American Indian Sovereignty and the U.S. Supreme Court

by David E. Wilkins

  Some of the justices continued to insist, however, that Ernstoff needed to point to some congressional delegation or another direct affirmation of the tribe’s right to exercise criminal jurisdiction over non-Indians. The following exchange illustrates the frustrated position the tribe had been placed in of being obliged to prove their case for the exercise of jurisdiction over non-Indians with nonexistent legislation or litigation.

  [Justice] Well, what do you have—what do you point to?

  [Ernstoff] I point to Mazurie [United States v. Mazurie] which talks about tribes having independent authority to some extent over these matters.

  [Justice] What do you point to other than an opinion of this Court?

  [Ernstoff] It is impossible to point—

  [Justice] Then actually, you do not have anything.

  [Ernstoff] The answer is that Congress has never—

  [Justice] The answer is, you do not have anything.

  [Ernstoff] That is correct because, your honor, it is very difficult to prove a negative. Congress has never enacted a statute giving a Tribe power and this Court has recognized the power, how can I point to a statute which gave the Tribe that power? All I can point to is this Court’s analysis of the fact that one does not need a statute or a treaty in order to determine that there is a power.52

  By contrast, the questions asked of Oliphant’s attorneys, Philip P. Malone and Slade Gordon, centered more on clarification of facts, such as the size and composition of the Suquamish Court system, its jail facilities, etc. Malone then went to the heart of the matter and raised what would be one of the definitive issues—the nonrepresentation of non-Indians in Suquamish political affairs.

  My clients, and a number of non-Indians, I believe, have no immediate interest in voting in the Suquamish General Council. Their immediate interest is to be free from the tribal laws and their enforcement promulgated without their consent. They do not want to be subject to independent tribal powers over which they have no control except with resort to the judiciary but if they may not be left alone, if they are to be subject to the tribal criminal code, then the best choice would be that they would have the right to vote which I believe and argue that they have under the Constitution. This would mean, in effect, if non-Indians were entitled to vote, the very purpose of the claimed powers here of self-determination of tribes would end on such reservations as the Port Madison Indian Reservation. But if a choice had to be made for their freedom, they would desire the choice and power and ability to vote.53

  A justice then raised a crucial issue: “The effect would be quite different in the Port Madison Reservation on the one hand, which your client came into contact with, and a reservation like the Navajo reservation, which is 20,000 square miles, largely populated with Indians, would it not?”54 Malone said it would be “startlingly different.” The justice then asked Malone “whether whatever principles are forthcoming in this case you feel should apply to all Indian reservations.” Malone, sensing he had an opportunity to constrict all tribes in an exercise of sovereignty, unhesitatingly answered, “yes.” Neither the Suquamish delegation nor any of the other tribes who had filed amicus curiae briefs could have predicted the scope of the decision that ensued.

  MASKING WITHIN THE DECISION: THE OPINION

  In a 6–2 decision (Brennan did not participate), the Supreme Court overturned the 9th Circuit Court of Appeals case and held that tribes without an express congressional delegation of power via treaty or congressional act were precluded from trying non-Indians who had committed crimes within their reservations. This result, standing alone, was a crushing, if not altogether surprising, blow to the Suquamish tribe, considering the unique demographic makeup of the reservation. The decision, because of its national impact, effectively disemboweled a sizable portion of tribal sovereignty from all tribes. It was especially troublesome to larger tribes like the Navajo, the Lakota, and the Tohono O’odham who, in terms both of demography and of legal precedent, claimed a stronger right to prosecute non-Indian criminals for minor criminal offenses. But it was the disingenuous methodology, the questionable historical arguments, and the unclear rationale used by Rehnquist to justify this opinion that were especially disquieting. The case left tribes and others interested in the “rule of law” to ponder the method behind the Court’s judicial policymaking.

  Rehnquist: The Justice

  William H. Rehnquist, who has served on the High Court since 1972 and became chief justice in 1986, has consistently placed a heavy emphasis on building and expanding a conservative political agenda. Rehnquist’s agenda features a prominent niche for federalism, places a subordinate value on private property, and relegates individual rights “to the bottom of his hierarchy of values,”55 according to Sue Davis.

  From his early days as a clerk for Supreme Court Justice Robert Jackson in the early 1950s, when he wrote a memo upholding the infamous “separate but equal doctrine” of Plessy v. Ferguson, to his years as a Supreme Court justice where he has often written decisions that have proved pernicious for the enforcement of civil rights, Rehnquist has staked out a position that has often hurt Indian tribes in their efforts to reform and exercise residual sovereign rights. In fact, Rehnquist’s opinions have led one pair of scholars to refer to him and other judicial conservatives like Warren Burger and Byron White as “Indian fighters,” in contrast to more liberal justices like Thurgood Marshall, William Brennan and Harry Blackmun, whom they described as “Indian lovers.”56 This has been especially true whenever a tribe or an individual Indian has been confronted by either state authority or congressional power. Rehnquist’s version of federalism incurs great difficulty when faced with tribal political status, and his political hierarchy invariably places tribes lower than the United States and frequently lower than the states and, in some cases, even county governments.

