United
States Commission on Civil Rights
Statement
Commissioner
William B. Allen
The temptation to
approve this report is great despite its manifest errors of legal and
historical interpretation.[1]
The reason for this is that the Commission’s study has finally been freed from
its unhealthy and collusive connection with the Department of Justice’s efforts
to build a case for legislation previously introduced as S. 517. During that earlier phase the Commission
actually had less control over its own study than did certain staff from the
Department of Justice.[2]
The sheer scope and importance of the inquiry, however, had the effect of
producing a record of far greater weight than the collusion intended. Despite the passage of time and changes in
staff, the record remains to support a broader effort, and the Commission’s
study is now free from those prior suspicions.
Nevertheless, some aspects of the prior analysis remain in the final
product (to be expected, since the whole work could not be redone), and these
convey erroneous conclusions even while no longer supporting their
pre-determined end. I write, now,
therefore, largely to clarify these errors of legal and historical analysis and
also to take full advantage of the rich record this six-year study produced.
Moreover, I cannot
concur in a report that claimed fewer than ninety seconds of substantive
Commission deliberation after more than six years study and six-hundred
thousand dollars of resources invested in it.
The report is far briefer than such an extensive record would seem to
justify.[3] Furthermore, the direction of its
recommendations, contrary to the recommendations of the very worthwhile “Final
Report and Legislative Recommendations” of the Special Committee on Investigations
of the Select Committee on Indian Affairs of the United States Senate, is to infuse
the federal government even deeper into custodial care of Indians, while the
gravamen of our findings is that that is the very source of most of the
problems we uncovered.[4]
This abbreviated
version seems to suggest far less importance for the ultimate product than I believe
it in fact merits. Indeed, I am
persuaded that the hearing and study record behind this report make it
possible, for the first time in our history, for the Government of the United
States to be completely honest rather than merely apologetic about its failures
in treating with American Indians. The
approved Commission “Report” fails to live up to this high expectation.[5]
Accordingly, I add
now my own brief statement about the meaning of this extensive record.[6] In order to provide coverage as
comprehensive as possible in the circumstances, I restrict the text to a
further elaboration of findings and recommendations supported by the
record. I omit interpretations save
where absolutely necessary to justify findings or recommendations, and then I
relegate them to footnotes in order to preserve an undisturbed flow in the
text.
I. There
is no foundation for Congress’ and the Court’s assertion of a “plenary power”
over Indian tribes taken as independent and sovereign governments. Such a “plenary power” neither has been nor
can be acquired by conquest, treaty, or constitutional stipulation.[7]
A.
Whatever may be the rule in international law, the assertion of
complete and arbitrary power over non-citizens by the Government of the United
States is incompatible with the Constitution of the United States, which is
superior to every positive determination by the Government.[8]
B. Even
if complete and arbitrary power over non-citizens were possible for the
Government of the United States, such unlimited power could not be extended
over citizens who, as such, are parties to the Constitution that limits the
power of government.
1. Nor
can citizens be placed outside of the protection of the Constitution by means
of the fiction of “government to government relations,” where the “government”
with which the United States deals is not in fact independent and sovereign
(including control of its own territory).[9]
a. Therefore,
insofar as the ICRA applies to U. S. citizens, it exceeds the power of Congress
to enact.
C. The
Congress of the United States can legitimately exercise no power over tribes
whose members are citizens of the United States which power is not in fact a
power over the citizens themselves and therefore subject to the relevant
constitutional limitations.
1. With
respect to special protections afforded against lawfully subordinate
governments, the United States has no power whatever to make exceptions, for
any purpose whatever.[10]
a. With
respect to special protections afforded against lawfully subordinate
governments, the United States may not apply a lesser standard of protection
against itself.
D. Not
one federal dollar has been spent on the enforcement of fundamental civil
rights of American citizens domiciled on reservations since the 1978 Supreme
Court decision, Santa Clara Pueblo v. Martinez.
II. The
Government of the United States has failed to provide for Indians living on
reservations guarantees of those fundamental rights it is obliged to secure for
all U. S. citizens living on territory controlled by the United States and
under the laws of the United States.
A. In
abandoning by act of Congress individual U. S. citizens to the indeterminate
control of tribal governments without recourse to federal courts of judicature
the United States thereby fails to provide the just constitutional claims for
which all citizens may pray.
B. Federal
legislation for tribes, as distinct from citizens, implicates the rights of
citizens in other areas.
1. The Indian Child Welfare Act (ICWA) is a
case study of rights imperiled by the process of legislating for tribes without
regard to citizens.
a. ICWA produces institutional child neglect
and abuse without recourse to fundamental due process protections.[11]
2. Congress
established the Legal Services Corporation to provide legal representation for
indigent clients in civil cases. An
exception to a general prohibition against uses of Corporation funds in criminal
cases is provided where persons are charged with a criminal misdemeanor or less
in a tribal court, 42 U.S.C.
§2996f(b)(2); 45 C.F.R.
§1613.4. In 1988, Corporation
staff advised the Commission that the Corporation had allocated $7 million for
all Native American legal services programs, of which 10 were reservation based
and 22 were located near reservations.
Discussions with Corporation staff indicated that many of these programs
are overseen by boards of directors that include tribal council members, and
that these programs frequently represent tribal governments in relation to
state governments or the Bureau of Indian Affairs. The use of tribal council members as directors of the programs
ostensibly set up to provide representation of indigent American Indians in
litigation against tribal governments calls into question the integrity of
these programs.
III. Enforcement
of ICRA by tribal governments: The
record of hearings and studies justifies the conclusion that tribal enforcement
of ICRA has been at best uneven; sometimes reaching to customary levels of
expectation among Anglo-American jurisdictions, often lacking altogether.
A. Among
the explanations for, and examples of, the failures are a number of individual
and systemic factors.
1. Claims
of sovereign immunity.
2. Lack
of autonomy in judicial offices.
3. Woeful
lack of funding of tribal courts.
4. The
Secretary of the Interior has failed to use statutory means (§450m of Public
Law 93-638) to enforce the ICRA.
5. General
allegations of illegal searches and seizures.
6. Widespread
denial of the right to counsel.
7. Ex
parte hearings.
8. Restriction
of right to a jury trial.
9. Violations
of freedom of the press.
10. Violations
of due process and equal protection of the laws.
11. Cruel
and unusual punishments.
RECOMMENDATIONS:
I.
