Three months later, a bill was introduced that would have extended the criminal laws of the United States over Indian Country. The Committee on the Judiciary, which recommended the bill, noted that they had arrived at that conclusion because it would “be the best calculated of anything to put an end to the frequent murders in the Indian Country.”79
The Cherokee Nation, astutely aware of their treaty-recognized sovereign rights, quickly and forcefully responded to President Polk’s statement and the vigorous congressional sentiment to have federal law intrude into Cherokee territory. On May 4, 1846, Principal Chief John Ross and others memorialized the Senate on the difficulties within their nations and their relations to the United States. Ross began by saying that the Indian nations had always been recognized as separate sovereignties. He described their treaty rights and said the Cherokees “have always had their own legislatures” and have “without interference, made such laws they considered best suited to the peculiar circumstances of their country and people.”80 Ross and his colleagues presciently noted that “so, also, if the laws of the U.S. may be extended over the Indian Country in specialized cases, why may it may not be done in all cases? And surely, if the U.S. may enact laws, they have the right to administer and execute them . . . What is the limitation of this power, but the unrestricted discretion of the American government upon any given case arising upon any supposed necessity?”81
The Cherokee delegation concluded their memorial by stating that the United States’ “monstrous pretension” in mandating its criminal laws over Cherokee country was without precedent and without legal basis. Enactment of the laws of criminal jurisdiction would have represented the demise of an essential attribute of sovereignty. “If this may be done,” said the Cherokee, “surely all the residue of less important powers may be in the same manner arrogated and the right to prescribe all the laws, and to appoint judges to administer, and officers to execute them.”82
While the Cherokee Nation was, for the moment, successful in fending off the federal intrusion of criminal jurisdiction over purely domestic criminal offenses, the Court’s handling of white-on-white crime—even if the offending white had been adopted by Indians—committed in Indian Country would initiate a chain of events that was to unilaterally redefine the legal and political standing of tribal nations.
United States v. Rogers
THE ENSHRINEMENT OF RACE-BASED LAW AND THE GENESIS OF THE “POLITICAL QUESTION” DOCTRINE MASK
This case arose in 1845 in the Cherokee Nation, a portion of which was geographically situated in the State of Arkansas. Importantly, as in Johnson, the Cherokee Nation was not a party in the suit; nevertheless, the judicial language generated by Chief Justice Taney in this case—language which is without historical or legal foundation—was to have, as John Ross predicted at the time of the decision, a debilitating and long-lasting effect not only on the Cherokee Nation but on all tribal nations.83
Based on prior treaties, the United States had limited jurisdiction over Indian territory. Article 5 of the 1835 treaty with the Cherokee stated that the federal government would “secure to the Cherokee Nation the right by their national council to make and carry into effect all such laws as they may deem necessary for the government and protection of the persons and property within their own country belonging to their people or such persons as have connected themselves with them: provided always that they shall not be inconsistent with the Constitution of the United States and such acts of Congress as have been or may be passed regulating trade and intercourse with the Indians. . . .”84 (emphasis mine).
HISTORICAL BACKDROP
William S. Rogers, a white man, had voluntarily emigrated into the Cherokee Nation sometime during 1836. In November of that year he married a Cherokee woman in a traditional tribal ceremony. Their marriage lasted until her death in 1843. During the course of their marriage they had several children who continued to reside within the boundaries of their Cherokee homeland. And Rogers, having incorporated himself in Cherokee territory, was treated, recognized, and had been adopted as a Cherokee by the “proper authorities thereof, and exercised and exercises all the rights and privileges of a Cherokee Indian in said tribe. . . .”85
Rogers, a yeoman, got into a deadly scuffle in September 1844 with Jacob Nicholson, who, like Rogers, was Euro-American by race, had married into the Cherokee Nation, and was, by Cherokee law, a citizen of their nation. Rogers killed Nicholson by stabbing him in the side with a five-dollar knife.86 Rogers was arrested, then indicted by the grand jury in the district court of Arkansas in April 1845. When he was brought into federal court to hear the indictment, Rogers, representing himself, argued that the district court lacked jurisdiction to try him because both he and the deceased were regarded legally as Indians by the Cherokee Nation and under the 1834 trade and intercourse act the United States lacked jurisdiction in such cases.
