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

  I also extend my admiration to my extended family—my parents, Daniel Webster Wilkins and Thedis Ray Wilkins, and to my siblings Senowskey Wilkins, Roger Wilkins, Deborah Wilkins, Webster Wilkins, Mike Wilkins, Craig Wilkins, Leon Strickland, and Arnold Locklear. Similarly, I want to thank the family of my wife, Evelyn, who belongs to the Diné (Navajo Nation). I pay special tribute to her grandmother, Nellie Fowler, who intuitively understood this complex topic; she lived life and experienced death as a sovereign Diné person.

  Finally, I thank the two personal forces who are most responsible for guiding me in this study (and beyond). First, my family, which consists of my wife, Evelyn, and our three children—Sion, Niłtooli, and Nazhone. My wife froze her own teaching career in order to devote her undivided attention to rearing and home-educating our children, sustaining our home, meeting the requests and responsibilities of her family and my own, and continuing to provide me with all the spiritual, intellectual, and emotional support that I have needed in this undertaking. I respectfully codedicate this book to the four of them.

  The second force is that of my intellectual patron, Vine Deloria Jr. (Lakota), and his wife, Barbara. Vine somehow was able and, more importantly for me, was willing to read the entire manuscript. His critical and constructive comments and editing skills helped clarify the focus of this book and reduce its inordinate length. Aside from this, his unwavering support for me and my family (and my tribe, the Lumbee) over the years has enabled me to reach academic heights that would have been otherwise unattainable.

  Thanks, Vine and Barbara. This book is respectfully codedicated to the two of you.

  Parts of this book appeared in preliminary form elsewhere. A portion of Chapter 2 appeared as “The Cloaking of Justice: The Supreme Court’s Role in the Application of Western Law to America’s Indigenous People,” Wicazo Sa Review, vol. 10, no. 1 (Spring 1994): pp. 1–13; “Who’s in Charge of U.S. Indian Policy? Congress and the Supreme Court at Loggerheads over American Indian Religious Freedom,” Wicazo Sa Review, vol. 8, no. 1 (Spring 1992): pp. 40–64; and “Johnson v. McIntosh Revisited: Through the Eyes of Mitchel v. United States,” American Indian Law Review, vol. 19, no. 1 (July 1994). A segment of Chapter 3 appeared in “Indian Treaty Rights: Sacred Entitlements or ‘Temporary Privileges’?” American Indian Culture and Research Journal, vol. 20, no. 1 (March 1996). Portions of Chapter 4 appeared as “Judicial ‘Masks’: Their Role in Defining and Redefining the Tribal-Congressional Relationship—1870–1924,” in Michael K. Green, ed., Issues in Native American Identity (New York: Peter Lang, 1995), pp. 81–165.

  I am grateful to the editors and publishers involved for permission to reprint their material.

  American Indian Sovereignty and the U.S. Supreme Court

  CHAPTER 1

  Legal Masks, Legal Consciousness

  Vine Deloria Jr. has vigorously insisted for years that it is impossible to understand how the coordinate branches of the United States government arrive at policy decisions regarding the constitutional and treaty rights of American Indian tribes, and individuals constituting these tribes, without total immersion in a historical context. He argues1 that legal scholars, jurists, politicians, and bureaucrats have reduced what is inappropriately known as “federal Indian law” to such a point that “legal theories are tested not by comparison with reality, but by comparison with abstractions which idealize human rationality in order to give to events and incidents a sense of meaning which they would not otherwise enjoy.”2 The process, Deloria says, represents what Alfred N. Whitehead once termed, in a different context, “the fallacy of misplaced concreteness.” This fallacy entails the assumption that familiar abstractions represent absolute reality and is linked with the belief that it is only when certain methodologies are used that truth can be discerned. Deloria argues that “federal Indian law” is the epitome of this sort of intellectual activity. “It conveys,” says Deloria, “almost no significant meaning, it rarely is tangent to the world of human affairs, and it covers a multitude of historical sins with the shellac of legality.”3

  If the tribal nations of North America had been organized into a monolithic unit, as the inaccurate but persistent term “Indian” implies, it might have been possible for the federal government to develop a coherent body of legal principles and relevant doctrines to deal with them. Such was not the case then, nor is such a code even remotely possible as we come to the end of the twentieth century. Today, there are over 550 “federally acknowledged tribal entities,” each of which has a unique history of cultural and political relations with the United States. (The term federally acknowledged tribal entity is used by the Bureau of Indian Affairs to identify the various indigenous groups which are recognized as having a political relationship with the federal government—it includes tribal nations, bands, villages, communities, and pueblos, as well as Alaskan Inuits and Aleuts.) The quoted figure does not include state-recognized tribes, nor does it include the more than one hundred nonrecognized groups which are in the process of petitioning the federal government in the hope of securing federal recognition.

  We see, then, that “federal Indian law” as a discipline having coherent and interconnected premises is wholly a myth; however, the United States Supreme Court, the institution responsible for producing much of the data cumulatively referred to as “federal Indian law,” is certainly a real institution, operating with a distinctive collective consciousness unique to American governmental institutions. It is this particular institution and fifteen of its policy products—Supreme Court decisions—that will occupy my attention throughout this study.