A. That the “blueprint for a New Federalism”
proposed in the “Final Report and Legislative Recommendations” of the Special
Committee on Investigations of the Select Committee on Indian Affairs of the
United States Senate be enacted forthwith, including the four “indispensable
conditions:”
1.
The federal government must relinquish its current paternalistic
controls over tribal affairs; in turn the tribes must assume the full
responsibilities of self-government;
2. Federal
assets and annual appropriations must be transferred in toto to the tribes;
2.
Formal agreements must be negotiated by tribal governments with
written constitutions that have been democratically approved by each tribe; and
4. Tribal
government officials must be held fully accountable and subject to fundamental
federal laws against corruption or abuse of power.
B. A
comprehensive guarantee of the natural and civil rights of American citizens of
Indian descent demands that we resolve the constitutional ambiguity in the
relation between individual Indians, their tribal governments, and the
government of the United States; such a resolution will embrace the either/or
choice of full sovereignty or citizenship.
1. A
resolution on the side either of sovereignty or of American citizenship must
entail the dissolution of the Bureau of Indian Affairs per se, acting as a
caretaker or guardian for a conquered race.
Certain functions of the Bureau could survive in the Department of State
relative to those Indian communities following the path of sovereignty.
a.
Wherever there has been within any tribe no express acceptance of
American citizenship, and where continued territorial and administrative
integrity of the tribe obtains, the United States should accord full and formal
recognition of the independence of the nation on grounds mutually acceptable,
such grounds being spelled out in a final treaty of peace between such
independent tribe(s) and the Union.
b. Because
it is sometimes unclear where American citizenship has been embraced and where
it has not, and because the government of the United States may not withdraw
accomplished citizenship, before steps toward independence can be taken, the
United States is obligated to conduct a plebiscite among the members of affected
tribes. The plebiscite should be
carried out under the direct control of the federal government, with all rules
and procedures subject to congressional authority.
C. 1.
a. The Indian Civil Rights Act should be
repealed.
i.
Where Indians constitute a thriving political society but do not
choose independence from the United States, where they possess territorial integrity
and material resources for the conduct of government, and where there is sufficient
divergence of interest between them and the state(s) of the Union where they
are located geographically, they should be empowered to petition Congress for
independent status within the Constitution of the United States as states or
territories or commonwealths.
ii.
Tribes ineligible for independent political status within the
Constitution by reason of size or circumstance, but which yet retain fealty to
American citizenship, should be encouraged toward separate municipal status
wherever possible.
iii.
Congress ought, all other provisions failing, at least to enact a
self-denying ordinance to the effect that it will attempt over Indian tribes
the exercise of no municipal powers other than those generally established over
states within the United States. This
will leave the tribes as “states” without representation, save through the
states within whose boundaries they lie.
D. While
the reservation system and/or the custodial responsibility of the United States
still subsists, it is recommended that a Board of Indian Judges be established
within the Civil Rights Division of the Justice Department, there to propose
and oversee the establishment of adequate mechanisms and resources to guarantee
the enforcement of fundamental civil rights on reservations.
1. The
purpose of the Board of Indian Judges shall be to recommend a system of Indian
Regional Appellate Courts and appropriate criminal justice procedures to
articulate within such an appellate structure.
a. Such
courts may be based on existing regional judges associations and would be best
organized according to the existing sympathies and common customs of the
various tribes within a region.
b. Such
courts should also be articulated within the structure of existing circuit
courts of the federal judiciary.
2. Alternatively,
and failing by some fixed date such a result as called for from the Board of
Indian Judges, the Department of Justice in consultation with the Board of
Indian Judges should recommend to Congress a means by which existing tribal
courts may be brought directly within the appellate jurisdiction of the federal
court system. This course implies
necessarily amendment of the ICRA to fill in the gaps cited by the Martinez
decision.
II. Congress
would do better to replace the ICRA with legislation providing for the
enforcement of the civil and constitutional rights Indians enjoy by virtue of
their citizenship in the United States.
Such legislation should specify de novo review by appropriate judicial
bodies in civil rights actions brought by plaintiffs in tribal courts.
A.
Such legislation would subordinate tribal governments to the
Constitution of the United States and provide for a waiver of tribal sovereign
immunity. Additionally, Congress should
explicitly amend civil rights currently in force to include American citizens
domiciled on Indian reservations.
B. Congress
should not only reverse the Duro decision, but should extend the rule to
establish general jurisdiction over all persons committing infractions on
Indian reservations.[12]
1. Congress
should repeal the Indian Child Welfare Act, and any similar legislation the
consequences of which are to enracinate social pathologies.
a. Due
process requirements mandated in particular civil rights areas ought expressly
to be extended to all judicial procedures touching questions of life, liberty,
or property.
2. b. Congress
should amend 42 U. S. C. §2996(b) to clarify its intent with respect to use of
funds by the Legal Services Corporation in providing funds for the
representation of indigent clients, not governments, in tribal court
proceedings.
III.
A.
1. Within their own constitutions and without
respect to their status, tribes should guarantee that sovereign immunity shall
not constitute a defense against claims for injunctive, declaratory, or other
equitable relief in fundamental civil rights pleadings.
3.
Tribes should, further, provide judicial review by an independent
judiciary. Moreover, Congress should
amend the language in 25 U.S.C. §450n, which provides that “Nothing in this Act
shall be construed as—(1) affecting, modifying, diminishing, or otherwise
impairing the sovereign immunity from suit enjoyed by an Indian tribe.. .”
3. Congress
should provide through the Department of Justice direct funding for tribal
court systems commensurate with levels that obtain in comparable state or
municipal systems.
a. Congress
should appropriate and earmark monies for a criminal defense fund to be used to
reimburse attorneys who represent indigents in criminal proceedings in tribal
court. A voucher system should be
established to pay these attorneys a pre-determined rate for their
services. Alternatively, Congress
should appropriate and earmark monies to pay for attorneys to be added to
either the federal defender’s office or the United States Attorney’s office in
every jurisdiction that contains a tribal court.
4. Title
25 U.S. C. §450m requires, inter alia, that certain language be included
in contracts or grant agreements which the Secretary of the Interior enters
into with tribal organizations. That language
is to expressly provide that the Secretary may rescind and reassume such
contracts or agreements where he determines that the tribal organization’s
performance thereunder involves the violations of rights. Unwise though this relationship be, while it
persists Congress should amend §450m to specify that violations of the Indian
Civil Rights Act, while it is in force, provide a basis for rescission of such
contracts or agreements and to require certification by the tribe that it is
complying with the ICRA. This minimal
level of enforcement should also provide a private right of action against the
Secretary for persons whose rights are allegedly violated.
