Vine Deloria Jr. has vigorously insisted for years that it is impossible to understand how the coordinate branches of the United States government arrive at policy decisions regarding the constitutional and treaty rights of American Indian tribes, and individuals constituting these tribes, without total immersion in a historical context. He argues that legal scholars, jurists, politicians, and bureaucrats have reduced what is inappropriately known as "federal Indian law" to such a point that "legal theories are tested not by comparison with reality, but by comparison with abstractions which idealize human rationality in order to give to events and incidents a sense of meaning which they would not otherwise enjoy."' The process, Deloria says, represents what Alfred N. Whitehead once termed, in a different context, "the fallacy of misplaced concreteness." This fallacy entails the assumption that familiar abstractions represent absolute reality and is linked with the belief that it is only when certain methodologies are used that truth can be discerned. Deloria argues that "federal Indian law" is the epitome of this sort of intellectual activity. "It conveys," says Deloria, "almost no significant meaning, it rarely is tangent to the world of human affairs, and it covers a multitude of historical sins with the shellac of legality."
If the tribal nations of North America had been organized into a monolithic unit, as the inaccurate but persistent term "Indian" implies, it might have been possible for the federal government to develop a coherent body of legal principles and relevant doctrines to deal with them. Such was not the case then, nor is such a code even remotely possible as we come to the end of the twentieth century. Today, there are over 550 "federally acknowledged tribal entities," each of which has a unique history of cultural and political relations with the United States. (The term federally acknowledged tribal entity is used by the Bureau of Indian Affairs to identify the various indigenous groups which are recognized as having a political relationship with the federal government—it includes tribal nations, bands, villages, communities, and pueblos, as well as Alaskan Inuits and Aleuts.) The quoted figure does not include state-recognized tribes, nor does it include the more than one hundred nonrecognized groups which are in the process of petitioning the federal government in the hope of securing federal recognition.
We see, then, that "federal Indian law" as a discipline having coherent and interconnected premises is wholly a myth; however, the United States Supreme Court, the institution responsible for producing much of the data cumulatively referred to as "federal Indian law," is certainly a real institution, operating with a distinctive collective consciousness unique to American governmental institutions. It is this particular institution and fifteen of its policy products—Supreme Court decisions—that will occupy my attention throughout this study.
Supreme Court cases are the epitome—the most succinct enunciation—of what is termed "the law." This phrase conveys a multitude of views, ideas, constructs, and interests. "The law" is alleged to be neutral, free of bias, and rational; in reality, of course, it is none of these. Nevertheless, the "legal scientist," Thurman Arnold's term for individuals who make their living articulating the law, "is compelled by the climate of opinion in which he finds himself to prove that an essentially irrational world is constantly approaching rationality; that a cruel world is constantly approaching kindliness; and that a changing world is really stable and enduring."
In Arnold's powerful work The Symbols of Government, he describes the law as the "most mysterious and most occult" of the disciplines of learning' because the student, as well as the average person, is led to believe that "the law" entails something more than legal texts and institutional habits. Arnold describes how, despite irrefutable evidence to the contrary, people persist in believing that there are basic "principles of law" which exist independent of particular cases or specific human activity. Law exists, he says, rather because "humanity cannot find comfort without it." The fundamental principles of law, according to Arnold, "do not represent what we do, but what we ought to do. The science of law is not the method which judges actually use, but the method which they ought to use." The major function of these vaunted principles is to comfort us through control of society because belief in the sanctity of law is essential to the perpetuation of the dream that the United States is a perfectible society.
I intend to demythologize "the law," as expressed through the language of fifteen Supreme Court opinions that have affected Indian law, by focusing upon the broad institutional, societal, and, most important, historical effects of the Court's very political activities. These decisions have not only had a tremendous, often devastating, impact on tribal sovereign status and aboriginal land title, but they have also contributed significantly to the confusion surrounding relationships between tribal governments and the U.S. government. They have elevated congressional authority vis-à-vis tribal nations, and they have alternately reaffirmed and ignored the principle of judicial deference to the political branches. In addition, they have dismantled treaty rights, adversely affected the status of individual Indians, constricted—and in some cases eclipsed—tribal criminal jurisdiction, and seriously jeopardized the practice, nay, the very existence of Indian spiritual ways.
