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Alaska Natives at the Time of the Invasions: A Cultural Profile Project Draft 3 Do not quote or copy without permission from Mike Gaffney or from Ray Barnhardt at the Alaska Native Knowledge Network, University of Alaska-Fairbanks. Mike Gaffney suggests that one read the Teacher's Manual Preview first to get a good idea about the purpose and design of this secondary school textbook. Mike Gaffney Chapter 5 Sometimes expeditions find they must take a side trip to gain greater understanding of interesting phenomena they have encountered or heard about along the way. We have reached such a point in our own educational expedition. As early as Chapter One we were already referring to the Tlingit and Haida land claims case and to the federal Indian law principle of aboriginal title. We also noted how aboriginal title served as the legal basis of the Alaska Native Claims Settlement Act (ANCSA). And we briefly discussed the importance of federal recognition for tribes and the historical research required to gain this recognition. We can be sure these and other legal issues will arise in later chapters. In our discussion of law and order in Chapter Twelve, for example, we will visit the 1883 Indian law case of Ex Parte Crow Dog. This case will instruct us on an important difference between Western and traditional Native American concepts of justice. It is, moreover, difficult to understand ANCSA and other aspects of Native civics without understanding the basic principles of federal Indian law. If there was no American jurisprudence known as federal Indian law, most likely there would be no ANCSA. So we start our extended side trips with federal Indian law and move on to ANCSA in the next chapter. [Jurisprudence = a philosophy or science of law. A society’s legal system.] Understanding federal Indian law. What exactly is federal Indian law? This question is not as easy to answer as one might think. We will see that the legal questions it raises often overlap with other fields of law. Moreover, what rights and protections it offers tribes can dramatically change depending on the historical circumstances and the attitude of Congress and the courts at any one time. Since the 1880s, for example, federal Indian policy has significantly changed four times, alternating between the opposite goals of seeking the destruction of tribal self-government and cultural cohesion at one time yet encouraging tribal self determination at another time. We also must keep in mind that “federal Indian law” could just as easily be called “federal Native law” because Alaskan Eskimos and Aleuts are also subject to its doctrines and practices. But we have to begin our discussion somewhere. So first we go to Felix Cohen’s Handbook of Federal Indian law and Nathan Margold’s introduction to that volume. Cohen and Margold were the chief architects of the 1934 Indian Reorganization Act (IRA) and its application to Alaska in 1936. Margold described federal Indian law this way:
Nathan Margold wrote this summary back in 1940, but the complexities it describes are still with us today. Let’s take his summary one piece at a time. Indian law is indeed statutes passed by Congress. ANCSA is a good example. He also mentions treaties as part of federal Indian law. But as we know, treaty-making never occurred in Alaska. For Lower-48tribes, however, treaties signed long ago continue to be a major legal concern and the subject of significant Indian law court cases. With the passage of time, many of the tribal rights outlined in these treaties have been disputed in the courts by states, business firms, and individuals. [Statute = a law passed by a legislative body.] Treaty rights are even disputed by the federal government whenever they appear to conflict with current national policies. For example, does a treaty made in 1858 giving the Yankton Sioux tribe exclusive hunting rights on their reservation exempt tribal members from the eagle protection provision of the 1962 Endangered Species Act? The dispute arose because, like many tribes, the Yankton Sioux use eagle feathers for religious purposes. In 1986 the Supreme Court ruled that the eagle protection provision did abrogate that treaty right. This meant a hunter must first obtain a federal waiver to hunt eagles, even if only seeking feathers for religious purposes.2 [ Abrogate = the nullification of an agreement by one side or the other.] The “Administrative rulings” mentioned by Margold mostly refer to what are called executive orders whereby the President instructs a branch of the federal government to take action on a question of Indian affairs. Often it is an order to the Department of Interior to be carried out by its Indian affairs agency, the BIA. For instance, at one time there were a number of reservations in Alaska called executive order reserves. They were established to serve a specific public purpose, supposedly for the benefit of Natives. The St. Lawrence Island reserve, for example, was established by executive order to promote reindeer husbandry among Siberian Yupik Eskimos. This brings us to “judicial rulings,” perhaps the most complex and frustrating area of federal Indian law. Margold hints at its complexity with his list of overlapping legal fields. When we talk of aboriginal title, for example, we are talking about the “law of real property.” When asking if a tribe has jurisdiction in child custody cases, we are talking about “domestic relations.” When we ask about what powers a tribal court in Alaska has over misdemeanor crimes committed by tribal members, we are talking about “criminal law”. And so on down Margold’s list. [Jurisdiction = the authority to enforce laws within a defined territory.]