5-11. The Federal Judicial Center, an agency
within the Judicial Branch of the United States, is mandated, inter alia,
to conduct research on the operation of federal courts, to stimulate and coordinate
such research by other agencies or persons, and to conduct programs of
continuing education and training of judicial branch personnel including
judges. Serious consideration should be
given to using the Federal Judicial Center, alone or in conjunction with the
Board of Indian Judges provided for above, to assist in the development of
tribal courts through the provision of training and technical assistance. Such training and assistance should also be extended
to tribal council members and police personnel.
a. Ideally, the Board of Indian Judges
would take the lead in recommending ways and means of regularizing and insuring
a fair administration of justice under tribal governments wherever
necessary. In addition to direct
funding by the Department of Justice, it should provide for mandatory trial by
jury in appropriate cases, the incorporation of American citizens living on
reservations within all civil rights statutes, including the Voting Rights Act
of 1965 (with amendments), and some workable standard to ensure that the orders
of courts will be obeyed by tribal executives and police.
[1] All the present
day inhabitants of North America can trace their origins to a history of
primitive, unlettered barbarism.
Nevertheless, Federal Indian law continues to be premised on the
ignorance of the Indians. Indians, it
is said, are in their pupillage; they are wards of the United States. It is essential first to understand this
foundation of Indian law, before one can meaningfully address the Indian Civil
Rights Act (ICRA) or entertain any serious discussion of what the United States
Commission on Civil Rights should say about the ICRA.
Accordingly, it is
important to note that the criticisms in this statement are not criticisms of
the Commission staff who drafted the report and who in this as well as in other
productions have exhibited a professional excellence beyond question. I here criticize an approach, in much the
same spirit we have previously criticized the production of narrow reports by
this commission. Before, we have
insisted that an economic analysis, unleavened by historical sensitivity, was
insufficient for the mission of the Commission on Civil Rights. Today I say that mere legal analysis is no
more sufficient, alone, than mere economic analysis.
This outlook was
well expressed by Commissioner Mary Frances Berry, in the Commission meeting of
November 17, 1989, when she declared:
“I thought that the economics ought to be put into the context of the
culture and social history of black women in this country so that we would have
a fuller understanding of their status and that I also thought that there ought
to be some discussion of the history of discrimination on the basis of gender
in general with black women as a sub-context of that . . . I believe that that context, the history,
needs to be put into the report so that people will more fully understand the
economics that they read . . . I am
considering [the report] from the perspective of a public who reads it. So, if we could separate criticism of what
they have done from criticism of us as a body publishing a study, then I think
we will be getting somewhere . . . to
give people these narrow answers doesn’t make any sense and so I pleaded . . .
that we put more about the history of black women and women in this country to
flesh out the areas where we talk about the economics . . . the people who did
the report are not professional historians and perhaps . . . it’s not their
fault that they’re not and they weren’t asked to do this and we need somebody
to do it.” Similarly, Commissioner
Blandina Cardenas Ramirez observed that “. . . we have spoken about a need for,
if you would, an interdisciplinary approach to these issues consistently every
single time one of these economic status reports have come up . . .” With Commissioners Berry and Ramirez I have
consistently emphasized an interdisciplinary focus. I remain consistent in underscoring its importance. We do not have the capability at the
Commission at this stage of our development to provide that kind of breadth in
our reports. Therefore, I now write,
not to provide the comprehensive focus we need, but at least to suggest the
scope of such a capability. In doing
so, I take occasion to correct the most misleading, if unintentional, errors of
the report now approved by the Commission.
[2] This Commissioner well remembers sitting in the office of Senator
Inouye and responding to an inquiry concerning DOJ influence that our study was
independent, only then to be confronted for the first time with the copy of a
memorandum which clearly showed such a relationship. Needless to insist, I had been assured that we retained an
appropriate arms’ length relationship and my embarrassment was acute.
[3] The Commission’s study into enforcement of the Indian Civil Rights
Act of 1968 was begun in 1985, when the Commissioners adopted a written project
proposal authorizing further development of the study. The investigations and hearings by the
Commission subcommittee responsible for the study comprise the most extensive
factfinding conducted on the status of civil rights on Indian reservations ever
undertaken. In significant part, this
factfinding is set forth in the hearing records noted in Part I, n. 2 of the
“Report.”
In all, one
hundred and seventy-eight persons testified before the Subcommittee. Witnesses included numerous tribal judges
and council members, Assistant Secretary for Indian Affairs, Ross Swimmer, and
other representatives of the Department of the Interior, United States
Attorneys from South Dakota, New Mexico, and Minnesota, Indian law scholars,
lay advocates, and attorneys who practice before tribal courts. Included also were numerous private citizens
who sought recourse to the Commission to complain of tribal government abuses
of their civil rights, testimony essential to a legitimate examination of the
status of civil rights in Indian Country.
The eventual selection of hearing
sites conformed to the Commission’s purposes.
Rapid City was chosen for its proximity to the Rosebud, Cheyenne River,
and Oglala Sioux Tribes, all of which were generally perceived to be experiencing
difficulty properly enforcing the ICRA.
Flagstaff, on the other hand, was selected for its proximity to the
Navajo and Zuni Pueblo Tribes, and because the Navajo judicial system was
reputedly the best in Indian Country.
Later the Subcommittee added hearings in Portland, to receive testimony
from numerous tribal judges in the Northwest (at their request); in Washington,
D. C., to examine the ICRA enforcement efforts of the Bureau of Indian Affairs;
again in Flagstaff to examine alleged ICRA violations and more fundamental
issues arising out of Indian Child Welfare Act (ICWA) cases, allegations of
threats to the independence of the Navajo judiciary, and recent amendments to
the Navajo Tribe’s sovereign immunity act; and, finally, in Phoenix, to receive
testimony of three members of the Navajo judiciary on the issue of judicial
independence.
[4] “A New Federalism for American Indians,” November 1989, S. Prt.
101-60. It was the institutionalization
of the benefactor to ward relation which transformed Indian policy from a
democratic to an imperial one, and which seemed to take as its goal the
transformation of Indians into subjects habituated to dependency. It is not too much to say that the Bureau of
Indian Affairs (BIA) was the first welfare agency in our nation’s history, and
we should not be surprised if our first and longest lasting welfare program has
had similar, and perhaps even more harmful, effects than those of recent
vintage.
