine who was a tribal member

for purposes of distributing property, annuities, and trust money and to determine, further,

how that money was spent. Finally, Congress even authorized the consolidation of tribes

with no ethnological ties— even some who were ancient enemies.

As one commentator has noted, by these and other measures, “the Indian Agent and

his staff were ‘the government’ for most tribes from the cessation of treaty-making to the

1930’s.”30 While the courts did not explicitly endorse every erosion of tribal political

sovereignty occurring during this time, they certainly shared responsibility for it, because

Kagama and its progeny had eviscerated any litigation strategy to protect tribal

sovereignty rights.

30
Theodore W. Taylor, The States and Their Indian Citizens 17 (1972).
Judicial abandonment of Indians was not limited to rights asserted by tribes. The

Court also treated individual Indians as constitutional castaways. For instance, according

to Kagama, Indians were within the geographical limits of the United States and thus

were subject to whatever laws Congress deemed appropriate. A year and a half before

Kagama, however, the Court had held in Elk v. Wilkins31 that Indians were not citizens,

thereby upholding a state’s denial of the right to vote to an Indian who had severed

relations with his tribe and become a lawful resident of the state. Over the dissent of the

first Mr. Justice Harlan, the Court reasoned that, although the petitioner was born in the

United States, he was not “subject to the jurisdiction” of the United States for the

purposes of the Fourteenth Amendment, because all Indians “owed immediate allegiance

to their several tribes, and were not part of the people of the United States.” Indians might

be subject to United States jurisdiction in some respects, but the Fourteenth Amendment

required more: They must be “completely subject to [United States] political jurisdiction,

and owing them direct and immediate allegiance.” While the Court in Elk reaffirmed

salutary principles of tribal sovereignty, it undermined individual rights, because Indians,

even those who had assimilated, could not become citizens of the United States without

permission of Congress. Many other noncitizen aliens who claimed direct allegiance to

other nations had a choice that Indians never had: They could go home and remain

subject to the sole jurisdiction of the country of their birth. Indians, on the other hand,

were alien subjects of a federal power they had not chosen and could not escape.

Eventually, those who favored the assimilationist policy because of concerns for

Indian well-being urged successfully that Indians who received allotments should be

31
112 U.S. 94 (1884).
made U.S. citizens. 32 This grant of citizenship permitted Indians to take part in the

political process. Nevertheless, those Indians whose lands escaped allotment remained

noncitizen subjects.

Even after the bestowal of citizenship on all Indians,33 Congress continued to legislate

pervasively on Indian matters. The Court supported this exercise of power, holding that

conferral of citizenship did not end the guardian-ward relationship. Moreover, the Court

held that an individual Indian had no power to terminate the guardian-ward relationship

unilaterally.

Legislation of this era curtailed individual Indian property rights by placing restraints

on the alienation of allotted land, including fee simple allotted land. The right of Indians

to make contracts affecting trust property and to dispose of trust property was

conditioned on approval by the Secretary of the Interior. Furthermore, individual Indian

beneficiaries of congressional allotment schemes could not rely on the congressional

largess bestowed on them. Statutes granting individuals property rights in the most

explicit language were overturned by later statutes enlarging the class of beneficiaries and

even, when congressional policy favoring tribal self-government resurfaced in the 1930s,

giving the land back to the tribe.

First Amendment rights, too, were curtailed drastically. Indian religions were banned

upon threat of criminal prosecution in the Courts of Indian Offenses set up by the Bureau

of Indian Affairs. Children were forced to attend boarding schools to receive rations

promised in return for land cessions. Moreover, the children were denied the right to

32
The General Allotment Act provided that Indians receiving allotments under any treaty or statute would
become citizens; General Allotment Act of 1887, ch. 119, §6, 24 Stat. 388, 390 (codified as amended at 25
U.S.C. §349 (1976)). The act also declared Indians living separate and apart and “adopting the habits of
civilized life” to be citizens.
33
Indian Citizenship Act of 1924, ch. 233, 43 Stat. 253 (current version at 8 U.S.C. §1401(b) (1982)).
speak their own language at the schools. They were educated only in English, and then

only about American values. This coerced education in Indian boarding schools

continued even after the Supreme Court recognized the fundamental right of non-Indian

