American Indian Sovereignty and the U.S. Supreme Court

by David E. Wilkins

  In Rehnquist’s view, however, tribes were disallowed from such an exercise of authority because, as they were “incorporated into the territory of the United States,” they automatically came under the “territorial sovereignty of the United States.”107 This Rogers argument fits Rehnquist’s nationalist/federalist view; his refusal to concede the legitimacy of tribal sovereignty echoes his earlier responses to state and federal sovereignty. One of Rehnquist’s avowed concerns, and a justifiable one, was that the civil rights of American citizens be protected, regardless of their geographic location in the United States, “from unwarranted intrusions on their personal liberty.”108 Rehnquist was, in effect, elevating the rights of non-Indian American citizens above those of the extraconstitutional sovereign tribal governments which are governed and populated by individuals who are also American citizens. In Rehnquist’s words:

  By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress. This principle would have been obvious a century ago when most Indian tribes were characterized by a “want of fixed laws [and] of competent tribunals of justice. . . .” It should be no less obvious today, even though present-day Indian tribal courts embody dramatic advances over their historical antecedents.109

  The statement that the principle of tribal nonsovereignty over non-Indians “would have been obvious a century ago” is even more puzzling than his general power statement on “overriding sovereignty.” Rehnquist was obviously reading contemporary views of the law back onto tribal-federal actions that took place over one hundred years ago. The Court was also downplaying the “dramatic advances” taking place in tribal judicial systems which had been compelled to modernize when Congress enacted the Indian Civil Rights Act of 1968.

  Moreover, Rehnquist’s position on the potentiality or probability of civil rights of American citizens being “violated” by tribal governments fails to consider the obvious fact that Indian reservation residents also happen to be American citizens. Therefore, following his logic that tribal governments lack jurisdiction over non-Indian citizens on the reservation, then Rehnquist should explain why tribal governments are allowed to exercise jurisdiction over their own members who are also American citizens. Likewise, to extend this racialized argument, “if tribes cannot prosecute non-Indians on reservations because Indian law is alien to whites, then it would follow that state Courts cannot try tribal Indians off reservations.”110

  Rehnquist pushed the racial theme even further when he quoted from the Ex parte Crow Dog (1883)111 decision where the Supreme Court held that the federal government was without criminal jurisdiction to try Indian-on-Indian crimes because the Lakota tribe was an inherent sovereign with the retained right to administer their laws.112 Rehnquist’s treatment of Crow Dog ignored the inherent sovereignty and retained rights of the Lakota Nation acknowledged in the case. Instead, he narrowly focused on an overtly ethnocentric section in the opinion by Justice Stanley Matthews who said that the United States was wrong in seeking to extend its law over Indian-on-Indian crimes. The government was trying to do this, said Matthews,

  . . . over aliens and strangers; over the members of a community separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code . . . which judges them by a standard made by others and not for them. . . . It [the U.S.] tries them, not by their peers, nor by the customs of their people, nor the law of the land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception. . . .113

  This excerpt from Crow Dog, while affirming Sioux traditional law, suffers from overtones of racism and ethnocentrism. While upholding respect for tribal sovereignty in a jaundiced way, the Court was philosophically supporting the federal government’s goal of assimilating Indians.

  Rehnquist, in citing this particular statement, was speaking as if little had changed in the field of Indian policy and law from the 1880s to the 1970s. Although Crow Dog was an internal sovereignty issue not involving outsiders, and while it dealt with a major crime—a murder—and not a minor offense, Rehnquist spoke as if the facts of Crow Dog were perfectly comparable to the interracial situation of Oliphant. He said, in response to the Crow Dog quote, that “[t]hese considerations, applied here to the non-Indian rather than Indian offender, speak equally strongly against the validity of respondents’ contention that Indian tribes . . . retain the power to try non-Indians according to their own customs and procedure.”114 The comparison is weak, and Rehnquist admitted as much in his concluding comments, where he acknowledged that (1) some tribes have judicial systems which are “sophisticated and resemble in many respects their state counterparts”; (2) the ICRA of 1968 extended certain basic procedural rights to all persons on Indian reservations, an action which has caused “many of the dangers” that might have arisen when tribes tried to prosecute non-Indians “to have disappeared”; and (3) the increasing violence on Indian reservations, as elsewhere, enables tribes to fashion a forceful argument that they have the “ability to try non-Indians.” Despite the cumulative merit of these three points, Rehnquist dismissed them as having “little relevance.”115 In his opinion, such facts were irrelevant to the unusual position that he was imprinting onto the legal landscape: that tribes—all tribes—were without inherent authority to try and punish non-Indians. Rehnquist gratuitously remarked in conclusion that Congress was certainly empowered to authorize tribes to exercise such jurisdiction. Until and unless this transpired, however, tribes were informed that their power to preserve order on their reservations was effectively limited to handling minor Indian-on-Indian crimes.

