Indians and Law(1)

Indians and Law(1) - AIMERICAN INDIANS AND THE LAW N....

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Unformatted text preview: AIMERICAN INDIANS AND THE LAW N. BR‘,U(V‘,E DUTHU 69 THE PENGUIN LIBRARY OF AMERICAN INDIAN HISTORY PENCUIN BOOKS IDENTIFYING THE CONTOURS OF INDIAN COUNTRY THE COVER OF Yankee magazine’s September 1998 issue fea— tured a lovely photo of New England’s fabled fall foliage to mark the natural rhythms of nature’s changing seasons. The headline on that cover also signaled another turnabout in the region, this one relating to Indian affairs. The headline read, “Indian Landgrab in Connecticut?” and was connected to a feature story entitled “This Land is Whose Land? A territorial dispute between Indians and ‘settlers’ in Connecticut.” The story focused on several non—Indian residents of towns neighboring the lands of the Mashantucket Pe— quot tribe, who had organized to resist the tribe’s efforts to expand its reservation land base through an aggressive “annexation” plan. Like other northeastern tribes in the 19705, the Pequots sought to reclaim a portion of their former territories by arguing that ear— lier transactions for those lands lacked the approval of the federal government as required by a 1790 federal law.l In the Pequots' case, their land claims were ultimately resolved through an act of Con— gress in 1983 that accorded the tribe federal recognition and helped secure a land base of about 1,250 acres. That is a far cry from the days when the Pequot tribe numbered over eight thousand l65] 66 AMERICAN INDIANS AND THE LAW members and occupied an area of about 250 square miles in south— eastern Connecticut, making them one ofthe most dominant mili— tary, economic and political forces in the region during the first encounters with Europeans.2 The more recent encounter noted in the Yankee article focused on the tribe’s efforts to expand its reserva— tion land base beyond the terms of the settlement act. The driving force underlying this conflict was the tribe’s burgeoning casino op— eration at Foxwoods and the claimed negative impact on the sup rounding towns. Framing the struggle as a modern—day David and Goliath mismatch, the article noted, “The residents who oppose annexation don’t see reverence for ancestral streams and woods in the Pequots' quest for a bigger reservation. They see simple greed, a rich tribe using a flawed federal policy to get richer.M In other words, the dispute was less about land than it was about concern over the Pequots’ resurgence as an economic and political force in the re— gion. This echoes what the legal scholar Milner S. Ball observed years ago regarding disputes over territory: “Territoriality is a way of orga— nizing and talking about power. The problem is one of power, not space. There is plenty of the latter.“4 On the subject of power, the an- tiannexation residents found receptive political power brokers, in— cluding US. Senator Joseph Lieberman (Independent, Connecticut), who denounced tribal land acquisition by the Pequots as “welfare for the rich,” and advocated legislation to eliminate that option among wealthy tribes. “Tribes like the P‘equots,” said Lieberman, “have reached the point where land annexation is not about preserving a culture or achieving self/sufficiency. It is about expansion of an al— ready successful business in a way that harms their neighbors."3 Disputes over land dominated the course of United States— Indian relations in the early years of this nation, especially in treaty— making. The federal law noted above, the 1790 Non’Intercourse Act (more formally, the Trade and Intercourse Act of I790), sought to achieve some of the same objectives advanced by the British Crown in its Proclamation of 1703. Both acts sought to centralize the process of Indian land transactions by insisting on Crown (and later, con— gressional) approval to legitimize such deals as a means oftninimiz— Identifjing the Contours ofIndian Countrgy 67 ing frontier conflicts that were both costly and disruptive to the colonial project. The United States’ land acquisition efforts, launched under the policy banner of “expansion with honor,” were designed to accommodate a burgeoning non—Indian population and to create territorial “buffers” between non—Indian settlements and Indian communities. The rationale for acquiring Indian lands through pur— chase rather than force was best expressed by George Washington: I repeat it, again, and I am clear in my opinion, that policy and economy point very strongly to the expediency of be« ing upon good terms with the Indians, and the propriety of purchasing their Lands in preference to attempting to drive them by force of arms out of their Country; which as we have already experienced is like driving the Wild Beasts ofthe Forest which will return as soon as the pur— suit is at an end and fall perhaps on those that are left there; when the gradual extension of our settlements will as certainly cause the Savage as the Wolf to retire; both being beasts of prey tho’ they differ in shape.“ It is important to note that the European colonial powers and, later, the United States government engaged in treaty-making with the Indian tribes for decades before any definitive ruling emerged from the Supreme Court about the precise nature of the tribe’s le— gal interests in property. Washington’s statement, however, reflects the sentiments prevailing among the founding leaders that Indian tribes, at that time a force to be reckoned with. would inevitably fall under the sway of civilization. The “dying race“ thesis was a factor in these early territorial disputes with Indian tribes and sug— gested that tribal connections to land, whatever their precise legal nature, represented only a temporary impediment to the national expansion project. When the Supreme Court finally did rule on the nature of tribal property interests in 1823, it coupled the “Indi— ans as savage” rhetoric with heavy doses of Christian ideology to make straight the path of conquest and expansion in the New 68 AMERICAN INDIANS AND THE LAW World. Over time, those legal policies and ideology contributed to the radical breakup of Indian ancestral homelands. Today, the Indian land base consists of about 55.7 million acres of trust lands—an area slightly larger than the state of Utah~managed through the federal Bureau oflndian A ffairs,7 and another 45 mil— lion acres of land held by Native Alaskan state—chartered corpora— tions under the terms ofthe 1971 Alaska Native Claims Settlement Act.8 For jurisdictional purposes (i.e., clarifying the primacy of tribal, federal or state sovereign authority in a particular contro- versy), “Indian Country” includes all lands that are located within an Indian tribe’s reservation (including lands owned in fee simple by non—Indians), all allotted lands still owned by Indians and held in trust for them by the United States or subject to restrictions on alienation, and a category of