families to oversee the education of their children by sending them to private schools or

to schools where foreign languages were taught. Finally, individual Indians were subject

to liquor laws, whether or not they had severed tribal relations and whether or not they

lived on a reservation.34

In modern times, the Supreme Court has apparently repudiated both the ethnocentric

overtones of the doctrine of plenary power and the doctrine itself, at least as far as the

doctrine suggests it has an extraconstitutional source or is a power unlimited by other

constitutional provisions. Nevertheless, the concept of plenary power continues to

influence contemporary Indian law by conditioning the courts to defer to congressional

power over Indian affairs. U.S. v. Lara35 is a recent example. This case involved a man

who was prosecuted in Tribal Court but was later charged by the federal government.

Lara invoked the Double Jeopardy Clause of the U.S. Constitution (which states that the

government may not subject any person “for the same offence to be twice put in jeopardy

of life or limb”)., claiming that he had already been charged in Spirit Lake Tribal Court

on the basis of prosecutorial power that Congress had delegated to tribes through a 1991
34
See, e.g., Hallowell v. United States, 221 U.S. 317 (1911) (upholding prosecution for violation of law
against selling liquor to an Indian or Indian allottee). These liquor laws were explicitly racial. In Hallowell,
for instance, despite the fact that the defendant had been active in county and state governments as a judge,
county attorney, county assessor, and director of a public school district, he was still subject to the law
because of his status as an Indian. See id. at 320, 324.
35
United States v. Lara, 541 U.S. 193 (2004). See Alex B. Roberts, “Reservations on Tribal Sovereignty:
How United States v. Lara will affect Indians, Tribes and the Fight to Regain Independence”, available at
http://www.houstonlawreview.org/archive/downloads/43-2_pdf/Roberts.pdf; see also Alex Tallchief
Skibine, United States v. Lara, Indian Tribes, and the Dialectic of Incorporation, 40 Tulsa L. Rev. 47
(2004).
amendment to the Indian Civil Rights Act. The Supreme Court held that the Spirit Lake

Tribe's prosecution of Lara was an exercise of the “inherent sovereignty” of the Spirit

Lake Tribe, and not an exercise of a federally delegated power of prosecution. Thus, the

Double Jeopardy Clause did not prohibit the Federal Government from proceeding with

the prosecution for a federal offense.

D. The Modern View of Congressional Power over Indians: The Development of a

More Restrictive View of the Guardian Ward Relationship (1930s to the Present)

As demonstrated above, barriers to the Indian tribes’ access to the judicial system and

that system’s deference to Congress, coupled with indifference to tribal and individual

rights on the rare occasions when Indians were allowed into court, marked the plenary

power era, which lasted at least until the 1930s. In the 1930s and 1940s, Congress

repudiated the allotment and assimilation policy, which had come under much criticism,

and adopted a policy of protecting tribal cultures and encouraging tribal self-government.

This shift in policy undoubtedly affected the Court, as demonstrated by an increased

receptivity to Indian claims.

First, both Congress and the judiciary opened the doors to the courthouses for Indians

long denied ready access to the courts. For instance, the Court finally clarified the murky

question of whether tribal Indians had standing to sue in federal court absent a

congressional grant. During the allotment era, the Court had upheld the power of the

executive to bring suit on behalf of Indian wards and had intimated that Indians not only

could have no say in the litigation, but might also have no right to sue on their own behalf

once the United States had undertaken their representation. In 1943, the Court entertained
a suit brought under a statute expressly permitting an aggrieved tribe to seek appellate

review of a determination of the value of land taken by railroads. The Court held that the

statute gave the tribe the right to sue, but added that Indian tribes also have “a general

legal right” to bring lawsuits.36 Finally, in 1968, the Court made plain that an individual

Indian’s status as a ward of the United States did not preclude him or her from bringing

suit on his or her own behalf.37 More important, Congress, by enacting the Indian Claims

Commission Act of 1946, finally removed the barrier of sovereign immunity to money

claims against the government that had hindered tribes in the 83 years since the Court of

Claims was created. Within 5 years, tribes filed more than five times as many claims

against the government as they had during the entire 65 previous years. Finally, the 1976

passage of an amendment to the Administrative Procedure Act, waiving sovereign

immunity for claims based on that statute, enabled Indians and Indian tribes to seek

review of wrongful agency actions.38 As more Indian claims reached the judiciary, the