  Supreme Court cases are the epitome—the most succinct enunciation—of what is termed “the law.” This phrase conveys a multitude of views, ideas, constructs, and interests. “The law” is alleged to be neutral, free of bias, and rational; in reality, of course, it is none of these. Nevertheless, the “legal scientist,” Thurman Arnold’s term for individuals who make their living articulating the law, “is compelled by the climate of opinion in which he finds himself to prove that an essentially irrational world is constantly approaching rationality; that a cruel world is constantly approaching kindliness; and that a changing world is really stable and enduring.”4

  In Arnold’s powerful work The Symbols of Government, he describes the law as the “most mysterious and most occult” of the disciplines of learning5 because the student, as well as the average person, is led to believe that “the law” entails something more than legal texts and institutional habits. Arnold describes how, despite irrefutable evidence to the contrary, people persist in believing that there are basic “principles of law” which exist independent of particular cases or specific human activity. Law exists, he says, rather because “humanity cannot find comfort without it.”6 The fundamental principles of law, according to Arnold, “do not represent what we do, but what we ought to do. The science of law is not the method which judges actually use, but the method which they ought to use.”7 The major function of these vaunted principles is to comfort us through control of society because belief in the sanctity of law is essential to the perpetuation of the dream that the United States is a perfectible society.

  I intend to demythologize “the law,” as expressed through the language of fifteen Supreme Court opinions that have affected Indian law, by focusing upon the broad institutional, societal, and, most important, historical effects of the Court’s very political activities. These decisions have not only had a tremendous, often devastating, impact on tribal sovereign status and aboriginal land title, but they have also contributed significantly to the confusion surrounding relationships between tribal governments and the U.S. government. They have elevated congressional authority vis-à-vis tribal nations, and they have alternately reaffirmed and ignored the principle of judicial deference to the political branches. In addition, they have dismantled treaty rights, adversely affected the status of individual Indians, constricted—and in some cases eclipsed—tribal criminal jurisdiction, an
d seriously jeopardized the practice, nay, the very existence of Indian spiritual ways.

  I have selected fifteen cases (see Appendix A), beginning with the 1823 Johnson v. McIntosh decision, in which the court grappled directly with the issue of indigenous property rights, and concluding with the 1992 County of Yakima v. Yakima decision in which the Supreme Court revived a voided federal statute to allow a county government to impose a tax on Indian lands. These cases are the most egregious examples of precedent in which the Court has applied linguistic semantics, rhetorical strategies, and other devices to disempower tribal governments and to disenfranchise individual Indians.

  The Supreme Court has also handed down a host of equally powerful opinions which have affirmed the sovereign or semisovereign status of tribes and recognized their inherent rights as governments, independent and separate nations not beholden to the United States Constitution for their existence. These positive outcomes for American Indians have received attention by a number of worthy scholars, and I encourage readers to consult their works.8 My project here is, rather, an in-depth analysis of exceptions to this affirmative judicature to show how indeterminately “the law” has been applied to tribal groups.

  David Kairys commented in With Liberty and Justice for Some that “the legal system’s emphasis on principles, ideals, and consistency and the tradition of offering at least some explanation for the results of decisions affects some outcomes and is preferable to naked or wholly unaccountable force . . . [L]aw is driven and determined by people rather than disinterested or neutral logic, reasoning, or methodology. . . .”9 Through the data and analysis presented here, I demonstrate beyond a reasonable doubt that on many occasions the Supreme Court’s rulings have had little to do with logic, reasoning, or legal ideals. This is an important issue, because within the field of Indian policy and law, many people—especially lay individuals (both tribal and nontribal) and many political and legal commentators as well—have made “the law” into something that people are expected to prostrate themselves before. Many believe that if a policy is laid out in “the law,” and particularly if it is a Supreme Court decision, that pronouncement is somehow unassailable. The notion that Supreme Court justices are infallible has certainly been damaged by the revelations of the Bork and Thomas confirmation hearings, but the High Court’s decisions, pluralistic as many of them now are, continue to resonate with authority and legitimacy even when their legitimacy and authority can be questioned, especially from an indigenous perspective.

  The air of sanctity that Supreme Court cases exude was especially pronounced in the initial 170 years of the Court’s history, when preexisting tribal political and property rights were first addressed by the Supreme Court, almost always without any direct tribal or Indian involvement in the litigation. The extraconstitutional10 status of tribal nations, affirmed by hundreds of Indian treaties, and the placement of tribes in the Commerce Clause of the U.S. Constitution as distinctive polities, continues to form the broad but still largely tenuous parameters of the tribal-federal relationship. This unique political relationship became even more complex in 1924 when the United States unilaterally imposed federal citizenship on all Indians who were not yet citizens. The result was that while Indian individuals were now recognized as federal and state citizens they nevertheless retained their tribal citizenship. This meant, as the Supreme Court later determined, that whereas Indians were indeed entitled to federal benefits and privileges of citizenship, the federal government still enjoyed virtually unlimited political authority over their lives, property, and rights due to their status as “Indians by race.” States, by contrast, have been hobbled in their efforts to deal directly with tribes because of the Indian Commerce Clause in the Constitution, which federalized the tribal-federal relationship. Interestingly, even with federal and state citizenship, individual Indians enrolled in recognized tribes still are not guaranteed the most basic constitutional protections enjoyed by nonindigenous Americans.