U.S. District Attorney Samuel H. Hempstead responded by arguing that an American citizen could not expatriate himself, particularly to an Indian tribe, without some positive federal law authorizing him to do so. He went on to say that whites could not join tribes by marriage, emigration, or adoption unless the federal law allowed it. Hempstead conveniently overlooked the far-from-uncommon occurrence of American citizens renouncing their citizenship and applying for citizenship in another nation (subject to a decision by the receiving country whether to receive or repatriate the individual’s application).
The district attorney’s assertion that whites could not be adopted into Indian tribes without federal consent was also inaccurate. For years, a small but steady stream of whites had left American soil and settled with Indian tribes. Such an individual, as Marshall noted in Johnson, whether purchasing land or otherwise settling in Indian territory, “incorporates himself with them, so far as respects the property purchased; holds their title under their protection, and [is] subject to their laws.”87
On the contrary, Hempstead’s argument was that the act of Congress relating to Indian-on-Indian crimes did not encompass whites who had intermarried and/or who resided in Indian territory. The district attorney’s argument, and this would prove crucial, was that a decision in favor of Rogers “would encourage worthless Americans to take refuge on the frontier.”88
The district court, with Supreme Court Justice Peter Daniel sitting as a circuit judge alongside District Judge Benjamin Johnson, took the issue under advisement, no doubt comprehending the importance of the question involved. As they pondered whether to resolve the decision between them or to send it up to the Supreme Court by way of certificate of division,89 the local newspaper, The Arkansas Gazette, on April 22, 1845, suggested in an article that if Rogers’s argument proved the superior one, then Congress should step forth with legislation to give the federal courts jurisdiction—notwithstanding that there was no basis in law for such an action—that would intrude into the jurisdictional heart of Indian territory. The paper excitedly noted that “the peace of the frontier and the enforcement of law and justice require this.”90
After due consideration, Daniel and Johnson decided that the issues warranted Supreme Court review. Justice Daniel left Little Rock on April 28 for the long ride back to Washington, D.C., under the assumption that Rogers would remain in jail until the forwarded questions could be answered by himself and his colleagues on the Supreme Court during the following term. Less than a month later, on May 13, and long before the Court would hear the case, Rogers and his cellmate, an escaped slave, attacked their jailer and escaped. In a spirited effort to return to Indian Country, Rogers attempted to ford a river but drowned. Several days later his body was recovered.91 The case should therefore have been rendered moot since Rogers’s death suspended justiciable controversy. But the Supreme Court never learned of Rogers’s death.92 When the case came up in the January term of 1846, the federal government was represented by Attorney General Mason. No counsel appeared for Rogers, which during that era was not unusual since not all defendants could afford law
yers and since defendants were not required to appear on their own behalf.
THE CERTIFIED QUESTIONS
The district court had certified six questions to the Supreme Court. While Justice Taney, writing for a unanimous court, “abstain[ed] from giving a specific answer to each question,”93 the sparsely worded opinion, only slightly more than three pages long, dramatically revised the actual history of the tribal-federal relationship, unilaterally redefined the legal and political standing of tribes—especially over questions related to tribal citizenship and membership—and mischaracterized the property rights of Indians. Although the Court chose not to address the six questions, they are analyzed herein because they give testimony to the astonishing arrogance on the part of federal officials over what should have been an easily decided opinion.
The first question centered on whether American citizens could voluntarily cede their allegiance to the United States without the federal government’s prescribing the conditions of such a severance. This question ignored the fact that Rogers had long since disavowed his political rights as an American when he entered Cherokee country in 1836 and was adopted by that tribe. The lower court argued as if he carried U.S. citizenship, when all evidence pointed out that he had not done so for nearly a decade. It does not appear that the district court or the Supreme Court made any effort to contact the Cherokee Nation’s national office in Tahlequa, Oklahoma, to determine whether he was, indeed, an adopted member of the tribe, as he maintained all along.