lands called: “dependent Indian com— munities,” which originally embraced only Pueblo lands but now include any lands set aside for Indians by the federal government and managed under federal superintendence.9 The federal role in creating and sustaining these Indian Country lands generally means that tribes have recognized property interests that may, in certain circumstances, have constitutional protection against gov— ernment takings. Land claims lawsuits like that of the Pequots, along with federal laws dating from the 19305 Indian Reorganiza» tion era, have helped a number of tribes re-establish and even en— hance the size of their ancestral homelands. This latest development, expansion of the tribal land base, stands in sharp contrast to the predominant historical experience in Indian Country where federal policy worked to eliminate or diminish the tribal land base or effect an exchange of tribal lands (often forcibly) for lands further removed from white settlements. In other words, the history of diminished Indian rights to their ancestral homelands worked in parallel with the history of dimin< ished inherent tribal sovereign powers. That is why stories oftribal renaissance create such a stir in the broader society. The resurgence of Indian tribes exercising meaningful sovereign powers within their own homelands confounds the expectations of the non—Indian Identifying the Contours ofIndi'an Countr} 69 society. This strikes at the heart of stories like the one in Yam/{cc magazine that involve tribes long thought to be extinct. A sidebar to the article, entitled “Out of the Ashes. . . The Rebirth of the Pequots,” highlights the conflict known as the Pequot War of 1637. After leading the raid on Pequot villages and ordering the massa— cre of hundreds of Pequot men, women and children, English captain Iohn Mason proclaimed that he had vindicated God’s judgment, quoting the Psalms: “Thus, were the stout—hearted spoiled, having slept their last sleep, and none of their men could find their hands. Thus did the Lord judge among the heathen, fill— ing the place with dead bodies?” The Yankee sidebar concludes, “Thus Foxwoods arose from the ashes ofa tribe that Captain Ma— son was certain that Providence had snuffed out.”” The Yankee article captures many of the historical elements that characterize the development of law in Indian lands disputes. In in- voking familiar biblical imagery. the article inadvertently recalls the role that Christianity played in early Court decisions that paved the way for dispossessing Indian tribes of the vast majority of their an— cestral homelands. Further, in calling attention to proposed national legislation that would eliminate the rights of tribes “like the Pe— quots” to enlarge their land base. the article underscores the fragility and impermanence of tribal land rights in federal law. Finally, in rebuking the Pequots for turning their backs on their traditional “reverence for ancestral streams and woods,” the article treats the Pequots~ cultural evolution and adaptation as an abandonment of traditional values, a development that implicitly undermines the in- tegrity of the tribe’s claim to territory and even their Indian identity. Each of these elements informs our understanding of territorial dis- putes involving Indian tribes and merits closer scrutiny. CHRISTIANITY, LAW AND TRIBAL LAND RIGHTS The first major Supreme Court decision involving questions of tribal land rights did not consider traditional Indian perspectives of land as a life~giving and life—sustaining force or address how 70 AMERICAN INDIANS AND THE LAW those perspectives could be squared with the prevailing European view of land as a resource or a commodity and a source for wealth generation. In fact, the first Supreme Court decision on Indian land rights did not even involve Indians as parties to the lawsuit. The Court’s landmark decision in [Olmstm V. McIntosh (1823)12 in; volved only non—Indian parties who apparently colluded in bring— ing this “controversy” before the Court in hopes of confirming the title of aggressive land speculators who were operating in Indian Country without federal approval.” The case required a ruling on the nature of Indian property interests to determine which of the non—Indian parties held superior title to the lands in dispute. The side represented by Johnson claimed that their “ancestors in title" had acquired title directly from the Indian tribes who originally occupied the lands, the Illinois and Piankeshaw nations, in trans~ actions dating back to 1773 and 1775. The side represented by Mc— Intosh claimed their title through a grant from the U.S. govern rnent, which had acquired the same lands through a treaty with the tribes after defeating them in the Battle of Fallen Timbers (1794). In an opinion written by ChiefJustice John Marshall, the Court relied on the European doctrine ofdiscovery to hold that the United States, as successor to England’s sovereignty, acquired the former “discovering” nation’s “absolute ultimate title” in the “discovered lands” subject only to an Indian title of occupancy. The discovery doctrine was a rule developed and observed by the Christian colo~ nizing powers of Europe to help manage: their collective ambitions to empire around the world. The doctrine created a right of “first dibs“ in favor of the discovering nation to acquire the soilchrough purchase or conquestHfrom the native inhabitants. As described by Chief Justice Marshall, “Discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.”H In short, the doctrine of discovery made Indian tribes guests in their own ancestral hornelands, whose invitation could be revoked unilaterally by the new hosts. But until the sover— eign revoked that invitation, the Indians’ right of occupancy was to Identifyingthe Contours ofIndian Country 71 be honored and protected in law. Marshall recognized an Indian right of occupancy that fell somewhere in between the opposmg positions urged by the parties on the nature of the Indians’ rights to land. One party (the Johnson side) maintained that Indian [rleS—- before European colonization—“held the country in absolute sov- ereignty, as independent nations, both as to the right of jurisdiction and sovereignty, and the right of soil,”15 while the other party (the McIntosh side) argued that Indian tribes were in a “state of nature, and have never been admitted into the general society of nations.”"’ Marshall’s decision imbued the tribes with a sufficient measure of legal stake in their lands to support and justify their alienation through treaties with European nations and later With the United States government. . Only Christian colonizers in their encounters With non— Christian peoples could invoke the discovery doctrine. An indige- nous seafaring tribe, by contrast, could not plant a flag in the British Isles or on the beaches of Normandy and make comparable claims to England or France under the doctrine. Chief Justice Marshall noted that “early as the year 14%, [England’s] monarch granted a commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England” (emphasis in original)” Discovery under these terms gave Christian colonizers the “right to take possession, not— withstanding the occupancy of the natives, who were heat'hehns, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery?” The Indians “character and religion . . . afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The poientates of the old world found no dif— ficuli:v in convincing themselves that they made ample compensa— tion to the inhabitants ofthe new, by bestowing on them civilization and Christianity, in exchange for unlimited independence?” Not— ing “the tribes of Indians inhabiting this country were fierce sav— ages, whose occupation was war,” the Court sounded the theme of the “dying race” thesis when it stated, “Frequent and bloody wars, 72 AMERICAN INDIANS AND THE LAw in which the whites were not always the aggressors, unavoidahlv ensued. European policy, numbers, and skill, prevailed. As the whlte population advanced, that: of the Indians necessarily receded The country in the immediate neighbourhood of agriculturists he— came unfit for them. The game fled into thicker and more unbro- ken forests, and the Indians followedffl‘l Years later, the [o/zm‘on case figured prominently in The—Hit Ton. v. United States (1955), in which the Court (for the first time) distinguished Indian title from “recognized” title and concluded that since the former was not “property” under the Constitution Congress could extinguish the Indian title without making jusI compensation to the tribes.31 This holding effectively created a dif— ferent class of property rights for certain Indian land claims to avord triggering the legal obligation imposed on government by the Constitution's Fifth Amendment, which states, in pertinent part: “Nor shall private property be taken for public use, without just compensation.” The Indian title was essentially worthless when the United States (as the sovereign succeeding the discovering European na- tions) acted to extinguish it. There is nothing in the ]o/m50n case or in any other Supreme Court precedent that suggests this astonish- ing conclusion. Only nine months after the Court’s landmark deci— sion in Brown v. Board ofEduaztz‘on,22 a majority of the justices in Teal-Iz‘t-Ton reverted to [o/znron’s “Indians as savages" rhetoric in an attempt to provide some support for the “no just compensation" rule: “The Tee~Hit—Tons were in a hunting and fishing stage of civ11ization, with shelters fitted to their environment, and claims to rlghts to use identified territory for these activities as well as the gathering of wild products of the earth. We think this evidence introduced by both sides confirms the Court of Claims’ conclusion that the petitioners’ use of its lands was like the use of the nomadic tribes of the United States Indians."23 The Court summed up the history of Indian land disputes in this way: “Every American schoolboy knows that the savage tribes of this continent were de- prived of their ancestral ranges by force and that, even when the Identifying the Contours oflndian Countr) 73 Indians ceded millions of acres by treaty in return for blankets, food and trinkets, it was not a sale but the conquerors’ will that deprived them of their land”:4 In addition to these dubious ratio— nales, the Court hinted that financial considerations also infiu» enced its decision against the tribe. A contrary ruling on the tribe’s property interest would have triggered an award of interest on top of money damages for the value ofthe property taken. The Court acknowledged that then—exzisting Indian land claims against the United States with interest could exceed $9 billion.5 The noted scholar of federal Indian law Robert A. Williams, In, has called [o/mson v. McIntosh “the most important Indian rights opinion ever issued by any court oflaw in the United States.”“’ The decision rationalized the dispossession ofa continent from its orig— inal owners by creating a legal framework that, at its core, assumed the racial inferiority of Indian people. Professor Williams states, “No one presently sitting as a justice on the Supreme Court seems to have the least problem with [o/zm‘on’s legalized presumption of Indian racial inferiority, its incorporation into U.S. law ofa Euro— pean colonial—era legal doctrine of conquest and colonization, its use of an antiquated racist judicial language ofIndian savagery to define Indian rights, or its declaration that the justices can unfor— tunately do nothing about the resulting white racial dictatorship imposed upon tribes.”37]o/1»zson’s right of occupancy theory has influenced the development of indigenous land rights in other , commonwealth nations, such as Australia,” New Zealand,” and Canada.30 As recently as 2005, the Supreme Court cited ]o/m5072’s discov— ery doctrine without revealing a trace of discomfort with its under— lying rationale. In that case, City of Sherrdl, New York v. Oneida Indian Nation of New York (2005), the Court noted, “Under the ‘doctrine of discovery] fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States.”31 [ohmon’s status as a cornerstone precedent in United States property law essentially allows modern courts to adopt 74 AMERICAN INDIANS AND THE LAW a sanitized version of the discovery doctrine without having to re— state its assumptions about Indian racial inferiority and non- Christian standing. In the Sherri]! case, the Oneida Indian Nation argued that its purchase in the late 19905 of former reservation lands now included within the City of Sherrill made those lands exempt from the city's property taxes. In rejecting the tribe’s argument that it could unilat— erally “revive its ancient sovereignty” over these parcels, the Court highlighted the tribe’s long delay in seeking relief from the courts (these lands had last been occupied by tribal members in 1803'), the disruptive effect on local governance that a shift in sovereign au- thority would cause and the “itlstifiable expectations” of non— Indians who were accustomed to state regulatory authority}: The Court seemed concerned that the Oneidas (who, like the Pequots, have a thriving casino operation and hence growing economic clout) were unfairly capitalizing on the increased local property values generated by generations of non—Indian settlers: “Moreover, the properties here involved have greatly increased in value since the Oneidas sold them 200 years ago. Notably, it was not until lately that the Oneidas sought to regain ancient sovereignty over land converted from wilderness to become part of cities like Sherrill " (em- phasis added);5 The Court noted that the tribe could have accom- plished its objective of enlarging its land base through a congressionally authored process founded in the 1934 Indian Reor— ganization Act.S4 The process essentially authorizes the secretary of the interior, at the tribe’s