Court began to narrow the Plenary Power Doctrine and repudiated the notion that

Congress’s plenary power could prevent the courts from reaching the merits of specific

constitutional claims by Indian tribes. It held that plenary authority over Indians did not

enable the United States to give the tribal lands to others, or to appropriate them to its

own purposes, without rendering, or assuming an obligation to render, just compensation

for them; for that “would not be an exercise of guardianship, but an act of confiscation.”39

Concurrently, the Court began to rely on specific provisions of the Constitution in place

36
Creek Nation v. United States, 318 U.S. 629, 640 (1943).
37
Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 370-371 (1968) (construing Heckman v. United States, 224
U.S. 413 (1912), as implying that standing to sue existed).
38
Act of Oct. 21, 1976, Pub. L. No. 94-574, 90 Stat. 2721 (codified at 5 U.S.C. §702 (1982)). For a
discussion of pitfalls in suing the federal government, see Newton, Enforcing the Federal-Indian Trust
Relationship after Mitchell, 31 Cath. U. L. Rev. 635 (1982).
39
United States v. Creek Nation, 295 U.S. 103, 110 (1935).
of inherent authority as the source of congressional power over Indians. The process was

a gradual one. By 1965, the Court relied solely on the Indian commerce clause in holding

that a federal law regulating trading activities on Indian reservations preempted state

taxation of those activities. Since the 1960s, the Court has looked increasingly to

enumerated powers, especially the power to effectuate treaties, the Indian commerce

clause, or both. Moreover, the Court repudiated the notion that Congress’s plenary power

was extraconstitutional, ruling rather that it was “drawn both explicitly and implicitly

from the Constitution itself.”40

Subsequently, the Court adjudicated an equal protection challenge to the distribution

of judgment funds by the Secretary of the Interior. The Court noted that power over tribal

property, while plenary, is “rooted in the Constitution” and may be challenged when it

infringes constitutional rights. Moreover, the Court served notice that the political

question doctrine, which had been invoked often in the past as a bar to reviewing

congressional action adverse to Indian claims, had no place in cases raising individual

rights guarantees. By 1980, the Court had dismissed the political question doctrine.41

During this process of narrowing the Plenary Power Doctrine, the Court also began to

redefine its source — the guardian-ward relationship. Although the guardian-ward

relationship of Kagama was the basis for the power to impose federal criminal laws on

tribal Indians, Kagama itself and other allotment era cases also referred to duties toward

Indians imposed on the government by the guardian-ward relationship. These decisions

treated the duties as self-imposed moral obligations, not legally enforceable. Nevertheless,

in cases in which Congress had waived sovereign immunity, the judiciary began to

40
Morton v. Mancari, 417 U.S. 535, 551-552 (1974).
41
United States v. Sioux Nation, 448 U.S. 371, 413 (1980).
impose duties on the government, akin to those imposed on ordinary fiduciaries, to

manage Indian money and land responsibly. Indian breach of trust cases proliferated, and

many were successful. Courts rendered specific relief or assessed money damages for

breaches of a trustee’s duties of care and loyalty in a number of cases involving

mismanagement of money or natural resources. The result is that, in modern-day Indian

law, the trust relationship, although not constitutionally based and thus not enforceable

against Congress, is a source of enforceable rights against the executive branch and has

become a major weapon in the arsenal of Indian rights.

In United States v. White Mountain Apache Tribe42 the tribe sought damages for the

U.S. failure to protect and preserve Fort Apache and the Supreme Court held that the

Government is subject to duties as a trustee and potentially liable in damages for

breach.43 In United States v. Navajo Nation, 44 on the other hand, the tribe also sought

damages for the government’s mismanagement of a mineral lease. 45 In this case, the

Court held that the U.S. cannot be held liable for a breach of trust with an Indian Tribe in

connection with the negotiation of a mining lease, when the U.S. has violated no specific

statutory or regulatory duty established in the Indian Mineral Leasing Act of 1938.46