  THE DISSENT OF JUSTICE MARSHALL AND CHIEF JUSTICE BURGER

  Justice Thurgood Marshall adopted the view of the lower federal court that the power to preserve order was a “sine qua non of the sovereignty that the Suquamish originally possessed.”116 Marshall and Chief Justice Warren Burger espoused the view that since neither Congress nor the executive branch had ever deliberately dispossessed tribes of this power, it remained a part of their sovereign arsenal.

  CONCLUSION

  It is certainly debatable whether a tribal nation of fifty Indian individuals inhabiting checkerboarded reservation land in which they are outnumbered forty-to-one could pragmatically wield the type of criminal jurisdiction the Suquamish sought to exercise in Oliphant. Equally puzzling is why this case with such an anomalous demographic situation was ever taken before the Supreme Court. But even more important is the question of why the Supreme Court, rather than recognizing the uniqueness of this case as proposed by the Suquamish tribe’s attorneys in oral arguments, used it as an excuse to carefully set about the task of dismantling the right of all tribes to criminally punish non-Indian offenders. Unable to find constitutional, treaty, or statutory justification for this dismemberment of a critical tribal right, Justice Rehnquist and five colleagues engaged in sophistry of the highest order to deny tribes with the requisite judicial system the essential right to administer justice for all.

  THE AFTERMATH—A TRIBAL RESURGENCE OF SORTS

  Within two months after Oliphant, the Supreme Court handed down two other important decisions—United States v. Wheeler,117 decided March 22, 1978, six days after Oliphant; and Santa Clara Pueblo v. Martinez,118 decided May 15. These two rulings, in certain fundamental respects, represented the virtual antithesis of the Oliphant rule that tribes possess only those powers which have been “delegated” by treaty or statute. Wheeler upheld successive tribal and federal prosecutions of an Indian for crimes arising out of the same offense committed on a reservation. Wheeler, a Navajo, had pleaded guilty in tribal court to a charge of contributing to the delinquency of a minor. He was later indicted by a federal grand jury for statutory rape based on the same charge.

  Wheeler sought to have
the federal charge dismissed on the premise that the tribal charge was actually a “lesser included offense” of statutory rape.119 Justice Potter Stewart, however, speaking for a unanimous Court (again, except for Brennan), held that successive prosecutions of Indians in federal and tribal courts were not barred by the double jeopardy clause of the Fifth Amendment. More important from Stewart’s perspective was the source of the tribe’s power under which the respective prosecutions had been undertaken. The crucial question, then, especially in light of the week-old Oliphant decision, was whether the tribe’s conceded power to enforce criminal laws against its own members was based on “inherent tribal sovereignty” or a sovereignty “which has been delegated to the tribe by Congress. . . .”120

  Citing Felix Cohen’s Indian law book and John Marshall’s Worcester decision, Stewart said that the powers of tribes were inherent. Tribes, in effect, retained all those powers not explicitly removed by Congress.121 This description of inherent and retained tribal sovereignty was not quite the “ringing” endorsement Wilkinson122 has suggested it was, since Stewart also adopted the Oliphant rule that tribes have lost powers based on their “dependent status.” Nevertheless, it was an important recognition of the doctrine of inherent, not delegated, power.

  In the Santa Clara Pueblo case, the Court was asked to decide whether a federal court could determine the validity of the Santa Clara Pueblo’s ordinance denying membership to the children of Julia Martinez, a recognized member of the tribe who had married a non-Pueblo. The Court, through Justice Marshall, ruled that Martinez’s sexual discrimination claim against the tribe could not be brought into federal court because the provisions of the ICRA did not entail an unequivocal expression to abrogate tribal sovereign immunity by subjecting the tribe to civil suits in Federal Court. Importantly, this decision was reached notwithstanding the extension of the equal protection guarantee to tribes laid out in the Indian Civil Rights Act, and despite a federal law extending federal courts’ jurisdiction over lawsuits filed “under any act of Congress providing for the protection of civil rights.”123 Interestingly, while Justice Byron White filed a dissent, arguing that the ICRA did entitle an aggrieved individual to sue in federal court against tribal officials, Rehnquist, who had so vigorously railed about the civil rights of non-Indians in Oliphant, quietly concurred in this decision.

  This triumvirate of cases prompted Indian leaders throughout the country to sponsor a conference in Washington, D.C., in June 1978, focusing on the administration of justice on Indian reservations. Senator Edward M. Kennedy (D., Massachusetts) gave the keynote address entitled “Justice on Indian Reservations.” After describing the three cases, Kennedy accurately noted that as different as the cases were they shared one common element: “They all helped draw the boundaries of tribal self-determination which will guide the cause of Indian and non-Indian relationships in the decades to come.”124 Unfortunately for tribes, however, their growing efforts to practice genuine self-determination would have to take place without the fundamental authority to punish non-Indians who violated tribal criminal laws.

  United States v. Sioux Nation of Indians

  LAND CLAIMS IN THE EIGHTIES

  Land is at the heart of indigenous identity and it is the definitive factor which has animated indigenous/nonindigenous affairs since that first contact. By the late 1970s, tribes had an ongoing, but uneven, three-pronged land-claims attack aimed against both the states and the federal government. The first, and by far the oldest, land-claims initiative dated back to the 1920s when tribes, through various jurisdictional acts, were finally allowed to bring suits against the federal government for claims relating to lands they had lost. In these suits, tribes could not sue for the return of land but were limited to seeking compensation (i.e., Northwestern Bands of Shoshone v. United States).

