Federal Indian Law
Summary and Keywords
United States law recognizes American Indian tribes as distinct political bodies with powers of self-government. Their status as sovereign entities predates the formation of the United States and they are enumerated in the U.S. Constitution as among the subjects (along with foreign nations and the several states) with whom Congress may engage in formal relations. And yet, despite this long-standing recognition, federal Indian law remains curiously ambivalent, even conflicted, about the legal and political status of Indian tribes within the U.S. constitutional structure. On the one hand, tribes are recognized as sovereign bodies with powers of self-government within their lands. On the other, long-standing precedents of the Supreme Court maintain that Congress possesses plenary power over Indian tribes, with authority to modify or even eliminate their powers of self-government. These two propositions are in tension with one another and are at the root of the challenges faced by political leaders and academics alike in trying to understand and accommodate the tribal rights to self-government. The body of laws that make up the field of federal Indian law include select provisions of the U.S. Constitution (notably the so-called Indian Commerce Clause), treaties between the United States and various Indian tribes, congressional statutes, executive orders, regulations, and a complex and rich body of court decisions dating back to the nation’s formative years. The noted legal scholar Felix Cohen brought much-needed coherence and order to this legal landscape in the 1940s when he led a team of scholars within the Office of the Solicitor in the Department of the Interior to produce a handbook on federal Indian law. The revised edition of Cohen’s Handbook of Federal Indian Law is still regarded as the seminal treatise in the field. Critically, however, this rich body of law only hints at the real story in federal Indian law. The laws themselves serve as historical and moral markers in the ongoing clash between indigenous and nonindigenous societies and cultures still seeking to establish systems of peaceful coexistence in shared territories. It is a story about the limits of legal pluralism and the willingness of a dominant society and nation to acknowledge and honor its promises to the first inhabitants and first sovereigns.
Foundational Legal Principles
In the early 1970s, James Namen, a non-Indian resident of the Flathead Indian Reservation in Montana, began constructing a marina on property he owned on the southern bank of Flathead Lake. The tribal government, controlled by the Salish and Kootenai tribes, cited a number of environmental concerns about the project and ordered Namen to cease construction. When he ignored the order, the tribes filed suit in federal court seeking a declaration that Namen was indeed subject to the tribes’ regulatory power. Both sides looked to the historical and legal record to support their views on the nature of tribal power over non-Indians. According to Namen, any authority the tribe may have possessed historically was terminated by the federal allotment policy of the late 19th and early 20th centuries. Under this policy, Indian lands were carved up into parcels assigned to individual tribal members, with the surplus opened to homesteading by non-Indian citizens. The tribes staked their retained authority on the Hellgate Treaty of 1855, particularly its provisions conveying title to the tribes over the southern half of Flathead Lake.
The federal appeals court ultimately ruled in favor of the tribes. One passage of the court’s opinion is particularly noteworthy for its recognition and resolution of the competing expectations of Indian and non-Indian parties on the matter of retained tribal power:
It may well be that non-Indians who acquired land inside the reservation never expected to be subjected to regulation by the Indians. But likewise the Indians themselves never expected . . . that reservation land opened without their consent to non-Indians would be removed from their jurisdiction. The Indians’ expectations rest on the explicit guarantees of a treaty signed by the President and Secretary of State and ratified by the Senate. The non-Indians’ expectations rest not on explicit statutory language, but on what is presumed to have been the intent underlying the allotment acts—a policy of destroying tribal government to assimilate the Indians into American society. It is difficult to see why there should be an overriding federal interest in vindicating only the latter expectations—especially when the anti-tribal policy on which they rest was repudiated over fifty years ago.1
The case reveals a now familiar contemporary story of Indian and non-Indian parties contesting the nature and extent of tribal sovereign authority, each side foraging through the thicket of federal Indian law for the legal kernel(s) that will either confirm or repudiate the exercise of tribal power in a given situation. A common starting point is Article One of the United States Constitution that confirms the power of Congress to “regulate commerce with foreign nations, among the several states, and with the Indian tribes.” This constitutional provision, along with a host of other federal acts and treaties with Indian tribes, led the U.S. Supreme Court in the famous Cherokee Cases of the early 19th century to affirm a cardinal principle of federal Indian law, i.e., Indian tribes are sovereign nations with inherent powers of self-government. In Worcester v. Georgia (1832), the Supreme Court recognized Indian tribes as “distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States.”2 The legacy of this legal affirmation is reflected in the Namen case as the parties disputed the nature and extent, not the existence, of tribal governmental power under those facts.