In our study we
found it a particularly striking and revealing fact that the BIA was created on
March 11, 1823 by then Secretary of War John C. Calhoun, who later became the
greatest of all antebellum defenders of slavery. [Francis Paul Prucha, The Great White Father, vol. 1, p.
164.] Calhoun’s influence on the
development of Indian policy corresponded with a significant shift of emphasis,
from treating Indians as friends and brothers in the early years of the
republic, to treating them as children of the “Great White Father.” It was Thomas Jefferson, in the sixth
compact with the Cherokees (1803, unratified), who introduced the language of
“father” which Calhoun later perfected as “great white father.” Jefferson addressed the Indians as “their
father the President of the United States,” and also scripted their response,
“our Father, the President.” Washington’s
language had always, “my brothers,” from the early 1750s through the end of his
Administration. Calhoun’s writings
demonstrate an intention to civilize the Indians (caring for them in the
meantime), and to do so under the slavish tutelage of the federal government. In other words, only by treating Indians
unequally, i.e. as lower than human, will they become human. In embarking upon an enterprise to civilize
a race by direct intervention and superintendence of their way of life, Calhoun
involved himself in tyranny as much as he did in denying the possibility of civilization
to the black race.
The following excerpt from a
Calhoun report aptly summarizes the attitude:
“Our views of their [the Indians] interest, and not their own, ought to
govern them. By a proper combination of
force and persuasion, of punishments and rewards, they ought to be brought
within the pales of law and civilization . . .
When sufficiently advanced in civilization, they would be permitted to
participate in such civil and political rights as [the government] might safely
extend to them . . . It is only by
causing our opinion of their interest to prevail, that they can be civilized
and saved from extinction.” Statement
submitted to Congress, December 5, 1818.
American State Paper: Indian
Affairs, 2:182-184. The logical
conclusion of such sentiments is the constitutional and administrative tyranny
which still serves as the linchpin of our Indian policy (plenary power and
guardianship), and under which tribes still suffer.
[5] Singular misunderstandings about America’s treaty relations with
Indians, the status of tribes during this process, and the evolution of Supreme
Court decisions touching these matters characterize this report. A cursory view reveals that the end of
treaty making in 1871 is hardly a starting point for our analysis.
Nothing can be
more incredible than the belief—nay, assumption—that as the Americans were
changing the foundations of all their laws while they broke their dependence on
Great Britain, they nevertheless borrowed and perpetuated the terms of
England’s relationship to the Indians.
“The three types of colony—provincial, proprietory, and charter
governments—exercised varying degrees of self-government. [ J. Story, Commentaries on the Constitution
of the United States, §159, 1858.]
By the time of the Revolution, however, all the colonies maintained that
their authority to govern themselves derived from the British Crown. [Cf., Cambone, below, note 8.] Therefore, they argued, they were subjects
of the King rather than of Parliament, which they claimed could not rightfully
interfere with internal affairs of the colonies.” [B. Bailyn, The Ideological Origins of the American Revolution,
224-25, 1967]. [Kenneth W. Johnson, “Sovereignty, Citizenship and the Indian,”
15 Arizona Law Review, n. 36, 980 (1973)]. Not only would borrowing their relationship to the Indians from
England tend literally to undermine the justifications of American
independence, but it would more importantly surrender the just claim to establish
principles of right, newly enunciated and only then practically brought to bear
upon human life.
In order, then,
fully to appraise what in the way of right is yet owing to the American Indian,
we must consider the American claim of right, in light of which alone it is
possible to offer anything more than arbitrary power to regulate U. S. dealings
with the Indians. The American
Revolution on the basis of the theory that the land of the Indians belonged,
not to the King of Great Britain (the colonies’ sovereign) but to the Indians—a
position that determined all American policy thereafter. The Indians, however, did not subscribe to
this theory, with the exception of the Delawares. Accordingly, they became enemies to the United States, allied with
the King of Great Britain. When the
Americans vindicated their legal theory by force of arms, they then left Indian
claims in limbo. Had those claims
fallen along with the claims of the King?
If not, were they left to the United States to define, as victor in
war? Could it be that the U. S. had
overthrown the King’s claim of conquest over the Indians only to substitute one
of their own?
Apologizing for
dilating at length on matters well within memory, I insist only that, before we
credit tales of customs and usages from time immemorial we must at a minimum
establish an accurate recall of those events, laws, and usages that everyone
knows. Who fails at relating what is
well within memory must not be trusted in the pretense to recall time
immemorial. The above-cited Senate
Select Committee Report (1989) correctly reported George Washington’s decision
to treat with Indians as free and not as conquered nations. Using the pre-eminent case of the Cherokees
and related tribes, Robert Cotterill demonstrated the eventual development and
ultimate abandonment of that policy.
“The territorial
claims of the Cherokees ran from the northward-flowing Tennessee on the west to
the Kanawha, Broad, Edisto on the east; from the Chattahoochee, Coosa, and
Black Warrior on the south to the Ohio on the north. Although none of those boundaries was conceded by their
[immediate] neighbors, the Cherokees succeeded in transmitting their claims
thereto into an ownership sufficient for sale.” Thus, the great acquisitions by the United States were
effectuated by purchase through treaties.
During this period tribes such as the Chickasaws remained small and
sustained their integrity through a policy of naturalizing alien people. The southern Indians in general had mated
economic communism with individual liberty by means of maintaining a state so
near anarchy that only “unanimous consent” could attain any practical purpose,
and dissident minorities consequently did not exist.
Against this
background, neighboring states, like Georgia, were often tempted beyond
resistance to intrude on Indian holdings, with the result that the U. S. dealt
as often and as much with American citizens as with Indians in attempting to
maintain a stable policy. The failure
to execute the Treaty of New York, concerning the drawing of boundary lines,
effectively undercut efforts to restrain Georgia. This set up conflicts, for which the Chief McGillivray was also
in part responsible.
In 1785-86 three
Treaties of Hopewell were signed, one with the Cherokees (November 28), one
with the Choctaws (January 3), and one with the Chickasaws (January 10). That with the Choctaws contained an acknowledgment
of American sovereignty (although the 31 signators had been inundated with
liquor). At New York, July 21, 1790, McGillivray
appeared on Washington’s invitation to form a treaty in which he “refused . . .
acknowledgment of United States sovereignty except over those Creeks living
within the limits of the United States.”