request, to take newly acquired lands into trust. The conversion into trust lands is the “magical act” that trans— forms the lands into Indian Country and. effectively places the lands outside the reach of state control, including state taxing power. Having survived a number of recent constitutional challenges,53 the process requires the secretary to weigh a number of factors, includ-v ing the tribe’s need for more lands and the impact on state and local governments, before taking lands into trust. No unilateral tribal ac-- tion could otherwise serve to displace state authority. In essence, the Sherri]! Court teaches that only the restorative legal magic of one Identifjingthe Contours ofIndian Country 75 legal fictionithe federal “lands into trust” process can counter the destructive magic of another legal fiction, the loss oftribal lands through “discovery.” FRAGILITY or TRIBAL LAND RIGHTS The treaties’ agreements and statutes which the federal government issued in the past generally created “recognized” property interests in the lands, and were often accompanied by federal promises that tribes would hold the lands permanently and exclusively. The allot— ment policies of the late nineteenth century wreaked havoc on the territorial integrity of tribal homelands, with Indian land holdings falling from about 138 million acres in 1887 to about 48 million acres in 1934, the year Congress ended the allotment system.“ Tribes faced immense pressure from the federal government during this period to cede lands to accommodate white settlers moving into ter— ritories promised to Indian tribes. In those moments, tribal leaders pulled out the treaties that memorialized the terms by which further land cessions could be made. Tribal insistence on playing by the treaty rules frustrated federal lawmakers who were intent on open— ing the West to white settlers to hasten the arrival of civilization and Christianity at the tribal doorstep. Since 1896, for example, the fed- eral government had campaigned aggressively to acquire additional lands from the Crow Indians, who withheld their treaty—required consent until the government complied with their demands to be paid market rates. One “apoplectic Congressman,” according to his— torian Frederick I—onie, demanded to know how the Indian could “have more than a possession of title simply by making moccasin tracks over it with his bow and arrow.M7 Other tribes joined with the Crow tribe in withholding their consent to further land cessions, at lea st until the Supreme Court opened the floodgates in 1903 with its decision in Lone Wolf v. I'Ii'tclicoclr.38 In holding that Congress had the power unilaterally to break or “abrogate” its treaty promises with Indian tribes, the Court removed tribal consent as a factor in federal efforts to acquire more Indian lands. Beginning with the Rosebud 76 AMERICAN INDIANS AND THE LAW Sioux Act in 1904, Congress quickly enacted other laws opening up the lands ofother tribes in Montana, Utah and Wyoming. ‘9 As I’m» fessor Hoxie notes, however, “The methods used to effect those openings revealed that the process at work was not [Senator Dawes’sl original scheme. The Rosebud bill had established a new pattern for allotment and staked out a new approach to Indian land policy. The initiative for dividing each reservation into homesteads had come from Congress and had not been delayed by negotiations?“ As the legal precedent unleashing this federal power, Lone Wolfmerits a closer look.“ Three tribes, the Kiowa, Comanche and Apache, challenged the constitutionality of a congressional law that purported to embody the terms of an “agreement” between the tribes and the federal government on the allotment of their tribal lands. The tribes maintained that the agreement was invalid as it was obtained by fraud and lacked the requisite number of signa— tures by consenting tribal members as required by an earlier treaty, all in violation of the tribes’ property rights under the Constitution’s Fifth Amendment. In a remarkably brief opinion, the Court re- jected the tribes’ Claims by recognizing a near—absolute federal power in Indian affairs that was essentially free of judicial review, tempered only by those aspects of the trust relationship that re— flected “considerations ofjustice as would control a Christian people in their treatment of an ignorant and dependent racer“: Upholding the tribes’ insistence on consent—based transactions would effectively put a legal straitjacket on Congress in its “care and protection of the Indians,” and would deprive Congress “in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, ofall power to act, ifthe assent ofthe Indians could not be obtained.” 45 The Court nowhere described the “emergency” or “necessity” that existed to justify Congress’s actions in this case but it offered a hint in the following passage: “As with treaties made with foreign nations (Chinese Exclusion Care, 130 U.S. 581), the leg— islative power might pass laws in conflict with treaties made with the Indians.”44 The hint is the curious parenthetical reference to a case, C/zae C/zan Ping v. United States (1888), that upheld Congress’s Identifyingthe Contours ofIndian Country 77 authority unilaterally to break its treaty commitments with China on immigration policy. The Court in the Ping case offered a trans- parent description of the reasons underlying Congress’s abrupt change in Chinese immigration policy: The differences of race added greatly to the difficulties of the situation. . . . [The Chinese] remained strangers in the land, residing apart by themselves, and adhering to the customs and usages oftheir own country. It seems impos— sible for them to assimilate with our people or to make any change in their habits or modes of living. As they grew in numbers each year the people of the coast saw, or believed they saw, in the facility of immigration, and in the crowded millions of China, where the population presses upon the means of subsistence, great danger that at no distant day that portion of our country would be overrun by them unless prompt action was taken to re— strict their immigration. The people there accordingly pe— - - ~ - - 4s titioned earnestly for protective legislation. This pattern of immigration was in stark contrast to that of European. immigration, or such was the observation of a congres— sional supporter of the Chinese exclusion laws: “No voice is raised against the immigration from across the Atlantic because we feel ourselves akin to the people who thus come to our shores. They are the offspring of the nations from which the founders of the Repub— lic, its defenders, and heroes sprang. They are not only of our race, but allied in moral and religious sentiments, in the degree of cul— ture attained. . . . By contrast, Itlhe Chinaman is neither soc1ally, - r - - ~ «:46 nor politically fit to aSSimilate With us. Lone Wolf’s parenthetical reference to the Ping case suggests that Indian resistance to