I have selected fifteen cases (see Appendix A), beginning with the 1823 Johnson v. McIntosh decision, in which the court grappled directly with the issue of indigenous property rights, and concluding with the 1992 County of Yakima v. Yakima decision in which the Supreme Court revived a voided federal statute to allow a county government to impose a tax on Indian lands. These cases are the most egregious examples of precedent in which the Court has applied linguistic semantics, rhetorical strategies, and other devices to disempower tribal governments and to disenfranchise individual Indians.
The Supreme Court has also handed down a host of equally powerful opinions which have affirmed the sovereign or semisovereign status of tribes and recognized their inherent rights as governments, independent and separate nations not beholden to the United States Constitution for their existence. These positive outcomes for American Indians have received attention by a number of worthy scholars, and I encourage readers to consult their works." My project here is, rather, an in-depth analysis of exceptions to this affirmative judicature to show how indeterminately "the law" has been applied to tribal groups.
David Kairys commented in With Liberty and Justice for Some that "the legal system's emphasis on principles, ideals, and consistency and the tradition of offering at least some explanation for the results of decisions affects some outcomes and is preferable to naked or wholly unaccountable force ... [L] aw is driven and determined by people rather than disinterested or neutral logic, reasoning, or methodology...." Through the data and analysis presented here, I demonstrate beyond a reasonable doubt that on many occasions the Supreme Court's rulings have had little to do with logic, reasoning, or legal ideals. This is an important issue, because within the field of Indian policy and law, many people—especially lay individuals (both tribal and nontribal) and many political and legal commentators as well—have made "the law" into something that people are expected to prostrate themselves before. Many believe that if a policy is laid out in "the law," and particularly if it is a Supreme Court decision, that pronouncement is somehow unassailable. The notion that Supreme Court justices are infallible has certainly been damaged by the revelations of the Bork and Thomas confirmation hearings, but the High Court's decisions, pluralistic as many of them now are, continue to resonate with authority and legitimacy even when their legitimacy and authority can be questioned, especially from an indigenous perspective.
The air of sanctity that Supreme Court cases exude was especially pronounced in the initial 170 years of the Court's history, when preexisting tribal political and property rights were first addressed by the Supreme Court, almost always without any direct tribal or Indian involvement in the litigation. The extraconstitutional status of tribal nations, affirmed by hundreds of Indian treaties, and the placement of tribes in the Commerce Clause of the U.S. Constitution as distinctive polities, continues to form the broad but still largely tenuous parameters of the tribal-federal relationship. This unique political relationship became even more complex in 1924 when the United States unilaterally imposed federal citizenship on all Indians who were not yet citizens. The result was that while Indian individuals were now recognized as federal and state citizens they nevertheless retained their tribal citizenship. This meant, as the Supreme Court later determined, that whereas Indians were indeed entitled to federal benefits and privileges of citizenship, the federal government still enjoyed virtually unlimited political authority over their lives, property, and rights due to their status as "Indians by race." States, by contrast, have been hobbled in their efforts to deal directly with tribes because of the Indian Commerce Clause in the Constitution, which federalized the tribal-federal relationship. Interestingly, even with federal and state citizenship, individual Indians enrolled in recognized tribes still are not guaranteed the most basic constitutional protections enjoyed by nonindigenous Americans.
Throughout these selected fifteen cases, the actions of the Supreme Court, characterized by self-interest, political expediency, and cultural arrogance, have generated and reified a number of novel extralegal and extraconstitutional doctrines (e.g., doctrine of discovery, domestic dependent nationhood, wardship/dependency status, plenary power, geographic incorporation, implicit divestiture) which have often been used to mask questionable federal and administrative activities against tribes and individual Indians.
This study analyzes the genesis, evolution, and transformation of these legal constructs and the ramifications they have had and continue to have on tribal sovereignty and Indian rights. In effect, the "rule of law" has been utilized by the Supreme Court to make political actions of the United States appear legitimate and lawful, although tribal nations are not afforded constitutional protection because they were not created pursuant to, and are not beholden to, the U.S. Constitution.
