American Indian Sovereignty and the U.S. Supreme Court Read online

  American Indian Sovereignty and the U.S. Supreme Court

  American Indian Sovereignty and the U.S. Supreme Court

  THE MASKING OF JUSTICE

  DAVID E. WILKINS

  UNIVERSITY OF TEXAS PRESS

  Austin

  Parts of this book that were published in earlier versions are listed in the Acknowledgments.

  Copyright © 1997 by the University of Texas Press

  All rights reserved

  Printed in the United States of America

  Fourth paperback printing, 2005

  Requests for permission to reproduce material from this work should be sent to Permissions, University of Texas Press, Box 7819, Austin, TX 78713-7819.

  utpress.utexas.edu/about/book-permissions

  LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

  Wilkins, David E. (David Eugene), 1954–

  American Indian sovereignty and the U.S. Supreme Court: the masking of justice / David E. Wilkins.

  p. cm.

  Includes bibliographical references and index.

  ISBN 0-292-79109-7 (paper : alk. paper)

  1. Indians of North America—Legal status, laws, etc. 2. United States. Supreme Court. 3. Justice, Administration of—United States. I. Title.

  KF8205.W527

  342.73'0872—dc21 97-1988

  ISBN 978-0-292-79996-7 (e-book)

  ISBN 978-0-292-77400-1 (individual e-book)

  Contents

  Preface

  Acknowledgments

  CHAPTER 1. Legal Masks, Legal Consciousness

  CHAPTER 2. The Era of Defining Tribes, Their Lands, and Their Sovereignty

  CHAPTER 3. The Era of Congressional Ascendancy over Tribes: 1886–1903

  CHAPTER 4. The Era of “Myths”: Citizenship, Nomadism, and Moral Progress

  CHAPTER 5. The Era of Judicial Backlash and Land Claims

  CHAPTER 6. The Era of the Imperial Judiciary

  CHAPTER 7. Removing the Masks

  APPENDIX A. Cases Cited

  APPENDIX B. Supreme Court Justices Authoring the Fifteen Opinions Analyzed

  Notes

  Glossary

  References

  Index

  Preface

  There is nothing in the whole compass of our laws so anomalous, so hard to bring within any precise definition, or any logical and scientific arrangement of principles, as the relation in which the Indians stand toward this [United States] government and those of the states.

  —U.S. Attorney General Hugh Swinton Legare1

  It is argued, because the Indians seek the courts of Kansas for the preservation of rights and the redress of wrongs, sometimes voluntarily, and in certain specified cases by direction of the Secretary of the Interior, that they submit themselves to all the laws of the State. But the conduct of Indians is not to be measured by the same standard which we apply to the conduct of other people. (emphasis mine)

  —The Kansas Indians2

  In the fall of 1993, I attended a conference at the National Science Foundation in Washington, D.C. On Saturday, following the conference doings, my friends Rudy Coronado Jr. and John Archuleta and I set out to visit as many of the massive and inspiring architectural structures as possible.

  Leaving the National Archives Building, we walked by the Department of Justice. On its west side, high above the street, was inscribed the following passage: “Justice is the great interest of man on earth; wherever her temples stand there is a foundation for social security, general happiness, and the improvement and progress of our race.” I was bemused by this statement, particularly the reference to “our race.”

  When I returned to Boulder, I immediately began making inquiries about the Justice Department’s quote. I soon found that the quotation is an abridged version of an eloquent testimonial given by Daniel Webster in honor of Joseph Story, a justice of the Supreme Court who died December 12, 1851. This is Webster’s complete statement:

  Justice, sir, is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together. Wherever her temple stands, and so long as it is duly honored, there is a foundation for social security, general happiness, and the improvement and progress of our race.3 (emphasis mine)

  This unabridged version is certainly more grammatically correct, and knowing its date of origin, 1851, enabled me to better comprehend the meaning behind the phrase “our race.” Although Webster would probably have excused himself by saying he was referring to the “human race,” the dictionary definition of race emphasizes narrowing and classifying, and there is no getting around the fact that his choice of words was unfortunate at best. I pondered why the Justice Department insisted on perpetuating this exclusionary phrase over the many years after it had first been used. Surely the more appropriate language to be used by the Justice Department would have been “the improvement and progress of humanity,” since the scales of justice are considered to be color-blind. It is important to ponder the reality of why such an exclusive phrase remains inscribed on the walls of the Department of Justice. I believe every vestige of America’s exclusionary past must be stricken from every corridor of government, particularly the department which is about the administration and enforcement of justice for all.