federal allotment policies represented the same sort of cultural, social and political threat to American soci— ety as that posed by Chinese immigration. Beyond legal challenges like Lone Wolf, organizations like the Four Mothers’ Soc1ety 1n 78 AMERICAN INDIANS AND THE LAW the Indian Territory rose up to challenge the allotment policies. The government labeled opponents of allotment as “irreconcil— ables” and subjected them to arrest, incarceration and forced ap— portionment of land under the allotment acts.47 The resistance of Indian people to forced assimilation, coupled with unprecedented waves of immigrants from southern and eastern Europe between 1880 and 1920, presented increasingly pressing challenges to the assumed cultural superiority of America’s “founder” AngloSaxon race.18 The Courts language in both Lone Wolf and Ping rein— forced this assumed cultural superiority in condoning theiradical domestic land policies against Indians and the immigration poli— cies against Chinese nationals in order to preserve the country as an “Anglo—Saxon polity.”‘“’ ‘ Beyond advancing the rule that Congress has power unilater- ally to break Indian treaties, the Lone WolfCourt also suggested that the allotment acts actually did not deprive the tribes any recognized property interests. Congress had effected “a mere change in the form of investment of Indian tribal property, the property of those who, as we have held, were in substantial effect the wards of the governmentfi“ This language found its way into a modern Supreme Court decision, United States V. Sioux Nation of Indians (1980)51 in which the Court created a unique test applicable only to Indian tribes to determine whether they are entitled to just compensation when Congress alters their land holdings. As noted earlier, the government may, consistent with the Constitutions Fifth Amendment, take private property for public use so long as it makes just compensation to the owner (usually at the fair market value of the property plus interest from the time of the “taking”1. This is typically known as the governmental power of eminent domain. In the Indian context, however, a court must first deter— mine ifCongress acted under its eminent domain powers or under its trustee powers before determining whether just compensation must be paid to tribes. The “test” approved in Sioux Nation is the following: “Where Congress makes a good faith effort to give the Indians the full value of the land and thus merely transmutes the Identtfyingthe Contours oflnclian Country 79 property from land to money, there is no taking.”52 The Sioux Na— tion ultimately succeeded in their century—long lawsuit to establish the wrongful taking of their lands, including the sacred Paha Sapu or Black Hills, but, to date, have not claimed the money judgment confirmed by the Supreme Court in Sioux Nation.“ That money judgment with accrued interest is well over $500 million and sits in the United States Treasury because the Sioux maintain that the action all along has been to recover their ancestral lands. This posi< tion reveals another dramatic contrast between Indian and West— ern views ofland and property rights. From the Indian perspective, the relationship with their ancestral lands operates in the form ofa sacred covenant between the community and the land, in which Indian people regularly minister to the land as stewards and the land reciprocates by supporting, nurturing and teaching the com— munity to live in proper balance with its surroundings. The Kiowa writer N. Scott Momaday expressed similar sentiments when he challenged Western society, and American society in particular, to embrace a “moral comprehension” of the earth and air embodied within the principles of a land ethic. The alternative “is that we shall not live at all?“ This is in stark contrast to the Western View ofland, expressed in the Lone Wolf and Sioux Nation cases, which sees land as a fungible commodity, a resource that serves as a foun- dation for the creation of personal wealth. The Sherrill opinion (2005) echoed this View when the Court spoke disparagineg about the Oneidas‘ efforts to reclaim sovereignty over their former lands that had long since been “converted from wildwnefi” by the more productive non—Indian citizens of New York. Lone Wolf’s rule on treaty abrogation is still the law of the land and functions as an ever~present reminder of the precarious nature of Indian land tenure. Additionally, the allotment policy itself~—condoned in Lone Woizi—continues to reveal the fragility of Indian land rights. The allotment policy was the key plank in the government’s assimilation efforts of the late nineteenth and early twentieth centuries designed to bring an end to the distinct cultural and political existence of Indian tribes. These policies 80 AMERICAN INDIANS AND THE LAW were repudiated in 1934 with passage of the Indian Reorganiza- tion Act, but their aftershocks continue to be felt in modern-era clashes over jurisdiction in lands that were opened up to non- Indian settlers. The Supreme Court has addressed these conflicts in a series ofcases by trying to divine Congress’s plan for how the executive branch should carry out the allotment policy in particu— lar reservation communities. The key jurisdictional consideration has been whether Congress intended to preserve or to diminish the original reservation boundaries when it opened Indian lands to non—Indian settlers. A finding (it“‘diminishment” means that those lands may no longer qualify as “Indian Country” lands and are consequently out of tribal political control. One of the more problematic “diminishment” cases from the modern Court is Soul/z Dakota v. de/{ton Sioux Tribe (1998).is The jurisdictional conflict stemmed from a decision by several counties to locate a solid waste facility on lands the tribe considered part of its reservation. A finding that the lands were still within “Indian Country” would mean that the solid waste facility would remain subject to federal environmental standards and would en— tail (among other things) the installation ofa costly synthetic com— posite liner to help prevent leakage into tribal water aquifersfil A contrary finding against “Indian Country” would mean that the state would exercise primary authority over the lands and the con— struction of the facility. The tribe maintained that their 1892 agreement with the fed! eral government (confirmed in an 1894 statute) to cede surplus in— dian lands expressly preserved all their rights under an earlier treaty. The agreement’s so—called “savings clause” provided that nothing in the agreement “shall be construed to abrogate the treaty [of 1858]” and that “all provisions of the said treaty . . . shall be in full force and effect, the same as though this agreement had not been made.”