The political independence of the Court, vacillations in federal Indian policy—from the assimilation of Indians to a recognition of tribal political separatism—and conflicts over federal and state jurisdiction regarding tribes enable the Court to exercise a tremendous amount of discretionary authority when it comes to handling Indian issues. As a coordinate branch of the federal government, the Court has generally chosen to act in one of two ways. First, it tends to defer to the Congress by presuming that the political branches always have acted in "good faith" toward tribes. At other times, it has felt compelled to create a fictitious congressional intent to legitimate what Congress has done, regardless of whether the legislation originally had anything to do with Indians or not. Arnold has noted that the Supreme Court "should be the concrete dramatization of the ideal that there is a power which prevents government action which is arbitrary, capricious, and based on prejudice." However, the fifteen cases I will be discussing in these chapters depict a Court that often acts arbitrarily, capriciously, and prejudicially.
Critical legal and historical analysis of these fifteen cases, review of other historical and political materials, and appropriate discussion of the social context and individual backgrounds of some of the justices should go far toward explaining why and how the Court arrived at these important Indian law decisions. More importantly, this discussion leads to a larger issue of why the core democratic concepts of fairness, justice, and consent of the governed have not yet been fully realized for tribal nations and their citizens despite clearly pronounced treaty rights, federal policies of Indian self-determination and tribal self-governance, positive judicial precedents, and a triple citizenship.
Theoretical Framework: Critical Legal Theory and Masks of the Law
The political struggles that have plagued the tribal-federal relationship beg for clear, preferably simple, explanations; however, the complexity of this relationship prevents such simplistic answers. In analyzing the fifteen cases, a broad, dual-theoretical framework is needed to provide plausible explanations for the Court's major Indian law decisions. Critical Legal Theory with the creative approach developed by John T. Noonan Jr. was chosen to provide theoretical guideposts for this study of the Supreme Court.
Advocates of Critical Legal Theory (Crits) posit that the Supreme Court operates with a distinctive "legal consciousness," which serves a critical role as a perceptual filter, as well as a perceptual pool, that binds even apparently disparate decisions together." This consciousness is not easily measured and so is unquantifiable.
Duncan Kennedy suggests, however, that legal consciousness is an entity "with a measure of autonomy." He defines it as "the particular form of consciousness that characterizes the legal profession as a social group at a particular moment. The main peculiarity of this consciousness is that it contains a vast number of legal rules, arguments, and theories, a great deal of information about the institutional workings of the legal process, and the constellation of ideals and goals current in the profession at a given moment." It is, moreover, a combination of intellectual operations and terms that develop according to a unique pattern. Critical legal theorists stress that legal consciousness can influence results that are distinguishable from those of economic interest and political power. According to Kennedy:
The notion behind the concept of legal consciousness is that people can have in common something more influential than a checklist of facts, techniques, and opinions. They can share premises about the salient aspects of the legal order that are so basic that actors rarely if ever bring them consciously to mind.
Yet everyone, including actors who think they disagree profoundly about the substantive issues that matter, would dismiss without a second thought (perhaps as not a legal argument or as simply missing the point) an approach appearing to deny them.
These underlying premises concern the historical background of the legal process, the institutions involved in it, and the nature of the intellectual constructs which lawyers, judges, ana commentators manipulate as they attempt to convince their audiences.
Critical legal theorists argue that during the late nineteenth and early twentieth centuries, a common ideological consciousness arose among leading academics, practicing lawyers, and jurists that cut across divisions in practice specialty and political orientation. This new form of legal thought amounted to a rationalistic restructuring of the legal universe that Mensch calls "classical legal thought." As American economic and social life was being transformed, the legal elite, including the Supreme Court, joined forces with treatise writers and leaders of the bar to share a view of the "law" that allied the legal profession with science "against both philosophical speculation and the crudities of democratic politics."
During this classical period, the legal elite transformed its attitude about the set of legal relationships that make up the American legal system—private citizen to private citizen, private citizen to state, legislature to judiciary, and federal to state government. Previously these relationships had been seen as qualitatively distinct; during the period in question they came to be regarded as four distinctive instances of a single general relationship. The role of the judiciary, then, "was the application of a single, distinctively legal, analytic apparatus to the job of policing the boundaries of these spheres."