42
537 U.S. 465 (2003).
43
Id. at 466.
44
537 U.S. 488 (2003).
45
According to the Indian Mineral Leasing Act of 1938 (IMLA) Indian tribes, with the approval of the
Secretary of the Interior, can to lease the mining rights on their tribal lands to private companies. In 1964,
Navajo Nation entered into a lease with the predecessor of Peabody Coal Company, allowing Peabody to
mine on the tribe's land in return for a royalty, but after 20 years, the tribe's royalty was only worth 2% of
Peabody's gross proceeds.
46
The Court ruled that an Indian Tribe must “identify a substantive source of law that establishes specific
fiduciary or other duties.” See also Gros Ventre Tribe v. Unite States, 469 F.3d 801 (holding that there is
no specific duty on the United States to regulate third parties or non-tibal resources for the benefit of the
Tribes.) Gros Ventre Tribe, Assiniboine Tribe, and the Fort Belknap Indian Community Council had filed
suit in the District of Montana against the United States, its Bureau of Land Management (“BLM”), the
Bureau of Indian Affairs, and the Indian Health Service alleging that the government had violated specific
and general trust obligations to protect tribal trust resources (primarily water rights) by authorizing and
planning to expand two cyanide heap-leach gold mines located upriver from the Tribes’ reservation.
Perhaps the success of breach of trust claims has obscured the fact that the Plenary

Power Doctrine has not been expunged completely from Indian law. Tribes wishing to

impose fiduciary duties on the government did not challenge the government’s power to

manage and control Indian resources, but argued that the power carried duties along with

it. Moreover, with the taming of the doctrine in recent years, most commentators have

come to regard the term “plenary power” as referring only to the notion that the existing,

fairly sketchy references to sources of power over Indians in the Constitution are to be

read broadly, much as are the references to foreign affairs, and thus as giving the federal

government primary power over Indian affairs.

Nevertheless, vestiges of the judicial attitude of nonintervention developed and

nurtured in the plenary power era remain, especially in the areas of tribal sovereignty and

property rights where the Court continues to rely on an inherent Indian affairs power of

almost unlimited scope. For instance, the Court characterizes tribal sovereignty as

existing “only at the sufferance of Congress,” which has “plenary authority to limit,

modify or eliminate the powers of local self-government.” As to property, the Court

continues to recognize Congress’s “paramount power over the property of the Indians.”

Moreover, the Court quite frankly explains that this power is derived “by virtue of

[Congress’s] superior position over the tribes” or even “the conquerors’ will” — the kind

of might-makes-right argument that resonates of nineteenth-century Indian law

jurisprudence.

In City of Sherrill v. Oneida Indian Nation47 the Supreme Court held that the doctrine

of laches barred the Oneida Nation from recovering sovereignty by purchasing back its

47
City of Sherrill v. Oneida Indian Nation of N. Y., 125 S. Ct. 1478 (2005).
land. The Court explained, “[the] doctrine [of laches] focuse[s] on one side’s inaction and

the other’s legitimate reliance [to] bar long-dormant claims for equitable relief.”48

The following is a partial list of the congressional actions receiving the Court’s

sanction in modern times, often in decisions citing the major cases of the plenary power

era. The Court has upheld congressional power to reduce the boundaries of a reservation

without tribal consent or compensation, thereby reducing, for all practical purposes, a

tribe’s power to govern. In addition, the Court has upheld power to divest a tribe of all

criminal, civil, or regulatory jurisdiction; to abrogate treaties; and to subject tribal laws

and constitutions to federal approval. As to tribal property rights, congressional power

remains as sweeping as it was during the plenary power era. Congress may require the

Secretary of the Interior to approve land sales and leases by tribes and contracts

obligating money held by the federal government but owed to the tribe. Congress may

abrogate without liability future interests in Indian lands granted by earlier statutes and

may enlarge or decrease the class of beneficiaries of tribal trust funds or lands. Congress

may take one kind of tribal property, aboriginal Indian property, without paying

compensation; it may, without consent, dispose of recognized-title tribal property under

the guise of management and sell it at less than fair market value without liability, as long

as the tribe receives some proceeds. According to some observers, it may even extinguish

legal land claims of Indian tribes by retroactively extinguishing both title to the land and

any claims based on that title. The Court’s continued failure to attempt to define the

extent of Congress’s power over Indian affairs has encouraged further undue assertions of

that power.