  In the study that follows, details are presented in which the United States government and, in particular, the Supreme Court have been unable and, in some cases, almost unwilling to cast away a battery of disparaging and debilitating phrases that have limited or terminated the rights of indigenous peoples as distinctive groups. This is not a comforting thought because of the Supreme Court’s unique role as the preeminent institution vested with the authority of deciding the “finality of rational principles.”4 This is so, said Thurmond Arnold, because law concerns the “spiritual welfare of the people” and is preserved in their form of government. And, in spiritual things, said Arnold, “it is essential that men do right according to some final authority.”5 Arnold believed it was faith in a higher law that enabled the Supreme Court to function effectively as the branch of government most responsible for maintaining social stability.6

  But, as this study reveals, “the law” as developed, articulated, and manipulated by the High Court has actually contributed to the diminution of the sovereign status of tribes and has placed tribes and their citizens/members in a virtually destabilized state. Beginning, most intensely, with Johnson v. McIntosh in 1823, we will consider fifteen important Indian law decisions, concluding with the 1992 decision, County of Yakima v. Confederated Tribes and Bands of the Yakima Nation.

  While this book covers a wide span of time, it is not a history per se. The book’s already inordinate length precludes an in-depth historical analysis of the nearly two hundred years this study examines. Thus, readers looking for significant historical detail of the many important policies and personalities of the eras these cases arose in are encouraged to consult other accounts which expand on these matters. Several worthwhile books, all of which are given in my reference section, trace the ambivalent attitudes and policies of the U.S. government toward tribal nations—see, for example, Roy Harvey Pearce, Savagism and Civilization: A Study of the Indian and the American Mind (1953); Wilcomb E. Washburn, ed., The American Indian and the United States: A Documentary History, 4 vols. (1973); Angie Debo, A History of the Indians of the United States (1970); Robert Berkhofer Jr., The White Man’s Indian: Images of the American Indian from Columbus to the Present (1978); Francis P. Prucha, The Great Father: The United States Government and the American Indian, 2 vols. (1984); Calvin Martin, ed., The American Indian and the
Problem of History (1987); Robert A. Williams Jr., The American Indian in Western Legal Thought (1990); and Albert Hurtado and Peter Iverson, eds., Major Problems in American Indian History: Documents and Essays (1994).

  Readers interested in specific Indian policy periods have a plethora of quality studies to choose from. For the Indian removal era (early 1800s to 1840s), consult Grant Foreman’s two classic studies, Indian Removal: The Emigration of the Five Civilized Tribes of Indians (1932) and The Last Trek of the Indians (1946), and see Jill Norgren’s The Cherokee Cases: The Confrontation of Law and Politics (1996).

  There are a number of solid treatments of the allotment and assimilation eras (1860s–1920s)—see, for example, Frederick E. Hoxie, A Final Promise: The Campaign to Assimilate the Indian, 1880–1920 (1984); and Janet McDonnell, The Dispossession of the American Indian: 1887–1934 (1934).

  The critically important New Deal era of the 1930s is covered thoroughly in Lawrence C. Kelly’s The Assault on Assimilation: John Collier and the Origins of Indian Policy Reform (1983); Vine Deloria Jr. and Clifford M. Lytle, The Nations Within: The Past and Future of American Indian Sovereignty (1984); and Thomas Biolsi, Organizing the Lakota: The Political Economy of the New Deal on the Pine Ridge and Rosebud Reservations (1992).