The fact that tribal nations were outside this legal matrix meant that the Supreme Court either deferred to the political branches or drew from the limited bank of information about tribes, with all its cultural biases, that had accrued within the Court's own institutional memory and judicial consciousness, which rarely afforded a realistic picture of tribes or their own indigenous institutions of governance. Evidence of this ideological consensus can be found in the fact that of the ninety Supreme Court cases involving tribal sovereignty during this historical era, there was written dissent in only five: The Cherokee Tobacco (1871); Leavenworth Railroad Company v. United States (1876); Elk v. Wilkins (1884); Choctaw Nation v. United States (1886); and Donnelly v. United States (1912).
Advocates of Critical Legal Theory argue that conflicting decisions are made because they are based on different and often controversial moral and political ideas. Neither lawyers nor jurists can provide simple answers to complex political and legal questions because the legal system, like society at large, is unable to reconcile the contradictory instincts that arise when people confront social problems. Rather than deciding which of these conflicting instincts to follow, "the law" seeks to embrace them all. Critical Legal Theory argues that "law" is really politics clothed differently and that it obscures the nature of judicial decision making when courts and legal commentators present legal issues as if they were objective or even relatively objective matters of legal reasoning rather than political choices. A significant strength of this intellectual approach to understanding law is that it seeks a theoretical and practical understanding that places juridical institutions and individual actors in their social and historical contexts.
The "Masking" of Justice: Law as Magic
John T. Noonan Jr., in his telling study Persons and Masks of the Law, offers incisive observations about the place of "persons" or—for my purposes—tribes and tribal citizens in the law. His thesis is that people involved in cases in the American legal tradition are often given "masks" that conceal their true character. These masks, as Noonan defines them, are "legal constructs which suppress the humanity of a participant in the process." Noonan's primary example is the case of African Americans and the institution of slavery. The humanity of blacks was shielded, "masked," in American law behind various descriptions normally reserved for property of one sort or another (real, personal, etc.). Once "the law" had characterized blacks as "property," they could then be sold, bartered, or even killed without the legal system's actually confronting the fact that African Americans were human beings entitled to basic human rights and liberties.
Noonan explains how "enlightened" individuals like Thomas Jefferson and George Wythe, "though supporting liberty and advocating emancipation of slaves, actually did nothing, even when vested with political power, to end slavery." He points out that they accepted the entrenched legal framework that had codified the institution of slavery. As a result, they ignored the humanity of African Americans by placing "masks" or legal constructs on both their own feelings and those of the slaves, thus magically removing humanity from the legal process.
For Noonan, there are two basic kinds of masks—those that are imposed on others (as "property" for slaves), and those that are put on oneself (as the "Court" in the mouths of judges and "the law" according to judges, law professors, and attorneys). These masks are socially fashioned and are dangerous because they "have been stamped with approval by society's official representatives of reason."
The Supreme Court's Indian decisions are also pocked with such masks. Tribes have, at various times, been defined by the Court as a "culturally deficient" set of individuals who were "in need of cultural improvement"; as "domestic-dependent nations" which were alleged to be dependent upon the federal government at a time when they were legitimate independent sovereigns subject to no other political power; and as "dependent wards," who were (and in some cases still are) subject to virtually omnipotent paternalistic federal guardians. The Supreme Court has manufactured or refined other "masks" to justify intrusions on tribal sovereignty at the federal, state, and, recently, the county level: the doctrine, later appropriated by federal officials, that the "discovery" of America by the European countries vested an absolute property title to the discovering nation, thereby reducing tribal claims to aboriginal lands to those of a mere tenant; the political question doctrine which for nearly a century and a half denied tribes a legal forum for the adjudication of their rights of lands, treaty enforcement, etc.; the theory of congressional and even federal plenary power over tribes; and the so-called trust doctrine.
Although crediting the Marxist argument that "masks are often employed by the ruling class to protect their own interests above those of the lower classes," Noonan notes that legal constructs are not simply tools of power, nor are they acts of "violence." The legal process "aims at compromise, avoidance of conflict, peaceful direction of conduct." Masks cannot be treated "as armament." Instead, they are more aptly conceived as a "set of communications," as "magical ways by which persons are removed from the legal process."