To understand the frustration of David Case and others requires us to first ask: What is common law and how does it work? For centuries common law has been the central pillar of English and, upon independence, American jurisprudence. It dates from early Medieval times when royal courts decided disputes and controversies according to legal principles derived from the unwritten laws and customs of England. But this was not a hard and fast judicial rule. It was recognized that times change. What was considered a legal right or remedy in the past may not fit current social circumstances and attitudes. Common law certainly finds its basic principles in the past but it must be flexible as well. From this early judicial practice emerged the rules and procedures of American common law today. We have in the United States two kinds of laws. Exercising their constitutional authority, Congress, state legislatures, and locally elected governments, enact statutory law. The second kind of law is the common law which is “judge-made” law. It is law made in the courts. As with old English law, the first responsibility of American judges is to apply precedent, to apply legal principles developed in similar cases decided by past courts. If there is a line of Supreme Court cases supporting a certain legal principle, then that principle is considered settled law. It is legal doctrine. It is why American common law is often called case law. American judges are extremely reluctant to break with precedent, especially when a dispute involves a constitutional right. Indeed, precedent carries great weight in American courts. There is even a legal doctrine reinforcing the authority of precedent called Stare Decisis, which is Latin for "to stand by that which is decided.” Consider, for example, the 1896 Supreme Court case of Plessy v. Ferguson. In this case the Court ruled that states did not violate the constitution by racially segregating public accommodations. To reach this ruling the Court created the doctrine of “separate but equal.” If racially separate public accommodations – schools, buses, restrooms, etc. – are reasonably equal to one another, then there was no constitutional violation. It is easily argued that state sponsored racial segregation of any kind violates both basic human rights and the equal protection clause of the 14th Amendment of the Constitution. Yet the Plessy precedent stood as American common law doctrine for almost 60 years. It was finally overturned in the landmark 1954 Supreme Court case, Brown v. the Board of Education of Topeka, Kansas. Here the Court held that abundant research plainly shows that “separate educational facilities are inherently unequal” and therefore violate the equal protections clause of the 14th Amendment. But note that Brown dealt only with public education. Thus state supported racial segregation was only partially overturned. It would be at least another ten years before de jure segregation in other areas of public life was struck down by judicial rulings and by congressional action. [Inherent = by its very nature. De jure = “based on the law.” ] When it comes to federal Indian law, however, judges – including Supreme Court justices – seem more willing to break with precedent and dismiss fundamental principles, especially in modern times. It is an inescapable truth that a judge’s personal philosophies of life and law play a major role in how he rules on a case. If American common law is judge-made law, how can it be otherwise? As much as we may wish to elevate the law to majestic heights of pure reason, it has and always will be influenced by the individual values, biases, and competence of judges. For example, when William Rehnquist was Chief Justice, the Supreme Court ruled against tribes in 77 percent of the cases decided between 1986 and 2000. In contrast, under the previous Chief Justice, Warren Burger, the Court ruled against Native Americans only 42 percent of the time from 1969 to 1985. Why the difference? Surely part of the explanation is that Rehnquist was never enthusiastic about tribal rights. And for most of his tenure as Chief Justice, enough associate justices shared his views.4 So it is easy to see why scholar-lawyers like David Case as well as many tribal leaders find federal Indian law frustrating. Without question, there exist fundamental principles of federal Indian law which clearly outline tribal rights and protections. (We review these principles shortly.) But it still seems that over the past twenty-five years courts have more often acted to diminish tribal rights than to uphold them. One’s frustration only increases when we include Congress with its periodic flip-flops in Indian policy. Consider the following history since the 1880s:
Keep this brief historical sketch of American Indian policy in mind because we will refer back to it from time to time. The United States Constitution and Native Americans. The United States Constitution mentions “Indians” in two places. The first place is in Article 1, section 3, which became known as the “three-fifths compromise.” It was clear that those states with larger populations would have greater representation in Congress than states with smaller populations. Today Alaska has only one congressional representative while the much larger state of California has fifty-three. But casting a dark cloud over this issue of proportional representation at the 1787 Constitutional Convention was this question: How will slaves and Indians be counted as part of a state’s population, if at all? After considerable debate, the Convention reached a compromise. For purposes of determining the number of representatives from a state, slaves were to be counted as three-fifths of a person and “Indians not taxed” were totally excluded. Back then, “taxes” meant property and poll taxes, and any Indian paying these taxes was considered assimilated and a citizen of that state. [Assimilation = a process by which a cultural group adopts the customs and practices of another, usually larger and more powerful cultural group.] Of course this entire section of the Constitution was negated by passage of the 13th Amendment abolishing slavery and by several other amendments changing the American tax system. Moreover, the Indian Citizenship Act of 1924 clearly shut the door on the “Indians not taxed” part of Section 3. Whether Indians wished it or not, Congress granted automatic citizenship to all Native Americans born “within the territorial limits of the United States.” This included the Native residents of what were then the territories of Alaska and Hawaii. Our focus, however, is on the other place in the Constitution where Indians are mentioned. Here we go to the Commerce Clause, Article 1, section 8 (3). It reads:
