October 01, 2014

A Short History of Indian Law in the Supreme Court

by Matthew L.M. Fletcher

The history of federal Indian law in the Supreme Court is dynamic, controversial, and inspiring. The history starts with the earliest decades of the Supreme Court and tracks the growth of the American Republic.

Guiding Principles in Indian Law

The long history of Supreme Court decisions in Indian law has cemented several guiding principles. First, Congress has plenary power in the exercise of its Indian affairs duties. Second, the United States owes a duty of protection to Indian nations and tribal members akin to a common law trust. Third, Indian nations retain inherent sovereign powers, subject to divestiture only by agreement or by Congress. Fourth, state law does not apply in Indian country absent authorization by Congress. Finally, Congress must clearly state its intention to divest tribal sovereignty.

Modern federal Indian law has given space for Indian nations to exercise self-governance and to preserve tribal lands, economies, and cultures. But for too long before the modern era, the Supreme Court ratified the mass dispossession of Indian lands, exploitation of Indian resources by outsiders, and attacks on tribal cultures, governments, and economies.

Until the Warren and Burger Court eras, the Supreme Court deferred absolutely to Congress and the executive branch prerogatives in setting federal Indian policy, which usually was designed to undermine tribal self-determination. However, during the Warren and Burger Court eras, the Court increasingly pushed back on bad federal policy and became a leader in modernizing federal Indian law. Strangely, despite congressional and executive branch support for tribal self-governance since the 1970s, the Supreme Court often has continued to resist federal Indian policy, undermining tribal governance.

Beginnings

The history of Indian law in the Supreme Court opens with the Marshall Trilogy—Johnson v. M’Intosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); and Worcester v. Georgia, 31 U.S. 515 (1832). The Trilogy, primarily authored by Chief Justice John Marshall, established federal primacy in Indian affairs, excluded state law from Indian country, and recognized tribal governance authority. Moreover, these cases established the place of Indian nations in the American dual sovereign structure that still governs today.

Johnson is best known for the adoption of the so-called Doctrine of Discovery as the origin of American property title, but the case more properly should be known as the decision that established federal supremacy in Indian affairs over the states and individuals. The case involved a dispute over the ownership of parcels of land in the Ohio River Valley. Both parties claimed they had acquired title from Indian nations in the area, the Piankeshaw and Illinois Indians. The Supreme Court held that Indians could not sell their property interests— known to the Court as Indian title, original Indian title, or aboriginal title—to anyone except the national sovereign. Indian sales to individuals (as in this case) or to states or any other nation were void. The Court confirmed national authority over Indian affairs, which had barred all land and commercial transactions with Indians absent sovereign consent since at least the 1763 British Proclamation, a policy adopted by the First Congress in the 1790 Trade and Intercourse Act.

Congress reaffirmed federal supremacy over Indian affairs in the two Cherokee cases, Cherokee Nation and Worcester. There, the State of Georgia tried to assert the authority to legislate the Cherokee Nation’s government out of existence, and then to confiscate Indian lands and resources. In the first case, a deeply split Court held that the Cherokee Nation was a domestic nation, but neither a state nor a foreign nation. In the second case, the Court held that the state laws had “no force” in Indian country, barred under the Supremacy Clause by federal statutes and the Cherokee Nation’s treaties with the United States. Id. at 561. Of course, the Court’s decision favoring the tribe did nothing to prevent the political and military process that eventually forced the Cherokee people to undergo the Trail of Tears.

The Interregnum

The Supreme Court’s foundational cases allowed the federal political process— and all its attendant prejudices, inconsistencies, and complexities—to dominate Indian affairs after the Marshall Trilogy for a century and a half. A second trilogy of cases, informally known as the plenary power trilogy, memorialized the darkest decades for Indian people in American history. These cases—Ex parte Crow Dog, 109 U.S. 556 (1883); United States v. Kagama, 118 U.S. 375 (1886); and Lone Wolf v. Hitchcock, 187 U.S. 553 (1903)—explored the outer boundaries of congressional and executive power over Indian affairs, Indian lands, and even Indian lives—almost always without the consent of Indian people or Indian nations.