A synthesis of Critical Legal Theory and Noonan's approach will go far toward providing a conceptual framework to explain the fifteen Supreme Court cases that will be examined in these chapters. Both emphasize a concept of the law as "masks." Both agree that "law" must be placed in the larger historical and social context. A significant difference, however, is that while Critical Legal Theorists speak of "law" as primarily a legitimating device utilized by elites situated at the top of the social, political, and economic hierarchy, Noonan asserts that "law" affects not only those it is used against but those who wield it as well. In other words, while the justices may seem to be masters of the law, there are also times when the law masters them.
The conjunction, therefore, between the basic premises and legal constructs offered by Critical Legal Theory and Noonan's characterization of legal "masks" operating with reciprocal effects on both sides of the legal equation supports and gives additional convincing argument as to why the Court treats tribes and their members the way it does. Further evidence that the Court operates with a distinctive consciousness is seen in the fact that the judiciary has never voided a single congressional act that diminished or abrogated any inherent or aboriginal tribal rights. And while the Rehnquist Court is willing to challenge congressional authority in other areas of law (e.g., interstate commerce), and has occasionally rendered decisions which seem to conflict with current congressional Indian policy, which in recent years has emphasized a measure of tribal self-determination, the Court and the Congress still adhere to the historically and constitutionally inaccurate idea that places tribes in a subservient political/legal position to the federal and sometimes even the state governments.
From the beginning of its relations with the Indians, the Supreme Court's legal consciousness has stressed tribes' allegedly inferior cultural, political, technological, social, and spiritual status in relation to the prevailing lifestyle of Euro-America. This judicial predisposition can be divided into three types, constitutional/treaty, civilizing/paternalistic, and nationalist/federalist, each wielding a distinctive set of "masks" that have been fashioned to symbolize the legal process and conceal or disfigure the humanity of all of the actors in the legal drama. In the analysis that follows, each type of consciousness is accompanied by one or more sets of legal masks which are examined with specific comments relating to the parties, the law, and the Court.
The basic assumption of this legal consciousness is that constitutional or treaty considerations (i.e., ratified treaties or agreements) are the only relevant instruments for the adjudication of a legal dispute between tribes and federal/state governments. This consciousness is evident in Supreme Court opinions dealing with tribal sovereignty which generally acknowledge the inherent sovereignty of tribal nations and their preand extraconstitutional aboriginal rights of self-government. These decisions have generally left tribal nations free of the constitutional constraints applicable to the states and the federal government.
This consciousness has usually employed the following masks: for the parties, one party (the Congress) is understood as being within the Constitution's purview, while the other (tribes), is understood to be outside its parameters. The two parties are politically connected by ratified treaties or the treaty-type of agreements that are recognized under the Constitution as being the "supreme law of the land," and by tribal tradition and custom as being "sacred covenants."
In a mask for the legal process, the Court is seen primarily as a legitimator of policies developed by the political branches. This is an orthodox version of the Court as a body that represents self-restraint and functions primarily as an interpreter of the Constitution, not as a policymaking entity. In this "model of law" approach, the Court is seen as an agent for interpreting and applying preexisting laws: it is bound, although not absolutely, by the doctrine of stare decisis (past precedent). In most of the Supreme Court cases utilizing this legal consciousness tribes have been victorious. Such victories included Worcester v. Georgia (1832), which affirmed the sanctity of Indian treaties; The Kansas Indians (1866), which acknowledged the distinctive political standing of tribes and their freedom from state interference; Ex parte Crow Dog (1883), which recognized the inherent sovereignty of tribes; and Talton v. Mayes (1896), which discussed the extraconstitutional basis of Cherokee sovereignty and many other historical and contemporary cases.
Of the fifteen cases examined herein, only one, United States v. Sioux Nation (1980), can be classed under the constitutional/treaty category. But even this pro-Indian decision was not a complete tribal victory, because the Court perpetuated several masks that have diminished the sovereignty of tribal nations without tribal consent. The writings of the legal commentators who argue that the Supreme Court is the tribes' most articulate and best friend focus almost exclusively on constitutional/ treaty cases and choose to ignore or downplay the significance of the other two types of judicial consciousness and the decisions they evoke. I choose to reverse this order and focus, with the exception of Sioux Nation, exclusively on those cases that demonstrate the latter two types of judicial masking.