It is perhaps hard to believe, but the fundamental principles of federal Indian common law derive from this short constitutional clause. Nowhere in the Constitution is there mention of Native aboriginal rights to land or recognition of inherent tribal sovereignty. Nor does the Constitution authorize a government to government relationship between tribes and the United States. And the commerce clause is as close as it gets to conferring on Congress complete authority over Indian affairs – an authority, we must not forget, which also includes the obligation to protect tribal lands and assets. Yet these four common law principles frame all aspects of federal Indian law. Whenever a Native tribe is a participant in a legal action, one or more of these principles will be part of the argument. A tribe’s opponent in court may successfully argue that these principles do not apply to the dispute at hand. But the very fact of being the central theme of a tribal argument means they are present, they are relevant, they have solid legal standing. How is this possible? How is it possible to construct an entire field of American common law on the back of one little clause in the Constitution? To answer this question we go to the concept of constitutionally derived rights and powers. Constitutionally derived rights and powers. Our explanation of derived rights and powers starts not with federal Indian law, but with the 1965 Supreme Court case of Griswold v. Connecticut. For many years the state of Connecticut had a statute banning the use of contraceptives. The law prohibited not only the sale and distribution of birth control devices, but also their actual use, even by married couples. Although the law was passed in 1879, it was rarely enforced. But at the same time it was never stricken from the state’s legal code. To test the law in court, Estelle Griswold and several doctors opened a birth control clinic in New Haven, Connecticut. As expected, they were arrested, tried, found guilty, and fined $100 each. Eventually their appeal reached the Supreme Court. Griswold and her colleagues argued that Connecticut’s law violated an individual’s constitutional right to privacy. The Supreme Court agreed with Griswold and struck down the Connecticut law. But wait a minute! Nowhere in the Constitution is there any mention of a right to privacy. Then how could the Supreme Court reach such a conclusion? They did so by seeking guidance in American common law. They reasoned that the right to privacy was found in the "penumbras" and "emanations" of other constitutional protections. In plain language, the Court found strong precedent for an individual’s right to privacy in the common law history of judicial rulings on constitutional protections generally. The Court found it hard to imagine protecting many of the individual rights actually enumerated by the Constitution without also guaranteeing a “zone of privacy.” In common law language, the right to privacy is now judicial precedent. It is legal doctrine. It is the supreme law of the land.5 Origins of federal Indian law: The Marshall Trilogy. As happened in Griswold, an early United States Supreme Court found it necessary to construct constitutionally derived common law principles to define the relationship between the new and expanding nation of the United States and the indigenous Native American tribes. The Court used that little phrase, “and with the Indian tribes,” of the Commerce Clause as a starting point for establishing the four fundamental principles of federal Indian law. These principles have their origins in three Supreme Court decisions known as the “Marshall Trilogy.” They are so called because all three decisions were written by the third Chief Justice of the United States, John Marshall, 1801-1835. Here is a summary of the Trilogy cases. 6 The first case is Johnson v. McIntosh, decided in 1823. This case arose because Congress had failed to clearly defined the property rights of Indian tribes. So the question before the Court was: What land rights, if any, do Indian tribes hold? During colonial times, Mr. Johnson purchased land from the Piankeshaw tribe in the Ohio valley. Years later, after the United States became a nation, Mr. McIntosh received a federal patent to the same land. To resolve this land dispute between two white men, Chief Justice Marshall looked to common law. In this case, however, he sought guidance not from English or American common law, but from international common law known as the “doctrine of discovery.” In the years before Columbus’s 1492 voyage, the Catholic pope in Rome issued a series of edicts defining the rights and duties of “Christian nations” upon discovery of new lands occupied by non-Christian peoples. When a Christian nation claimed a discovery, all other nations were prohibited from interfering with that nation’s sovereign rule over the new land and its people. In turn, the discovering nation had the obligation to bring civilization and Christianity to these non-Christian people. Using the doctrine of discovery as a starting point, Chief Justice Marshall reasoned that upon independence the United States assumed England’s discovery rights to Native American lands. All tribal lands therefore came under the sovereign authority of the United States, even if tribes did not know they and their lands had been “discovered.” But once discovered, Marshall reasoned, tribes automatically lost sovereign authority over their foreign affairs and absolute title to their land. This meant they could no longer conduct relations with European powers or with other tribes. And their lands could only be transferred to the United States. So what property rights, if any, did tribes possess under the new sovereign authority of the United States? Marshall stated that tribes did retain a diminished land right – an aboriginal title – to use and occupy their lands. He said this aboriginal title “was as sacred as the fee title of whites” until extinguished by conquest, treaty, or by congressional statute such as ANCSA. The federal government, moreover, has an obligation to protect a tribe’s aboriginal title from “all others.” Of course the government’s historic failure to protect aboriginal title in Alaska was the central legal issue in the Tlingit and Haida case and in ANCSA. To finish the story, the Marshall Court held that the Piankeshaw tribe had no right to sell their land to anyone other than England and later the United States. Aboriginal title may be “as sacred of the fee title of whites” but it is still a title not recognized by the laws of the United States. As holder of an unrecognized land title, Mr. Johnson does not enjoy 5th Amendment property rights protection. Therefore his purchase was invalid and Mr. McIntosh’s federal land patent is upheld. If Mr. Johnson feels he has a legal grievance, he should take it up with the Piankeshaw and not with the United States. The second case of the Trilogy is Cherokee Nation v. Georgia decided in 1831. Here the question was: Does the state of Georgia have jurisdiction over Cherokee lands and people within the state’s borders? The Cherokee argued that according to the Commerce Clause of the Constitution they and other Indian nations are foreign sovereigns and should be treated in the same manner as European nations. Therefore Georgia and, for that matter, the United States have no jurisdiction in Cherokee country. But the Marshall Court concluded that the Cherokee tribe is not a foreign nation nor could they become an American state within the meaning of the Commerce clause. If not a foreign nation or a state, then what are the Cherokee? To fit what he saw as the developing political relationship between the United States as the supreme sovereign and Indian tribes with limited sovereignty, he suggested a new political category called a domestic dependent nation. The Cherokee (and other tribes) must be considered “domestic” because they exist within the sovereign borders of the United States. They are “dependent” because they rely on the federal government for protection of their land, resources, and political institutions. And the Cherokee are a “nation” because they have “uniformly been treated [by acts of Congress and in treaties] as a distinct political society, separated from others, capable of managing [their] own affairs.” Having said all this, the Marshall
