The Court of Claims in 1979, by a six-to-two decision, affirmed the ICC’s 1974 decision that the 1877 treaty had effected a “taking” of the Sioux’s Black Hills and of the rights-of-way across the Great Sioux Nation Reservation in violation of the Fifth Amendment. The Court, in acordance with the ICC opinion, entered a final judgment for the Lakota Nation of over 17 million dollars, with interest at 5 percent from February 28, 1877. The United States petitioned for a writ of certiorari on October 19, 1979, and the writ was granted in December of that year.
MASKING WITHIN THE DECISION: THE OPINION
On June 30, the Supreme Court, in an 8–1 decision, affirmed the lower court’s ruling that the federal government, in exercising its powers of eminent domain, had indeed unconstitutionally taken the Black Hills from the Lakota people in violation of the Fifth Amendment and had not paid adequate compensation for the land. In an example of the Supreme Court’s oft-exercised constitutional/treaty legal consciousness, the Court relied, accurately this time, on the 1868 treaty and the Constitution to reach a conclusion that favored the Lakota. There were two major issues to be addressed by the Blackmun-led majority. The first was whether Congress, in enacting the 1978 amendment which voided the res judicata defense, thus directing the Court of Claims to review the merits of the case, had inadvertently violated the separation of powers doctrine which partitions the three branches of government. The Court devoted nearly sixteen pages to this issue, and while the theory of separation of powers is certainly an important constitutional matter, it is sufficient to say that Blackmun expressed the view that Congress’s waiver of res judicata did not violate the doctrine.
Plenary Power, Eminent Domain, or Treaty Rights?
An issue that has been at the forefront of Lakota-United States political and litigious activity for over one hundred years is that of Congress’s power vis-à-vis tribal property. It is important in the issue of whether Congress in “taking” the Black Hills was following (1) the line of plenary power, or (2) the line of eminent domain. The line of plenary power, enunciated fully in Lone Wolf, established Congress’s preeminent authority over tribal property “by reason of its exercise of guardianship over their interest, and that such authority might be implied, even though opposed to the strict letter of a treaty with the Indians.”
The line of eminent domain, described in the 1937 case Shoshone Tribe of Indians v. United States,162 while conceding Congress’s “paramount power over Indian property,” did hold that such power did not enable the government to “give the tribal lands to others, or to appropriate them to its own purposes, without rendering or assuming an obligation to render just compensation.”163 The power of eminent domain recognizes a government’s right to take private property for public purpose so long as just compensation is paid. The fundamental problem for tribes, however, is that both of these lines presume that Congress retains a vast, unarticulated power over tribal nations without a constitutional mooring and without tribal consent. Furthermore, both of these lines ignore or subsume the more correct line of treaty rights, which guaranteed to tribes respect for their sovereignty and their property and which were to be inviolate unless tribal consent was first obtained.
Nevertheless, the lines of plenary power and eminent domain were the parameters that would instruct Blackmun’s decision. Both of these lines are steeped with an implicit belief in congressional supremacy over tribal nations. Blackmun moved to a discussion of a recent Court of Claims case, Three Affiliated Tribes of Fort Berthold Reservation v. United States,164 in which the “good faith” test was articulated. This was ostensibly designed to reconcile the plenary power and eminent domain lines. Three Tribes held that while Congress could act in either capacity—as a plenary power or as a sovereign exercising eminent domain—it could not act in both ways simultaneously. “Congress,” the Court said, “can own two hats, but it cannot wear them both at the same time.”165
The problem, however, is that the good faith test is not really a test. It is merely a manipulation of the so-called trustee/guardian theory, which, earlier courts had maintained, “is a relationship that has already been disclaimed unless a treaty, agreement, or statute specifically states that the Federal Government is assuming such an obligation. The test further waits until Congress has acted and then suggests a means by which such action can be interpreted as a legal and authorized act.”166
Blackmun said that the Court of Claims had applied the Three Tribes test to the facts of the Sioux claims case and had concluded that when Congress enacted the 1877 act, that body had failed to make a good faith effort to give the Sioux full value for the Black Hills. Therefore, the major issue before the Court, Blackmun now stated, was “whether the legal standard applied by the Court of Claims was erroneous.”167
Who Is Representing the Lakota?