Second, the lower court queried whether a “federal” citizen could “transfer” his political allegiance to another government. The justices, more specifically, asked whether a citizen had the right or the power vested in him “as a free moral and political agent, or derived to him from the law of nature or from the law of nations” to abandon his allegiance and carry it over to another government.94
The third question reflected extraordinary paternalistic and ethnocentric innuendo, particularly when placed alongside the prior knowledge of Indian nations and their sovereign status. Was a tribe “a separate and distinct government or nation, possessing political rights and power such as authorize them to receive and adopt, as members of their state, the subjects or citizens of other states or governments . . . and to naturalize such subjects or citizens, and make them exclusively or effectually members, subjects, or citizens of the said Indian tribe, with regard to civil and political rights and obligations?”95 This question began innocently enough with a characterization of tribes that has been a persistent thorn in the federal government’s efforts to understand tribal standing in relation to the United States: tribes that had not been created under the federal Constitution and yet existed as nonincorporated parties outside that framework while geographically residing within the boundaries of the United States and being territorially surrounded by the United States. The question began thus: “Could the tribe of Indians residing without the limits of any one of the States, but within the territory of the United States” be recognized as a distinctive polity?
This notion of geographic incorporation as compared to political-legal incorporation is crucial and reappears, particularly in contemporary case law,96 as a divisive element that works to preclude a smooth return to justice for tribes because the courts vacillate dramatically over its interpretation. In Cherokee Nation v. Georgia (1831), for instance, Marshall noted that while Indians had an undoubted right of occupancy, their lands were still within the territory to which the United States asserted a title independent of the Indians’ assertions. Marshall synthesized the Cherokee’s political and geographical existence and generated a novel status in law—a “domestic-dependent” national status. By contrast, the same Court a year later in Worcester v. Georgia emphatically stressed the tribes’ “foreign” political status to the United States notwithstanding their geographical or territorial position vis-a-vis the United States.
The fourth certified question was whether a white person, by his own actions combined with those of the tribe, could become in his “social, civil, and political relations and condition a Cherokee Indian.” Fifth, the Court asked, did the twenty-fifth section of the 1834 Trade and Intercourse Act, which exempted from federal jurisdiction crimes committed by Indians against other Indians, apply only to what were termed “full-blood Indians,” or did it also apply to adopted persons and others residing in Indian territory? Here we see the introduction into federal Indian law of race as a definitive variable. The last question centered on whether, based on Rogers’s plea, the Supreme Court even had jurisdiction to hear the case.
MASKING WITHIN THE DECISION: THE OPINION
Taney quickly moved to cast off most of the questions his colleague Justice Daniel and the district judge had sent up, saying that some were not “material in the decision of the case.”97 One of the most important powers of the Court is the right to be selective not only in the cases heard, but in the questions to be answered. “The power to decide what to decide,” says David O’Brien, “also enables the court to set its own agenda.”98
Having discarded most of the questions, Taney moved swiftly and rendered a decision that was every bit as traumatic for tribes as his infamous Dred Scott decision,99 to be discussed later in this chapter, would be for African Americans. Taney’s decision in United States v. Rogers began:
The country in which the crime is charged to have been committed is a part of the territory of the United States, and not within the limits of any particular State. It is true that it is occupied by the tribe of Cherokee Indians. But it has been assigned to them by the United States, as a place of domicile for the tribe, and they hold and occupy it with the assent of the United States, and under their authority. The native tribes who were found on this continent at the time of its discovery have never been acknowledged or treated as independent nations by the European governments, nor regarded as the owners of the territories they respectively occupied. On the contrary, the whole continent was dividedand par-celled out, and granted by the governments of Europe as if it had been vacant and unoccupied land, and the Indians continually held to be, and treated as, subject to their dominion and control.100 (emphasis mine)
