The description of tribes as “governments” stems from their status as the original sovereigns of America with whom various European states and, later, the United States, engaged in binding treaties and agreements. Clearly, the tribes’ sovereign status continued throughout the colonial period and under the Articles of Confederation, the Northwest Ordinance, and the earliest draft of the U.S. Constitution.
The Constitution mentions Indians three times. In two specific instances Indians are excluded from official population enumerations for determining congressional representatives (Article I, section 2, clause 3 “. . . excluding Indians not taxed . . .” and the Fourteenth Amendment, section 2, which also refers to “Indians not taxed”). In the third instance, Indians are expressly referenced in the Commerce Clause (Article I, section 8, clause 3), which empowers Congress to “regulate commerce with foreign nations . . . states . . . and with the Indian tribes.” This Commerce Clause is the only source of explicit power delegated to the Congress. Theoretically, the clause should not have extended to Congress any greater power over tribes than a legislature exercises over states, though in historical and contemporary practice such has not been the case.15
The Constitution specifies two other important sources of federal authority to deal with tribes—the power to make treaties and the power to make war and peace. The Commerce Clause provision as originally interpreted was narrowly construed by Congress. An 1834 House report states: “The right of self-government in the Indian tribes does not exclude the right of the United States to make laws for the regulation of trade with the Indian tribes, so far as our citizens are concerned. This right is by the Constitution of the United States vested in Congress, and cannot be surrendered.”16 The intent here was twofold. First, Congress, not the states, was recognized to be the primary agent to regulate trade with tribes. Second, Congress was involved in a laborious, almost futile, effort to prevent white traders from defrauding tribes. Congress saw both functions as essential to maintaining a positive tribal-federal relationship. The combined effect of these distinctive constitutional clauses and tribal extraconstitutional features is illustrated by the statement from Elk v. Wilkins that general congressional laws are inapplicable to Indian tribes “if their application would affect the Indians adversely, unless congressional intent to include them is clear.”17
There is solid historical and constitutional support for the doctrine that “Congress has no constitutional power over Indians except what is conferred by the Commerce Clause and other clauses of the Constitution.”18 More importantly, it must be remembered that the constitutional clauses already mentioned—commerce, enumeration, and treaty making, plus the power of making war and peace—did not explicitly grant the federal government the power to regulate Indians or Indian affairs. The Commerce Clause, the only explicit power, merely states that Congress will be the branch to treat with Indian tribes. A corollary to the principle of congressional enumeration, identified by Felix S. Cohen, involved the power of the commissioner of Indian affairs, who was authorized to oversee “the management of all Indian affairs [of the federal government]” but whose office over time came to be read as having the power of “the management of all the affairs of Indians.”19
Notwithstanding the extensive historical, political, and legal data that support the extraconstitutional standing of tribal nations vis-à-vis the federal government, tribes, as this study will show, have often found that the Supreme Court has failed to restrict federal powers that have operated to diminish the inherent rights of tribal nations. Using such concepts as plenary power, the “political question” principle, and the trust doctrine, the federal government has often made “choices about the rights and resources of Indian people that were not bound by external standards or subject to judicial review.”20
Keeping in mind the extraconstitutional status of tribes, we must now direct our attention to individual Indian status; for it is in part this unique conjunction of rights—individual and collective—that further distinguishes Indians from the rest of the American populace. Before 1924 nearly two-thirds of all Indians had received federal citizenship via treaty provisions or individual allotments of land. Following World War I, the federal government unilaterally extended the franchise to all other Indians,21 though Commissioner Leupp asserted as late as 1905 that there was no “authority of law to naturalize Indians.”22 This extension of citizenship did not, however, enfranchise tribes, and it did not impair preexisting tribal rights. Hence, Indians became the only people in the United States with dual, later triple citizenship (when individual states extended the franchise to Indians).
As federal citizens, Indians were ostensibly accorded the same constitutional safeguards and rights as other Americans. But national citizenship has not always proven an adequate shield for Indian political, civil, and, especially, property rights. To understand this anomaly we will analyze the Supreme Court case which addressed and, in fact, formalized the issue of multiple tribal citizenship. In this major case, United States v. Nice (1916), the Court held that an enfranchised Indian allottee was still subject to congressional power (covered in Chapter 4). Congress’s power, as interpreted by Chief Justice Willis Van Devanter, had both a constitutional (Commerce) and an extraconstitutional (tribal “dependency”) base. Van Devanter said that “citizenship is not incompatible with tribal existence or continued guardianship, and so may be conferred without completely emancipating the Indians or placing them beyond the reach of congressional regulations adopted for their protection.”23
In essence, and ironically, Nice served to seal the status of tribal Indians in perpetual legal and political limbo during an era in which the federal government’s primary Indian policy goal remained detribalization, individualization, and assimilation. Henceforth, tribal members who had been enfranchised were simultaneously recognized as federal citizens and as members of dependent groups subject to overriding congressional authority. With this fascinating dichotomous status—Indians as citizens and subjects—enshrined in federal law, it is questionable exactly what benefits federal citizenship did bestow upon the tribal citizen. Ostensibly, citizenship should have meant that the federal government retained no more power to legislate Indian lives and property than it does in regard to the lives and property of any other citizens. In fact, as this study shows, the U.S. asserted, at its discretion, plenary authority over the political affairs as well as the civil and property rights of not only tribes but individual Indians as well.24
CONGRESSIONAL PLENARY POWER
Plenary power is one of the most intriguing doctrines in political science, constitutional law, and federal Indian policy. This concept entails the soul of what is deemed a constitutional impasse with, on the one hand, the federal government acknowledging the sovereignty of American Indian tribal governments, and, on the other hand, extending its self-described politically superior position over tribes.