Court held that they could not rule on the Georgia
jurisdictional
question because the
Cherokee did not
have legal
standing
to petition the Court as a foreign nation. Marshall’s
not so subtle message to the Cherokee was come
back to the Court with the same question, but do
so
as a dependent tribe. That question was clearly
addressed in the final case of the Trilogy, Worcester
v. Georgia, decided only a year later in 1832. Georgia argued that the Cherokee had voluntarily relinquished whatever sovereign rights they had when they signed the Treaty of Hopewell in 1785. After carefully analyzing each provision of the treaty, Marshall determined the Cherokee had only acknowledged that they were a domestic dependent nation “under the protection of the United States of America, and of no other power.” They did not give up their sovereign right to exercise self-government. Let’s hear Marshall in his own words:
Now we summarize the fundamental principles of federal Indian common law as they have evolved beyond the Marshall Trilogy. The fundamental Principles of federal Indian law 1. Plenary power of Congress. Congress has full and complete power over all Indian affairs. This is called plenary power. Agencies of the federal government and the fifty states have no authority over Indian tribes unless it is specifically delegated to them by Congress. The BIA, for example, owes its existence to an1849 Act of Congress which transferred the administration of Indian affairs from the War Department to the Interior Department. Our discussion of the Worcester case introduced the plenary power principle. Now let’s see how it has served as common law precedent for later Supreme Court cases. Unlike Indian reservations where federal land is set aside for the exclusive use of Indians, the Pueblos of New Mexico received fee title to their lands from grants made to them by the Spanish government before American annexation of the territory. These land grants and the absolute title they conveyed have been recognized as valid by the United States government. In the 1913 case, United States v. Sandoval, the Supreme Court was faced with this question: Since the Pueblo do not reside on a federal reservation, does Congress have the power to prohibit the sale and use of alcoholic beverages on their fee lands? In holding that Congress did indeed have such power, the Court said:
This very long sentence taken from the Sandoval opinion contains three important instructional points. First, not only does it sustains the plenary power of Congress, but it emphasizes the obligation of Congress to protect tribal interests. Secondly, The Court’s notion of a “dependent Indian community” is directly derived from Marshall’s concept of a domestic dependent nation, in this case referring to any tribe not occupying a federal reservation or an Indian allotment. And thirdly, our discussion of ethnocentrism in Chapter One comes to mind when the Court bases the federal obligation to protect on the belief that Indian tribes are in great need of the “fostering care” of a “superior and civilized nation.” Remember, however, that this was written back at the beginning of the 20th Century and not at the beginning of the 21st Century. Plenary power is not absolute power. But we also must understand that plenary power does not mean absolute power. To make this point we go to the 1977 Supreme Court case, Delaware Tribal Business Committee v. Weeks. The original homeland of the Delaware Indians was the northeastern United States. In the 19th century, they were gradually forced to move westward and became geographically scattered. The main body of the tribe eventually moved to Indian country in Oklahoma and settled among the Cherokee. A smaller group settled in Kansas and became known as the Kansas Delaware. Under an 1866 treaty, the Kansas Delaware elected to become United States citizens and receive individual parcels of land in Kansas on condition that they completely dissolve their relationship with the tribe. Because the United States had violated an 1854 treaty ratified before the tribe completed its move to the west, Congress appropriated funds to compensate the modern day descendents of the original Delaware tribe. This appropriations statute, however, excluded the Kansas Delaware because they were no longer a federally recognized tribe. The Kansas Delaware argued that although they had given up federal recognition in the 1866 treaty, they are still modern descendents of the original Delaware nation and have the same right to a share of the award as the Cherokee Delaware. To be excluded denied them equal protection of the laws guaranteed by the due process clause of the Fifth Amendment. But before ruling on the Kansas Delaware’s complaint, the Supreme Court first had to determined if Congress’s plenary power over Indian affairs was so complete that it barred judicial review by the courts. Citing several precedents, the Court held that “the power of Congress over Indian affairs may be plenary in nature, but it is not absolute.” Therefore the Court does have the power of judicial review but must always be careful to give Congress the benefit of the doubt. Let’s finish this story. Having settled the judicial review question, the Court then ruled that the exclusion of the Kansas Delaware from distribution under the Act did not “offend the Due Process Clause of the Fifth Amendment.” Congress had properly used its plenary power to fulfill its unique obligation to protect the tribal properties and assets of the federally recognized Cherokee Delaware by excluding the Kansas Delaware who had voluntarily given up their federal recognition. 2. Aboriginal Title. Tribes hold a federally protected aboriginal title to land until clearly extinguished by an act of Congress. We have seen how aboriginal title became a fundamental principle of federal Indian law in our discussion of Johnson v. McIntosh. For a modern perspective on the continued significance of aboriginal title as American common law, we go to the 1985 Supreme Court case, County of Oneida v. the Oneida Indian Nation of New York. Back in 1795, the Oneida chiefs signed an agreement selling tribal land to the state of New York. In 1980, one hundred and eighty-five years later, the Oneida Indian Nation argued in court that the 1795 agreement violated the Nonintercourse Act of 1793, one of a series of early congressional statutes attempting to define the relationship between Indian tribes and the United States. That statute clearly stated that no person or entity could purchase Indian land without the Federal Government's approval. The Oneida Indian Nation argued that the sale of land to New York back in 1795 was therefore illegal and the tribe deserved financial compensation, even after all these years. Agreeing with the Oneida nation, the Supreme Court held that it is well established in American common law that only Congress has the power to extinguish a tribe’s aboriginal land title. The Court said it was well aware that 1795 was long ago and much has obviously changed since then. Nevertheless, the law continues to be quite clear on this point and the Oneida Nation should be fairly compensated for this breech of federal Indian common law. Indeed, the Court used the very words “the common law” throughout its written opinion. Aboriginal title as a fundamental principle of federal Indian law appears to be alive and well. Its crucial role in the Tlingit and Haida case, in ANCSA, and in later land claims cases involving eastern tribes such as the Oneida point to its enduring strength as American legal doctrine. 3. Tribal sovereignty. Because they existed as political communities before the United States became a nation, Native American tribes possess inherent sovereignty. The federal Indian law principles of Congress’s plenary power and the aboriginal title of tribes may be alive and well in modern times. But the survival of tribal sovereignty as envisioned by John Marshall in Worcester is another question indeed. Dictionaries define sovereignty as “supreme authority” or “the right to self government” or “the exercising of political independence.” Building on Worcester, that great scholar of Indian law and designer of the IRA, Felix Cohen, says:
