I. Introduction

This short-form essay explores Chapters 4-7 of Uneven Ground: American Indian Sovereignty and Federal Law by David E. Wilkins and K. Tsianina Lomawaima, drawing on concepts and case law in American Indian law from each chapter that serve to either enhance or erode tribal sovereignty. 

II.  The Doctrine of Reserved Rights

“Rights to land, water, hunting, government, etc., which were not expressly granted away by the tribes in a treaty, or taken away by later federal statute, were reserved by the tribe,” notes Oneida Indian Stan Webster.  Generally referred to as the doctrine of reserved rights, these rights represent a pillar in American Indian law today, because they have been “preserved…from time immemorial.”  These are treaty rights that Chief Justice John Marshall echoed in his forceful defense of tribal sovereignty in the landmark case Worcester v. Georgia (1832).  For example, “Article 3 of the Yakama treaty identifies the important rights reserved by the tribes [including] [t]he exclusive right to take fish…at all usual and accustomed places, in common with the citizens of [Washington Territory].”

In fact, in United States v Winans (1905) the Supreme Court upheld the treaty language in Article 3 of the Yakama treaty.  Later, when the State Supreme Court found for the tribes in U.S. v Washington (1974), after similar “confrontations among native and non-native fishers," the presiding judge was burned in effigy over this reaffirmation of tribal reserved rights.

Tribal reserved rights have been abrogated in other instances of American Indian law and several Supreme Court cases. “The doctrine of tribal reserved rights has been tested most prominently in legal arenas involving conflicts among tribes, and states, and the federal government.” Indeed, When John Race Horse claimed the right to hunt on his own tribe’s ceded lands, he was prosecuted by the state of Wyoming.  In the Supreme Court case Ward v Race Horse (1896) the court overlooked reserved rights, instead claiming that treaty rights were “merely temporary and precarious privileges” and supported Wyoming’s effort to prosecute Race Horse.  In Race Horse, Justice White further buttressed his opinion of treaty rights by invoking the equal footing doctrine.  This doctrine, according to the Court, held that a state, once admitted to the Union, “at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original States.”  This doctrine, arbitrarily wielded by the Court for much of the 19th century, was a direct assault on tribal sovereignty.  So much so, that by 1888 Justice McKenna disallowed it as a defense when the government encroached on Indian water rights.  And later, after dishonest dealings with the U.S. government, Kiowa leaders including Lone Wolf sued to prevent the allotment of more land than allocated under the Medicine Lodge Treaty.  In Lone Wolf v Hitchcock (1903), the Court ruled that “authority over the tribal relations of the Indians…has always been deemed a political one,” explaining that Congress had complete plenary power over Indian affairs and resulting in defeat for the Kiowa.

During the termination era of the 1950’s when the United States was implementing a policy of terminating its relationship with Indian tribes, Public Law 280 was used by some states such as Wisconsin, in conjunction with the termination policy, to begin regulating hunting and fishing on terminated tribes’ lands.  Public Law 280 itself, however, may represent the most egregious assault on tribal reserved rights to date.  The law “conferred upon several states…full criminal and some civil jurisdiction over most reservations within their borders.” (209) And while its scope has been considerably narrowed by the Congress, it still stands as an instrument for “states [to] maintain a dominant presence in criminal law on reservations” today, a clear undermining of the intent of the treaty-based doctrine of reserved rights.

III. The Doctrine of Implied Repeals

The doctrine of implied repeals is one mechanism by which the Court through the centuries has manipulated American Indian law from the bench.  “[M]ore treaties were ‘broken’ by judges and justices who bent the law to accomplish certain political ends than were ever broken by boomers and sooners,” notes Vin Deloria, Jr., a respected Indian scholar.  This doctrine of the court maintains that “[t]he Court occasionally must decide cases where treaty language disagreed with, or contradicts, the language of later congressional or state statutes.” Sometimes, the Court invokes a related doctrine, the political question rule, used to “bolster congressional plenary power over tribes” by consenting to legislation that overrides or terminates treaty obligations made on behalf of the government.

The political question rule was first invoked in U.S. v Rogers (1846).  Here, a white man, Rogers had been adopted by the Cherokee nation and killed another white adoptee. Williams argued that the United States did not have authority over the crime, but the Court disagreed, invoking the political status – Rogers’ United States citizenship – to extend U.S. authority over such criminal matters. Later, in Thomas v Gay (1898) the Court wrote, “an act of Congress may supersede a prior treaty and that any questions that may arise…must be met by the political department of the Government.” In Gay, cattlemen in the Oklahoma Territory grazed on Osage Indian lands after they were ceded by the state government and were taxed by the state as a result.  The government deferred to the legislature, the “political department of the Government,” rather than uphold the exclusive treaty rights enumerated by Chief Justice John Marshal just 65 years prior.