  The 1950s entailed the disastrous termination policy in which the federal government systematically attempted to sever the unique political relationship between itself and various indigenous groups. This policy has been ably examined by Larry W. Burt, Tribalism in Crisis: Federal Indian Policy, 1953–1961 (1982); and see Nicholas C. Peroff, Menominee Drums: Tribal Termination and Restoration, 1954–1974. (1982) for a case study of the effects of the policy on a tribal community.

  The 1960s to the present have received the focus of a variety of scholars intent on explaining the federal government’s shift from termination to self-determination and the eruption of indigenous activism. See Alvin M. Josephy Jr., ed., Red Power: The American Indians’ Fight for Freedom (1971); D’Arcy McNickle, Native American Tribalism (1973); Stephen Cornell, The Return of the Native: American Indian Political Resurgence (1988); Joane Nagel, American Indian Ethnic Renewal: Red Power and the Resurgence of Identity and Culture (1996); and see the collective works of Vine Deloria Jr., who has written extensively on this period. Among his contributions are Custer Died for Your Sins: An Indian Manifesto (1969, repr. 1988); Behind the Trail of Broken Treaties: An Indian Declaration of Independence (1974, repr. 1985); and American Indian Policy in the Twentieth Century (1985).

  A comment about terminology. Throughout the book several terms are used interchangeably in referring to indigenous peoples in a collective sense—tribal nations, tribes, Alaskan Natives, indigenous nations, and indigenous peoples. But I use only one when I am referring to individual indigenous persons—Indian or American Indian. Of all the terms I’ve mentioned, “Indian” is easily the most problematic (though some argue that the term “tribe” is also pejorative and hints strongly of colonialism), and I use it with some hesitation for two reasons: first, because of its obvious geographical inaccuracy and second, because it erroneously generalizes and completely ignores the cultural diversity evident in the hundreds of distinctive indigenous nations present in North America, each with their own name for themselves. One could thus argue that continued usage of the term attests to surviving vestiges of colonialism. Nevertheless, the term Indian or American Indian is the most common appellation used by many indigenous and nonindigenous persons and by institutions, and so it will be used in the text when no tribe is specified. (Specified tribes will be referred to with the singular collective favored by Merriam Webster’s Collegiate Dictionary [10th ed.] for tribes as, for example, “the Cherokee.”)

  I have, moreover, intentionally avoided using the phrase “Native American” because, as Matthew Snipp notes in American Indians: The First of This Land (1991), it “creates even greater confusion than the term it was once proposed to replace—namely, American Indian. American Indians are easily distinguished from Asian Indians by a single locational adjective, but ‘Native Americans’ include Hawaiian natives and the descendants of immigrants from all nations, along with American Indians, Eskimos, and Aleuts.” The expressions “Native Peoples” and “Native Nations” may be less confusing, but these terms and the intriguing phrase “First Nations” are used almost exclusively by Canadian and Alaskan indigenous groups.

  Finally, some readers may walk away from this book with a sense that the author is decidedly pro-Indian and anti-Supreme Court. It is certainly true that I am a firm believer in indigenous collective and individual rights; however, I am also well aware that tribal nations are not pristine or idyllic communities. Tribal nations, like all other communities, have produced their share of individuals who sometimes violate laws—both tribal and nontribal. Indian criminality, as one element of the indigenous experience, has, unfortunately, been neglected in the literature, although a few studies are available on the subject.7

  This study, however, is focused on the U.S. Supreme Court, and while it paints a portrait of the High Court that is far from positive, it is not my intention to depict the court as an evil institution bent on the destruction of indigenous rights. On balance, when one weighs the historical and policy record, the Supreme Court, compared with the Presidency or the Congress, has the better track record of acknowledging tribal sovereignty, upholding Indian treaty rights, and construing the distinctive nature of Indian rights. But, as will be shown, when the Court has chosen to disavow indigenous rights, as it has done in most of the cases examined in this book, it has done so in a manner that has left tribal nations wondering about the actual meaning of democracy, justice, and consent.