The Supreme Court in the Worcester case refined the political architecture of relations among the federal government, the states, and the Indian tribes by recognizing the supremacy of federal power in Indian affairs, to the virtual exclusion of the states. In the process, the Court acknowledged certain trust obligations on the part of the federal government, rooted in international law, to protect the territorial and sovereign interests of the Indian tribes. An important element of the trust relationship required that treaties and statutes relating to Indian tribes be construed liberally in favor of the tribes. The Court added further clarity and context to its earlier characterization in Cherokee Nation v. Georgia (1831) of tribes as “domestic dependent nations.” Citing “settled” principles of international law, the Court confirmed that the long-standing practice of treaty-making between tribes and the American republic was designed to enhance, not diminish, tribal self-government. According to the Court: “The very fact of repeated treaties with them recognizes it; and the settled doctrine of the law of nations is, that a weaker power does not surrender its independence—its right to self government, by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state.”3
These foundational legal principles—recognition of Indian tribes as sovereign governments, federal supremacy in Indian affairs, limited (or nonexistent) state power in Indian country, federal trust obligations to secure the territorial and sovereign interests of tribes—continue to serve as the underpinning for federal Indian law in the modern era. Read more broadly, this early legal history reflected a national commitment to legal pluralism, i.e., the notion that two or more autonomous legal systems could coexist peacefully within shared territories.
The problem with this view, of course, is that concurrent forces in the country were working in precisely the opposite direction. The historical record is replete with examples showing that federal and state policymakers, as well as members of the general society, regarded Native peoples as alternately fascinating or despicable and as ultimately unfit to live as indigenous peoples amidst the civilized and increasingly dominant white Euro-American society. American Indians were seen as a conquered people and, indeed, as a dying race, a perspective that led prominent leaders to challenge the propriety of treaty-making with Indian tribes. In 1817, General Andrew Jackson expressed precisely this sentiment in a letter to President James Monroe: “I have long viewed treaties with the Indians as an absurdity not to be reconciled to the principles of our Government. The Indians are the subjects of the United States, inhabiting its territory and acknowledging its sovereignty. Then is it not absurd for the sovereign to negotiate by treaty with the subject?”
Just over a decade later, as the newly elected U.S. president, Jackson was able to help translate his personal opinions into federal Indian policy. In 1830, he signed the Indian Removal Act into law, setting into motion a policy ostensibly based on tribal consent to exchange their eastern lands for territories west of the Mississippi River. In truth, the tribes had no choice in the matter since the alternative to removal was the loss of federal protection, exposure to state jurisdiction, and increased compulsion to assimilate into mainstream American society.
The security of tribal legal connections to their ancestral homelands had already been substantially eroded by an earlier Supreme Court decision, Johnson v. McIntosh (1823). A group of aggressive land speculators operating in Indian country without legal authority apparently colluded to bring this case to the Court in an effort to confirm their titles and thereby preserve the economic value of their investments in the buying and selling of Indian lands.4 The Court, through Chief Justice John Marshall, employed a variant of the European doctrine of discovery to confirm that the United States, as the successor sovereign to the British crown, held absolute title to Indian lands, subject only to the Indians’ right of occupancy. Indian tribes were reduced to being squatters on their own ancestral lands, holding a tenuous right of occupancy revocable at the whim of the sovereign. The discovery doctrine, in essence, privileged land claims asserted by Christian colonizing powers (and their successor Christian sovereigns) over those of savage infidels, such as Indian tribes. Notwithstanding the Court’s racist characterizations of Indian tribes and its egregious errors of history, the opinion is still “good law” today, serving as the foundational precedent in contemporary land claims litigation involving Indian tribes.5
The formative era of political-legal relations between Indian tribes and the American state thus reveals a schism between formal legal recognition of tribal sovereign status and the operation of national Indian policy on the ground. This state of affairs translated into patterns of national action that occasionally vindicated tribal territorial and governmental rights but, more often, compromised those rights in the name of competing national interests, including territorial expansion of the American state and securing the hegemony of Euro-American cultural and social values over the people inhabiting those lands.
The Rise of Federal Plenary Power
In the latter decades of the 19th century, the foundational legal principle of federal supremacy in Indian affairs relative to state power was transformed by the courts into a federal plenary (or absolute) power in Indian affairs. The republic’s insatiable appetite for land compelled national policymakers to adapt Indian policy in order to accommodate the ever-growing masses of white homesteaders rushing to settle newly opened territories. In the mid-19th century, this need led the federal government to implement a policy of territorial containment of Indian populations, in the form of a system of reservations that would provide diminished indigenous homelands and a controlled environment from which to accelerate programs calculated to assimilate Indian people into the fabric of American society. In 1850, a commissioner of Indian affairs articulated the rationale for such a policy in these words:
[I]t is indispensably necessary that [the Indians] be placed in positions where they can be controlled, and finally compelled by stern necessity to resort to agricultural labor or starve. . . . There should be assigned to each tribe, for a permanent home, a country adapted to agriculture, of limited extent and well-defined boundaries; within which all . . . should be compelled constantly to remain until such time as their general improvement and good conduct may supersede the necessity of such restrictions.6
In the years following the establishment of reservations throughout the American west, a federal judge summarized the policy as follows:
[T]he reservation itself is in the nature of a school, and the Indians are gathered there, under the charge of an agent, for the purpose of acquiring the habits, ideas, and aspirations which distinguish the civilized from the uncivilized man.7
In light of this seismic shift in federal Indian policy, it is perhaps unsurprising that Congress ended the practice of treaty-making in 1871 through legislation that is considered by some experts, including a current justice of the Supreme Court, to be constitutionally suspect. While the legislation preserved the promises contained in extant treaties, it signaled an important downgrading in the national perspective regarding the legal status of Indian tribes. From the constitutional perspective, treaty-making was the only mechanism by and through which Congress was explicitly authorized to conduct relations with Indian tribes. After 1871, federal Indian policy could proceed through the mechanism of ordinary legislation, without the necessity of soliciting or obtaining tribal consent.