These treaty rights mentioned by Marshal are at the core of the “good faith” doctrine, all originating from the language of the Congress in the Northwest Ordinance of 1787.  It states that the government would always observe “the utmost good faith towards the Indians, their lands and property shall never be taken from them without their consent; and in their property, rights, and liberty, they shall never be invaded or disturbed…” In seeming contra-indication of the rulings in Gay and Rogers the Court has used the good faith doctrine to uphold treaty rights, overriding the doctrine of implied repeals when necessary. 

Representative of the good faith doctrine is the seminal Supreme Court case Worcester v Georgia (1832), where Chief Justice Marshall called Indian nations “distinct, independent political [communities,]” and wrote that “[t]he treaties and laws of the United States contemplate the Indian territory as completely separated from [the] state,” noting that besides commerce, and under treaty language, the Congress was obligated to defer to Indian nations’ “self-governance.”  Later, in Ex Parte Crow Dog (1883), a murder case involving two Indians, the Supreme Court concluded that the Congress had not granted any federal authority over crimes committed between Indians on reservation lands.  In both Worcester and Ex Parte Crow Dog “each of these actions [is] in a clearly ‘political arena, [nevertheless] the Court upheld the rights of tribes or Indian individuals.”

The origins of the doctrine of reserved rights are from the U.S. Constitution itself.  The Tenth Amendment “was ratified in 1791 as part of the Bill of Rights, declaring ‘The powers not delegated to the United States by the Constitution…are reserved to the States respectively, or to the people.” Considering this language, American Indian law scholars such as Wilkins and Lomawaima maintain that the doctrine of implied repeals, and arbitrary use of the political question doctrine, are, within the body of American Indian law, outside of the purview of the Court.  “It is not the province of the Supreme Court to generate a congressional intent and then, by implication, repeal specific treaty rights that have been negotiated and ratified…[t]reaties may only be abrogated by…those branches of the government that oversee the United States’ relationship with tribes…in a way that conforms to the national will and to…trust obligations to tribes.”

IV. Disclaimer Clauses in State Constitutions

Disclaimer clauses, “[contain] specific language designed to assure both tribes and the federal government that the …state will never, without federal consent and/or a treaty modification, interfere with tribal nations’ internal affairs.” State disclaimer clauses have been decried by some scholars as “vague,” but Wilkins and Lomawaima maintain that they “[are] the most ‘persuasive considerations as to the lack of state power’ in areas such as hunting and fishing rights, taxation, and civil jurisdiction in Indian Country.” While a bulwark against state intrusion into tribal affairs, states “doggedly” contest the rights of tribes. For example, state abuses against the adoption system involving Indian children prompted the federal government to enact the Indian Child Welfare Act in 1978.  This Act works in concert with disclaimer clauses to give the federal government exclusive authority “over adoptive placement of Indian children pursuant to the [Act].”

The courts, too, have upheld tribal rights under state disclaimer clauses by explicitly denying “[state] assertions of jurisdictional supremacy.” In the case Native American Church v Navajo Tribal Council (1959) “a federal district court stated that ‘Indian tribes are not states.  They have a status higher than that of states.’” (ibid.) This language, used throughout the 1900’s, reinforces the treaty-based canon of American Indian law. “Tribal nations stand as pre- and extraconstitutional polities alongside, but not constitutionally subject to, the federal government.” Reinforcing further the treaty-based origins of the intent of state disclaimer clauses, the Supreme Court noted in United States v Stahl (1868) that even though Kansas had been admitted on the equal footing doctrine discussed earlier, it held title to the lands within its borders, “with certain exceptions, ‘The first exception reserved the lands of Indian tribes which had treaties exempting them from state jurisdiction…'" In these ways state disclaimer clauses have served to buttress tribal sovereignty against state intrusion.

Nevertheless, as with the “vague” nature of implied repeals, even excepting the treaty-based rights enumerated by the Court and inherent in the intent of disclaimer clauses, states and the federal government have, on occasion, abrogated even these core features of American Indian law.  Some disclaimer clauses, known as state enabling acts, or the lack of these enabling acts. in the cases of several states, upon entry to the Union, worked against tribal sovereignty after “Congress terminated treaty-making with tribes in 1871.” For example, shortly thereafter, in United States v McBratney (1881) the state of Colorado, having failed to “expressly [disclaim] jurisdiction over the Ute Indian Reservation, state law prevailed” representing the first time that state courts were allowed full jurisdiction over Indian crime, and a shift away from tribal sovereignty to the authority of the state over tribes.