To have inherent sovereignty means it cannot be given or granted to tribes by the United States. Why? Because tribes cannot be granted something they already possess. It is “inherent” by the very fact that tribes were politically organized communities before ratification of the Constitution. They predate the birth of the American Republic. With its plenary power, however, Congress can extinguish all or parts of tribal sovereignty. This is why Cohen uses the term limited tribal sovereignty. Let’s put this very important point another way: Sovereign powers not specifically and clearly extinguished by Congress are reserved to the tribe. This is called the reserved rights doctrine in federal Indian law. Nevertheless, much of the history of federal Indian law is the piece-by-piece dismantling of tribal sovereignty by Congress and the courts. This seems especially so in modern times. Prior to the Major Crimes Act of 1885, for example, all Indian-on-Indian crime committed on tribal lands fell under the sovereign jurisdiction of the tribe. The Major Crimes Act severely diminished this key element of tribal sovereignty by transferring to the federal government complete jurisdiction over seven felony crimes (murder, etc.) committed in Indian country regardless of race or tribal membership. We will return to the Major Crimes Act and its interesting history in Chapter Twelve when we discuss law and order in traditional times. So again, stay tuned. Figure 7 Indian country. During the war in Vietnam, American soldiers often referred to enemy-controlled areas as Indian country. They got the term from those many scenes in John Wayne westerns where he would rein in his horse and dramatically tell the wagon train or cavalry troop that they were now entering hostile Indian territory. This is not what “Indian country” means in federal Indian law. We must understand that Indian country is a very important legal concept. In 1834, Congress gave a general definition of Indian country as tribal lands still held by aboriginal title or federal lands set aside for Indians over which they exercised self-government. In a 1948 statute, however, Congress codified about one hundred years of federal Indian common law by narrowly defining Indian country as only those lands specifically set aside by Congress for Indians under the direct superintendence of the federal government. Of course the federal agency doing most of the supervising is the BIA. The 1948 statute also established three kinds of Indian country: a) Indian reservations on federal lands, b) dependent Indian communities such as the Pueblo who own their lands outright, and c) individual Indian allotments remaining under federal supervision. As you probably suspect, Indian reservations make up the great bulk of Indian country in the lower 48. [ to codify = to organize statutory law.] Since passage of the 1948 statute, Congress has done two major flip-flops in Indian policy. As our history chart on pages 49 and 50 shows, the first was rejection of the self determination goals of the IRA in favor of a Termination policy with quite opposite goals. The “termination era” lasted from 1953 to the early 1970s. A central feature of this policy was Public Law 280, a statute allowing states to take over criminal and some civil jurisdiction in Indian country. Six states, including Alaska, are now PL-280 states having this extraordinary jurisdiction on tribal lands. Finally comprehending the human and cultural damage caused by the termination policy, Congress reversed course in 1975 when it passed the Indian Self-Determination and Educational Assistance Act, which is the current federal Indian policy. There is still more to come on these contradictory Indian policies when we discuss ANCSA in the next chapter. In the last several decades, the Supreme Court has also been busy ruling on aspects of tribal sovereignty, especially on tribal jurisdiction over non-Indians and nonmember Indians and their activities within Indian country. It is said by some scholars that the modern era in federal Indian common law began with Williams v. Lee, decided in 1959. Here the question was whether the state courts of Arizona or the Navajo tribal court have civil jurisdiction over a case in which a non-Indian owned general store on the reservation was attempting to collect a longstanding debt from a Navajo family. Extensively citing Worcester v. Georgia as precedent, the Court held that the Navajo tribal court had jurisdiction over the case because nowhere in PL-280 had Congress expressly given this civil jurisdiction to Arizona. Therefore the reserved rights doctrine applies and the Navajo retain authority over civil disputes of this kind, even when non-Indians are involved. (Interestingly, it seems that whenever a court cites Worcester as a controlling precedent, the tribe most often wins the case.) Since the Williams case, Supreme Court rulings on tribal sovereignty is a mixed bag. It is clear, however, that the trend is decidedly toward further diminishment. In a highly controversial 1978 case, Oliphant v. Suquamish Indian Tribe, the Court ruled that tribes have no criminal jurisdiction over non- Indians in Indian country. Then there emerged the “Montana rule” created by the Court in the 1981 case, Montana v. United States. The question in Montana was whether the Crow tribe had the power to regulate hunting and fishing on reservation lands held in fee title by nonmembers. As crafted by the Court, the Montana rule says that a tribe "may retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the tribe's political integrity, economic security, or health and welfare.” The Court then held that on the Crow reservation, nonmember hunting and fishing on fee lands does not threaten tribal institutions. Moreover, Congress had not delegated such authority to the tribe. Therefore the Crow’s complaint fails to pass the Montana test and, therefore, they have no authority over nonmember hunting and fishing on fee lands within their reservation. We should note that the Montana rule can just as easily be called the “Montana test” because it provides specific standards by which later courts can judge similar cases. To properly evaluate the Montana rule, we must understand what is called the “checkerboard reservation.” It is an outgrowth of the 1887 General Allotment Act. After the recording of Indian allotments was completed, remaining “surplus lands” went on sale to outsiders, the vast majority of whom were white. The reservation – including the private property acquired by outsiders – still remained Indian country under the jurisdiction of the tribe and the federal government. (Note that the 1906 Alaska Native Allotment Act was generally patterned after the 1887 Act.) Figure
