Introduction

While it is true that the impact of the canon of American Indian law has resembled a pendulum, swinging to and fro, at one time benefitting and another undermining tribal sovereignty, in fact these effects are the manifestation of government policy toward American Indians as it has changed over time.  In effect, Indians “are an instrument of federalism…constantly buffeted along [the] dimensions [of a] constitutional federal republic, split along two major axes…the state/federal axis and the separation of powers axis.” As a result, scholar Andrew Pevar suggests that American Indian law is best understood when viewed through a historical lens.  Several seminal American Indian law cases demonstrate the impact of social and political climes on the canon of liberal construction for tribes. 

American Indian Law and the Indian Nation Today

Going back in time to the inception of American Indian law, one of the most important cases to reach the Supreme Court was Worcester v Georgia (1832).  In Worcester, Chief Justice John Marshall determined that the State of Georgia had “violated the political rights” of the Cherokee Republic after enacting statutes “repugnant to the constitution, laws, and treaties of the United States” that encroached on Cherokee political autonomy. Thus establishing, for the first time, The United States’ legal recognition of Indian national sovereignty.  Drawing on language from an 1831 case, Cherokee Nation v Georgia, Marshall recognized Indian tribes as “domestic dependent nations” and “distinct” and “independent…political communities,” establishing 1.) a preexisting sovereignty, 2.) the power of Congress to restrict or eliminate that sovereignty, and 3.) that tribes’ dependency on the federal government imposed a trust responsibility on the United States.  The Marshall court developed a “structural, constitutive approach” to American Indian law that challenged future courts “to promote the ongoing sovereign-to-sovereign relationship of the tribe and the federal government.” However, as noted by Catholic University of America Professor of Law Neil Jessup Newton, while the Worcester decision undoubtedly succeeded in establishing a legal framework for Indian national sovereignty, the majority opinion was “really a defense of federal over state power, not a defense of Indian tribal sovereignty.” Chief Justice Marshall was a strong proponent of federal authority and looked to use such States’ rights cases to strengthen the executive branch. 

The case for the Cherokee Nation, having weathered being appropriated as “an instrument of federalism,” nevertheless resulted in a victory for Indian tribes in the courts of the United States, but, over the next 175 years, contentious cases at the Court, brought in hopes of expanding on the liberal canon of Indian law first set down by Marshall in Worcester, would prove to be double-edged swords that did indeed cut both ways.  As the makeup of the electorate and the Supreme Court have changed along with the politics of American society, individual States have been granted more power than Indian nations, Congress has been handed implicit plenary power over the tribes, and Indian law cases tend to “turn on” verbiage or precedent other than treaty language, the documentary evidence Marshall invoked to construct his legal canon.

Future courts and the federal government strayed from the guiding principle of the Marshall court’s liberal canon, mishandling the Trust Doctrine, ignoring treaty language and legal precedent, and outsizing the role of the Court in American Indian law, diminishing tribal sovereignty in the process. By 1871 Congress would terminate the Senatorial practice of entering treaties with Indian tribes, an action precipitated by infighting among members over the balance of power between the Senate and the House of Representatives.

In 1883 the Court overturned the conviction of an Indian who had murdered another Indian in Indian country in the case Ex Parte Crow Dog.  This precipitated the Major Crimes Act of 1885 under which seven major crimes, if committed by Indians in Indian country, would be automatically adjudicated under federal law.  When the Major Crimes Act was challenged by tribes and the federal government in U.S. v Kagama in 1886, the act was upheld, interfering with “[tribe’s] essential sovereign power to deal with criminal offenders in Indian country.” Then, in the 1913 case U.S. v Sandoval, the Court again intruded on tribal sovereignty when it ruled that as dependents, tribes could be subject to federal regulatory laws, in this case with respect to liquor-control on tribal lands.  And as recently as 1990, in Duro v Reina the Court ruled that Indian tribes do not have criminal jurisdiction over non-member Indians on reservation lands, giving the Court itself broad leeway in interpreting “which attributes of internal tribal sovereignty are inconsistent with the tribes’ status as domestic dependent nations.” Effectively overturned by future Congressional action Duro represented, according to Prygoski, a “change [in] the usual division of power in the federal government… [and enhanced] the power of the court to diminish the scope of tribal sovereignty.”