Here is where the connection between land cessions and sovereignty began
to be formed. Only the day after
McGillivray arrived at New York President Washington signed an Act for
Regulating Trade and Intercourse with the Indian Tribes. The Act was founded on continuing nationhood
for Indians, save as explicitly surrendered in treaty. This had the effect of obligating the United
States to defend established Indian land claims. By 1802, however, a new “Intercourse Act” carried with the
political promise (a Compact with States) to extinguish Indian land claims!
The healthy policy
unravelled in subsequent years. Return
J. Meigs, Indian agent, reporting Cherokee resistance to surrender land and
identity, wrote to the Secretary of War, April l6, 1811, “I have ever been of
the opinion that the Indians have not the right to put their veto on any
measure deliberately determined and decreed by the Government.” On August 9, 1814 Andrew Jackson exacted the
“Treaty of Fort Jackson” to close the Creek War of 1813-1814. This largely despoiled the Creeks of all
land and set Cherokees and Choctaws in an impossible position from which they
would never recover—despite an apparent respite won by the Cherokees on March
22, 1816, when two treaties acknowledged their land claims south of the
Tennessee at the price of cession of all their South Carolina claims. The very concept of the “Indian Agent”—at
once an ambassador but also a factor—worked against Indian claims of sovereignty. Nevertheless, tribes often demanded the
appointment of such an official.
The treaties of
March 22, 1816 were dead by fall, replaced by separate treaties liberally
defended by the eloquence of bribery, with Cherokees, Chickasaws, and
Choctaws. These were followed immediately
by calls for “removal” and further demands for cession. By July 1817, and under coercion, Cherokees
had agreed to swap land in Georgia and Tennessee for that territory in Arkansas
on which a few voluntary emigrants already lived. This “Calhoun Treaty” announced the arrival and the policy of the
newest Secretary of War. In March of
the same year President Monroe had declared that Indians should no longer be
dealt with by treaties but rather by legislation—a goal finally accomplished in
1871.
Yet another
respite for the Cherokees occurred in the negotiations of 1819, which included
clauses that foreshadowed Cherokee citizenship and permanent inhabitancy. In fact, however, this only set up the
ultimate confrontation, although it bought a decade’s quasi peace. By December 1, 1824 Americans who negotiated
with Creeks announced (in a timid echo of a claim made to the Cherokees in
1823) that “they [Creeks] had been conquered in the Revolution and had since
held their land as tenants at will . . . ,” holding only by the forbearance of
the United States. This explicit
renunciation of the original policy fostered by George Washington is the
immediate cause of the entire tragedy of Indian history in the United States
since that day. At the very same time
the fraudulent “Indian Springs Treaty” had the Creeks abandoning all claims and
agreeing to removal! The treaty was
subsequently abrogated by President Adams, but it had in fact been ratified by
the Senate, clearly indicating the disposition of official opinion in the
United States toward Indians.
This brief history is culled from
many sources, but principally Robert Spencer Cotterill, The Southern Indians: The Story of the Civilized Tribes Before
Removal (Norman, OK: Univ. of Oklahoma Press, 1966[1954]), pp 5, 7, 12, 85,
174, 188-89, 196, 202, 203, 207, 215, 217-18, 220, 234. Additional material is found in Kirke Kickingbird,
et al., Indian Treaties (Washington, D.C.: Institute for the Development
of Indian Law, 1980); Francis Paul Prucha, ed., Cherokee Removal: Selected
Writings of Jeremiah Evarts, 1980; and Joseph C. Burke, “The Cherokee
Cases: A Study in Law, Politics, and Morality,”
21 Stanford Law Review 1969.
[6] A longer statement would be warranted by the record but would ill
fit the limited dimensions of the approved statement. For the sake of propriety, therefore, I abbreviate my own
statement.
[7] Felix S. Cohen, Handbook of Federal Indian Law, 1942
edition (Albuquerque, NM: Five Rings
Corporation, 1986) Reprint with Foreword by Robert Bennett and Frederick
Hart. The authority on the subject of
“plenary power” has long been taken to be Cohen’s compendium. Nevertheless, a critical reading of Cohen’s
work reveals that there is no fundamental basis for the claim; it results
merely from the positive assertion whether of the Court or of Congress (most
recently at the head of the Indian Child Welfare Act). The opacity of presumed “plenary power” law
in the 20th century was silently reveled by Cohen, showing the
entire idea to be a cruel hoax perpetuated by lawyers and jurists. At p. 42 Cohen defers discussion of
Congress’ power to legislate over Indian affairs to Chapter 5, sec. 2. But in chapter 5, sec. 2, he observes that
“all the scope of the obligations assumed and powers conferred has been
discussed in chap. 3,” (where the original reference to chapter 5, sec. 2 is
found!) “and need not be rexamined at this point.” This empty explanation is amply explained by Johnson at 988 and
1001: “Exclusive federal jurisdiction
over Indian affairs is predicated upon the Indian’s nonparticipation in our
constitutional system of government and the concomitant recognition of a tribal
right of self-government.” In other
words, “plenary power” is just a mistranslation of “exclusive jurisdiction,”
which properly applies to the federal government only as against the
states. And the price even of that
“exclusive jurisdiction” is non-inclusion and liberty for Indians, exactly the
reverse of “plenary power.” That is why
it is ultimately impossible to found federal concern for the civil rights of
Indians on “plenary power.” “In no
other area of constitutional law does there exist a doctrine recognizing the
preservation of cultural autonomy as a justification for limiting individual
civil rights. Even disregarding notions
of inherent tribal sovereignty, the actions of the tribe which affect individual
civil rights still constitute the kind of governmental action found by the
Supreme Court in arguably private actions performed in an environment of state
inaction or merely nominal governmental support.”
[8] Johnson misconstrues the relevance of this finding by interpreting
it as militating against the Indian’s claim of self-government while
maintaining citizenship: “the ‘grant’
of citizenship to Indians, who still owe at least partial allegiance to the
pre-constitutional sovereign tribes, is at odds with the framers’ concept of
membership in the American political community. Nor does it accord with the fourteenth amendment’s prerequisites
for citizenship. Congressional and
judicial reluctance to attach the emotion-laden label of ‘non-citizen’ to the
first Americans probably explains why challenges to this obvious contradiction
have not met with success. It is
nonetheless clear that, to the extent he asserts an inherent right of tribal
self-government, the Indian has not truly manifested his consent to be governed
wholly under the internal government set forth in the Constitution.” Johnson, 1001-02. This error is not, as Johnson conceives, to be laid at the feet
of the Indian. Rather, the
contradiction falls to the responsibility of the United States government,
which has operated with respect to the Indian outside the limits of the
Constitution.