The basic assumption of this type of legal consciousness is that "the law" is the most effective instrument for civilizing indigenous (read: primitive) peoples who are considered culturally inferior. An excellent example of this view can found in a federal district court case, United States v. Clapox (1888). This decision involved a determination of the status of the federally created Courts of Indian Offenses (referred to by the acronym COF for the Code of Federal Regulations from which they sprang) that had been developed by the Bureau of Indian Affairs in 1883. These courts, manned by agent-appointed Indian judges, were charged with enforcing a Code of Federal Regulations designed to "civilize" and assimilate Indians by punishing tribal members who engaged in tribal dances, polygamy, traditional healing ceremonies, or any activity deemed "heathenish" by the local agent and the commissioner of Indian affairs.
Commissioner of Indian Affairs Hiram Price stated in his annual report of 1883: "There is no good reason why an Indian should be permitted to indulge in practices which are alike repugnant to common decency and morality; and the preservation of good order on the reservations demands that some active measures should be taken to discourage and, if possible, put a stop to the demoralizing influence of heathenish rules."
Five years later, an Umatilla woman (identified as "Minnie") was arrested, tried by the COF, and charged with adultery. She was subsequently freed from jail by several friends who later were caught and charged with her jail break. When the case reached the federal court, the main issue to be addressed involved the status of the COF—as to whether they were constitutional courts organized pursuant to section I, article 3, of the Constitution or had been developed under some other authority. In explaining its decision, the court explicitly capsulized the general view of the federal policyrnakers of the time regarding Indian cultures. The court held that the offenses courts were not constitutional courts but "mere educational and disciplinary instrumentalities, by which the government of the United States is endeavoring to improve and elevate the condition of these dependent tribes to whom it sustains the relation of guardian. "In fact," said the court, "the reservation itself is in the nature of a school, and the Indians are gathered there, under the charge of an agent, for the purpose of acquiring the habits, ideas, and aspirations, which distinguish the civilized from the uncivilized man." Continuing this reasoning, the individuals who were responsible for Minnie's futile rescue were convicted and charged with "flagrant opposition to the authority of the United States on this reservation," and their actions were deemed "directly subversive of this laudable effort to accustom and advocate these Indians in the habit and knowledge of self government."
For most federal policymakers and many Euro-Americans in that era, the allegation of tribal cultural "inferiority" was justified in a number of ways. Tribes were viewed as technologically primitive. Federal lawmakers and early social scientists invariably classified all tribal-based cultures as hunter/gatherer societies, perceived as inferior to an agriculturalist-based society that had pride in its domestic industries. Finally, indigenous peoples were purportedly "pagans" or "savages," perceived as being without legitimate religious beliefs since they had little or no knowledge of Jesus Christ or the Christian church.
Some tribes, notably the Cherokee, Choctaw, Chickasaw, Creek, and Seminole (often referred to as the "Five Civilized Tribes"), and the various Pueblo groups, were, at least for the first century or more of U.S./ tribal interaction, perceived as being less savage or pagan than other tribes, although Pueblo status actually changed from a perceived "civilized" state in 1877 to a more "primitive" state in 1913. These tribes, therefore, were for a significant period treated with more leniency both by the Supreme Court and by the political branches. Nevertheless, for both the allegedly "wild" tribes and the so-called civilized tribes, a fundamental belief prevailed among most of the federal policymakers, including the Court, that all Indians could and should be culturally "elevated" with proper education, training, and spiritual (read: Christian) guidance. Hence, paternalistic policies (e.g., Christian missionaries funded by the federal government, boarding schools, reservations, and the individualization of tribal lands and funds) were developed by the Congress and sanctioned by the Supreme Court to impose this cultural transformation.
Civilizing/paternalistic consciousness generally employed three types of masks for the parties involved and the legal process. Two sets of masks were applied to tribal nations. The first caricatured certain tribes as "wild," "heathenish," or "savage" (tribes of the Great Plains, the Midwest, the Pacific Northwest, and the Desert Southwest—especially Navajo, Apache groups, Tohono O'odham, Ute, etc.). The second set portrayed the "Five Civilized Tribes" and others as "civilized," "peaceful," and "hardworking." Gradations of "savagery" were applied to the various tribes, and the Court vacillated in the manner in which it employed these masks. The masks for the Supreme Court, on the other hand, portray it, and by extension the federal government, as deeply moralistic, Christian, and nearly always above reproach.