Of course, tribes have enjoyed many solid victories at the Supreme Court and in the court of public opinion during this timeframe.  They have secured citizenship for their members as well as original treaty-based hunting, land-use, and fishing rights.  Many tribes have expanded their economic bases with new and profitable business ventures including casino gaming and seafood production.   The federal government has acted in its role as trustee to provide a modicum of health and other services.  And some surviving indigenous people of North America have successfully retained, practiced, and shared their various cultures and heritages. 

But there can be no mistake that diminishment of tribal sovereignty has been a side-effect of various rulings at the Supreme Court, and that forced removal, assimilation, and allotment reflect popular opinion and politics at different times in history that have affected such decisions.  Winona Stevenson, Associate Professor of Native Studies at the University of Saskatchewan attributes this “undermin(ing) [of Indians’] legal and political uniqueness” to a “potential for unbalanced power relations to develop between the dominant ethnic majority and Native People.” (33)  Prygoski concurs, noting that by designating tribes as “dependent nations” and “as a ward to his guardian” in Cherokee and thereby establishing a trust relationship with the United States, that tribes inherently surrender some portion of their sovereignty even under the Marshall court’s forceful defense of their right to sovereign status.

The Indian Nation as Indigenous

In her capacity as Associate Professor for Native American Studies, Stevenson was asked to participate in establishing an Ethnic Studies department at her workplace.  Realizing that indigenous peoples of North America have unique and defining characteristics that set them apart from ethnic minorities, and reflecting on the proposed comingling of ethnic and native studies, she was able to draw a parallel between the existing power structures in North America and the relative diminished sovereignty of indigenous peoples.  She exposits on this “prime example of contemporary intellectual neocolonialism.” Stevenson notes that “ethnic” is far too inclusive a rubric, and that “ethnic studies” tend to hide racism and the racial discrimination distinctive to indigenous peoples. Additionally, with its preoccupation with race, the term ethnic studies connote the study of issues related to the African American population with that of indigenous peoples, relegating Native Americans in this field of study to a subcategory of African American studies. 

Stevenson points out that an ethnic group is defined by means of “isolating mechanisms including geography and social barriers,” whereas North American indigenous people are what the term ‘indigenous’ explicitly means – people “of the land.” Additionally, North American indigenous people have federal laws unique to their nations, a reserve system and treaties that give them a status that might be referred to as “citizens plus,” and that by otherwise denying these unique aspects of indigenous people, scholars and citizens alike adopt a mindset that resembles the colonialist’s. The mindset “disregards and undermines” the histories, relationships with the land, and the legal, social, and political goals of indigenous peoples.

At the State and legal level, Stevenson notes that the long-term goals of minority populations differ depending on whether they are ethnic minorities or indigenous peoples. According to her analysis, ethnic minorities seek assimilation and pluralism over the long-term, while indigenous people reject these long-term goals in favor of secession, the right “to claim, reside on, and access traditional land bases in North America…to retain hunting rights there… [because indigenous peoples] are spiritually attached” to those land bases.  Secession is not especially amenable to the existing federal and State power structures in North America, however.

For these reasons, the unique legal status of indigenous people cannot be denied.  It is differentiated from the status of ethnic minority groups in that “indigenous people are the only sector of North American society to enter into nation-to-nation treaties.” As well, indigenous people never sought membership in nation states surrounding their own nations, instead it was imposed on them. The Marshall and future courts acknowledge this fact, defining Indian nations as distinct, independent political communities.  As Philip P. Frickey of Berkeley Law School notes, this definition of tribes in the canon of law liberally construed by the Marshall Court “is structural and institutional” and therefore precludes categorizing the legal ambitions of Indians as aimed at protecting minorities rather than asserting complete sovereignty and political independence.  Marshall found justification for establishing that Indian nations are unique sovereigns in the language of the Commerce Clause of the United States Constitution.  Section III enumerates tribes as separate from States and foreign governments, demonstrating both the unique relationship that Indian tribes have with the federal government in contrast to foreign nations, and, in this enumerated context, their status as independent sovereigns.

The Marshall court did not always confirm such liberal views of the sovereignty of Indian nations.  In what Frickey calls “the most significant Indian law case” Chief Justice Marshall expounded on the colonialist vision in Johnson v M’Intosh (1823), a vision noted in Stevenson’s defense of Native American studies, that establishes “cultural superiority [and] judicial inferiority” of the dominant ethnic majority and the Indian, respectively. But by 1832, in Worcester, Marshall had modified his position.  By confirming a limited sovereignty inherent to tribes and declaring them distinct and independent “political communities,” Marshall unequivocally established a unique nation-to-nation relationship between the tribes and the United States.