A more serious
error than Johnson’s is the underlying rationale of the Report of the
Commission on Civil Rights, namely, that the Constitution does not apply to
Indian tribes. Johnson has shown why
that is inconsistent with a fulsome reading of the law. Nevertheless, there looms still more
importantly an anachronistic reading of the law, the significance of which
ought to broached here for the sake of future clarity about the constitutional
status of the rights of American citizens who are Indians. Initially, let us observe that Alexander
Bickel is simply incorrect to depreciate the relevance of citizenship: “. . . emphasis on citizenship as the tie that
binds the individual to government and as the source of his rights leads to
metaphysical thinking about politics and law, and more particularly to
symmetrical thinking, to a search for reciprocity and symmetry and clarity of
uncompromised rights and obligations, rationally ranged one next and against
the other. Such thinking bodes ill for
the endurance of free, flexible, responsive and stable institutions . . ”
[“Citizenship in the American Constitution,” 15 Arizona Law Review
387 (1973)]. Bickel’s erroneous view
subtends nevertheless the views of the Commission’s Report, that “the Bill of
Rights does not restrict tribal governments.
The seminal case in this area is Talton v. Mayes [163 U.S. 376
(1895)].” At p. 4. Without entering into the substance of Talton
we may yet readily discern the error in this reading. Talton was decided prior to the decisive
constitutional readings which affect the decision of this question and has never
been reviewed in light of those developments.
Two such developments, among others, are key: The general grant of citizenship in 1924 and the decision in Bolling
v. Sharpe (347 U.S. 495 [1954]) that held the federal government to a
standard not less than that to which the states were subject. Even if it were the case that the fourteenth
amendment did not in its terms convey citizenship to Indians born in
naturalized in all territory subject to the direct jurisdiction of the
Constitution (and I believe that is not the case), it would nevertheless be
true that these subsequent decisions had brought Indians within the ambits of
the comprehensive protections of the Constitution. The result is that tribes would become akin to private
associations for constitutional purposes.
Accordingly, the Commission’s anachronistic reading leads to a decisive
misinterpretation which is decidedly unfriendly to the rights of Indians.
We must delve more
deeply into the basis of this strange and anachronistic reading. Kenneth Johnson described this effect in the
context of decision shortly following Talton: In United States v.Wong Kim Ark, the Supreme Court was
presented with the question whether a child born in the United States of
noncitizens was a citizen of the United States by virtue of the fourteenth
amendment. Neither the majority nor the
dissenting opinion appear to have accepted the fourteenth amendment alone as
being dispositive of the issue. Rather
(and unfortunately), both opinions chose as their reference point not concepts
of sovereignty or consent to be governed but whether after the Revolution the
common law or international law was to be utilized in construing the
Constitution. The majority relied
upon the common law of Britain [emphasis added, note omitted]. The very
concept of sovereignty, embodied in the common law of citizenship, which was
denied by the colonists in order to legitimize their demands for internal
self-government was applied by the United States Supreme Court to identify
natural born members of this nation’s ultimate sovereign [note omitted].” Johnson, 992.
This points us
properly toward the crucial historical error that has produced the anomaly of
reading Americans citizens who are Indians out from under the protections of
the Constitution. It is only partially,
and not most importantly, the reliance upon the common law of citizenship
though is closely related to the error.
The error is a misconstruction of the international law of “discovery”
as it applies to the status of Indians, an error the Commission’s Report has
followed uncritically. Cohen, at 45,
remarked that “some time after the end of the treaty-making period [] the
federal government [did] take the ultimate step of asserting jurisdiction over
offenses committed by Indians against Indians within Indian Country.” In light of our earlier discussion, this
clearly was only an elaboration of a power that had long been at least tacitly
assumed. But Cohen, at 47, introduced
his thesis that Victoria had elaborated the moral basis for these relations
with Indians. He attributed to these
principles the main influence in deciding Johnson v. McIntosh (8 Wheat.
523 [1823]) and Worcester v. Georgia (6 Pet. 515 [1832]). But Victoria was never cited by Justice
Marshall, and Emmerich de Vattel, given minor notice by Cohen, was cited by
Marshall. Cohen does cross-reference,
from this chap. 3, sec. 4, to his chap. 15, sec. 4, in which the same theme,
“aboriginal possession” or title is treated in detail, and in which Vattel is
properly cited. Still, Cohen’s main
argument relies on Victoria. “. . . the
theory of Indian title put forward by Victoria came to be generally accepted by
writers on international law of the sixteenth, seventeenth, and eighteenth
centuries who were cited as authorities in early federal litigation on Indian
property rights.” Not only did Vattel
not rely on Victoria; he disagreed with Victoria’s analysis, as I will show.
Vattel, in Le
droit des gens, ou principes de la loi naturelles, appliqués à la conduite et
aux affaires des nations et des souverains [edition of James Brown Scott,
The Classics of International Law, (Washington, D.C., Carnegie Institution,
1916), vol. I], discussed several titles to aboriginal holdings and their
relations to the colonists in North American.
At Bk. I, §81 he arrayed the cultivation of the earth against nomadic
and other forms of existence, concluding that “the establishment of several
colonies in the continent of North America, while restricting itself to just
limits, can only be very legitimate” since it brings cultivation and more
intense usage to the land.
Additionally, “the peoples of these vast lands rather wander than dwell
in them.”
There is, then, a
preference in natural law for cultivation over forage when it comes to
possession of land. Nevertheless,
Vattel does not proceed from this finding to a law of conquest. He recognizes rather (Bk. I, §207-09) that
“all men have an equal right” to those properties that don’t already belong to
someone. Accordingly, possession falls
to the first occupant of any uninhabited territory. Nor is the mere sign of possession (such as a landmark) sufficient. Rather, evidence of a clear intention to
inhabit and cultivate must follow. When
the discoverers located deserted territories and claimed them in the name of
their sovereigns, that produced a “title that has been respected, provided that
a real possession followed shortly thereafter.” By contrast, it is a serious question whether a nation can
possess in this manner territory that it does not actually occupy, and Vattel
concludes that “it is not difficult to decide that such a pretense would be
absolutely contrary to natural right.
For nature has intended all the earth for the common needs of mankind
and extends a right to particular men only to the extent that they may benefit,
not in order to obstruct others.
Accordingly, “when the sailors have come across deserted countries in
which folk from other nations had erected some landmark in passing, they wasted
no more time over that vain ceremony than over the papal dispositions which
parceled out a large part of the world between the crowns of Castille and
Portugal.” Not discovery, then, but
discovery and use conveys legitimate title, and that without respect to the
conventions of Europe.