After first relinquishing water rights to the tribes, Congress then passed the McCarren Amendment in 1951 waiving the sovereign immunity of the federal government for lawsuits involving water rights issues.  After disputes with local landowners over water rights, the San Carlos Apache Tribe became involved in a lawsuit with Arizona.  The tribe sued to have the issue adjudicated in federal courts, but in Arizona v San Carlos Apache Tribe of Arizona (1983) the Supreme Court sided with Arizona, holding that the McCarren Amendment applied to “all water rights that the United States then had or might in the future acquire… [and that] state courts have jurisdiction over the Indian water rights at issue,” effectively abrogating the sovereignty of the San Carlos Apache Tribe, treaty-based American Indian law precedent, nor state disclaimer clauses, notwithstanding.

V. The Doctrine of Sovereign Immunity

The doctrine of sovereign immunity is a core concept in the canon of American Indian law, expressly forbidding lawsuits by citizens against tribal nations, and, consequently, tribal governments.  In Turner v United States and Creek Nation of Indians (1919) the Court wrote that “the Creek Nation [is] a distinct political community… [making it] free from liability…[because] neither Congress nor the Creek nation had dealt with the subject by any legislation…”  And in United States v United States Fidelity & Guarantee Co. (1940) the Court reaffirmed its position in Turner, “invoking the federal trust relationship” emphatically declaring that absent consent by the sovereign tribal nation or Congress, any attempt to sue the tribe “is void”.  The federal trust relationship, enunciated by Chief Justice Marshall in the seminal case Cherokee v Georgia (1831) likened the tribes “as a ward to its guardian” whereby the federal government is responsible for upholding the treaties made with Indians and for taking charge of their care. Thus, the doctrine of sovereign immunity, supported by the federal trust relationship, has protected tribes from the utter financial decimation of private lawsuits to which non-governmental organizations may otherwise be subject, just as the federal government operates.

Nevertheless, actions by the tribes, such as waivers of sovereign immunity, or actions by the Congress can sometimes result in suits that are allowed to proceed, whereby the tribe has consented or the Congress has waived its own sovereign immunity, and, as a result, the tribes’ as well.  Wilkins and Lomawaima note that “at the 1966 sovereign immunity hearing, a lead attorney for the BIA admitted that there was no conclusive legal evidence supporting the federal government’s right forcibly to waive a tribe’s immunity.” One example of a forced federal waiver of tribal sovereign immunity appears in the use of the depredations claims system, first brought about by the Indian Depredation Act of 1976. This Act provided for the punishment of not only white people that aggressed against Indians or Indian land, but also for the punishment of Indians that resisted white settlement nearby or adjacent to their reservations.  This set up an adversarial system of grievances that favored white settlers in the early 19th century.  A Court of Claims set up by Congress in 1855 further waived tribal sovereign immunity regarding internal affairs, as the claims paid out “were to be charged against Indian treaty and trust funds” without the consent of the tribes.

The Supreme Court, too, has upheld Congressional waivers of sovereign immunity that have not directly addressed tribes.  In Blue Legs v B.I.A. (1989) the Court held that for the purposes of the Resource Conservation and Recovery Act, “[t]ribes…are considered ‘municipalities’” as defined in the act, allowing for suits by citizens to be brought against tribes in violation of the doctrine of tribal sovereignty.  And even though the 1991 ruling in Oklahoma Tax Commission v Citizen Band Potawatomi Indian Tribe resulted in a majority ruling upholding the doctrine of sovereign immunity for tribes, Justice Stephens, “in a concurring opinion, proposed a contrary view of the doctrine, [saying] “[t]he doctrine of sovereign immunity is founded upon an anachronistic fiction,” (225) lending credence to Wilkins and Lomawaima’s contention that “tribal sovereign immunity [has been marked] over the past few decades [by cooperation], but sometimes [has] been marred by racism and violence.” Nevertheless, as a pillar of American Indian law, the doctrine of sovereign immunity has been instrumental in helping tribes all over the United States enter into safe business agreements and other important contracts that have generated revenue and resources for their members nationwide. 

VI. Conclusion

If, as scholar Stephen Paul McSloy writes, Indians, in effect, “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,” then the sometimes competing and arbitrary doctrines, national laws, and precedents that define American Indian law today serve as the kinetic energy of this “constant buffeting”.  It is the responsibility of all United States citizens to agitate the Congress for a return to treaty-based and broadly liberal laws protecting and encouraging Indian national sovereignty and self-determination.

References

Mcsloy, Steven Paul. "The 'Miner's Canary': A Bird's Eye View of American Indian Law and Its Future." New England Law Review. no. 37, vol. 3, (2002).

Wilkins, David E., and K. Tsianina Lomawaima. Uneven Ground: American Indian Sovereignty and Federal Law. Norman, Oklahoma. University of Oklahoma Press. 2001.