In the mid-1880s, Congress enacted two major federal laws that further imperiled the integrity of tribal rights to self-determination and the interests of the tribes in their now-diminished ancestral homelands. The 1885 Major Crimes Act was enacted to confer federal jurisdiction over certain crimes committed by Indian defendants in Indian country. The act constituted an unprecedented intrusion of federal power into intra-tribal affairs and it set the stage for further such incursions in the modern era. In United States v. Kagama (1886), the Supreme Court upheld the Major Crimes Act, not because it was deemed authorized under the Indian Commerce Clause of the Constitution (that claim was explicitly rejected) but because it was deemed consistent with the federal government’s guardianship authority over a weak and dependent people. The Court eschewed the Marshall Court’s understanding of dependency as rooted in international law and, instead, focused on the tribes’ practical dependency for food rations and other essentials of daily living. According to the Court, “From their very weakness and helplessness, so largely due to the course of dealing with the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the executive, and by congress, and by this court, whenever the question has arisen.”8 The Court’s guardianship theory of federal power in Indian affairs was unmoored from any constitutional text, thus providing boundless space for the federal government to empire at will in Indian country, save whatever constraints might flow from its self-limiting guardianship role.
The tribes’ legal interests in their ancestral homelands underwent a similar assault through the General Allotment Act (or Dawes Act) of 1887. This act was designed to eradicate communal land holdings in Indian country in favor of privately owned individual parcels, with the remainder or surplus lands opened to non-Indian homesteaders. The act was part of a broader federal Indian policy intended to dissolve tribal political systems and culture and assimilate Indian people into the broader society. Outside of Indian country, the rise in immigration from China and eastern Europe presented comparable challenges to political and civic leaders who sought to maintain the social and political dominance of Anglo-Saxon culture. As one commentator noted, “[t]o retain Anglo-Saxon domination of American institutions, the massive migration of un-American groups had to be stanched, and those who had already gained entry had to be effectively ‘Americanized.’”9
Tribal leaders once again pushed back. The Oklahoma-based Apache, Comanche, and Kiowa tribes claimed that the allotment of their lands violated their treaty rights to a permanent homeland unless cession was approved by three-quarters of the adult male tribal members. In Lone Wolf v. Hitchcock (1903), the Supreme Court rejected the tribes’ arguments in an opinion that highlighted the tribes’ dependency upon the federal government and the necessity for recognizing congressional flexibility in managing Indian relations. Describing federal power in Indian affairs as “plenary,” the Court explained its ruling in these terms:
The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians.10
The Court did not explicitly define what “circumstances” or “contingency” warranted the abrogation of this particular treaty. In a parenthetical reference to a case upholding the abrogation of a U.S. treaty with China, however, the Court drew parallels between Chinese immigrants and American Indians’ insistence on retaining their distinctive cultures and resisting the forces of acculturation as sufficient grounds to warrant abrogating their respective national treaties. In any event, the practical consequences of the Lone Wolf decision was that treaty promises with Indian tribes would no longer burden federal policymakers or impede the rush of homesteaders eager to take over Indian lands and resources.
In the midst of recognizing carte blanche authority for Congress to regulate Indian affairs, the Supreme Court issued a surprising opinion that acknowledged the continuing sovereign authority of Indian tribes. In Talton v. Mayes (1896), the Supreme Court affirmed that tribal governments, as political bodies predating the formation of the U.S. Constitution, were not subject to the constraints of that document. Paradoxically, the Court also held that tribes were “subject to [the Constitution’s] general provisions and the paramount authority of Congress.”11 The logic of the Court’s statement is not readily apparent from a close reading of the constitutional text, especially the Indian Commerce and Treaty clauses, which envision political relations between the United States and tribes being conducted “as equals at arm’s length.”12 Instead, the justices in the Talton case engaged the more repressive aspects of Euro-American-Indian relations to emphasize federal dominance and control over tribes and their lands. In according such deference to the political branches in their management of Indian affairs, the judicial branch effectively abdicated its independent responsibility under the Constitution to safeguard the interests of Indian tribes as memorialized in treaties and other federal laws.