The Law is masked as an absolutely essential element in moving Indian persons and tribes from an uncivilized to a civilized state. The focus here was never on whether or not such a cultural transformation was justifiable; rather it was on whether it would take place gradually or rapidly. The paternalism that characterized federal Indian policy during this era, also known, in a legal error, as the "guardian/ward" relationship, had two faces—it could be benevolent (viewing Indians as helpless children or incompetent wards), or it could be malevolent (viewing Indian lands, resources, and political rights as commodities to be unilaterally and forcefully taken or abrogated).
This third type of judicial consciousness holds at its core the assumption that law was conceived as a prime mechanism for furthering the political development of the United States as a nation-state. The process of political development is a topic of great interest for those attempting to shape their society, as well as for those attempting to understand the political world. Accordingly, one perspective holds that political development occurs "primarily in response to the development of the economic and social systems. Because of increases in the elements of modernization, such as greater economic development, urbanization, and social mobilization, there is a need for a more complex and more efficient political system."
Barrington Moore, for example, in his classic study Social Origins of Dictatorship and Democracy (1966), compared the three major roads taken by nation-states from the preindustrial to the modern world. He treated in detail the struggles of Great Britain, the United States, France, Japan, China, and India to achieve modernity. According to Moore, all the major capitalist democracies passed through a civil war or a period of revolutionary violence in which certain aspects of the old order were destroyed; he cites slavery and the Civil War (1861-1865) in the case of the United States. This transformation was necessary, Moore said, because slavery was incompatible with political development along democratic lines. In effect, the destruction of the institution of slavery made it possible for the social, political, and economic struggle to continue within a democratic framework.
After the Civil War, industrial capitalism advanced significantly. Important political changes included developments that involved the role of the federal government and "big property." A good example is the railroads, which received massive grants of land (in many cases tribally owned and inhabited), financial support, and property in the public domain. Similar developments occurred for timber and mining interests.
As the country's political structure struggled to mature in the last quarter of the nineteenth century, several key concepts emerged that would influence the shape and direction of nationalism. These included political democracy, political stability, political culture, political institutions, political participation, and political integration. While each of these. is an important concept, it is integration that bears special significance for the status of tribal nations in the United States. Political integration generally refers to the holding together of a political system; specifically, the two types relevant to this study are national integration and territorial integration. National integration is the "process of bringing together culturally and socially discrete groups into a single territorial unit and of establishing a national identity. This also involves plural societies, with distinct ethnic, religious, linguistic, or other groups and strata." Territorial integration, on the other hand, is the establishment of "national central authority over subordinate political units or regions. [It] means objective territorial control."
The United States has historically had an assimilative political culture in hierarchical structure (white in relation to blacks, Indians, and Asian Americans), within which there have also been parallel ethnic relations (WASP, Irish, Italian, Jewish, etc.). Political development has generated various responses to the problem of the national integration of indigenous groups: social engineering, assimilation, cultural genocide, partition (segregation), and expulsion. Of these, assimilation, or the effort to induce the merger of a politically subordinate cultural group into the politically dominant cultural group, has been the most persistent response. And the Supreme Court has occupied a central role in this assimilation campaign.
The Supreme Court's utilization of "the law" served not only as an instrument of "civilization," but also as the federal government's most vital and effective "instrument of empire building. " Hence, some of the cases that came before the Court involved questions relating to the diminished status of tribes, a status that often was denied any existence whatsoever. Related to this is a theory of federalism in which the Supreme Court, acting as a coordinate branch of the federal government, clearly identifies Congress as the only constitutional source entitled to deal with tribes. This policy development is in direct contrast to what African Americans have experienced. There, at least historically, the states were granted virtually free reign to assert their dominance over blacks. Tribal nations, on the other hand, were generally shielded from the states, though the shielding device used by the federal government was effective congressional omnipotence over Indian sovereignty and Indian civil, political, and property rights.