Federal Indian policy of the nineteenth century featured the wholesale removal of entire Indian nations from the East to what is now the central United States; large-scale and destructive warfare with Indian nations in the Southeast, the Great Plains, and the far West; and confiscation and exploitation of remaining and reserved Indian lands and resources by the United States and its citizens. Indian nations often became isolated on reservations or checkered parcels of detached lands in out-of-the-way regions.

The legal import of this isolation came to the forefront in Crow Dog and Kagama. In Crow Dog, leaders from the Sicangu band of Lakota Indians were conflicted over whether to concede additional lands and resources to the United States. Crow Dog, the leader of the group opposed to the concession, allegedly murdered Spotted Tail, the proponent of the concession. Federal officials wanted to prosecute Crow Dog under federal law, but the Supreme Court held that no federal statute or Indian treaty expressly authorized federal criminal jurisdiction over an Indian-on-Indian crime on Indian lands.

Congress quickly passed the Major Crimes Act, expressly authorizing federal criminal jurisdiction in such cases. Kagama was the first prosecution under the Act to reach the Supreme Court. For the first time, the Court addressed the source of Congress’ constitutional authority over Indian affairs and Indian country. The Court rejected the government’s contention that the Indian Commerce Clause authorized the extension of federal criminal jurisdiction over Indian country, the provision that Congress long had relied upon for much of its Indian affairs program. The Court held instead that more generalized federal interests in maintaining law and order on Indian lands, and protecting Indian people from states and their citizens, authorized the Major Crimes Act. 18 U.S.C. § 1153.

Meanwhile, Congress established allotment as national policy. Allotment involved the breakup of Indian reservations by “allotting” parcels to individual Indians and then selling “surplus” lands on the open market. Allotment was an unqualified disaster for Indian people, tribal governments, and reservation governance. Non-Indians quickly and efficiently acquired the most valuable allotted and surplus lands through legal and illegal means, and by 1928 two-thirds of the tribal land base disappeared.

Lone Wolf involved the objection to an allotment plan for the Kiowa- Comanche-Apache reservation. See generally Angela R. Riley, The Apex of Congress’ Plenary Power over Indian Affairs: The Story of Lone Wolf v. Hitchcock, in Indian Law Stories 189 (Carole Goldberg et al. eds., 2011). Under the terms of the treaty, two-thirds of the adult males of the tribes would have to consent before the treaty could be amended. Lone Wolf the Younger argued that the Americans fraudulently acquired the consent of the tribe and the allotment plan approved by Congress should be enjoined. The Court held that Congress had the authority to proceed with the allotment plan under its plenary power over Indian affairs, that federal altering of Indian property rights over tribal objections could proceed because the tribe would receive compensation, and that the Court would presume that Congress was acting in good faith in setting the terms of compensation. The Court seemingly held that Indian claims challenging congressional and executive branch decisions on Indian affairs were not subject to judicial review by the courts.

The Supreme Court’s extreme deference to the federal government’s Indian affairs policies extended to the mid-nineteenth century. The capstone plenary power decision has to be Tee- Hit-Ton Indians v. United States, 348 U.S. 272 (1955). See generally Walter R. Echo-Hawk, In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided 359 (2010). There, the Interior Department authorized the harvesting of valuable timber in the Tongass National Forest claimed by Alaska Natives. The Court held that Congress never vested Alaska Native property rights and that the taking of property protected by Indian title was not subject to the Fifth Amendment Takings and Just Compensation Clause.

The Modern Era

The Supreme Court reaffirmed inherent tribal authority in Williams v. Lee, 358 U.S. 217 (1959), a decision heralded by Charles Wilkinson as the first case of the modern era of federal Indian law. Charles F. Wilkinson, American Indians, Time, and the Law 1 (1987). A non-Indian shop owner sued two members of the Navajo Nation in state small claims court to force the payment of debts incurred at the store, which was located in the Navajo reservation. The Supreme Court modernized tribal sovereignty by holding that state courts do not possess jurisdiction to hear claims brought arising on Indian lands against Indian defendants without congressional authorization.