The rise of federal plenary power in Indian affairs facilitated the national project of domestic imperialism by reducing tribal communal land holdings by nearly two-thirds, disrupting tribal systems of self-governance and forcing Indian people to forsake their cultures, languages, spiritual practices, and ways of life in the name of civilization. Not surprisingly, tribal populations reached their lowest point during this era. That Native peoples managed to overcome these nihilistic policies and successfully rebuild their cultures and governments in the modern era speaks volumes about their resilience, tenacity, and commitment to living as indigenous peoples in the face of overwhelming odds.
An Indian Emancipation Policy
The federal assimilation policies in Indian affairs were premised on the view that indigenous cultures represented deadweight for Indian people and impeded their progress toward civilization. It fell to self-appointed federal guardians to remove this yolk of oppression through policies calculated to “kill the Indian” in order to save the man. Federal Indian law in the 20th century continued to play a pivotal role in advancing these policy objectives.
In 1924, Congress enacted the Indian Citizenship Act that conferred U.S. citizenship on American Indians who had not already attained citizenship through the allotment acts or through military service in World War I or otherwise, e.g., through treaties, marriage, or special act of Congress. Curiously, the act did not impair their rights as tribal citizens, including their rights in tribally held property. The act had the effect of conferring dual citizenship on Indian peoples, at least in their individual capacity, while also preserving their wardship status in relation to the federal government. In other words, Indians were still subject to the plenary power of Congress in Indian affairs when federal legislation reached them in their collective roles as tribal citizens. Furthermore, as late as the 1970s, some states denied full legal rights to Indian people, including the right to vote in state elections, ostensibly on grounds that they lived in Indian country and/or were citizens of tribal nations.
The allotment policies, in their most virulent forms, were in effect for nearly half a century but they ultimately did little to make substantial improvements in the overall socioeconomic standing of Indian people. In the midst of the Great Depression, Congress passed the Indian Reorganization Act (IRA) (1934) with the aim of revitalizing tribal governmental systems and stimulating local tribal economies. The act had the salutary effects of ending further allotments of Indian lands and providing means to enlarge the tribal estate. As significant as these developments were, the broader promises of the IRA were largely unrealized, principally because of economic and ideological reasons. The lingering economic drag of the depression meant that federal Indian programs were perennially underfunded and, thus, generally ineffective. Moreover, private and governmental interests continued to covet natural resources located on tribal lands and objected to a shift in policy that would place any obstacles in the path of acquiring and exploiting those resources, including having to work with and gain the approval of tribal governments. From the ideological perspective, many tribes simply rejected the IRA for their communities on grounds that it represented yet another federal intrusion into tribal self-government. In their view, the act preserved an intolerable level of federal oversight and authority, and they urged the adoption of government systems that were antithetical to traditional customs and practices.
Operating concurrently with the IRA was a federal effort to bring intellectual coherence and rationale to the doctrinal field of federal Indian law. The result was a major treatise published in 1942 as Felix S. Cohen’s Handbook of Federal Indian Law. Cohen, a major architect of the IRA, had moved from private practice into government service, where, as special assistant to the Attorney General, he was charged in 1939 to lead a team of nearly fifty people to oversee an “Indian Law Survey.” Among its many significant features, the Handbook revived many of the foundational legal principles of the Marshall era. Chief among them was the principle of inherent tribal sovereignty, expressed in the following language:
Perhaps the most basic principle of all Indian law, supported by a host of decisions hereinafter analyzed, is the principle that those powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished. Each Indian tribe begins its relationship with the Federal Government as a sovereign power, recognized as such in treaty and legislation. (Emphasis in original).
The policies of the IRA and, most importantly, their ideological underpinnings, were not universally embraced in Congress or in the federal agencies. Wartime studies conducted by Senate and House committees challenged the wisdom of retaining the unique legal status of Indian tribes and once again urged the nation to pursue a policy of assimilation for all Indian people. In the aftermath of World War II, these policymakers joined forces with others calling for limited and more cost-effective national government. The groundwork was being prepared to get the federal government out of the Indian business altogether. Federal Indian policy ultimately shifted from reorganization to “termination,” a phrase signifying the withdrawal of federal support for Indian tribes and the end of the federal government’s recognition of tribes as political bodies engaged in government-to-government relations.
The federal Indian policy of termination was expressed through a number of distinct legislative initiatives. In 1946, Congress established the Indian Claims Commission to facilitate a final reckoning of outstanding claims Indian tribes had against the federal government. A more formal statement of federal policy was announced in House Concurrent Resolution 108 (1953) wherein Congress resolved:
[A]s rapidly as possible to make the Indians . . . subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens [and] to end their status as wards . . . and to grant them all of the rights and prerogatives pertaining to American citizens . . . [A]t the earliest possible time, all of the Indian tribes and the individual members . . . should be freed from Federal supervision and control and from all disabilities and limitations applicable to Indians.