  The second effort entailed cases brought by tribes under the Indian Claims Commission Act of 1946. These were land claims arising before 1946 which were based, from the tribes’ viewpoint, on either unfair federal takings or inadequate compensation for takings of Indian land by the United States. Consideration was not given through the implementing legislation as to the possibility of claims against states, cities, or private parties, and tribes, again, were limited to monetary damages only: no land could be recovered.

  The third and most recent flank of this attack, which had begun unofficially in 1975 with Passamaquoddy,125 centered around land claims by eastern Indian tribes like the Narragansett of Rhode Island, the Wampanoag of Gay Head, Massachusetts, the Schaghticoke and Western Pequot of Connecticut, the Oneida, St. Regis Mohawk, and Cayuga Nation of New York, the Catawba of South Carolina, the Chitimacha tribe of Louisiana, and, most prominently, the Maine-based Passamaquoddy, the Penobscot, and the Houlton band of Maliseet. The claims of these indigenous groups had not been served by the Indian Claims Commission because their land losses had occurred as a result of actions by individual states, not the federal government.

  These cases, with exception of the Chitimacha’s, all arose in the original thirteen colonies, “whose state government dealt directly—and, it is asserted, illegally—with Indian nations during the early history of the Republic.”126 The tribes in these cases had argued, and continued to insist, that the states had unlawfully purchased or otherwise secured title to much of their aboriginal territory in direct violation of the Indian Trade and Intercourse Act of 1790. This act had stated that any land transactions involving Indians and other parties had to be supervised and approved by the federal government. Furthermore, this law, as the Court had held in Passamaquoddy, protected all tribes, both federally recognized and state- or even nonrecognized tribes.

  There are a number of differences between these eastern land-claims cases and the first two sets of cases, which were heard in the Court of Claims and the Indian Claims Commission. The most definitive one is that under the Trade and Intercourse Act, tribes could sue, negotiate, or seek direct presidential action to have their actual land restored. The eastern Indians’ most substantial victory to date is that of three Maine tribes, the Passamaquoddy, Penobscot, and Maliseet. Their valid claims to 12.5 million acres in the state were eventually settled among the state, the tribes, and both corporate and private landholders on October 10, 1980, with the mediation of a federally appointed official.127 Under the agreement, the secretary of the treasury established a 27-million-dollar trust fund; the secretary of the interior was directed to purchase 300,000 acres of forest land for the Indians; and the three groups were acknowledged as federally recognized tribes. Into this teeming claims milieu stepped the United States Supreme Court to announce a verdict—just four months before the negotiated settlement in the Maine case was approved by Congress—on one of the oldest Court of Claims cases, dating back to 1920. This decision was originally perceived as an impressive legal victory in some circles of the Great Lakota Nation because eight Sioux bands had been able to elicit an admission by the Supreme Court that the federal government had indeed illegally appropriated seven million acres of the Great Sioux Reservation, which included the Black Hills. The Lakota bands were also awarded 17.5 million dollars (the cost of the Black Hills at the time of their taking), plus an additional 105 million (representing the government’s liability for interest on the judgment, calculated at five percent annually for 103 years). This financial award was touted as the largest ever made by the Court of Claims.128

  This particular case, however, the culmination of more than a half-century of persistent effort by the Lakota to secure a measure of justice, is not so easily categorized as an overwhelming tribal victory. The language used by Justice Harry Blackmun, who wrote for the eight-to-one majority, included troubling phraseology regarding what constitutes a legal “taking” of Indian land, the nature of the trust relationship, and the nature of law itself. As Vine Deloria Jr. stated with regard to the Black Hills claim, “In my opinion, [the claim] represents a much deeper problem than a simple land transaction.” He predicted that the claim would not
be fully resolved as long as the Court persisted in regarding it simply as a real estate deal.129

  HISTORICAL BACKGROUND

  The Indian Peace Commission was established on July 20, 1867.130 The Commission’s primary goal was to secure peace with the major Indian nations of the West, who had considerable military power and were exercising it efficiently to prevent settlement of the Great Plains and Rocky Mountain areas. The commission made some treaties in western Kansas in 1867 but failed to secure treaties with the northern plains tribes, the tribes of the Southwest, and the tribes of the Western Indian Territory in that year. Thus efforts were concentrated the following year—1868—the last year treaties were negotiated before Congress terminated the process in 1871.

  The commission issued its first report January 7, 1868. It had reviewed the causes of hostility between the races and placed the blame squarely on the shoulders of white Americans. “Have we been uniformly unjust?” the commissioners asked; “We answer, unhesitatingly, yes!”131 They acknowledged, however, that making good treaties would be no easy task, considering the amount of injustice the federal government had heaped on the tribes. Besides, the commissioners stated, “nobody pays any attention to Indian matters. . . . The only question considered is, ‘how best to get his land.’”132