There is considerable disagreement among scholars and federal lawmakers on the nature of plenary power. Those who define it as exclusive and preemptive say that it is a power which only Congress may exercise, free of typical constitutional constraints due to the extraconstitutional status of tribal rights.25 Those who define it as unlimited and absolute regard it as an aberrant and nondemocratic doctrine which Congress arbitrarily uses to oppress or even eradicate tribal or individual political, civil, or property rights.26
First cited by the Supreme Court in the seminal case Gibbons v. Ogden in 1824, plenary power has often been used by the federal courts in cases dealing with the extent of federal powers. It is a concept which has fostered confusion, because, as Engdahl says, “it conceals several issues which, for purposes of constitutional analysis, must be kept clear and distinct.”27 Engdahl incorrectly states that “no federal power is plenary in the full sense of the term, because as to all of them at least the prohibitions of the Bill of Rights apply.”28 He chooses to ignore the fact that the federal Bill of Rights is problematic as applied to tribal nations becau
se tribal governments were not created under the auspices of the Constitution. While the 1968 Indian Civil Rights Act29 applied certain portions of the Constitutional Bill of Rights to tribal governments in regard to their plenary activities affecting tribal citizens and other reservation residents, the Bill of Rights does not protect tribes or their members from congressional actions aimed at reducing tribal sovereignty, political rights, or aboriginal Indian lands.
A more important factor promoting scholarly and public confusion over the term “plenary” is that the concept conflates several very different questions.30 First, plenary is sometimes defined as exclusive; this definition is used most frequently when Congress enacts Indian-specific legislation like the Indian Reorganization Act31 or when it enacts Indian preference laws which withstand reverse discrimination suits.32 This is an exclusively legislative power which the Congress may exercise in keeping with its policy of treating tribes in a distinctively political manner or, when deemed appropriate, in recognizing rights that Indians have been deprived of because of their extraconstitutional standing.
Second, plenary is often defined as an exercise of federal power which may preempt state law. Again, the Congress’s commerce power serves as a prime example, as does the treaty-making process, both of which preclude involvement of the states. The constitutional disclaimers that a majority of western states had to include in their organic documents before they were considered eligible for admission as states give further evidence of federal preemption.33 Typically, these disclaimers consisted of provisions in which the state declared that it would never attempt to tax Indian lands or property without both tribal and federal consent and without having first amended its own constitution.
A third definition of plenary is “unlimited or absolute.”34 This definition includes two subcategories: a) power which is not limited by other textual constitutional provisions; and b) power which is unlimited regarding congressional objectives. There is ample evidence in Indian law and policy of all three applications of plenary power to tribes by the federal government.35 For instance, when Congress is exercising plenary power as the exclusive voice of the federal government in its relations with tribes, and is acting with the consent of indigenous people, then it is exercising authority in a legitimate manner. Also, when Congress is acting in a plenary way to preempt state intrusion into Indian Country, absent tribal consent, then it is properly exercising an enumerated constitutional power. However, when Congress is informed by a federal court that it has “full, entire, complete, absolute, perfect, and unqualified”36 authority over tribes and individual Indian citizens, a fundamental and unconstitutional authority has been created.
Canfield, writing in 1881, long before most individual Indians were naturalized as American citizens, observed that congressional power over tribes was absolute because tribes were distinct and independent—if “inferior”—peoples, “strangers to our laws, our customs, and our privileges.” He went on to say that “[t]o suppose that the framers of the Constitution intended to secure to the Indians the rights and privileges which they valued as Englishmen is to misconceive the spirit of their age. . . .”37 By the time Mashunkashey was decided in 1942, all Indians had been enfranchised; yet they were informed by the court that absolute federal power was a reality confronting them.
In a constitutional democracy, defined as a system of governance that places formal limits on what government can do, even exclusive authority has some limits. Tribes, however, because of their extraconstitutional status, cannot rely upon express constitutional provisions, particularly those found in the Bill of Rights, to limit the federal government or its constituent branches. Unfortunately, due to several Supreme Court decisions, even individual Indians, who should be entitled to constitutional protection as citizens of the United States, find that in a number of areas they remain without adequate protection from state or federal authority.