Following Williams’ lead in relation to state authority, the Court reaffirmed several principles initially announced in Worcester v. Georgia and its progeny—that states may not tax on-reservation transactions involving tribal members (for example, Warren Trading Post Co. v. Arizona State Tax Commission, 380 U.S. 685 (1965)), may not tax on-reservation income of tribal members (for example, McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973)), may not tax on-reservation tribal economic development projects (for example, White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980)), and may not regulate onreservation activity inconsistent with tribal government prerogatives (for example, New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983)). The high point for tribal interests was the Supreme Court’s dramatic rejection of the State of California’s effort to regulate tribal bingo operations in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).

Further following Williams’ lead in relation to tribal governance authority, the Supreme Court affirmed numerous aspects of tribal governance authority—including the power to tax members and nonmembers (for example, Washington v. Colville Confederated Tribes, 447 U.S. 134 (1980)), the power to prosecute Indian lawbreakers (United States v. Wheeler, 435 U.S. 313 (1978)), tribal sovereign immunity (for example, Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)), the power to adjudicate civil claims (for example, National Farmers Union Insurance Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985)), and the power to exclude persons from Indian lands (Merrion v. Jicarilla Apache Tribe, 445 U.S. 130 (1982)). The Court further held that Indian treaty rights remain extant unless Congress expressly abrogates them (for example, Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658 (1979)), and even then only if the government pays just compensation. Cf. Menominee Tribe v. United States, 391 U.S. 404 (1968). However, despite a lack of clear congressional guidance, the Supreme Court also held that Indian nations cannot prosecute non-Indian lawbreakers, Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), and that tribal civil jurisdiction over non-Indians is limited, Montana v. United States, 450 U.S. 544 (1981).

Despite significant limitations on tribal governance authority, the Supreme Court in the early decades of the modern era of federal Indian law marked the path of national Indian affairs, joining Congress in recognizing and encouraging tribal self-determination as the guiding principle in federal-state-tribal affairs.

Retrenchment

In recent decades, the Supreme Court has markedly shifted toward skepticism of tribal interests and tribal claims, and away from federal policies announced by Congress and the executive branch. See generally Wenona T. Singel, The First Federalists, 62 Drake L. Rev. 775 (2014). The Court routinely, though not always, has reversed presumptions favoring tribal interests and federal interests favoring Indian tribes. From the beginning of the Rehnquist Court to the current term of the Roberts Court, tribal interests have prevailed on less than one-quarter of the cases.

The turning point is not obvious, and some point to the Oliphant and Montana cases as the starting point, but the most vivid change occurred in Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989). There, the Supreme Court held that a state may tax a non-Indian company extracting natural resources from Indian trust lands on the Jicarilla Apache Reservation. The Court held that a tribe’s interest in its own reservation resources was not sufficient to preempt the state tax, even though the state tax created a double taxation scheme that effectively undermined the tribal tax.

The Supreme Court also held in a series of cases that tribal courts may not exercise criminal jurisdiction over all nonmembers, including nonmember Indians, in Duro v. Reina, 495 U.S. 676 (1990). Though Congress quickly corrected that holding in the so-called Duro fix, United States v. Lara, 541 U.S. 193 (2004), Justice Anthony Kennedy’s theory about why tribal governments may not exercise jurisdiction over nonmembers—because nonmembers have not expressly consented to tribal jurisdiction—continues to inform the Court’s views on tribal regulatory and tribal court jurisdiction. See, e.g., Plains Commerce Bank v. Long Family Land and Cattle Co., 554 U.S. 316 (2008); Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001); Strate v. A-1 Contractors, Inc., 520 U.S. 438 (1997). When informed that the Court’s decisions created jurisdictional loopholes or statutory contradictions, the Court directs tribal interests to Congress to deal with the problems. See, e.g., Duro, 495 U.S. at 696.