This legal consciousness used two different kinds of masks for the parties involved. The mask worn by federalizing agents viewed the United States as the core unit such that nonfederal entities must either be absorbed or vanquished. The masks applied by the Court to the tribes divided them according to degree of "savagery," as described above, into the assimilable and unassimilable, tribal nations that were deemed capable of being Americanized (from a Euro-American perspective) and joining the United States as separate, though integrated, political entities versus those mostly western tribes that were caricatured as "wild" and "uncivilized." In masking the legal process, Law was clearly an agent of national unity. During the late 1800s and well into the twentieth century, the Court rendered a number of decisions indicating a clear intent to dilute the extraconstitutional status of tribes by unilaterally declaring them "wards" of the government and disavowing their separate, independent status. The assertion of congressional power over tribal lands, resources, and rights is evidence of this nationalizing effort.
The three types of legal consciousness I have described are hypothetical, ideal concepts which rest on facts and assumptions that come directly from observation. They reflect the broadness of the continuum on which the Supreme Court operates. It should be pointed out that some cases will exhibit more than one form of judicial consciousness, and many will employ more than one set of masks.
By identifying the prevailing judicial consciousness and the attendant masks utilized by the Court which have served to deny or constrain the inherent sovereignty of tribal nations, I hope to establish a sense of the moral basis of law, the critical element that has seemingly been abandoned in American jurisprudence but is still fundamentally recognized by tribal nations in their understanding of treaties and federal statutes. In basic moral terms, tribal nations understand that their governmental powers, in the words of Milner Ball, "cannot simply evanesce and reappear in the hands of another nation's government." Nevertheless, during the course of the past two centuries, indigenous nations have often seen the Supreme Court's decisions work grave injustices against them, their lands, their political powers, and their cultural systems.
Tribal nations, we shall see, are fundamentally different from their neighboring sovereigns: ". . . different, not less developed: 806 different languages, a different spirituality, different aesthetics, different ways of living on and with the earth, different ways than capitalism and Marxism for putting people to work." The Supreme Court, however, often chase to deny or alter indigenous reality by legitimating federal and, in some cases, state, political goals which aimed at the eradication or transformation of indigenous differentness through the indeterminate language of the law.
This study is divided into seven chapters. Chapter 2 analyzes three cases, Johnson v. McIntosh, United States v. Rogers, and The Cherokee Tobacco case. Thematically, these three opinions dealt with aboriginal land title, defined the political status of tribes, provided justification for the notion of manifest destiny, and established the historic precedent that Indian treaties could be unilaterally overridden despite objections by any tribal nation.
Chapter 3 also focuses on three cases: United States v. Kagama, Ward v. Race Horse, and Lone Wolf v. Hitchcock. These cases established and reaffirmed the doctrine of congressional plenary power over tribes and their resources, sanctioned state authority over tribes, and articulated the precedent that treaties were merely "temporary privileges" that could be disallowed by the federal government.
In Chapter 4, three crucial cases are reviewed—United States v. Nice, Northwestern Bands of Shoshone Indians v. United States, and Tee-Hit-Ton Indians v. United States. Nice dealt with the status of Indian allottees, while Shoshone and Tee-Hit-Ton involved unsuccessful tribal efforts to protect aboriginal land holdings.
Chapter 5 scrutinizes Oliphant v. Suquamish Indian Tribe and United States v. Sioux Nation of Indians. Oliphant involved the question of a tribe's power of criminal jurisdiction over non-Indians, while Sioux Nation, the one case among my selections that has been interpreted as a "victory" for the tribal party by some commentators, involved land title and treaty rights.
Chapter 6 entails the three most recent cases: Lyng v. Northwest Indian Cemetery Protective Association, Employment Division, Dept. of Human Resources v. Smith, and County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation. These cases are powerful and traumatic examples of judicial decision-making involving tribes and individual Indians who are seen as lacking constitutional or statutory rights to freedom of religion. The growing issue of state/county jurisdiction over Indian-owned land is evident as these cases dictate a look into the future.
In a concluding chapter, I will bring this study to closure by highlighting the major themes and premises discerned and by taking a serious look at the short- and long-term implications of these historic Supreme Court decisions for tribes who persist in arguing that they retain an extraconstitutional standing as distinctive polities. In a modern democracy struggling to deal with issues of pluralism and multiculturalism, the issue is relevant. As Ball notes, "The very basic differentness of Indians is itself a source of instruction, a particularly important one for a powerful nation like the United States that finds itself needing to learn survival in a world composed of many nations whose unlikenesses are more and greater than their likenesses. Non-Indians have much to receive from Indians across the distance of their difference."