  In the first chapter and in the conclusion I note that the Court has the potential—which has sometimes been fulfilled—of being the branch of American government most likely to respect the rights of tribal nations because of its power of interpretation, its relative independence from an often-fickle electorate and the electoral process, and its status as a deliberative body. It is my hope that this study will inspire a reexamination of these particularly egregious decisions. It is in that spirit that I write.

  DAVID E. WILKINS

  September 1996

  Acknowledgments

  This study has evolved over a number of years during which, thankfully, many positive forces have contributed to its development and have directly influenced both the product and the producer. I have many to thank for their generous support, constructive criticism, and unabashed encouragement, and I hope I succeed in crediting most of these.

  I am deeply indebted to the following sources for the extraordinary funding support I have received over the past several years: the Graduate College at the University of North Carolina/Chapel Hill; the Ford Foundation for two fellowships—a dissertation and a postdoctoral award; and summer support from the University of Arizona’s associate vice-president for research.

  The finishing touches were applied to this project during my fellowship at the Center for Advanced Study in the Behavioral Sciences at Stanford, California. Thanks to Professors Neil Smelser and Robert Scott, other colleagues, and the warm, knowledgeable, and efficient staff for providing an ideal institutional and collegial atmosphere most conducive to scholarly endeavor.

  A special note of appreciation is extended to two individuals who helped me secure the funds and the time that enabled me to complete this study: Christine M. O’Brien, program supervisor of the Ford Minority Fellowship Program; and Charles A. Geoffrion, vice-president for research at the University of Arizona.

  I have also been considerably aided by the professional and courteous library staffs at the Native American Rights Fund Library, the University of Colorado/Boulder’s Norlin Library and Law School, and the University of Arizona’s Main and Law libraries.

  Special thanks to Denise Allyn, administrative associate for my home department of Political Science at the University of Arizona, and Gladys Bloedow, her counterpart at the D
epartment of History, University of Colorado/Boulder, which hosted my sabbatical.

  I owe an immeasurable debt to Patricia (Trish) Morris, my home department’s word-processing specialist. She skillfully transcribed the entire dictated text of this manuscript and then, even more magically, interpreted my hopelessly unintelligible hand-written edits. She performed her tasks with talented grace and with nary a complaint.

  I advance a heartfelt sense of gratitude to Theresa J. May of the University of Texas Press. She had faith in the original topic, was encouraging throughout the long publication process, and granted me several extensions to complete the book. I must also thank Jane H. Chamberlain, my editor, for a meticulous reading and critical analysis of the manuscript. Jane and the Press’s assistant managing editor, Lois Rankin, worked closely with me during the critical months of the prepublication process. I am deeply grateful to Dr. James Anaya for his thoughtful critical appraisal of the manuscript in its rudimentary stages. Finally, Ms. Vivian Arviso read the entire manuscript and provided constructive criticism and many helpful suggestions.

  This book also owes much to several academic colleagues: Tsianina Lomawaima (Creek), David Gibbs, Jim and Jeanne Clark, Richard Cortner, John Garcia, Tom Holm, and, especially, Clifford M. Lytle.

  I would like to thank the students who have participated in my course called American Indians and the Supreme Court. Their insightful readings, thoughtful and often biting critiques of the cases, and our sometimes heated but always civil discussions on many of the Court’s opinions, helped me to refine my own understanding of these pivotal cases.

  Franke Wilmer, who teaches political science at Montana State University, also deserves a special thanks. Our numerous verbal, written, and cyberspace conversations over the past two years bettered important parts of this study.

  I also wish to thank the following close friends (and their families) for their prayers and unflagging friendship: George Whitewolf (Monacan/Lakota), David Marshall (Cherokee/Creek), Rudolph (Rudy) Coronado Jr. (Mexican/Lumbee), and Brenda St. Germaine (Ojibwa). George Whitewolf, in particular, deserves my most sincere thanks. As my principal spiritual teacher for nearly two decades, he has helped me weather difficult episodes that might otherwise have left me listless.