48
Id. at 1491.
Though a full discussion of the concept of native or aboriginal title lies outside the

scope of this section, a few notes on U.S. law in this area should be considered.49 Native

or aboriginal title refers to the ability of indigenous peoples to successfully claim

ownership of or title to their historical homelands within the legal system of a colonizing

power. The claim for title grounds itself in the historical, cultural, and spiritual

connection between indigenous peoples and the land they inhabited both before and after

the arrival of colonial regimes. In countries such as Canada and Australia, both of which

recognize native title, if a group of indigenous peoples shows a particular form of

historical, non-colonial connection to disputed lands, the legal ownership of that land

under the domestic law of the colonial power flows to the indigenous peoples or tribe.50

Though fraught with legal complications, the recognition of native title has been hailed as

a crucial step in the liberation of indigenous peoples from the continuing effects of

colonization and conquest.

In opposition to growing trends in international law, the U.S. does not recognize the

right of Native Americans to native title in their historical lands. In the case of Tee Hit

Ton Indians v. United States, 51 the U.S. Supreme Court rejected a Fifth Amendment

takings claim brought by Native American tribes. In order to make a takings claim, the

land taken must have been the legal property of the claimant. The Court explicitly

rejected Native title as the basis for land ownership and held that Native American tribes

could claim only lands not already held by the tribe in fee simple if an explicit act of

49
Thank you to Elizabeth Loeb, J.D./Ph.D. candidate at New York University School of Law, for her
assistance on researching Native American title claims.
50
See Mabo v. State of Queensland, 107 A.L.R. 1 (1992); Guérin v. Canada, S.C.R. 335 (1984).
51
348 U.S. 272 (1955).
Congress granted the land to the tribe.52 The Tee Hit Ton decision continues to vigorously

function as good law within the United States.53 Although state disenfranchisement of

Indians continued into the twentieth century, individual Indians now facially enjoy the

same constitutional rights as other Americans. It is, however, important to note that, in

certain instances, federal constitutional provisions may not apply on “Indian country.”54

While on Native land, persons, both Native and non-Native, may be subject to the

jurisdiction of tribal courts and laws, which do not mirror exactly federal constitutional

protections.55

52
Id. at 274.
53
See Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voight, 700 F.2d 341, 351+ (7th Cir.
1983); Karuk Tribe of Calif. v. Ammon, 209 F.3d 1366, 1374+ (Fed. Cir. 2000); Alabama-Coushatta Tribe
of Tex. v. United States, 2000 WL 1013532 11 (Fed. Cl. 2000); Zuni Indian Tribe of N.M. v. United States,
16 Cl. Ct. 670, 671+ (1989).
54
“Indian country,” as defined at 18 U.S.C. §1151, means “(a) all land within the limits of any Indian
reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any
patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities
within the borders of the United States whether within the original or subsequently acquired territory
thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to
which have not been extinguished, including rights-of-way running through the same.” The Court has held
that this definition applies to questions of both criminal and civil jurisdiction. California v. Cabazon Band
of Mission Indians, 480 U.S. 202, 208 n.5, citing DeCoteau v. District County Ct., 420 U.S. 425, 427, n.2.
The applicability of these doctrines in Alades Hawaii involves additional complexities.
55
The relationship between Indian lands and the Constitution, and the Bill of Rights in particular, is a
complicated as well as somewhat ambiguous one, as Lucy A. Curry writes:
An unavoidable tension results from recognizing tribes as sovereign entities with the powers of self-
government that are necessarily diminished under the historic and pervasive control of the dominant Anglo-
American norms and prejudices. The inherent conflicts arising from this arrangement are most apparent
when Indian tribes assert their sovereign powers over non-Indians living or transacting on tribal lands. For
example, Congress passed the Major Crimes Act, extinguishing tribal jurisdiction over all major crimes,
and passed both the IRA and the ICRA, respectively giving tribes the official power of self-governance and
statutorily restricting tribal exercise of its powers based on the Anglo-American liberties of the Bill of
Rights. Read together these laws allow tribes to operate as separate sovereigns with the jurisdiction to
prosecute only minor crimes occurring on Indian land with the due process protections of the Bill of Rights,
including habeas corpus relief in federal courts. With this status of the relevant law in mind, it is difficult to
understand why the Supreme Court, in Oliphant v. Squamish Indian Tribe, chose to impliedly divest tribes
of what remained of its sovereign power to prosecute and punish non-Indians for the minor crimes they
commit on Indian territory. Not only does the status of the law render it puzzling, the Court’s reasoning
revived principles hundreds of years old found in the Doctrine of Discovery, which had remained dormant
in the Court’s Indian law jurisprudence for nearly 150 years.
A Closer Look at Santa Clara Pueblo v. Martinez: Membership by Sex, by Race, and by Tribal Tradition,
16 Wis. Women’s L.J. 161 (2001). See also In re NEGP, 245 Mich App 126, 133-34. (2001).
In Nevada v. Hicks 56 , 533 U.S. 353 (2001), the Supreme Court reiterated –citing