8 The map of the Nez Perce Indian reservation in Idaho shown above illustrates the jurisdictional complexity of a checkerboard reservation. The blank areas are held in fee by non-Indians and amount to 87% of reservation lands. According to the Montana rule, unless it can be proved that activities on these fee lands directly threaten tribal institutions, only the darken areas fall under the authority of the Nez Perce tribe. On the Crow reservation in Montana, however, non-Indians own only 28% of the land. Not surprisingly, the checkerboard reservation has led to a number of court cases like Montana to determine exactly what authority tribes have over various activities of non-Indians on their lands. (Recall that “fee lands” are essentially private property.) For sure, one of the most historically complicated areas of federal Indian law has been criminal jurisdiction in Indian country. But one thing is certain. Beginning with the Major Crimes Act, the criminal jurisdiction of tribes has been steadily and severely diminished. To summarize, the ruling in Oliphant held that tribes have no criminal jurisdiction over non-Indians. P. L. 280 brought six states into the picture by permitting them to exercise criminal jurisdiction in Indian country. Yet at the end of the 1980s, one big question remained: Within Indian country, does a tribe have criminal jurisdiction over nonmember Indians? We begin with the 1990 Supreme Court case, Duro v. Reina. Here the Court held that as is the case with non-Indians, the historic evolution of the common law implies that domestic dependent tribes do not retain the inherent power of criminal jurisdiction over nonmember Indians. Soon after the Duro decision was announced, there was loud and widespread protest. From the practical standpoint of law enforcement, it was pointed out that many nonmember Indians were integrated into reservation life through marriage or because it was where they worked, often for the tribal government or for federal agencies located on the reservation. From a legal standpoint, it was argued that the classification most often used in federal criminal statutes is “Indians” and not “tribal members.” Congress quickly reacted with what some scholars call the “Duro Fix.” By amending the appropriate statutes, Congress used its plenary power to overrule the Court and affirmed “the inherent power of Indian tribes…to exercise criminal jurisdiction over all Indians.” Of course the federal government maintains jurisdiction over major crimes committed in Indian country. And of course the Duro Fix does not apply within P.L. 280 states. But, alas, this issue was not yet completely resolved. There arose a case in which a nonmember Indian was arrested for domestic violence and assaulting a federal officer. He argued that to be prosecuted by a tribe exercising authority delegated to it by Congress and also by the federal government violated his 5th Amendment protection against double jeopardy. In the 2004 case, United States v. Lara, the Supreme Court held that Congress correctly used its plenary power to recognize the inherent right of sovereign tribes to prosecute nonmember Indians. This recognition of an inherent tribal power is not a delegation of federal authority to the tribe. Therefore, since the tribe was not acting as a prosecuting arm of the federal government, Billy Joe Lara was being tried by separate sovereigns. And, therefore, his right to constitutional protection against double jeopardy is not violated.9 Tribal sovereignty in Alaska. The greatest measure of inherent tribal sovereignty – however limited – comes with occupying Indian country. This is because tribes can regulate land use, levy taxes, and still have jurisdiction over certain activities of nonmembers present on their lands. Today the only Indian country in Alaska is the Metlakatla Indian reservation on Annette Island in Southeast. In the 1998 case, Alaska v. Native Village of Venetie Tribal Government, the Supreme Court held that the other 228 federally recognized tribes in Alaska do not occupy Indian country. Therefore their self-governing authority has no territorial reach. Even if tribes own land transferred to them by ANCSA corporations, they have no sovereign authority over that land. They are simply owners of private property subject to state laws and regulations. Shortly we will look more closely at the Venetie Indian country case. But first let’s deal with the question: If Alaska tribes do not occupy Indian country, then what sovereign powers do they have, if any? The inherent sovereignty of tribal governments in Alaska was affirmed by Section 16 of the 1934 Indian Reorganization Act and the 1936 Alaska Native Reorganization Act. But without Indian country, the self-governing power of Alaska tribes is limited to internal affairs such as tribal enrollment and membership regulations. As we will see shortly, under certain conditions they have some jurisdiction over domestic disputes among their members. As federally recognized tribes, however, they do have the sovereign power to deal directly with the federal government, and they are eligible for the same federal Indian programs and services available to tribes in Indian country. They also possess sovereign immunity against lawsuits by members, other tribes, the state, and private firms a tribe may contract with to do business.
A major arm of an tribal government is its tribal court. According to Case and Voluck, there are in Alaska “over 100 tribal courts and councils…actively resolving disputes in Native communities…These courts are critical not only to tribal issues, but also to dispute resolution…in rural Alaska generally, because the great majority of communities lack a resident magistrate or other state court judicial officer.” As for the jurisdiction of tribal courts, the latest and most authoritative legal ruling we have on the subject is the 1999 Alaska Supreme Court’s decision in John v. Baker. This became a widely publicized child custody case because it dealt with the politically charged issue of tribal sovereignty in Alaska. The question facing the Court in John was whether Indian country was required for tribal courts in Alaska to have jurisdiction over domestic disputes involving tribal members.10 To answer this question the Court first went to the Marshall Trilogy for guidance by citing the federal government’s list of federally recognized tribes in Alaska which it labels as “domestic dependent nations.” The Court then reasoned that “tribes derive the power to adjudicate internal domestic matters, including child custody disputes over tribal children, from a source of sovereignty independent of the land they occupy.” Therefore, when voluntarily approached by members to resolve a dispute between them, Alaska tribes possess the inherent sovereign power to hear the case. Perhaps all that can be said at this time is that the powers and operations of tribal governments and courts in Alaska is still evolving, often in fits and starts. This is especially so regarding the relationship between tribal courts and the Alaska state court system. Even the application of federal Indian law to Alaska tribes not occupying Indian country remains somewhat unclear in certain areas.