In the same year, Congress passed Public Law 280 to transfer criminal and civil jurisdiction over tribal lands and individual Indians to five (later, six) states with substantial tribal populations (California, Minnesota, Wisconsin, Nebraska, Oregon, and, later, Alaska).13 The legislation did preserve treaty rights and kept tribal trust property free of most state regulations, including taxation. Other states were given the option of selecting certain areas over which they wanted to exercise jurisdiction in former Indian country lands, but, after 1968, such action required the consent of the tribes.
In 1954, Congress enacted a number of statutes expressly terminating its legal relationship with, and responsibilities toward, a number of Indian tribes. The consequences for these tribes that experienced termination (which ultimately numbered more than 100), were often devastating. With the end of federal recognition and protection for tribal trust lands, the lands were typically distributed to tribal members or to tribal corporate entities and became subject to state law, including the state’s taxing and zoning power. Thousands of acres of former tribal lands passed out of tribal control, usually through state foreclosure proceedings when these individuals or the tribal entities were unable to pay the state taxes.
A final element of the termination/assimilationist policy of this period was the “Voluntary Relocation Program.” With nominal federal assistance, individual tribal members were encouraged to leave their tribal communities in pursuit of jobs and opportunity in America’s urban centers. Most ultimately returned to the reservations but this experiment in social (re)engineering did contribute to the formation of a class of activist, professional Indian leaders who helped spur a revival of tribalism in the closing decades of the 20th century.
For many federal policymakers, an underlying moral authority lay behind policies such as allotment and, more recently, termination. That moral authority was grounded in freedom for Indian people. National leaders such as Senator Arthur Watkins (R-Utah) saw termination in the same moral terms as Lincoln’s emancipation of former slaves: “Following in the footsteps of the Emancipation Proclamation ninety-four years ago, I see the following words emblazoned in letters of fire above the heads of the Indians—‘THESE PEOPLE SHALL BE FREE!’”14
In his earlier years of government service, Chief Justice John G. Roberts Jr. considered equality among citizens as the hallmark moral underpinning of policies such as termination. In 1983, as White House counsel in the Reagan administration, Roberts was asked to respond to an effort in Congress to repudiate House Concurrent Resolution 108. For Roberts, the resolution embodied principles of equality that “reads like motherhood and apple pie.” American Indians, apparently, saw the resolution in a different light. Roberts wrote, “Indians oppose the notions of ‘equality’ embodied in H. Con. Res. 108 as departures from their ‘special’ status, and that renunciation of [the resolution] has great symbolic value.”15
Both Watkins and Roberts failed to consider or appreciate the moral weight that Indian tribes attached to the hundreds of treaties and statutes that memorialized and secured their national interests in maintaining indigenous systems of self-governance and control over ancestral homelands. The political activism of the 1960s and 1970s included demands from Indian country that the United States, at long last, fully recognize and act upon these historic promises. Beginning in 1970, these efforts began to bear fruit and helped lay the foundation for the era of tribal self-determination that has endured to the present time.
Tribal Sovereignty: Legal Pluralism in the Era of Self-Determination
In his 1970 message to Congress, President Richard M. Nixon called for a new policy in Indian affairs that would close the book on termination and usher in a national policy of self-determination for Indian tribes. For Nixon, termination was morally repugnant “because it ignored the moral and legal obligations involved in the special relationships between tribes and the federal government.”16 The administration’s new policy in Indian affairs harkened back to foundational principles of federal Indian law and, more generally, to the nation’s formative commitment to a legally plural society. In Nixon’s words:
This, then, must be the goal of any new national policy toward the Indian people: to strengthen the Indian’s sense of autonomy without threatening his sense of community. We must assure the Indian that he can assume control of his own life without being separated involuntarily from the tribal group. And we must make it clear that Indians can become independent of Federal control without being cut off from Federal concern and Federal support. It is a new and balanced relationship between the United States government and the first Americans that is at the heart of our approach to Indian problems.17
It would be left for Congress and the courts to articulate what this “new and balanced relationship” would look like, but even at the time of Nixon’s address, signals were given of how Congress might approach Indian relations in this new regime. In 1968, Congress enacted the Indian Civil Rights Act (ICRA), a law that simultaneously recognized the inherent sovereign power of Indian tribes and applied constraints on that power that were derived from the U.S. Constitution. The ICRA, for example, incorporated most, though not all, of the limitations of the Bill of Rights. It imposed limits on tribal sentencing and offered the writ of habeas corpus to offenders to challenge the legality of their detention in federal court. In short, the ICRA represented an effort by Congress to prescribe the manner in which inherent tribal sovereignty might operate consistently with overriding federal interests and values. The legacy of the plenary power doctrine is still evident in this legislation. Congress consulted with, but did not solicit, the consent of the tribes before acting to curb the tribes’ inherent sovereign power. Nonetheless, the act served as notice to citizens and policymakers alike that the United States was prepared to recognize and accommodate tribal sovereign authority in the modern era.