Worcester- that the “Indians’ right to make their own laws and be governed by them does

not exclude all state regulatory authority on the reservation . . . Though tribes are often

referred to as “sovereign” entities . . . ‘the Court departed from Chief Justice Marshall’s

view that `the laws of [a State] can have no force' within reservation boundaries. The

court also held that “the exercise of tribal power beyond what is necessary to protect

tribal self-government or to control internal relations ... cannot survive without express

congressional delegation” applies to both Indian and non-Indian land.57

The application of tribal law, as opposed to federal or state law, on Native lands is too

complex to summarize here, and involves many contested issues.

The jurisdiction of tribal courts over non-Native Americans, or over all nontribal

members, has been the subject of much recent litigation in tribal and federal courts.

Tribal property and political sovereignty rights are a different matter, however. Attempts

to assert constitutional protection for these rights have been largely unsuccessful.

The task of constructing a constitutional framework that will protect tribal rights finds

its most formidable barrier in the legacy of the plenary power era — the long tradition of

56
533 U.S. 353 (2001) Respondent Hicks is a member of the Fallon Paiute-Shoshone Tribes of western
Nevada and lives on the Tribes' reservation. After petitioner state game wardens executed state-court and
tribal-court search warrants to search Hicks's home for evidence of an off-reservation crime, he filed suit in
the Tribal Court against, inter alios, the wardens in their individual capacities and petitioner Nevada,
alleging trespass, abuse of process, and violation of constitutional rights remediable under 42 U. S. C.
§1983. The Tribal Court held that it had jurisdiction over the tribal tort and federal civil rights claims, and
the Tribal Appeals Court affirmed. Petitioners then sought, in Federal District Court, a declaratory
judgment that the Tribal Court lacked jurisdiction over the claims. The District Court held that the wardens
would have to exhaust their qualified immunity claims in the Tribal Court. In affirming, the Ninth Circuit
concluded that the fact that Hicks's home is on tribe-owned reservation land is sufficient to support tribal
jurisdiction over civil claims against nonmembers arising from their activities on that land. See also
Worcester v. Georgia, 6 Pet. 515, 561 (1832).

57
Montana v. United States, 450 U.S. 544, 564. (1981)
judicial analysis justifying extraordinary federal power over Indian tribal property and

sovereignty that created powerful precedents impeding the application of meaningful

judicial scrutiny of federal actions affecting tribal claims. Such a task is also hampered by

the long and invidious history of discrimination against Indian peoples that has yet to be

fully acknowledged and dealt with by the dominant society and whose tentacles extend

into the present day.

Federal Native American policy in the past 20 years has been marked by a devolution

of congressional power to states. 58 Jurisprudentially, the recent Supreme Court has

regularly acted to diminish the legal sovereignty of Native peoples and to restrict Native

self-government upon reservations.59 Legal issues affecting Native people that are at the

current forefront of debate include60 the scope of federal regulations such as Title 7 on

Indian land; the whaling rights of the Makah Indian tribe; 61 and Native water rights,

particularly in western lands.62 And for instance, the Supreme Court held in Hicks that the

Tribal Courts had no jurisdiction over the §1983 claims because “the historical and

constitutional assumption of concurrent state-court jurisdiction over cases involving