Beyond even this
observation, however, is the intriguing question raised by the discovery of the
new world; namely, whether a people can legitimately occupy a portion of
a vast territory “in which one finds only some nomadic peoples, incapable by
reason of their small numbers of inhabiting the entire land.” Here Vattel returned to the reasoning of
§81, namely that there was an obligation to cultivate the earth and that no one
could claim exclusive power over land that neither needed nor were in a
position to dwell in and cultivate. Further,
the European peoples were “too crowded” at home and could “legitimately occupy”
and establish colonies in such portions of that territory as the native peoples
had no particular need for. “Nous
l’avons déjà dit, la terre appartient au Genre-humain pour la subsistance: Si chaque nation eut voulu dés le
commencement s’attribuer un vaste pays, pour n’y vivre que de chasse, de pêche
& de fruits sauvage; notre globe ne suffiroit pas à la dixième partie des
hommes qui l’habitent aujourn’hui.”
While this view
may rightly seem to depict a justification of European expropriation of Indian
territory, its significance for our purposes is rather the contrary. For despite this natural license that Vattel
accorded the Europeans, he immediately added the important reflection that “one
must praise the moderation of the English Puritans, who first established
themselves in New England. Although
furnished with a charter from their sovereign, they purchased from the savages
the land that they wished to dwell in.
This praiseworthy example was followed by William Penn and the colony of
Quakers that he led into Pennsylvania.”
Vattel, therefore,
recognized in the principal American settlers a disposition to deal with the
Indians as “owners” despite any liberty nature may have accorded them to view
the Indians as interlopers. Nor was
this qualification of the claim of conquest vis-a-vis the Indians on the part
of the Americans the only important observation Vattel made. Immediately thereafter he reflected that “a
nation which establishes dominion over a distant country and sets up colonies
in it, that country, although distant from the mother country, constitutes a
natural part of the latter, entirely like its ancient territories. Whenever the political laws or treaties make
no explicit difference between, all that one may say about the nation’s own
territory must also apply to its colonies.”
Interestingly,
these seventeenth century views were directly echoed in the American Revolution
(and also in McIntosh and Worcester, though later commentators have
misunderstood this relation), while the sixteenth century views of Franciscus
de Victoria played no role at all, Felix Cohen to the contrary notwithstanding
(Cf., “Original Indian Title,” in The Legal Conscience, ed. by Lucy
Kramer Cohen [New Haven: Yale U. Press,
1960], p. 289). Victoria’s work simply
dealt with a different question [See, The First Relection of the Reverend
Father, Brother Franciscus de Victoria, On the Indians Lately Discovered in The
Classics of International Law, ed. by Ernest Nys (Washington, D.C.:
Carnegie Institution, 1917)], namely, what relations could legitimately subsist
between the Spanish and the Indians in the new world. The title of the “Second Section” is “On the Illegitimate titles
for the reduction of the aborigines of the New World into the power of the
Spaniards.” In discussing these
illegitimate titles of sovereignty Victoria indicates “discovery” as one
of the seven formal and an eighth informal title. To be sure, he discussed the Indians ownership of their land and
of themselves in this review, but his primary focus was not on the possession
of the land.
Discovery was the
third of Victoria’s titles:
“Accordingly, there is another title which can be set up, namely, by
right of discovery; and no other title was originally set up, and it was in
virtue of this title alone that Columbus the Genoan first set sail. And this seems to be adequate title because
those regions which are deserted become, by the law of nations [jus gentium]
and the natural law, the property of the first occupant [Inst; 2,1,12]. Therefore, as the Spaniards were the first
[among Europeans] to discover and occupy the provinces in question . .
. Now the rule of the law of nations is
that what belongs to nobody is granted to the first occupant. . . And so, as the object in question was not
without an owner, it does not fall under the title we are discussing.
[138-39].” Thus dismissing discovery,
which at most only distinguished European claims, without considering what it
means “to occupy” a country, Victoria could well conclude that “the seizure and
occupation of those lands of the barbarians whom we style Indians can best, it
seems, be defended under the law of war. . . [163]—that is, conquest. Conquest, in turn, can derive only from just war. Accordingly, the non-offending Indians could
not be brought under Spanish sovereignty.
Victoria’s work aims to defend free intercourse under the jus gentium. Victoria dismissed a sixth title without
much ado, namely, the consent of the majority of the natives. Then, after the “seventh and last title,” he
discussed “another title which can indeed not be asserted;” namely, the natural
right to assume control over barbarians for their own good, and to set up
rulers over them. Surely, this could by
nature only be done, once, by the first discovers or occupiers, so to
speak. Thus, following Victoria, neither
discovery, conquest, nor the ward or pupillage theory could justify sovereignty
over the Indians. This could not, then,
have informed the American position toward the Indians.
Victoria’s theory,
however, makes little contact with the claims enunciated by Vattel, which concerned
themselves far less with sovereignty over the Indians than with the colonists
sovereignty over themselves. The question
for the Americans turned rather around their relations to Indian nations than
to Indian subjects and this for important political reasons as well as reasons
of international law. Nor was control
of the land of immediate consequence, as Vattel correctly foretold. The land sold to Europeans was to the
Indians often as much a gewgaw as were to the Europeans the trinkets and
jewelry used to acquire the land. Jurisdiction
was the genuine interest transferred, as is reflected in the treaties by the
use of “cede” rather than “sell.”
Indians could not integrate within tribal jurisdictions Europeans who
retained or wished to retain possessory interests within tribal jurisdictions,
although on their own terms they generally and freely integrated within tribes
Europeans and Africans. Indians sold
the jurisdiction both because it mattered little to them and because they
received valuable consideration, besides gewgaws, in return, namely, the
promise of protection. Still, they
could have sold land without jurisdiction.
That is, they could have welcomed Europeans within their own
jurisdictions. They did not, for they
could not. They knew only the territoriality
of the tribe, not the individual.
Possession is indeed nine-tenths of the law; unfortunately, it is not
that tenth part that makes the law, jurisdiction, and without which possession
is only use, only waste or consumption.
There must be actions before there can be choses en action.