§7 The tribe argued that this language served to con~ firm the reservation boundaries as mernorialized in the 1838 treaty. The United States—the other party to the treaty and the subse— quent agreementijoined in the lawsuit on behalf of the tribe to Identifyingfho Contours oflndian Country 81 confirm and support the tribe’s interpretation of the agreements terms. The Court rejected the tribal/federal governments’ argu- ments finding that such a “literal construction” of the savings clause would “impugn the entire sale” made in 1892. The Court pointed to other historical materials that suggested the savings clause was only designed to ensure the continuation of annuities promised in the earlier treaty but that otherwise Congress clearly intended to diminish the physical size of the reservation in the subsequent agreement. According to the Court, this finding was supported by other contemporary developments, including the rather dramatic alteration ofthe demographic makeup in the area, with the Yankton Sioux population declining quickly and replaced by a surge of non-Indian settlers. The Court explicitly recognized the resulting tension in giving effect to a long—repudiated federal policy but felt powerless to alter the course or effects of that his— tory: The allotment era has long since ended, and its guiding philosophy has been repudiated. Tribal communities struggled but endured, preserved their cultural roots, and remained, for the most part, near their historic lands. But despite the present—day understanding of a “government— to—government relationship between the United States and each Indian tribe.” we must give effect to Congress’ intent in passing the “594 Act. Here, we believe that Con— gress spoke clearly, and although “[sjome might wish [it] had spoken differently . . . we cannot remake history/’5“ The Court offered no justification for why it “must give effect” to the tribal-assimilation—-iriinded Congress of 1894 instead of the tribal—sovereignty—iriinded Congress of 1934. In 1989, Associate Justice Harry Blackmun challenged the Court on precisely this point. In a case challenging the limits of tribal authority to zone lands within the reservation, Justice Blackmun reminded his fel— low justices that the allotment policies had long been repudiated 82 AMERICAN INDIANS AND THE LAW and that 1n consrdering the question of tribal zoning authority “This Court should direct its attention not to the intent or the Congress that passed the Dawes {Allotment} Act, but rather to the intent of the Congress that repudiated the Dawes Act and estab4 lished the Indian policies to which we are heir. This, 1934 Con— gress, as definitively interpreted by the Executive Branch at the time, intended that tribal civil jurisdiction extend over ‘all of the lands of the reservation, whether owned by the tribe, by members thereof, or by outsiders} "W The supreme irony is that the Court’s decision in cases like Yankton Sioux makes both the tribes and Congress prisoners of an imposed history and deprives the Congress of power and liexibil itv to act in light of changed circumstances in Indian Country¥zthie very flexibility the Court deemed so vital in Lone Wolf That irn» posed history is again dominated by reference to and perpetuation ofthe “dying race” thesis, something the Court explicitly adopts in the early passages ofthe Yanktrm Sioux case: “Within a generation or two, it was thought, the tribes wouild dissolve, their reservations would disappear, and individual Indians would be absorbed into the larger community of white settlers. ‘Nith respect to the Yank— ton Reservation in particular, some Members of Congress specu— lated that ‘close contact with the frugal, moral, and industrious people who will settle [on the reservation would] stimulate incli— Vidual effort and make [the tribe's} progress much more rapid than heretofore.’ "0“ THE IMAGE OF “INDIANS” IN INDIAN LAND RIGHTS The language of the Lone Wolf decision reflected the prevailing na— tional sentiments about Indian people as an ignorant race. depen— dent upon the beneficence and guidance ofa superior civilization to achieve even the semblance of a progressive society. It also reflected the prevailing expectation that the Indians’ cultural distinctiveness would vanish under the weight and influence ofcivilized white soci— ety. Ironlcally, there was keen interest among white policymakers Identifying the Contours oflndian Countr) 83 during this same period to present publicly or otherwise capture the last vestiges of this cultural distinctiveness before all traces of it dis- appeared. As historian Patricia Nelson Limerick observed, once Americans embraced the mythology of conquest, it was easy to in— dulge in a bit of sympathy for the Indians—even to laud some of their qualities as a critique of the excesses of modern civilization. Limerick writes, “Since there was no chance of reversing the con— quest, it was safe to regret it. Discontent with modern industrial so~ ciety led to an interchanging of the usual terms: white Americans were the barbarians, savage and unprincipled, possessed by primi— tive greed; Indians were the genuinely civil people, who lived with an ecological wisdom and saintliness that made white Americans look like childish brutes.”‘” These more “positive” aspects of the no— ble savage inspired a journalist to note in 1981 that at her confirma— tion hearings, Supreme Court nominee Sandra Day O'Connor “sat before her questioners, erect, like an American Indian.“3 The major national and international expositions and fairs held in the United States during the late nineteenth and early tWentieth centuries included representations of Indian culture as among the world’s “backward races” along with Ainus from Japan and African pygmies.“ With a touch more benevolence, the noted photographer Edward S. Curtis began publishing in 1907 a mas— sive collection of photographs that captured Indians “in an ideal— ized, imagined past, the romantic survivors ofa ‘vanishing race.’ “(’4 With the support of powerful industrialists like I. 1’. Morgan who profited from the opening up of Indian lands and resources, Curtis produced a body of work that was both lauded for its technical and artistic achievements and criticized for its portrayals ot‘Indian peo— ple in stereotyped, “frozen in time” settings. Curtis, like most of his non—Indian contemporaries, subscribed to the “dying race” the— sis, a belief that supplied a primary motivation for his massive project. In 1898, Curtis expressed these sentiments in a letter to his mentor, conservationist George Bird Grinnell: “I don’t know how many tribes there are west: of the Missouri, Bird——maybe a bun» dred. But I want to make them live forever—in a sort othistory by 84 AMERICAN INDIANS AND THE LAW photographs. . . . You and I know, and of course everyone does who thinks of it, the Indians of North America are vanishing. They’ve crumbled from their pride and power into pitifully small numbers, painful poverty and sorry weakness. There won‘t be anything left of them in a few generations and it’s a tragedy~—a national tragedy?