58
See Tracy Becker, Traditional American Indian Leadership: A Comparison with U.S. Governance (DL
8/27/01), available at http://www.airpi.org/research/tradlead.html.
59
For a more in-depth analysis of Native American policy and jurisprudence, see generally Frank
Pommersheim, Coyote Paradox: Some Indian Law Reflections from the Edge of the Prairie, 31 Ariz. St. L.J.
439 (1999); John Fredericks, America’s First Nations: The Origins, History and Future of American Indian
Sovereignty, 7 J.L. & Pol’y 347 (1999); Derek C. Haskew, Federal Consultation with Indian Tribes: The
Foundation of Enlightened Policy Decisions, or Another Badge of Shame?, 24 Am. Indian L. Rev. 21
(2000).
60
Thank you to Damien Pfister, Ph.D. candidate at the University of Pittsburgh, for his research assistance
on current Native American issues.
61
See generally William Bradford, Save the Whales v. Save the Makah: Finding Negotiated Solutions to
Ethnodevelopmental Disputes in the New International Economic Order, 13 St. Thomas L. Rev. 155 (2000).
62
See generally Rebecca Tsosie, The Challenge of Differentiated Citizenship: Can State Constitutions
Protect Tribal Rights?, 64 Mont. L. Rev. 199 (2003). For further discussion of the contest over Native
American water rights, see Taiawagi Helton, Indian Reserved Water Rights in the Dual-System State of
Oklahoma, 33 Tulsa L.J. 979 (1998).
federal statutes is missing with respect to tribal courts.”63 In addition, the contested issue

of defining “Indian-ness” through biological measures such as “blood quantum” may

provide an interesting perspective on the American construction of race.64

§3.2.2 Legal Gambling on Native American Lands

No legal issue affecting Native Americans may be more controversial than that of

gaming on Native lands. This issue is a complex one whose scope is beyond the purposes

of this text. A brief overview is useful, however, both because the issue is so important

and because it highlights the ongoing tensions between state and tribal sovereignty as

well as the plight facing many tribes.

Seminole Tribe of Florida v. Butterworth 65 and California v. Cabazon Band of

Mission Indians 66 were critical to the development of current Indian gaming law. 67 In

Seminole, the Court of Appeals for the Fifth Circuit held that a Florida bingo statute

could not be enforced against the Seminole Indian tribe. The court further held that

Native Americans as well as non-Native Americans could play bingo on Indian land.68 In

Cabazon, the Supreme Court reaffirmed “attributes of sovereignty”69 retained by Indian

63
The Court reasoned that Congress has not purported to grant tribal courts jurisdiction over §1983 claims,
and that such jurisdiction would create serious anomalies under 28 U. S. C. §1441.
64
See generally Steve Russell, A Black and White Issue: The Invisibility of American Indians in Racial
Policy Discourse, 4 Geo. Pub. Pol’y Rev. 129 (1999). For further discussion of blood quantum, see Scott L.
Gould, Mixing Bodies and Beliefs: The Predicament of Tribes, 101 Colum. L. Rev. 702 (2001).
65
658 F.2d 310 (5th Cir. 1981).
66
480 U.S. 202 (1987).
67
See Jeffrey A. Dempsey, Surfing for Wampum: Federal Regulation of Internet Gambling and Native
American Sovereignty, 25 Am. Indian L. Rev. 133 (2000); Gary C. Anders, 556 Annals 98 (Mar. 1998).
68
Supra note 53.
69
480 U.S. at 207, citing United States v. Mazurie, 419 U.S. 544, 557 (1975).
nations in some matters and held that a state could not regulate gaming on Indian lands so

long as gaming is permitted in that state for any other purpose.70

In 1988, after Cabazon was decided, Congress passed Public Law Number 100-497,

the Indian Gaming Regulatory Act (IGRA).71 The act was intended to strike a balance

between tribal sovereignty and state interests. 72 IGRA was designed “to provide a

statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal

economic development, self-sufficiency, and strong tribal governments,”73 and “to ensure

that the . . . tribe is the primary beneficiary of the gaming operation.”74 Also at play were

the powerful interests of the gaming industry. 75 The IGRA divides Indian gaming

activities into three distinct classes, each with separate rules. 76 The distinctions are

generally based on the type of game and the size of the potential prizes. The IGRA also
77
creates a regulatory framework for gaming operations. Under this framework,

regulatory authority is allocated at four separate levels: tribal, state, federal, and National