4. The Political relationship between tribes and the federal government. Directly related to the doctrine of inherent sovereignty is the principle that tribes have a sovereign to sovereign relationship with the federal government. All federally recognized tribes in Alaska have this relationship, even if they do not occupy Indian country. Although this government to government “special” relationship” is, to say the least, between unequal sovereigns, it does afford tribes some protection against abuse from federal agencies, the states, and other outside adversaries. Often this is called a “trust relationship” because the federal government as supreme sovereign is legally obligated to provide these protections to tribes. As with the other Indian law principles, this doctrine finds its origins in the Marshall Trilogy. Recall in Worcester the Court’s conclusion that in the Treaty of Hopewell the Cherokee only acknowledged their status as a domestic dependent nation under the protection of the federal government. They did not relinquish their right to self-government, a right to be protected by the federal government. This is where Marshall crafted his famous line, “protection does not imply the destruction of the protected.” This special or trust relationship between the United States and dependent Native American tribes continues to play a crucial role in current Alaska Native affairs. A prime example is the federal government’s continued insistence on a rural subsistence priority in Alaska law before the state can takeover the management of fish and game on federal lands, all of which comprise 60% of the state’s landmass. This federal demand is based in large part on honoring its trust obligation to protect tribal resources, including access to life-sustaining and culturally vital fish and game resources. (The next chapter contains a fuller discussion of the rural subsistence priority issue and its origins in ANCSA.) An example of where the federal government has utterly failed its trust obligation to protect Indian resources is the more recent revelation about the massive loss of individual Indian trust funds through mismanagement by the Interior Department and the BIA. This has become a huge law case, with the Native American Rights Fund (NARF) serving as legal counsel to many of the Indian plaintiffs. In reference to the 1887 Allotment Act, NARF explains that these trust assets are not government handouts but money belonging to some 300,000 individual Indians. This money was mostly gained from farming and grazing leases, timber sales, and oil and gas production on their allotted Indian lands. On the estimated amount of money involved, NARF suggests it could be as high a $2 billion. As for how long it will be before this issue is resolved, there is still no end in sight.11 Because it is a political relationship between sovereign governments, federal programs and services exclusively for Native Americans are not considered race-based and, therefore, do not violate the equal protection provisions of the Constitution. The same applies to federal law authorizing an “Indian preference” when hiring personnel for the BIA and other agencies directly serving Indians. Of course Native Americans are, like everyone else, citizens of the United States. But these programs are for Native Americans as members of dependent tribes, not as American citizens of an Indian race. Indeed, Congress and the courts have created an entire body of constitutionally derived common law based on the political nature of the federal relationship with tribes. The Supreme Court has weighed in heavily on this issue. In the 1974 case, Morton v. Mancuri, the Court heard a complaint by a non-Indian claiming his 5th Amendment protections were violated when he was denied a position with the BIA solely because of his non-Indian race. After examining American Indian history and American Indian common law, the Court said:
However, the Supreme Court did place two limitations on the use of the Indian preference statute. It is a) restricted to federal Indian service agencies and b) only members of federally recognized tribes are eligible to be hired and promoted under its provisions. With this in mind, let’s see what happened when the North Slope Borough passed a Native hire preference in 1997. Also keep in mind that Natives make up 70% of the Borough’s population. In the 1999 case of Malabed v. North Slope Borough the Alaska Supreme Court ruled that the Borough’s Native hire ordinance violates the equal protections provision of the Alaska constitution. Moreover, Alaska law cannot be preempted by federal law because this Native hire ordinance fails the Mancuri test in two ways. First, the Borough is not a dependent tribe to which the federal government has a unique political relationship. Secondly, the hiring preference cannot be reasonably tied to furthering Native self-government because a borough is an Alaska state political district and not a tribe. [Federal preemption = when in conflict with state law, it is federal law which prevails, thus preempting state law.] But what about ANCSA corporations? They are neither federally recognized tribes nor local government units like the North Slope Borough. But certainly they have been established to further the welfare and self determination of Alaska Natives. This is a Native preference question yet to be tested in court. On this issue, what do you think of the following argument provided by one legal scholar?
The American common law principle that Native rights are not based on race but on a political relationship between sovereigns is often misunderstood by the general public. Here is a useful way to think about it: If the Natives contacted by American settlers and officials had been white, the same set of Native rights and the same government to government relationship historically established through treaties, congressional statutes, and court decisions would apply to them. Canons of Construction. There is one other element of federal Indian law we must discuss. In the early days of Indian treaty-making, it soon became apparent that differences in language and culture placed tribes at a severe disadvantage in the negotiating process. Tribes would later find that the document they signed was not at all what they understood it to mean. Not surprisingly, legal controversies arose from this confusion and sometimes from deceitful methods used by federal government negotiators. As a result, the Supreme Court found it necessary to establish a special set of rules for American courts to follow when hearing disputes over the language and meaning of treaties and other congressional actions dealing with tribal rights. Here again we start with the Marshall Trilogy and Worcester v. Georgia. Recall Georgia’s argument that the Cherokee had given up their sovereignty when they signed the 1785 Treaty of Hopewell. The treaty language Georgia cited as supporting evidence is in the Ninth Article, which reads:
On its face, this treaty provision – especially the words, “and managing all their affairs” – can be interpreted to mean the Cherokee relinquished their sovereignty. But John Marshall said not so fast Georgia. He insisted this provision be viewed in light of a) the treaty’s overall intent to achieve peace and regulate trade between sovereigns, b) that similar language in previous treaties always referred to the tribe’s foreign affairs, not to their internal affairs, and c) because of language and cultural differences, it is only right that a treaty be interpreted as the Indians understood it to mean. And certainly the Cherokee did not mean to sign a peace treaty that gave away their internal sovereignty. With this analysis of the Hopewell Treaty, Marshall established rules for later courts to follow when reviewing disputed Indian treaty language. It is the origin of what is known in federal Indian law as the Canons of Construction. These are procedural rules followed by judges in Indian law cases. When used in everyday speech, “Canons” most often refers to church teachings the faithful are obligated to follow. In federal Indian law it refers to standards used by courts to resolve disputes over the meaning of treaty language or the legislative intent behind a statute affecting Indians. Recall that in the eagle feathers case the Court examined both a treaty and a congressional statute. The term “Construction” does not refer to the building trades. When speaking legally, it derives from the verb “to construe,” which means to construct a legal interpretation from unclear or unprecedented case materials, much as the Court did in the Marshal Trilogy. Over time three primary rules or canons of construction developed for adjudicating disputed Indian treaties. The first is “ambiguous expressions must be resolved in favor of the Indian parties concerned.” Secondly, “Indian treaties must be interpreted as the Indians themselves would have understood them.” Thirdly, “Indian treaties must be liberally construed in favor of the Indians.”13