Like today, there was division among the members of the Marshall court on substantial issues, and this was no more apparent than in the reasoning in a concurring opinion in Cherokee written by Justice William Johnson.  Referring to the Treaty of Hopewell, signed by the federal government and the Cherokee Nation in 1785, Johnson noted the language, reprinting, “The commissioners plenipotentiary of the United States give peace to all the Cherokees, and receive them into the favour and protection of the United States on the following grounds…” He deduces, “This is certainly the language of sovereigns and conquerors, and not the address of equals to equals.” Justice Johnson declared that Indian nations are not States that Indians were only “a band of hunters, occupying as hunting grounds, just what territory we chose to allot them.”  He notes that Indian nations were not delegates to the Congress, that even the earliest conqueror, Great Britain, considered Indians as subjects only, valuing only their trade. 

According to the concurring opinion, if Indian tribes constituted a nation, then it was one in “feudal dependence” to the United States, and as an “anomaly unknown to the books that treat of States.” On these grounds, that Indian nations do not exist, that they had been subjugated by war, and that the Court is precluded from enforcing treaties, Johnson dissented on entirely different grounds than did Marshall.  In light of this pointed style of reasoning, according to scholars Wilkins and Lomawaima, doctrines that support tribal sovereignty including the Trust Doctrine, the Doctrine of Reserved Rights, and state constitutional disclaimers, are key legal pillars for maintaining the nation-to-nation legal status between tribes and the federal government so vociferously denied by Justice Johnson, and even some people today.

The Indian Nation as Distinct

Having been established to possess a nation-to-nation political relationship with the federal government, Indian tribes have also been distinguished as being comprised of indigenous persons intent on exercising their treaty and other rights granted by Congress.  Stevenson describes tribes as “having discreet political units. . .[with] a unique set of political and legal relationships within their own communities and nations.”  She points out that while “liberal-democratic nation-states (states in the case of the U.S.) refuse to accommodate distinct societies or special-case populations” they tend to be accommodating based on the unique sovereign status they enjoy with the federal government.  “[Individual states] can enter into unique legal relationships…for resource co-management” and other purposes. This general government-to-government arrangement, according to Frickey, is a function of Marshall’s vision, working through time, for American Indian law to “achieve some potential, partial reconciliation of colonialism and more normatively attractive visions of law.” Frickey theorizes that Marshall “envision[ed] [treaties] as quasi-constitutional,” and hoped the liberal canon of American Indian law that he built during his career would provide for a “longstanding, if not eternal, sovereign-to-sovereign relationship” between Indian tribes, the federal government, and the various States.

Marshall attributed the status of domestic nations in a trust relationship with the federal government, in addition to that of “distinct, independent, political communities,” to the tribes.  In Cherokee he reasoned that treaty language was necessarily in favor of the Indian, that Indians granted rights to the government in treaty transactions instead of relinquishing them, that the treaties should be read as simply and as favorably with regards the Indian people as possible, and that their sovereign was “not a foreign to the United States.” Still defining the sovereign Indian nation today, a “solemn guarantee of the residue” of treaty language is found in the Constitution.  His majority opinion standing in stark contrast to the concurrence of Justice Johnson, these nuanced legal constructions enhanced the statuses attributed to Indian nations, and were ensconced in Marshall’s ongoing liberal construction of American Indian law canon.  And surprisingly, Justice Johnson in his dissent, persuaded in part by the forceful arguments of the Chief Justice, ultimately demurred, in one short paragraph acknowledging the Indian state as one that exists because the right of self-governance cannot be divested from a person.  Likening the Indians to the Israelites wandering the desert in ancient times, Johnson agreed they are a similar, non-foreign state with an unalienable right to govern themselves.

These sentiments were echoed by later Court rulings.  In Duro v Reina, mentioned earlier, the language of the majority is clear, acknowledging “retained sovereignty of the tribe as a political and social organization…”  Ironically, the outcome of this case infringed on tribal sovereignty, by denying the tribe jurisdiction over certain crimes.  Nevertheless, in the same sentence, both the spirit and letter of Marshall’s nuanced attributions of nationhood are present – inclusive of a retained sovereignty and a distinct political organization.