Indian Gaming Commission.78 In general, under the IGRA, tribes have greater regulatory

authority over gaming then they had previously. The IGRA mandates that all tribal

gaming revenue be used exclusively for the welfare of the tribe and its members, tribal

government operations, local government agencies, and charitable purposes.79 In addition,

a tribe may petition the Secretary of the Interior to allow per capita distributions to its

70
Id.
71
Pub. L. No. 100-497, Oct. 17, 1988, 102 Stat. 2467, United States Public Laws 100th Cong., 2d Sess.,
convening Jan. 25, 1988 (S. 555).
72
Dempsey, supra note 55; Anders, supra note 55.
73
TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852, 865 (D.C. Cir. 2006) (quoting
25 U.S.C. § 2702(1)).
74
25 U.S.C. § 2702(2)
75
Anders, supra note 55.
76
Id.
77
Dempsey, supra note 55; Anders, supra note 55.
78
Anders, supra note 55.
79
Id.
members. 80 Although the IGRA generally protects Native sovereignty over gaming, it

also imposes some forms of state control. For this reason, some tribal members and

leaders object to the act’s infringement on total sovereignty and call attention to the fact

that, under the IGRA, an individual state is allowed to exercise power over Indian land

that they are not allowed to exercise over another individual state.81 The act is even more

broadly contested by many states, which argue that the IGRA violates the Tenth and

Eleventh Amendments.82 The advantages and disadvantages of gaming on Indian lands,

as judged from the perspective of Native Americans as well as the states, is a complex

and nuanced topic. Briefly, it is worth noting that gaming has often provided desperately

needed revenues for tribes living in abject poverty. Gaming revenues have been used to

build houses, provide drug and alcohol treatment programs, allow tribal members to go to

college, fund retirements, build hospitals and clinics, and provide other social services.83

In addition, gaming revenues have increased the general economic well-being of many

tribes. Such assistance is greatly needed given the harshness of conditions facing many

Native Americans today, particularly those living on reservations. According to the U.S.

Census Bureau, 31 percent of American Indians in general and 51 percent of American

Indians living on reservations or trust lands live below the official poverty line; more than

20 percent of American Indian housing units on reservations or trust lands lack complete

plumbing facilities; and major disparities in educational attainment exist between

American Indians and the total population. 84 In addition, many Native American

80
Id.
81
Dempsey, supra note 55.
82
Anders, supra note 55.
83
Id.
84
“We the . . . First Americans,” U.S. Dep’t of Commerce, Economics and Statistics Administration,
Bureau of the Census (Sept. 1993), available at http://www.census.gov/apsd/ wepeople/we-5.pdf.
communities, particularly those on reservations, are plagued by disproportionately high

rates of drug and alcohol abuse, suicide, and unemployment. 85 Gaming has been

successful at generating tribal revenues virtually every place it has been established.86

Gaming has also been credited with creating jobs, increasing Native American choice

over economic development, elevating the status of tribes, and increasing political

mobilization.87 The lack of resources and troubling social conditions facing many Indians

is viewed by many as a clear indicator of the need for the revenue generated by gaming

on Indian lands. There are also, however, disadvantages to gaming, some of which are

more difficult to precisely quantify. 88 Commentators such as Gary Anders have noted

disadvantages, for example, compulsive addictions; spousal and child abuse and neglect;

missed workdays; gambling addictions; increased drug and alcohol abuse; increased

opportunities for theft, embezzlement, and criminal infiltration; the undermining of the

cultural integrity of Native American communities; economic disparities between small

and large tribes; the prevalence of casino jobs, which are “low-wage, high-turnover

positions”; and the possibility that gaming may draw money from other local

businesses.89 Gaming may also open tribes up to organized crime involvement. Although

most commentators agree that Native Americans are disproportionately impacted by

many social ills, whether gaming helps or exacerbates the problem is a matter for debate.

In conclusion, the issue of gaming on Native lands is one that calls attention both to

the plight of many tribes and to the ongoing tensions between state and tribal sovereignty.

85
Anders, supra note 55.
86
Id.
87
Id.
88
Id.
89
Id. at 104
As the heated debate over gaming draws on, how courts and legislators continue to act

will have far-reaching implications for Native American peoples.