  Throughout these selected fifteen cases, the actions of the Supreme Court, characterized by self-interest, political expediency, and cultural arrogance, have generated and reified a number of novel extralegal and extraconstitutional doctrines (e.g., doctrine of discovery, domestic-dependent nationhood, wardship/dependency status, plenary power, geographic incorporation, implicit divestiture) which have often been used to mask questionable federal and administrative activities against tribes and individual Indians.

  This study analyzes the genesis, evolution, and transformation of these legal constructs and the ramifications they have had and continue to have on tribal sovereignty and Indian rights. In effect, the “rule of law” has been utilized by the Supreme Court to make political actions of the United States appear legitimate and lawful, although tribal nations are not afforded constitutional protection because they were not created pursuant to, and are not beholden to, the U.S. Constitution.

  The political independence of the Court, vacillations in federal Indian policy—from the assimilation of Indians to a recognition of tribal political separatism—and conflicts over federal and state jurisdiction regarding tribes enable the Court to exercise a tremendous amount of discretionary authority when it comes to handling Indian issues. As a coordinate branch of the federal government, the Court has generally chosen to act in one of two ways. First, it tends to defer to the Congress by presuming that the political branches always have acted in “good faith” toward tribes. At other times, it has felt compelled to create a fictitious congressional intent to legitimate what Congress has done, regardless of whether the legislation originally had anything to do with Indians or not. Arnold has noted that the Supreme Court “should be the concrete dramatization of the ideal that there is a power which prevents government action which is arbitrary, capricious, and based on prejudice.”11 However, the fifteen cases I will be discussing in these chapters depict a Court that often acts arbitrarily, capriciously, and prejudicially.

  Critical legal and historical analysis of these fifteen cases, review of other historical and political materials, and appropriate discussion of the social context and individual backgrounds of some of the justices should go far toward explaining why and how the Court arrived at these important Indian law decisions. More importantly, this discussion leads to a larger issue of why the core democratic concepts of fairness, justice, and consent of the governed have not yet been fully realized for tribal nations and their citizens despite clearly pronounced treaty rights, federal policies of Indian self-determination and tribal self-governance, positive judicial precedents, and a triple citizenship.

  THEORETICAL FRAMEWORK: CRITICAL LEGAL THEORY AND MASKS OF THE LAW

  The political struggles that have plagued the tribal-federal relationship beg for clear, preferably simple, explanations; however, the complexity of this relationship prevents such simplistic answers. In analyzing the fifteen cases, a broad, dual-theoretical framework is needed to provide plausible explanations for the Court’s major Indian law decisions. Critical Legal Theory12 with the creative approach developed by John T. Noonan Jr. was chosen to provide theoretical guideposts for this study of the Supreme Court.13

  Advocates of Critical Legal Theory (Crits) posit that the Supreme Court operates with a distinctive “legal consciousness,” which serves a critical role as a perceptual filter, as well as a perceptual pool, that binds even apparently disparate decisions together.14 This consciousness is not easily measured and so is unquantifiable.

  Duncan Kennedy suggests, however, that legal consciousness is an entity “with a measure of autonomy.”15 He defines it as “the particular form of consciousness that characterizes the legal profession as a social group at a particular moment. The main peculiarity of this consciousness is that it contains a vast number of legal rules, arguments, and theories, a great deal of information about the institutional workings of the legal process, and the constellation of ideals and goals current in the profession at a given moment.”16 It is, moreover, a combination of intellect
ual operations and terms that develop according to a unique pattern. Critical legal theorists stress that legal consciousness can influence results that are distinguishable from those of economic interest and political power. According to Kennedy:

  The notion behind the concept of legal consciousness is that people can have in common something more influential than a checklist of facts, techniques, and opinions. They can share premises about the salient aspects of the legal order that are so basic that actors rarely if ever bring them consciously to mind.

  Yet everyone, including actors who think they disagree profoundly about the substantive issues that matter, would dismiss without a second thought (perhaps as not a legal argument or as simply missing the point) an approach appearing to deny them.

  These underlying premises concern the historical background of the legal process, the institutions involved in it, and the nature of the intellectual constructs which lawyers, judges, and commentators manipulate as they attempt to convince their audiences.17

  Critical legal theorists argue that during the late nineteenth and early twentieth centuries, a common ideological consciousness arose among leading academics, practicing lawyers, and jurists that cut across divisions in practice specialty and political orientation.18 This new form of legal thought amounted to a rationalistic restructuring of the legal universe that Mensch calls “classical legal thought.”19 As American economic and social life was being transformed, the legal elite, including the Supreme Court, joined forces with treatise writers and leaders of the bar to share a view of the “law” that allied the legal profession with science “against both philosophical speculation and the crudities of democratic politics.”20