The attorneys for both parties had each adopted one of the lines as their primary argument. The United States attorney, Deputy Solicitor General Louis F. Claiborne, maintained that the United States had committed no discernible wrong when it unilaterally took the Sioux lands and violated the 1868 treaty. In oral arguments, when asked to explain the so-called trust relationship between the federal government and tribes, Claiborne averred, “[The] trustee relationship, Mr. Chief Justice, carries both obligations but also unusual powers, the power to dispose against the will and without exercising the power of eminent domain.”168 In response to a justice’s query, “[The] Constitution itself recognizes Indian tribes as sovereigns, does it not?” Solicitor Claiborne casually remarked, “yes, but the Constitution perhaps also recognizes the dependent status of Indian tribes, their inability to alienate their land which accordingly, if it must be done in their interest, may occasionally have to be done against their will by their guardian”169 (emphasis mine).
Apart from the fact that there has never been a congressionally mandated “guardian-ward” relationship between tribes and the United States, Claiborne was reading into the Commerce Clause a nonexistent “dependent status” for tribes. The Constitution’s most pertinent clause, the Indian Commerce Clause, simply states that Congress will manage the government’s commercial trade affairs with tribal nations. Nothing in the Constitution can be read as “perhaps” recognizing Indian “dependent status.”
The Lakota’s lead attorney, Arthur Lazarus Jr., also remarkably conceded not only that the government had the power to break treaties but that this could happen without tribal consent. “Lone Wolf,” said Lazarus, “tells us that Congress—if Congress determines that the reservation should be cut in half, Congress can come in and do it; it can do it without the consent of the Indians and they can do it in violation of the treaty.”170 The only substantive difference, then, between the arguments of Lazarus and Claiborne was that the former believed that Congress’s enactment of the 1877 law effected a “taking” and therefore the United States was liable under the Fifth Amendment to pay for the taken property. “The Constitution,” Lazarus maintained, “was not only color blind, it is dollar blind and we are entitled to just compensation under every single ruling of this Court. . . .”171 In response, a majority of the justices refused to confront Congress and say that something more substantial than “just compensation” was at stake. Blackmun seemed to sense the inadequacy of his theory since he dumped the question before the Court into a footnote. The most the Court could do, said Blackmun, would be to consider whether “Congress was acting under circumstances in which that ‘taking’ implied an obligation to pay just compensation, or whether it was acting pursuant to its unique powers to manage and control tribal property as the guardian of Indian welfare, in which event the Just Compensation Clause would not apply.”172 However, as one leading scholar observed, “an action like this taking judged ‘unconstitutional’ in an Indian setting seems to mean that something horribly distasteful has occurred, but that it is nevertheless permanent and irreversible.”173
While an affirmation of the Court of Claims case would constitute a financial victory of so
rts for the Lakota, and especially their attorneys, it in no way provided any of the much needed clarification as to the actual basis of the Lakota/United States political relationship. The majority, by refusing to question whether the Congress could take the land; by refusing to consider any return of the stolen land; and by refusing to disavow the Lone Wolf holding that Congress may unilaterally abrogate Indian treaties based on its own perception of what it considers the maintenance of “perfect good faith” toward Indians, failed to inspire much hope for justice among the Lakota or other tribes with treaty-based claims before the Supreme Court.