The Supreme Court has also been undeterred by the unique history of the relationship between Indian nations and the United States in its decisions. Recent decisions have relied upon 19th century congressional policy declarations thoroughly repudiated in the modern era to reach decisions that a tribe’s reservation boundaries have been diminished (for example, Hagen v. Utah, 510 U.S. 399 (1994)), to undermine 70 years of administrative interpretations of a statute designed to benefit Indian nations (see Carcieri v. Salazar, 555 U.S. 379 (2009)), to allow states to tax on-reservation land owned by the tribe (Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998)), and to hold that state governments can invoke equitable defenses against tribal claims brought under federal statutes (City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005)). Perhaps most painfully for Indian people, the Court will not protect Indian sacred sites. See, e.g., Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439 (1988). See generally Amy Bowers & Kristen A. Carpenter, Challenging the Narrative of Conquest: The Story of Lyng v. Northwest Indian Cemetery Protective Association, in Indian Law Stories, supra, at 489.

The Court’s reasoning in several cases turns the notion of tribal self-determination against tribal interests by denigrating the federal-tribal trust relationship. In United States v. Navajo Nation, 537 U.S. 488 (2003), the Court excused unethical ex parte contact with the interior secretary by a mining company in royalty negotiations with the tribe to wipe out a $600 million judgment against the federal government. In United States v. Jicarilla Apache Nation, 131 S. Ct. 2313 (2011), the Court held that the federal government did not have to disclose documents to the tribe about the scope of the government’s trust duties to the tribe. Even when affirming a tribe’s immunity from suit, the Court implored Congress to abrogate tribal immunity by statute. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998).

In cases involving the mere interpretation of a statute or treaty, tribal interests have fared much better. Tribal interests have prevailed in critical decisions involving the Indian Self-Determination and Education Assistance Act (Salazar v. Ramah Navajo Chapter, 132 S. Ct. 2181 (2012); Cherokee Nation v. Leavitt, 543 U.S. 631 (2005)), the Indian Gaming Regulatory Act (Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024 (2014)), and treaty interpretation (Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999)). But the Court has ruled against tribal interests (and the federal government) in decisions involving the Indian Reorganization Act (Carcieri v. Salazar, 555 U.S. 379 (2009)), the Freedom of Information Act (Department of Interior v. Klamath Water Users Protective Assn., 532 U.S. 1 (2001)), the Indian Gaming Regulatory Act (Chickasaw Nation v. United States, 534 U.S. 84 (2001); see also Seminole Tribe of Florida v. Florida, 516 U.S. 44 (1996) (striking down a critical provision in the Indian Gaming Regulatory Act)), the Quiet Title Act (Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct. 2199 (2012)), and the Indian Child Welfare Act (Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013)).

The win-loss rate, some argue, is skewed by Indian nations that overstep, making claims beyond what the Court has articulated as settled precedent or what Congress desires. But there is strong evidence that an institutional bias against tribal interests drives the current Supreme Court. Matthew L.M. Fletcher, Factbound and Splitless: The Certiorari Process as a Barrier to Justice for Indian Tribes, 51 Ariz. L. Rev. 933 (2009). Even when the federal government sides with tribal interests, the Court is unimpressed. This institutional bias runs against the nowsettled national policy favoring tribal self-determination.

Conclusion

Tribal interests have always faced an uphill climb in what Chief Justice Marshall once referred to as the “courts of the conqueror.” Johnson v. M’Intosh, 21 U.S. 543, 588 (1823). But, despite tough lessons learned in the Supreme Court in recent decades, Indian people and their governments have become players in the American constitutional structure in a way likely thought inconceivable at the Founding of the Republic, and perhaps even as late as three or four decades ago. The future is bright.

The history of federal Indian law in the Supreme Court is dynamic, controversial, and inspiring. The history starts with the earliest decades of the Supreme Court and tracks the growth of the American Republic.

Matthew L.M. Fletcher

Matthew L.M. Fletcher is a professor of law at Michigan State University College of Law.