“ Curtis relied on techniques like photo crop— ping, lighting, posing and retouching of negatives to produce im— ages that adhered to the wider public’s popular image of traditional Indian people. For example, in one well—known case, the photo negative of a print entitled “In a Piegan Lodge” showed a clock positioned between two sitting tribal men; in the published print contained in Curtis's The North American Indian, the negative was retouched to remove the clock.66 In similar ways, court opinions also “construct” images of In— dians that comport with popular conceptions or views of Indian people, whether those images reflect reality or not. The significant difference, of course, is that judicial opinions have the force of law with the potential to unleash both productive and destructive ef fects in the lives of individuals and communities. The late legal scholar Robert M. Cover expressed it best when he wrote: “A judge articulates her understanding ofa text, and as a result, somebody loses his freedom, his property, his children, even his life. Interprea tations in law also constitute justifications for violence which has already occurred or which is about to occur.”(’7 The Supreme Court’s early precedents are replete with con»- structed images ofIndian people that at one end, condemn them as incorrigible, inferior, war—loving savages, and at the other, laud them for being environmentally friendly and culturally cohesive societies. More often than not, it is the former negative: image that dominates the Court’s narratives on Indian law and life. The Court relied on that negative image in United States v. Sizndoz/ai' (1913)“ to conclude that the Pueblo Indians and their lands were indeed subject to Congress’s plenary power notwithstanding the fact that they owned their lands in fee simple title. The Court noted: Identifyingthc Contours oflndian Countr} 85 The people of the pueblos, although sedentary rather than nomadic in their inclinations, and disposed to peace and industry, are nevertheless Indians in race, customs, and do— rnestic government. Always living in separate and isolated communities, adhering to primitive modes of life, largely influenced by superstition and [fetishism], and chiefly gov— erned according to the crude customs inherited from their ancestors, they are essentially a simple, uninformed and in- ferior people. [Tlhey have been regarded and treated by the United States as requiring special consideration and protec— . . . . . ,9 tion, like other Indian communities.’ Similarly, then associate justice William Rehnquist relied on the negative image of Indians to express his dissenting views in Unz'tediSmZes v. Sioux Nation, the land claims lawsuit discussed above. His opinion raised important “separation of powers” argu— ments in terms of the role Congress played in keeping the Siouxs land claims case alive. But the Rehnquist dissent also devoted much attention to challenging the Court’s reliance on “revisionist” his— torical accounts that magnified the culpability ofthe United States while ignoring that “the Indians did not lack their share of Villainy either.” In support ofhis “Indian as villain” thesis, Justice Rehnquist turned to American historians like Samuel Eliot Morison, quoting the following from Morisons Oxford Hismry oft/18 American People (1963): The Plains Indians seldom practiced agriculture or other primitive arts, but they were fine physical specimens; and in warfare, once they had learned the use of the rifle, [were] much more formidable than the Eastern tribes who had slowly yielded to the White man. Tribe warred with tribe, and a highly developed sign language was the only means of intertribal communications. The effective unit was the band or village of a fevv hundred souls, which might be seen in the course of its wanderings encamped by a watercourse AMERICAN INDIANS AND THE LAW with tipis erected; or pourng over the plain, women and children leading dogs and packhorses with their trailing travois, while gaily dressed braves loped ahead on horseback. They lived only for the day, recognized no rights of prop— erty, robbed or killed anyone if they thought they could get away with it, inflicted cruelty without a qualm, and en» dured torture without Hinching.70 Having “established” that both parties to the treaty contro- versy in Sioux Nation had blood on their hands, Justice Rehnquist turned to Christian teachings to proclaim, “Both settler and [n— dian are entitled to the benefit of the Biblical adjuration: ‘Judge not, that ye be not judged.’ ”7l But it is the decision in Brendalc v. Confiderated Tribe; and Band; oft/16 Yakima Indian Nation (1989)72 that best illustrates the tendency of even modern justices to employ constructed images of Indian people and, more important, to rely on those constructed images to develop legally binding rules of law. In Brendale, two non-Indian residents of the Yakamafl Reservation who owned lands in fee simple challenged the tribe’s inherent power to regu~ late land use through zoning ordinances. One individual’s land was located in the reservations forested areas largely closed to de— velopment while the other individual’s land was in the relatively more populated and developed “open” area of the reservation. The justices were hopelessly split in this case, as revealed by three dis tinct opinions that ultimately recognized the tribe’s authority to regulate land use in the closed section but not in the open area. Of particular interest here are the opinions authored by Associate Jusv tices John Paul Stevens and Harry Blackmun. Starting with the premise that zoning represents a communi- ty’s effort to define its “essential character,” Justice Stevens voted to uphold tribal authority in the closed section but not in the open section ofthe reservation. Given the massive demographic Changes wrought by the Allotment or Dawes Act, Justice Stevens con» Identifying the Contours oflndian Country 87 cluded that the tribe was no longer empowered to exclude non- members in the broad areas where Congress had encouraged their active settlement (in the open area). Since the tribe was divested of the greater power to exclude nonmembers from their fee lands, it followed—for Justice Stevens at least—that they were divested of the lesser power to define the essential character of the area. Con~ versely, since the tribe retained the right to exclude nearly every‘ one from the closed area, it retained the power to maintain that areas “pristine, wilderness»like character.” Justice Blackmun lamented the “checkerboard” jurisdictional picture that emerged from the other Brendale opinions and found that tribal governments retained full authority to regulate land use throughout the reservation. He criticized Justice Stevens for rely- ing on stereotypical images of Indians and Indian life to limit tribal governmental powers: To the extent that Justice Stevens’ opinion discusses the characteristics of a reservation area where the Tribe pos— sesses authority to zone because it