The “Timely” Demise of the Mask of the Political Question Doctrine
Although Blackmun refused to renounce the extraconstitutional plenary power doctrine, his opinion in Sioux Nation, coming on the heels of another Supreme Court case, Delaware Tribal Business Committee v. Weeks,174 finally buried the infamous “political question” doctrine, which had for years been employed to deny tribes even a judicial hearing on various issues. The government had argued in Sioux Nation that under the political question doctrine, the Court had to accept Congress’s taking of the Black Hills as the action of a “trustee” working for the good of “dependent wards.” Blackmun, however, citing Delaware Tribe, said that the prescription of congressional good faith, which was historically based on the view that the tribes/U.S. government relationship entailed political matters not subject to judicial review, had “long since been discredited in takings cases, and was expressly laid to rest in Delaware. . . .”175
Blackmun terminated his discussion of the now doubly discredited political question doctrine by observing that the “presumption of congressional good faith has little to commend it as an enduring principle for deciding questions of the kind presented here.176 He then made two statements which illustrate that even a liberal justice may accept the plenary (absolute) power of Congress over Indian tribes, despite its dubious constitutional basis. Blackmun said, “In every case where a taking of treaty-protected property is alleged, a reviewing court must recognize that tribal lands are subject to Congress’ power to control and manage the tribes’ affairs.”177
The important phrases in this quote are “treaty-protected,” “control,” and “manage.” In a footnote, Blackmun emphatically reinforced the disastrous Tee-Hit-Ton principle that so-called unrecognized or aboriginal title was not compensable under the Fifth Amendment. Second, Blackmun’s statement that Congress retains power to “control and manage” Indian tribal affairs is presumptuous—this self-generated congressional power lacks constitutional or treaty support. Blackmun went on to note, however, that this congressional power “is not absolute.” It was limited, he said, by the guardianship doctrine and “pertinent constitutional restrictions.” But he had already stated that this power was unlimited if the tribal lands in question (like those of Alaskan natives) had not been expressly set aside by treaty or agreement. And some courts maintain that the constraints seemingly inherent in the “guardianship” idea are not applicable unless a tribe has been specifically determined to be in a guardianship relationship with the United States based on a prior treaty, statute, or court case.
Blackmun turned to the question of whether the Court of Claims’ assessment of the case had been guided by an appropriate legal standard. He recited a long quote from the Claims Court case in which the judges affirmed and expanded the Three Tribes test regarding the adequacy of the consideration provided by the government for the lands it had taken in 1877. That court had held that the government’s basic assertion of “good faith” was insufficient reason precluding the court from examining the merits of the tribes’ claims. In yet another interesting footnote, Justice Blackmun, in interpreting the Court of Claims’ discussion on congressional takings, based on the test of “good faith,” indicated that it was still possible for this test to serve as the basis for a future taking. He noted that “in an appropriate case” the test would still be valid if supported by “objective indicia” and that there might be instances where “the consideration provided the Indian for surrendered treaty lands was so patently adequate and fair that Congress’ failure to state the obvious would not result in the finding of the compensable taking.”178 Who has the power to make the determination of “good faith” or “patently adequate” is the problematic issue from the tribal perspective. There is not even a hint here that Congress would curtail its activities in the face of tribal protest. On the contrary, one is left with the understanding that takings are solely at the discretion of Congress.
Finally, in a footnote that must have elicited a collective smile from the Lakota, Blackmun reacted forcefully to the central arguments of Justice Rehnquist’s dissent. Rehnquist had asserted that the factual findings of the ICC, the Court of Claims’ determination, and Blackmun’s majority opinion were based on what he called a “revisionist” view of history. Blackmun vigorously refuted those charges by noting that Rehnquist was unable to “identify a single author, non-revisionist, neo-revisionist, or otherwise,” who subscribed to the view of history that Rehnquist had offered. In reality, Rehnquist was the “revisionist.”
“The primary sources for the story told in this opinion,” said Blackmun in reference to the majority opinion, “are the factual findings of the Indian Claims Commission and the Court of Claims. A reviewing Court generally will not discard such findings because they raise the specter of creeping revisionism, as the dissent would have it, but will do so only when they are erroneous and unsupported by the record.”179 None of the affected parties, including the federal government, had even hinted that the lower court’s factual findings could not withstand close scrutiny.