In 1975, Congress formally endorsed the new policy by passing the Indian Self-Determination and Education Assistance Act. A major feature of this law are provisions that allow tribal governments to contract with the federal government to administer a variety of programs (e.g., health, education, environmental, justice, etc.) that were formerly run by federal agencies, including the Bureau of Indian Affairs (BIA). In Indian country, policymakers use the shorthand “638” to refer to the law’s contracting provisions, derived from the act’s public law number (P.L. No. 93-638).
Since 1975, both the legislative and executive branches have unleashed a cavalcade of statutes and executive orders, respectively, that have continued to shift the locus of decision making from Washington to tribal communities on a number of significant topics. Other acts, such as the Indian Child Welfare Act of 1978, fortified the tribe’s extant authority in child welfare matters by clarifying the spheres of authority and reciprocal obligations existing between state and tribal governments. In hearings leading up to ICWA’s passage, Congress learned that Indian children were removed from their homes by state social service administrators at rates vastly disproportionate to any other group in the nation.
During the 1980s and early 1990s, several of the nation’s major environmental statutes, including the Clean Water Act and Clean Air Act, were amended to provide a significant role for tribes to serve as the governmental stewards of lands and natural resources in Indian country. Under these statutes, tribes have the authority to set environmental standards that are even stricter than those required by the state or federal governments. Tribes also have a greater measure of authority to manage forests located on tribal lands and an increasingly more effective voice in determining whether to allow the extractive industries to conduct mining operations on their lands.
In terms of economic development, the Indian Gaming Regulatory Act (IGRA) of 1988 has profoundly impacted the national landscape for the operation of gambling on tribal lands, now a $27 billion industry. The IGRA distributes legal authority among tribal, state, and federal entities according to the class of gambling activity involved. Casinos, for example, are the most lucrative sites for these operations. They require a negotiated compact between the state and an Indian tribe, overseen by a federal regulatory commission that comprehensively addresses the operation of the gambling establishment, including revenue sharing.
Federal Indian law has also strengthened protections for Indian cultural interests, including the respectful treatment of ancestral remains and sites that are considered sacred by Native people. The Native American Graves Protection and Repatriation Act of 1990 authorizes the repatriation of human remains and associated funerary objects from any institution that receives federal funding, including most museums in the United States. Executive orders issued during the Clinton administration require meaningful consultation with tribal political and cultural leaders before any major action can occur on federal lands that implicate sites that are considered sacred by Native people.
The subject of tribal justice systems received long overdue attention in two recent federal laws. The Tribal Law and Order Act of 2010 provides for enhanced sentencing authority by tribal courts that exceed the limits imposed by the Indian Civil Rights Act (1968). In addition, the 2013 act reauthorizing the Violence Against Women Act (VAWA) included provisions that affirmed and recognized inherent tribal criminal jurisdiction over all offenders, including non-Indians, for a limited class of domestic violence offenses. In both instances, however, tribal governments are required to ensure that their justice systems conform in ways that more closely replicate the legal protections accorded to defendants in state and federal courts. This is a distinguishing and troubling feature of these recent Indian acts, but it is unclear whether it signals that Congress has reached the outer limits of legal pluralism when it comes to tribal self-government.
In stark contrast to the political branches, the judiciary’s response to the new policy of tribal self-determination has been tepid, and even outright hostile at times. One justice of the modern Supreme Court has characterized the Court’s Indian law jurisprudence as “schizophrenic,” for its insistence on maintaining two principles that are fundamentally at odds with each other. On the one hand, the Court adheres to the foundational legal principle that tribes are distinct sovereign bodies with inherent powers of self-government. On the other, the Court continues to characterize the power of Congress in Indian affairs as plenary. Indeed, the modern Court now explicitly locates that power in the Constitution. In Cotton Petroleum Corp. v. New Mexico (1989), the Court flatly stated: “The central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs.”18 In calling attention to this tension, Justice Clarence Thomas noted, “It is quite arguably the essence of sovereignty not to exist merely at the whim of an external government.”19
The confusion and tension that exists in federal Indian law jurisprudence arises, in part, from the Court’s insistence in trying to align a set of legal principles that arose in vastly different historical settings and that sought to address dramatically different policy objectives in Indian affairs. Those efforts result in inherently contradictory statements like the following:
The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.20
To be sure, the modern Court has placed a modest check on the otherwise vast power of Congress to legislate in Indian affairs. According to the Court, federal legislation must be “tied rationally to the fulfillment of Congress’ unique obligations towards the Indians” in order to pass constitutional muster.21 While the modern standard is a welcome departure from the Court’s earlier view of unbridled federal power in Indian affairs, it nonetheless assumes a highly deferential posture toward the political branches and thus continues to accord considerable leeway for Congress to legislate at will in Indian country.
In a significant and controversial move, the modern Court has arrogated unto itself the role of helping to police the outer limits of tribal sovereignty in instances where Congress has not (yet) acted. This is most evident in cases involving non-Indians who challenge the exercise or the existence of tribal authority over them. The clearest articulation of the Court’s solicitude for non-Indian citizens appears in Montana v. United States (1981), a case the justices consider “a lodestar” in their Indian law jurisprudence, where the Court references the expectations of 19th-century policymakers and non-Indian homesteaders to resolve a modern-day challenge to tribal power:
The policy of the [Allotment] Acts was the eventual assimilation of the Indian population, and the “gradual extinction of Indian reservations and Indian titles.”