has preserved the “essen— tial character of the reservation,” these characteristics betray a stereotyped and almost patronizing view of Indians and reservation life. The opinion describes the “closed area” of the Yakima Reservation as “pristine,” and emphasizes that it is spiritually significant to the Tribe and yields natural foods and medicine. The opinion then contrasts this un- adulterated portion ofthe reservation with the “open area,” which is marked by “residential and commercial de‘velopmethI.” In my View, even under Justice Stevens’ analysis, it must not be the case that tribes can retain the “essential character” of their reservations (necessary to the exercise of zoning authority) only if they forgo economic development and maintain those reservations according to a single, perhaps quaint, view of what is characteristically “Indian” today.74 AMERICAN INDIANS AND THE LAW In the development of their respective draft opinions, the two justices traded sharply worded letters debating the points above. Justice Stevens fired the first salvo in a private memo to Justice Blackmun in which he noted that “the references to the fact that the reservation is ‘pristine’ and that the closed area has spiritual significance to the Tribe and yields natural foods and medicines all come out of the district court’s findings, based on evidence pro— duced at the trial by lawyers representing the Tribe. I guess its ‘heads I win, tails you lose’ if one shows respect for certain tradi— tions that are obviously of importance to the Tribe.” Justice Black» mun responded quickly the same day: “I seem to have ruffled your feathers. One always regrets that, and I certainly do this time." He made minor changes in his draft opinion but retained the criticism of Justice Stevens’s stereotyped and patronizing analysisfi Consciously or not, Justice Stevens’s Brendale opinion shares a quality with Justice Rehnquist’s Clip/rant opinion in relying on the power of images of Indian people and reservation life to develop binding legal rules. For Justice Stevens, the preservation of “pris— tine wilderness—like” areas went hand in hand with tribal power to zone their lands; the legal rule fit comfortably with the popular conception of Indians living in a state of nature without the trap— pings (or burdens) of modern civilization and development. De— spite Justice Stevens’s private protestations to Justice Blackniun. it is inconceivable that the Yakama would have equated the scope of their sovereign land use powers with only that power necessary to preserve reservations as protected Indian wilderness zones. In Justice Rehnquist’s (Nip/rant opinion, the image of Indian lands as lawless frontier spaces influenced the Court’s development of a broad and devastating rule putting non-Indians completely beyond the reach of the tribe’s criminal jurisdiction. Since there was no question that the reservation boundaries were preserved intact in both Brenda/e and Oliphant, it was not open to the non—Indian par— ties to argue that the tribal land base itself had been diminished. Instead, the strategy was to find other limitations on the scope of Identifyingthe Contours ofIndian Countr} 89 tribal powers even within their protected lands. The language of the decisions canvassed above suggests that those legal limitations on tribal powers were heavily influenced by the lasting power of images of Indians and reservation life. This confirms observations made by historian Robert F. Berkhofer, Jr., in 1978: Since Whites primarily understood the Indian as an an tithesis to themselves, then civilization and Indianness as they defined them would forever be opposites. Only civili— zation had history and dynamics in this view, so therefore Indianness must be conceived of as ahistorical and static. If the Indian changed through the adoption ofcivilization as defined by Whites, then he was no longer truly Indian according to the image, because the Indian was judged by what Whites were not. Change toward what Whites were 70 made him ipso facto less Indian. THE “ DOMESTIC DEPEN DENT” legal status oftribes casts a long shadow in Indian law and has provided the courts and Con— gress wide berth to shape the contours of Indian'C'ountry and In— dian political authority in ways that pose minimal- threat or disruption to the broader society. As noted above, this iswhy sto— ries like the Yankee article profiled at the beginning of this chapter provoke such primal reactions among non—Indians. The story of the Pequots’ territorial expansion challenges one of Aniericas’most enduring mythologieswthe myth of the “vanishing Indian. 'The “enduring and thriving” or “rich and powerful” Indian tribe is not a familiar or comfortable concept in the popular imagination. The Pequots and many other tribes are claiming for themselves the colonizer’s prerogative to enlarge their territorial estate and to move with confidence to influence the terms by which economic, commercial and political transactions will take place. In short, tribes have proven themselves to be remarkably 90 AMERICAN INDIANS AND THE LAW resourceful and adept at securing meaningful levels of legal protections for their homelands. They have been particularly successful in securing recognition of their authority to protect and enhance their reservations environmental and'natural re— source assets as well as their authority to develop their home— lands as viable economic centers that support and sustain tribal life. We turn to each of these general areas in the next two chap— ters of this section. OW STEVVARDS OF THE NATURAL WORLD THE L ONE WOLF and Sioux Nation cases discussed in the pre— vious chapter highlight fundamental differences between Indian and Western philosophies on the relationship between people and the surrounding natural environment. Stated simplistically, the former perspective views the relationship in terms of a sacred cov— enant between the people and the land while the latter perspective views land as a fungible commodity to be exploited for personal gain. These perspectives are admittedly drawn broadly to under— score the historical points of tension in the development of federal Indian land policy. The lines of distinction have blurred over the years, with tribes often pursuing economic development activities that necessarily involve some exploitation of natural resources, while non—Indian society has increasingly embraced the wisdom of an environmental ethic to limit growth and development. Nonetheless, United States Indian land policy in the nineteenth and early twentieth centuries, expressed in the forcible removal of tribal communities from their homelands, extinguishment of In‘ dian title to vast areas of land and the imposition of individual allotments, was designed to fracture the unique bonds between I91l ...
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Indians and Law(1) - AIMERICAN INDIANS AND THE LAW N....

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