Finally, Blackmun chided Rehnquist for his reliance on the original 1942 Court of Claims decision. He reminded Rehnquist that that decision was not at issue and, more significantly, brought out—no doubt to Rehnquist’s chagrin—that the 1942 court’s reliance on the presumption of good faith was actually based on “an erroneous legal interpretation” (emphasis original) of the Lone Wolf precedent.180 Blackmun’s admonition of Rehnquist in this case makes one pause to wonder why such a rebuke did not arise with Oliphant.
JUSTICE REHNQUIST’S DISSENT
Unfolding in the wake of his Oliphant ruling, Rehnquist’s dissent failed to surprise most informed people. He had displayed a willingness to recreate and, in some cases, to fabricate historical scenarios that would enable him to reach the legal conclusions he sought. He had also shown adroitness at selectively using documentary sources to prove his often constitutionally unsupported points. Although Justice Blackmun succeeded in refuting Rehnquist’s multiple faulty arguments, the dissent is a fascinating document that bears examination. The following quotation from it serves to illustrate Rehnquist’s garbled view of the tribal world and the tribal-federal political relationship:
There were undoubtedly greed, cupidity, and other less-than-admirable tactics employed by the Government during the Black Hills episode in the settlement of the West, but the Indians did not lack their share of villainy either. It seems to me quite unfair to judge by the light of “revisionist” histories or the mores of another era actions that were taken under pressure of time more than a century ago.181
This is an extraordinary statement. Rehnquist was saying that Congress’s unconstitutional and unilateral confiscation of the Black Hills in direct violation of the 1868 treaty was counterbalanced by the Sioux’s being a less-than-perfect people who had their share of behavioral problems. “Different historians,” he claimed, “not writing for the purpose of having their conclusions or observations inserted in the reports of congressional committees, have taken different positions than those expressed in some of the materials referred to in the Court’s opinion.”182 However, in response to Blackmun’s inquiry as to the identity of these phantom historians, Rehnquist neglected to cite a single name or source to support his remarks. He then excused his inability to produce a source on the grounds that “history, no more than law is not an exact (or for
that matter, an inexact) science.”183 It is inarguable that neither history nor law is a scientific enterprise. The historical record of the United States’ “greed, cupidity, and other less-than-admirable tactics” that Rehnquist acknowledged, however, is obvious to those students of history who are not already wedded to any particular doctrinal or ideological conclusions of their own creation. Note the tone of this statement:
But the inferences which the Court itself draws from the letter from General Sheridan to General Sherman . . . as well as other passages in the Court’s opinion, leave a stereotyped and one-sided impression both of the settlement regarding the Black Hills portion of the Great Sioux Reservation and of the gradual expansion of the National Government from the Proclamation Line of King George III in 1763 to the Pacific Ocean.184
The majority, however, was not drawing “inferences.” It is, as the documentary record shows, a fact that, subsequent to that correspondence, the Grant administration pulled the U.S. cavalry out and allowed the Black Hills to be overrun with non-Indians. These and other episodes were, therefore, open violations, not inferential interpretations.
Rehnquist ended his revisionist history by citing from two dated and biased sources—a statement by Ray Billington in a 1963 work, Soldier and Brave, and a quote from Samuel E. Morrison in his 1965 study, The Oxford History of the American People. Both statements are laced with stereotypes and errors. They had been selected by Rehnquist, apparently to show that it was really the Indians’ “cultural differences” which had forced the United States into open conflict with tribes. Rehnquist’s selection of the following Morrison quote is particularly telling:
The Plains Indians seldom practiced agriculture or other primitive arts, but they were fine physical specimens; . . . They lived only for the day, recognized no rights of property, robbed or killed anyone if they thought they could get away with it, inflicted cruelty without a qualm, and endured torture without flinching.185
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