The italics flag erroneous statements illustrating the Court’s unanimous fabrication of a new history which would justify deeper federal encroachments into tribal sovereignty. The most inaccurate statements are as follows. First was the presumption that Cherokee land was actually territory belonging to the United States and that their territory had been “assigned” to them. As the Cherokee had been relocated from the Southeast to the West, these lands had been exchanged for the Cherokee’s ancestral homes in “fee simple.” In other words, the Cherokee merely transferred their aboriginal land rights from their eastern territory to territory in the west. The land clearly belonged to the tribe and was not “part of the territory” of the United States in the sense of property. It was patented to the Cherokee Nation by the President of the United States under the terms of the 1830 Removal Act and prior agreements. Article Five, for instance, of the 1835 treaty described earlier, began with this statement: “The United States hereby covenant and agree that the lands ceded to the Cherokee Nation in the foregoing article shall, in no future time without their consent, be included within the territorial limits or jurisdiction of any state or territory.”101 The United States retained only the Fort Gibson military reservation (and even that would revert back to the Cherokee Nation if the U.S. abandoned it) and the right to establish other posts and military roads “for the interest and protection” of the Cherokee. The individual property rights of Cherokee citizens were to be respected and in the event they were interfered with, the federal government was bound to provide just compensation.102
The second inaccuracy was the idea that the Cherokee held title to their lands only with the “assent of the United States and under their authority.” The only authority retained by the United States, besides control and ownership of the military fort and construction of certain structures, invo
lved the federal government’s pledge to “protect the Cherokee Nation from domestic strife and foreign enemies and against intestine wars between the several tribes,” and the promise to protect the Cherokee against “interruptions and intrusions from citizens of the United States, who may attempt to settle in the country without their consent. . . .”103 The President of the United States had the “authority” and, more importantly, the duty to remove such interlopers.
Third, Taney’s most brazen fabrication was that tribes had “never been acknowledged or treated as independent nations” or regarded as “the owners of the territories they respectively occupied.” This double assault on tribes as legitimately recognized nations and as property owners ignored the evidence of several hundred preexisting treaties which European nations and later the United States had negotiated with Indian nations. Further, ample evidence through Supreme Court case law—particularly the Marshall Court’s Indian law decisions in Worcester v. Georgia (1832), which affirmed the sanctity of Indian treaties and the independence of tribal nations, and Mitchel v. United States (1835), which emphasized the fact that tribes were the possessors of a property title that was as “sacred as fee-simple”—documented the existence of a title that could be sold by the tribes to whomever they chose. This right is also evidenced by the distinctive placement of tribes in the Commerce Clause as separate polities.
Finally, Taney inaccurately stated that the lands of the United States had been effectively “divided and parcelled out” as if there had been no prior human presence and the tribes thereafter were dealt with as “subjects” of the discovering European nations.
The pivotal notion in Taney’s historically and politically inaccurate characterization of indigenous/western relations is the term “consent” as defined in the Northwest Ordinance of 1787, which stated that the federal government would never violate the rights or properties of tribes without their consent. One of the tribal policies wielded by Europeans and Euro-Americans has been to view the tribes as “primitive cultures,” indigenous groups not entitled to the same degree of respect as Western nations. Ignoring the precedent of consent, this attitude could pretentiously proclaim that by “discovery,” Europeans, and later Americans, could lay claim to the Americas in disregard of actual Indian presence. Had consent not been a viable doctrine, there would have been no need for the hundreds of treaties that were entered into with tribal nations. Had consent not been a viable doctrine, there would have been no call for such presidential pronouncements as George Washington’s Third Annual Message in 1791, in which he proposed to ensure the “happiness” of the Indians by seeing that they received the benefits of an “impartial dispensation of justice.” And had consent not been a viable doctrine, the United States, from its inception, would have been enacting laws that subjected tribes to federal domination, rarely the case up to this historical point, as demonstrated by Taney’s own Court.
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