There is simply no suggestion in the legislative history that Congress intended that the non-Indians who would settle upon alienated allotted lands would be subject to tribal regulatory authority. Indeed, throughout the congressional debates, allotment of Indian land was consistently equated with the dissolution of tribal affairs and jurisdiction. It defies common sense to suppose that Congress would intend that non-Indians purchasing allotted lands would become subject to tribal jurisdiction when an avowed purpose of the allotment policy was the ultimate destruction of tribal government. And it is hardly likely that Congress could have imagined that the purpose of peaceful assimilation could be advanced if feeholders could be excluded from fishing or hunting on their acquired property.22
Opinions like these place the Supreme Court in the untenable position of reifying and advancing the objectives of long-repudiated federal policies. They also instill an element of great uncertainty in the exercise of tribal self-government that complicates and frustrates the shared aspirations of national and tribal policymakers to move in the direction of more collaborative and respectful political relations. In short, the modern Court currently stands as the principal stumbling block to contemporary efforts to recapture the sense of legal pluralism that characterized early relations between tribes and the federal government.
In December 2010, the United States became the last major Western nation formally to endorse the United Nation’s Declaration on the Rights of Indigenous Peoples (UNDRIP).
In its announcement, the United States took pains to clarify that the form of self-determination for indigenous peoples was distinct from that possessed and exercised by the nation-states of the world under international law. According to the United States:
The Declaration’s call is to promote the development of a concept of self- determination for indigenous peoples that is different from the existing right of self-determination in international law. . . . For the United States, the Declaration’s concept of self-determination is consistent with the United States’ existing recognition of, and relationship with, federally recognized tribes as political entities that have inherent sovereign powers of self-governance.23
With this qualification, the United States proclaimed its existing body of federal Indian law to be in compliance with UNDRIP’s provisions on the indigenous rights of self-determination. This interpretation provides Indian tribes with very little leverage to challenge new federal legislation or to shift the underlying discourse of federal-tribal relations in a direction that more closely reflects the nation’s formative commitment to legal pluralism.
For Indian tribes, this may simply serve as yet another instance of the law’s limits in advancing a truly just, legally plural society. It is also a reminder that, while tribal sovereignty is recognized by federal Indian law, it is not grounded in that body of law. Tribal sovereignty resides in the indigenous peoples themselves, in their stories and, ultimately, in their land. Their will to persist as a people is the essential foundation upon which their sovereignty rests. The moral foundations of federal Indian law are strengthened anew when its custodians adhere to these ancient truths.
Discussion of the Literature
Indigenous writers published some of the earliest work that offered an analysis and critique of federal Indian law and policy, even in the formative years. William Apess, a Pequot Indian and Christian missionary, wrote several tracts in the late 1820s and 1830s that offered blistering criticism of national and state policies that betrayed promises made to Indian tribes. Sarah Winnemucca (Paiute), Mourning Dove (Okanogan), Luther Standing Bear (Lakota), Zitkala-Sa (Dakota), and D’Arcy McNickle (Cree/Salish) produced literary and political works during the allotment/assimilation period that challenged federal government Indian policy. They were the forebears of contemporary writers, such as Linda Hogan (Chickasaw), Louise Erdrich (Anishinabe), Charles Red Corn (Osage), and Leslie Marmon Silko (Laguna Pueblo), whose fiction serves as a response to, and embodies resistance to, historical and contemporary federal Indian policies.
The first comprehensive compilation of federal Indian law was undertaken in the early 1940s by Felix Cohen and a small army of lawyers in the Solicitor’s Office of the Department of the Interior. The resulting work, Cohen’s Handbook of Federal Indian Law, and its subsequent revised editions, still stands as the leading treatise in the field.
Traditional legal scholarship in the field is found in the myriad law reviews that are produced by the nation’s law schools. These journals are controlled by law student editorial boards where the published content is generally not subject to scholarly peer review. The University of Oklahoma College of Law publishes a peer-reviewed specialty journal in the field, the American Indian Law Review. The scholarly commentary in these journals historically has featured critical analysis of the major doctrines of federal Indian law, with an increasing incorporation of interdisciplinary perspectives drawn from the realms of history, anthropology, political philosophy, economics, and literature. Modern scholarship often considers the global implications of the field with references to international law, particularly in light of the UN’s Declaration on the Rights of Indigenous Peoples, adopted in 2007. In a related development, a fairly robust scholarship on comparative law of indigenous peoples now considers the domestic law of various nation-states regarding indigenous peoples. That scholarship has tended to focus on examination of nation-states under the rubric of common law (United States, Canada, Australia, and New Zealand) or civil law jurisdictions (Latin American nations), but those lines are now increasingly blurred as scholars approach indigenous legal studies from a broader perspective.