  The Mask of “Affirmative Delegation”

  After restating the background of the case, Rehnquist opined that “[r]espondents do not contend that their exercise of criminal jurisdiction over non-Indians stems from affirmative congressional authorization or treaty provision. Instead, respondents urge that such jurisdiction flows automatically from the ‘Tribe’s retained inherent powers of government over the Port Madison Indian Reservation.’”57 For Rehnquist, this was the core issue of the case. As he had already shown in his questioning of the tribe’s attorneys during oral arguments, he believed that tribes, because their sovereignty differed from that of the states or the federal government, had only those attributes of external sovereignty58 which had been expressly delegated by Congress or reserved via specific treaty provision. This notion of delegated sovereignty, in contrast to internal and retained sovereignty, directly contradicts the preexisting status of tribes, prior Court precedent in Worcester v. Georgia (1832), Talton v. Mayes (1896), Buster v. Wright (1905), United States v. Winans (1905), McClanahan v. Arizona State Tax Commission (1973), and federal Indian policies which have historically confirmed the tribes’ independence through the negotiation and ratification of treaties and agreements.

  In a footnote to his affirmative delegation quote, Rehnquist acknowledged the Suquamish assertion that Congress had “confirmed” the power of tribes to punish non-Indians through federal laws such as the Indian Reorganization Act and the Indian Civil Rights Act. Nevertheless, Rehnquist challenged the tribe’s understandings of these acts by stating that “[n]either Act, however, addresses, let alone ‘confirms,’ tribal criminal jurisdiction over non-Indians.” Here, Rehnquist evaded the actual history and legislative intent of both acts and relied solely on his own interpretation of those laws. The Indian Reorganization Act, Rehnquist argued, merely provides Indian tribes with the right to organize and adopt a constitution if they choose to do so. It also recognizes, according to Rehnquist, in each newly organized tribe powers “as are vested ‘by existing law.’” It is true that of the powers added to the tribe’s preexisting rights—that is, to employ legal council, prevent the sale or lease of tribal land, n
egotiate with other governments—none dealt specifically with criminal jurisdiction. But the issue he raised—whether the tribe by “existing law” had the power to exercise jurisdiction—appears to have been a diversionary tactic. If a tribe, for example, in acting as a government, has certain inherent rights—of which preserving peace and order is a given for all legitimate governments—it would be unnecessary for Congress to explicitly prescribe this as a power tribes could wield.

  Moreover, Rehnquist ignored the crucial solicitor’s opinion, “Powers of Indian tribes,” which was issued in the fall of 1934 by Commissioner of Indian Affairs John Collier and Solicitor Nathan Margold.59 This 32-page opinion was designed to clarify exactly what “powers” were vested in Indian tribes “by existing law.” Margold began:

  I have no doubt that the phrase ‘powers vested . . . by existing law’ does not refer merely to those powers which have been specifically granted by the express language of treaties or statutes, but refers rather to the whole body of tribal powers which Courts and Congress alike have recognized as properly wielded by Indian tribes, whether by virtue of specific statutory grants of power or by virtue of the original sovereignty of the tribe insofar as such sovereignty has not been curtailed by restrictive legislation or surrendered by treaties.60 (emphasis mine)

  The opinion further stated that “perhaps the most basic principle of all Indian law, supported by a host of decisions hereafter 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.”61 Dramatically opposed to Rehnquist’s view, this passage is the most accurate view from a historical and legal perspective. This theory of tribal political powers holds that Indian tribes, which began their relation with the United States as complete sovereigns, have, in linking with the United States via treaties, had some of their sovereign powers altered and in some cases, terminated. The United States, by direct implication, in agreeing to certain cessions during those bilateral negotiations, also had its sovereignty limited. The key point, however, is that both polities, tribes and the United States, retained varying amounts of inherent—not delegated—political powers.62

  Chief among these inherent powers were: the right to adopt a government; to create various offices and prescribe their duties; to define conditions of enrollment; to provide or withhold the franchise; to regulate domestic relations; to levy fees, dues, and taxes; to remove or exclude nonmembers; to regulate the use of property; and to administer justice.63 It is the last power—the administration of justice—that necessitates the most discussion. In assessing the continuing power of tribes to exercise criminal jurisdiction over all persons within their reservations, save for certain major crimes (i.e., murder, rape, arson, etc.), Margold emphasized that the question of the judicial powers of an Indian tribe was particularly significant in the field of law and order. “Responsibility for the maintenance of law and order is therefore squarely upon the Indian tribe, unless this field of jurisdiction has been taken over by the States or the Federal Government.”64

  The question of whether tribes had criminal authority over non-Indians was answered in the affirmative when Margold said that tribes could indeed punish nonmembers. This power had been acknowledged as early as 1791 in a Cherokee treaty and “[s]uch jurisdiction continues to this day, save as it has been expressly limited by the acts of a superior government.”65 Margold closed this section of his opinion by forcefully stating that “[w]hat is even more important than these statutory recognitions of tribal criminal authority is the persistent silence of Congress [emphasis mine] on the general problem of Indian criminal jurisdiction. There is nothing to justify an alternative to the conclusion that the Indian tribes retain sovereignty and jurisdiction over a vast area of ordinary offenses over which the Federal Government has never presumed to legislate and over which the state governments have not the authority to legislate.”66

  For Margold, congressional silence meant tribes retained their rights. For Rehnquist, and in contradiction of existing statutory and judicial precedent, congressional silence was somehow equated with tribes having lost those rights.