But what about congressional statutes like ANCSA? After all, Congress ended Indian treaty-making in 1871 and federal Indian policy has since evolved mainly as statutory law. What canons, if any, now guide the courts when disputes arise over the intent of congressional action regarding tribal rights? Basically, the earlier canons have been rolled into one fundamental rule: Congress cannot diminish or extinguish a tribal right or power without a clear statement of intent to do so. This is also called the “explicit statement” rule. If there is doubt about statute’s intent, then courts should rule in favor of the tribe. Vague expressions of congressional intent cannot stand. If Congress disagrees with a court’s decision, they can always amend the original legislation to clarify its intent. As we saw in the Kansas Delaware case, courts are quite aware of Congress’s plenary power over Indian affairs. But they want that power exercised with great care and to be “fully consistent with the Nation’s recognized obligations to Indian tribes.” In a sense, this is how the American judiciary fulfills its part of the federal trust responsibility to Indian tribes.15 Lastly, it is important to understand that unlike the four principles of federal Indian law, the canons of construction are not legal doctrine. Although they are well established procedures for guiding courts in Indian law cases, they are not law. There may be very good reasons for criticizing a court decision which failed to apply the canons when ruling against a tribe. But this is a question of judgment and not of law. The Supreme Court’s decision in the Venetie Indian country case is a good Alaskan example of when one might ask: What happened to the canons of construction? The Venetie Indian country case. When passing ANCSA, Congress gave the Neets’aii Gwich’in people of the Chandalar Indian reservation a choice. They could forego financial compensation and take fee title to all of their former reserve. Or they could fully participate in ANCSA and receive a money settlement but retain only portions of their former reserve. The Neets’aii Gwich’in chose the first option. Then as shareholders, they voted to dissolve their village corporations and transfer their lands to the Venetie tribal government, a joint governing council representing the Native communities of Venetie and Arctic Village. Proceeding on the assumption that they occupied Indian country, the Venetie tribal government levied a tax on a construction company doing work for the state on tribal land. The state then asked the courts to stop the tax. The state argued in federal court that ANCSA had extinguished Indian country in Alaska, even on lands held in fee by tribal governments. The only exception was the Metlakatla Indian reservation. After the 9th Circuit Court upheld Venetie’s claim to occupy Indian country, the state appealed to the Supreme Court. The Court granted the appeal and handed down a final decision in the 1998 case, Alaska v. Native Village of Venetie Tribal Government. The Venetie tribal government’s basic argument was that their lands had been validly set aside for their occupation under the superintendence of the federal government. Therefore they met the requirements for Indian country as defined in the 1948 Indian country statute. Furthermore, their fee lands fit that statute’s category of a dependent Indian community. They reminded the Court of its 1913 Sandoval decision classifying the Pueblo of New Mexico as a dependent Indian community and affirming Pueblo fee lands as Indian country. And therefore like the Pueblo, the Venetie tribal government retains the same inherent sovereign powers possessed by any tribe occupying Indian country. The Supreme Court disagreed. The Court held that Sandoval and similar precedents do not apply because Congress intended ANCSA to extinguish Indian country in Alaska. It matters not whether ANCSA fee lands are held by a Native corporation or a tribal government. The Court said Congress intended state chartered Native for-profit corporations to serve as an alternate path to Native self determination. The historic Indian country- sovereignty model was replaced by a free market corporate model which, in the language of ANCSA, avoids establishing “any permanent racially defined institutions, rights, privileges, or obligations.” The Court did indicate, however, that Native allotments, townsites, and the few parcels of remaining trust lands may qualify as Indian country if they are under federal superintendence. Disappointed tribal leaders and Indian law scholars did indeed ask: What happened to the canons of construction? Does not the phrase “racially defined institutions” become ambiguous when examined in light of the essential Indian law doctrine that tribes are political entities, not racial entities? Nothing in ANCSA clarifies this confusion. Furthermore, ANCSA is quite clear on its extinguishment of Native aboriginal title to land and any existing aboriginal rights to hunting and fishing in Alaska. But nowhere in ANCSA is there any mention of Indian country or tribal sovereignty, let alone an explicit statement of extinguishment. Recall that the 9th Circuit Court of Appeals came to an entirely different conclusion, ruling in favor of Venetie’s claim to occupy Indian country. One significant difference between the two court decisions is that the 9th Circuit applied the canons of construction whereas the Supreme Court did not.16 Venetie: a lesson in common law. Along with the other interesting questions it raises, Venetie also illustrates the common law connection between the legal interests of Alaska Natives and Lower-48tribes. Venetie’s defense was argued before the Supreme Court by Heather Kendall Miller, a Tanaina Athabaskan who heads the Anchorage office of the Native American Rights Fund. The legal brief they submitted to the Court illustrates this connection. As common law precedent supporting Venetie’s argument, NARF cited over seventy decisions by federal courts going back to the Marshall Trilogy, a full thirty-six years before Alaska Natives became part of the American empire. Of these cited precedents, forty-two (60%) were decisions on the legal status and rights of Lower-48tribes and how they applied to the Venetie case. In support of its opposing arguments, legal counsel for the state of Alaska cited fifty-two cases of which thirty (57%) dealt with Lower-48tribal issues. Alaska may be a distant part of the United States with unique histories, cultures, and environments. But Venetie tells us that when it comes to law and policy, Alaska Natives and Lower-48tribes share the same civic history. (Incidentally, the state of Alaska’s chief legal counsel in Venetie was John Roberts, the current Chief Justice of the United States Supreme Court. ) A final word. Complexity and frustration are the realities of federal Indian law and we must squarely face these realities when we study its doctrines and practices. At the same time, those of you who are advocates for strong tribal rights should not surrender to pessimism. Tribal rights may not have the ultimate legal standing of the individual rights enumerated in the Constitution. But they are still constitutionally derived common law rights. Indeed, tribes still have substantial common law precedent for making the argument: These are your own American legal principles. All we ask is that you abide by them! What we should be thinking about – key study questions:
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