At least four legal casebooks provide a general overview of federal Indian law and two specialty casebooks in subfields such as natural resource regulation and reservation-based gambling. Standard American casebooks in other major legal fields rarely devote much, if any, attention to federal Indian law, including nearly all constitutional law casebooks. Unless law students enroll in an elective class in federal Indian law, the odds are quite likely they will graduate law school having no knowledge or understanding of the first sovereigns in this nation.
Beyond the casebooks, the literature includes scholarly monographs that provide detailed analysis of the field (see Suggested Readings below) and a growing number of books that feature detailed historical and legal analysis of significant cases, including the Cherokee Cases (1831 and 1832), Ex Parte Crow Dog (1883), and Lone Wolf v. Hitchcock (1903).
As is fitting for the era of tribal self-determination, published works on the contemporary domestic law of particular tribes, including the Navajo, Hopi, Anishinabe (or Ojibwe), and Coast Salish peoples, are now available. These tribal judicial bodies are actively engaged in legal discourse with their communities and with the national government in a form of judicial pluralism. The interplay between these legal systems offers a rich site for scholarly consideration of the future development and sustainability of indigenous systems of self-government.
Duthu, N. Bruce. Shadow Nations: Tribal Sovereignty and the Limits of Legal Pluralism. New York: Oxford University Press, 2013.Find this resource:
Goldberg, Carole, Kevin K. Washburn, and Philip P. Frickey, eds. Indian Law Stories. New York: Foundation Press, 2011.Find this resource:
Newton, Nell Jessup, ed. Cohen’s Handbook of Federal Indian Law. Newark, NJ: LexisNexis, 2005.Find this resource:
Pommersheim, Frank. Broken Landscape: Indians, Indian Tribes, and the Constitution. New York: Oxford University Press, 2009.Find this resource:
Prucha, Francis Paul. The Great Father: The United States Government and the American Indians. Lincoln: University of Nebraska Press, 1984.Find this resource:
Wilkins, David E. American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice. Austin: University of Texas Press, 1997.Find this resource:
Wilkinson, Charles F. American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy. New Haven, CT: Yale University Press, 1987.Find this resource:
Williams, Robert A., Jr. The American Indian in Western Legal Thought: The Discourses of Conquest. New York: Oxford University Press, 1990.Find this resource:
Williams, Robert A., Jr. Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America. Minneapolis: University of Minnesota Press, 2005.Find this resource:
(1.) Confederated Salish & Kootenai Tribes of the Flathead Reservation v. Namen, 665 F.2d 951, 963–64 n. 30 (9th Cir.) 1982, cert. denied, 459 U.S. 977 (1982).
(2.) Worcester v. Georgia, 31 U.S. 515, 557 (1832).
(3.) Worcester v. Georgia, 31 U.S. 515, 560–61 (1832).
(4.) See Lindsay G. Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (New York: Oxford University Press, 2005).
(5.) See, e.g., City of Sherrill, New York v. Oneida Indian Nation of New York, 544 U.S. 197 (2005).
(6.) Nell Jessup Newton, et al., eds., Cohen’s Handbook of Federal Indian Law (Newark, N.J.: LexisNexis Matthew Bender, 2005), 64–65 (hereinafter Cohen Handbook).
(7.) United States v. Clapox, 35 F.575, 577 (D. Or. 1888).
(8.) United States v. Kagama, 118 U.S. 375, 383–84 (1886).
(9.) T. Alexander Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship (Cambridge, MA: Harvard University Press, 2002), 27.
(10.) Lone Wolf v. Hitchcock, 187 U.S. 553, 566 (1903).
(11.) Talton v. Mayes, 163 U.S. 376, 382 (1896).
(12.) Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 675 (1979).
(13.) Public Law No. 83–280, 67 Stat. 588 (1953).
(14.) Charles Wilkinson, Blood Struggle: The Rise of Modern Indian Nations (New York: W. W. Norton, 2005), 69.
(15.) N. Bruce Duthu, American Indians and the Law (New York: Viking/Penguin Press, 2008), 141–42.
(16.) Cohen Handbook, 101.
(17.) Richard M. Nixon, “Special Message on Indian Affairs” (July 8, 1970) reprinted in Documents of United States Indian Policy, 2d ed., ed. Francis Paul Prucha (Lincoln: University of Nebraska Press 1990), 256.
(18.) Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989).
(19.) United States v. Lara, 541 U.S. 193, 218 (2004), Justice Clarence Thomas, concurring opinion.
(20.) United States v. Wheeler, 435 U.S. 313, 323 (1978); emphasis added.
(21.) Morton v. Mancari, 417 U.S. 535, 555 (1974).
(22.) Montana v. United States, 450 U.S. 544, 559–560 n. 9 (1981).
(23.) Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples, December 16, 2010, available at: http://usun.state.gov/documents/organization/153239.pdf.