The Indian Nation and The Plenary Powers of Congress

At the root of Marshall’s canon lies the Doctrine of Discovery, itself having several versions, and the issues of land-title and property ownership tied to the Doctrine of Discovery forever changed the rights to land ownership for Indian nations.  Wilkins and Lomawaima outline the expansive, absolute, and preemptive versions of the Doctrine of Discovery prevalent in the era of discovery and colonialism, from the 15th-19th centuries. 

Many argued that the core of Euro-American property law and right of Discovery that Americans owned North American soil outright.  These expansive, or worse, absolutist versions of the Doctrine stripped indigenous inhabitants of land and title and transferred it to the “discovering” European nations.  The preemptive version of the Doctrine of Discovery “grants ‘discovering’ European nations an exclusive, preemptive right to be the first purchaser of Indian land, should a tribe agree to sell any of its territory.” Chief Justice Marshall in Cherokee Nation and Worcester considered the preemptive version of the Doctrine of Discovery to be how Indians understood the initial treaties into which they entered with Europeans.  Regardless, though, as Frickey notes, even a liberal interpretation of a preemptive version of The Discovery Doctrine did not “annul the effects of the theories of discovery and original Indian title, upon which all Euro-American land titles were based…Chief Justice Marshall thus implicitly endorsed the plenary power of Congress…” 

The only saving graces from plenary power were 1.) that “state regulation of tribal autonomy was open to judicial scrutiny,” and 2.) that “the existence of congressional plenary power over tribes [having been settled], Worcester left open the possibility that an exercise of that power” could also be subject to judicial review.

In this spirit, Marshall proceeded to establish that treaties are as “ongoing arrangements between sovereigns,” deflecting criticism from Justice Johnson and others demanding that Indians had ceded their lands. As the Worcester decision was being drafted, Marshall noted that the “spirit” of the treaty trumps any plain meaning in Article 9 of the U.S. Constitution giving “Congress…the sole and exclusive right of…managing all [Indian] affairs in such manner as they think proper.” By invoking the spirit of treaties, interpreting the Doctrine of Discovery as having been of a preemptive variety, and establishing attributes for tribes that established a sovereign-to-sovereign relationship with the federal government, the Marshall court successfully mitigated the possibly deleterious effects of plenary power that might arise in the expansionary atmosphere of mid-19th century America. 

The codification of Congress’ plenary power over Indian nations, according to McSloy, was completed in the wake of two exceptional cases in American Indian law, Ex Parte Crow Dog, mentioned earlier, and another Indian-only criminal case, U.S. v Kagama (1886).  In fact, the Bureau of Indian Affairs (BIA) by 1993 when Crow Dog was tried for murder was under great pressure to colonize and control Indian populations across the Eastern seaboard.  In an effort to excite enmity against Indians in the public sphere, the BIA paid the legal fees for Crow Dog to highlight the public perception that in such cases “tribal justice was the only applicable jurisdiction.” In response to public outrage and a general fear of leaving justice to the tribes, Congress passed the Major Crimes Act, “the first direct application of federal criminal law to inter-Indian crimes and the fulfillment of the BIA’s long-sought goal.”  In U.S. v Kagama, a similar murder case, “the BIA obtained another decision it wanted.  The Supreme Court held that the federal government had the power to pass laws regulating Indians even if the power was not authorized by the Constitution.” In effect, this provided the impetus for Congress to pass the General Allotment Act in 1887, “resulting in the loss of 80% of the remaining Indian-held lands and completing the settlement of America.”

By agitating the public and eliciting such draconian measures from the Congress, the BIA was instrumental in establishing the basis for federal plenary power of Indian nations today.  Yet while these acts constituted considerable intrusion on tribal sovereignty, there was still room for tribal governments to maneuver, especially outside the sphere of criminal law.  By exercising their sovereignty in areas such as land-use and economic development initiatives, Indian tribes today can test the limits of that plenary power, as the Court must now receive a “clear-statement” directive from Congress that specifically extends its plenary powers to deny tribes those rights.

Conclusion

The view of American Indian law then, through an historical lens, is a journey through American politics.  The whims and even noble goals of individual stakeholders, States, and the federal government have all conspired at various times throughout U.S. history to undermine or enhance the liberal cannon of American Indian law that Justice Marshall spearheaded.  But as stakeholders themselves, North American Indians have clear and convincing claims to aboriginal title of the land, to their culture and heritage, and to self-determination that survives today, the “spirit” of treaty language inspiring courts now as they did in the era of the Marshall court.