Johnson v. McIntosh (1823)
A “PECULIAR” POLITICAL RELATIONSHIP: THE MASKING BEGINS
The cardinal distinguishing features of tribal nations are their reserved and inherent sovereign rights based on their separate, if unequal, political status. This was affirmed in hundreds of treaties and agreements, acknowledged in the Constitution’s Commerce Clause, recognized in thousands of pieces of federal legislation, and expounded upon in hundreds of federal court opinions. The bilateral political relations that ensued between the various Indian tribes and the colonizing European nations, and later the fledgling United States, were considered essential by each of the European and European-derived nations in their quest for one or more of the following: trade goods, unconverted tribal souls, and geographical and political hegemony. Tribes, of course, also experienced important social, cultural, and economic transformations as a consequence of these cross-cultural and cross-political interactions. This study does not need to reiterate the enormity of the tribal destruction resulting from these close encounters of the European kind.38
By the time the United States had established itself as the dominant European-derived player, the principal political tool used by the United States to relate to tribal nations was well known: the treaty process. These presidentially directed and Senate-ratified documents, combined with Congress’s oversight of commercial relations between tribal nations and the U.S. based on the Commerce Clause, meant that the federal government had exclusive authority to deal with tribal nations. In 1789, the First Congress passed the first thirteen statutes, of which four dealt primarily with Indian affairs and reflected this doctrine of exclusive congressional authority in the development of Indian policy; however, it would rest with the Supreme Court to define the political status of tribes from a federal standpoint.
John Marshall, the third chief justice, and his colleagues were largely responsible for developing, in several cases39 during the early 1800s, the legal underpinning for the tribal-federal-state relationship. These cases involved (1) tribal property rights, (2) tribal political status in relation to the states, (3) tribal status in relation to the federal government, and (4) the international standing of tribal treaty rights. The details of these cases are generally well known, with the exception of the Mitchel decision.40 However, it is Johnson that warrants concentrated attention, and we will consider it first because of the stunning and convoluted details that emerged from the decision, and because it was the earliest effort by the Supreme Court to tackle Indian issues in a comprehensive fashion.
According to most legal commentators, Johnson is the foundational case addressing aboriginal possessory rights. The principal question to be resolved by the Court was whether the Indian title which had been ceded by the Illinois and Piankeshaw tribes to plaintiffs Joshua Johnson and Thomas J. Graham under two separate land transactions in 1773 and 1775 could be “recognized in the courts of the United States” or whether the title purchased from the United States in 1818 by the defendant, William McIntosh, to land that was part of Johnson’s original purchase from the Indians could be considered valid. “The inquiry,” stated Chief Justice Marshall, “therefore, is, in a great measure, confined to the power of Indians to give, and of private individuals to receive, a title, which can be sustained in the courts of this country.”41 As will be shown, it was much more than this.
The Illinois and Piankeshaw tribes had actually sold the same land to both the plaintiff and the defendant, although Johnson’s and Graham’s deeds predated McIntosh’s by over forty-five years. The prerevolutionary land transactions between the plaintiffs, Johnson et al., and the tribes had been conducted—as was the custom in land sales—in an open sale at a British military post in full view of both military and civil officers. The completed deeds were then attested to by these same officers. Furthermore, the Indian chiefs who ceded the land to the plaintiff’s predecessors were the duly authorized leaders of their nations.
The title, therefore, should have been guaranteed by Great Britain since it was clearly a legitimate land transaction. In fact, the general land policy
of Great Britain, the United States, and Spain was that once land was sold by an Indian tribe to duly authorized individuals or nations, as it was in a number of territories and states—Michigan, Wisconsin, Arkansas, Ohio, Tennessee, Louisiana, Missouri, and Mississippi—it was regarded as having been thereafter excluded from all subsequent sales which might have overlapped the same territory.
Evidence abounds of other pre- and postrevolutionary individual/tribal land transactions which were recognized as valid by the federal government.42 For example, in 1800 a House Committee dealt with the petition of Isaac Zane, who sought to have his Indian-derived tract of land validated by Congress. The committee’s report indicated that Congress took such petitions seriously and was more than willing to confirm Indian grants to individuals provided that a strong case was made
. . . That the petitioner state that he was made a prisoner by the Wyandot Indians . . . that his attachments to the white people [have] subjected him to numberless inconveniencies and dangers during the almost continual wars which existed between the United States and the Indians, until the peace of Greenville, in 1795. That, previous to that period, a tract of land [four miles square] on which he now lives, had been assigned to him by the Wyandot Indians, and that no idea was entertained, when that treaty was made, that the land which had been given him would fall within the boundary of the United States (which now appears to be the case) and, of consequence, that no provision was made in that treaty in his favor. All of which the committee have reason to believe is perfectly true . . . Having taken these circumstances into consideration . . . the committee have concluded that the petitioner ought to have confirmed to him a tract of land equal, in some degree, to the intentions of the Indians, and to the services rendered by the petitioner to the United States; they therefore recommend to the House the adoption of the following resolution. . . .43
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