  Rehnquist’s discussion of the 1968 Indian Civil Rights Act67 (ICRA) is even more novel. The ICRA was a major law which, for the first time, imposed important segments of federal constitutional law on tribal governments. This act dramatically changed the substance and direction of tribal courts by forcing tribes to enforce a modified version of the United States Bill of Rights which all reservation residents—Indian and non-Indian alike—were entitled to receive.68

  Rehnquist downplayed the importance of this measure by saying that it “merely” extended to all persons certain enumerated Bill of Rights guarantees. It is unclear what Rehnquist means by the term “merely.” In an earlier version of the Indian Civil Rights Act, these constitutional protections were to be afforded only to “American Indians”; however, additional discussion persuaded the Senate Subcommittee on Constitutional Rights, who studied the issue, to extend these protections to all persons, regardless of race. In other words, tribal governments would be constitutionally required to protect the rights of all those in their borders.

  After admitting this, Rehnquist did his best to refute the protection this law provided to all reservation residents. Contrary to the actual wording of the legislation and the legislative intent of the law, Rehnquist said that “this change was certainly not intended to give Indian tribes criminal jurisdiction over non-Indians. Nor can it be read to ‘confirm’ respondents’ arguments that Indian tribes have inherent criminal jurisdiction over non-Indians. Instead, the modification merely demonstrates Congress’ desire to extend the Act’s guarantees to non-Indians if and where they come under a tribe’s criminal or civil jurisdiction by either treaty provision or by Act of Congress.”69 This is an incorrect reading of the law and shows Rehnquist’s willingness to interject his own personal agenda on an issue Congress had already clearly addressed. His gratuitous tacking on of the expression “by either treaty provision or by Act of Congress” indicates his own bias and is not a reflection of congressional policy.

  Rehnquist very selectively employed prior legal doctrines, the treaty process, and history itself to draw a convoluted background on which to construct his questionable case against tribes’ retained sovereignty over criminals. He began by erroneously stating that the “effort of Indian tribal courts to exercise criminal jurisdiction over non-Indians, however, is a relatively new phenomenon.” Had he asserted that the Suquamish tribe’s efforts were new, this would have been accurate. Instead, he chose to make a sweeping generalization which is unsupported by historical fact.

  Tribes, dating back to the 1700s, have exercised criminal jurisdiction over non-Indians entering their territory. This was recognized in a number of early treaties. It was acknowledged by the Supreme Court in cases like Johnson v. McIntosh (1823), where Justice Marshall said that whites moving into Indian country subjected themselves to tribal power, and in Worcester v. Georgia (1832). And it was acknowledged by a House Committee in an 1834 report which stated, “as to those persons not required to reside in the Indian country, who voluntarily go there to reside, they must be considered as voluntarily submitting to the laws of the tribes.”70 Furthermore, as stated in the 1934 solicitor’s opinion, it was a power tribes continued to hold inherently even if they had not previously been allowed by federal bureaucrats to practice it.

  A dormant power is not a nonexistent power. The only credible evidence Rehnquist mounted in defense of his contention that tribes lacked criminal jurisdiction was a single provision in a single treaty—the 1830 agreement between the Choctaw Nation and the United States.71 Article 4 reads, “The Choctaws express[ed] a wish that Congress may grant to the Choctaws the right of punishing by their own laws any white man who shall come into their nation, and infringe any of their national regulations.”72 Rehnquist said
that such a request “for affirmative congressional authority was inconsistent with respondents’ [Suquamish tribe’s] belief that criminal jurisdiction over non-Indians is inherent in tribal sovereignty.”73

  The pitfalls, however, of trying to extrapolate from a single treaty provision to all tribes are manifest. Barsh and Henderson have shown in a critique of the Oliphant case that the 1830 Choctaw treaty is “the only treaty [out of 366] to use this specific language.”74 Equally important, they noted that the Choctaw treaty, like those of the other tribes facing relocation from the Southeast, had been negotiated under unique circumstances. The relocating tribes were receiving their new lands in the Indian territory in fee-simple title, in exchange for the lands in the Southeast that they were ceding. According to Barsh and Henderson, “since these tribes held their territory as land owners rather than as sovereigns, it is not surprising that their treaties would include provisions delegating to them limited powers of self-government.”75 In the federal government’s treaties with over 100 nonrelocated tribes, none of their agreements contained such delegatory language.76