The
Indian perspective is not alone sufficient for our purposes, however. We must also consider what the Americans
aimed to accomplish in elaborating their complex relations with the
Indians. In this respect, nothing is
more important than the constitutional claims of the Americans in their
struggles with Great Britain. They had
debated the law of discovery and the law of conquest with the Crown long before
they employed the terms in their dealings with Indians. To sustain their own just claims, they had
to refute the claims of the Crown, reflected in Blackstone’s Commentaries, that the lands of the
colonies were conquered lands, carrying with them the absolute dominion, or
“plenary power,” of Great Britain—a meaning Blackstone elaborated in the
observation that “sovereignty and legislature are indeed convertible terms;
once cannot subsist without the other.” [Blackstone 46]. This sovereignty, to be distinguished from
the jurisdiction described by Vattel as travelling with colonization, Burlamaqui
observed to be conveyed by conquest. [The Principles of Natural and
Political Law (5th ed., 2 vols. in 1, Dublin, 1791), II, Pt. I,
chap. viii, secs. 1-3, 230]. By
contrast, the discovery of deserted land and the insertion of a colony
thereinto carried corporate standing under the constitution of the mother country. [The full discussion of the significance of
this constitutional argument is presented in Stephen A. Cambone, Noble
Sentiments and Manly Eloquence: The
Suffolk Resolves and the Movement for Independence (Ann Arbor: University Microfilms, 1980), pp.
7-75.] This reasoning was familiar to the
Americans from the case of the Irish (See, James Wilson, Lectures on Law,
Appendix, “Considerations on the Nature and Extent of the Legislative Authority
of the British Parliament,” 1774, at 532.
The Americans, then, articulated a principle of discovery, a
constitutional principle, which was essential to the attainment of their
independence and in accord with which it was necessary for them to maintain
that America was not conquered but rather freely settled. This meant, in turn, that their relations with
the Indians could not have been the relations of conquerors to conquered, if
they were to maintain consistency with their revolutionary claims.
The principle of
discovery that surfaced in McIntosh and was present by implication in Worcester
(and Cherokee) bore strong marks of the constitutional debate through
which the Americans had so recently come.
That is why it is incautious at best simply to relate it to the theory
of Victoria. It bears far more the
marks of Vattel, including his praise of American sensitivity to the
Indians. Perhaps the authoritative
reading of this period of jurisprudence is that preserved to us by Justice
Story, first in his Commentaries, written just after the landmark
decisions of the early 1830s, and finally in his 1859 abridgment of that work
for student readers. In the first work
he reported the law as the Supreme Court had decided it, although indicating
along the way that the history did not justify it. By 1859, however, he was sufficiently removed from the controversies
of the 1830s that he could rewrite the sections dealing with Indian law. What he did then was to reassert the version
of American history that is recorded here.
Story wrote in the Commentaries
[2:41, §1099 & 43, §101] that America had inherited from the British Crown
a prerogative power in dealing with the Indians. This would have depended upon a right of conquest as opposed to
that form of discovery the Americans had asserted in the Revolution. Nevertheless, this was precisely the
argument the Court had developed in the series of cases from McIntosh. He went on to observe that this required
viewing tribes as “distinct political societie[s], capable of
self-government.” This tracked with the
Court’s opinion, which went on to distinguish this political societies as
nonetheless not foreign states, and instead “domestic dependent nations” (there
is no comma in the text, as the Report emends!). On this reading, the relation
of the tribe to the United States is that of a “ward to a guardian.” Justice Story, still sitting on the Court,
stopped just there, simply quoting the majority opinion in Cherokee from
which he had dissented!
The reason the
Court seemed to have backed into this position derived from Justice Marshall’s
wrestling with the problem of Indian title.
He wrote, “All our institutions recognize the absolute title of the
Crown, subject only to the Indian right of occupancy, and recognize the
absolute title of the Crown to extinguish that right. This is incompatible with an absolute and complete title in the
Indians.” [Quoted at 1 Story 15] The problem, however, is that if the Indians
had no such absolute and complete title, the Americans had no basis for their
Revolution! After Story quoted
Marshall’s McIntosh opinion at length, presenting the history of “conquest or
treaty” that led to European domination of Indians, and in the very few
mentions of Indians at all—New Haven, Rhode Island, Pennsylvania, all counter
to the thesis—one gets a picture of ready and easy accommodation, punctuated by
the generosity of William Penn. In
short, Story comes very near to certifying the “desert land” point of view,
reducing the notion of European discovery to nothing more than a polite fiction
of realpolitik.
Then, in his
chapter sixteen, following the history, Story gives the analysis whereby, like
Wilson, he refutes Blackstone’s claim that colonies were conquered lands! [1
Story 101] “There is great reason to
doubt the accuracy of this statement in a legal view.” He continued that, at the time of the leading
grants from the Crown, there had been no “conquest or cessions from the
natives.” The Indians were not overcome
by force and were not considered as “having any regular laws, or any organized
government.” They were subjected to
obedience “as dependent communities, and no scheme of general legislation over
them was ever attempted.” Indeed, they
were generally regarded as at liberty to govern themselves, so long as “they
did not interfere with the paramount rights of the European discoverers.” The implication that the “discoverers”
acquired no rights over the Indians was then affirmed by Story in the
declaration, “as there were no other laws there to govern them, the territory
was necessarily treated, as a deserted and unoccupied country, annexed by discovery
to the old empire and composing a part of it.”
This shows clearly that the theory of discovery does not undergird the
notion of a “domestic dependent nation” and cannot, therefore, constitute the
foundation of a wardship or pupillage.
[Joseph Story, Commentaries on the Constitution of the United States,
2 vols., (Boston: Charles C. Little and
James Brown, 1851), 2d edition].
If this reading of
Story’s famous work seems too subtle, it will perhaps add further credence if
we consider at least the critical portion of his subsequent work: A Familiar Exposition of the Constitution
of the United States, Reprint of the 1859 edition (Lake Bluff,
Illinois: Regnery-Gateway, Inc.,
1986). At chapter one, p. 28, Story
uses a different voice to describe the Indian situation.
At the time of the
discovery of America...the various Indian tribes, which then inhabited it, maintained
a claim to the respective limits, as sovereign proprietors of the soil. They acknowledged no obedience, nor
allegiance, nor subordination to any foreign nation whatsoever; and as far
as they have possessed the means, they have ever since consistently
asserted this full right of dominion, and have yielded it up only, when it has
been purchased from by treaty, or obtained by force of arms and consent. In short, like all civilized nations of
the earth, the Indian tribes deemed themselves rightfully possessed, as
sovereigns, all the territories, within which they were accustomed to hunt, or
to exercise other acts of ownership, upon the common principle, that the exclusive
use gave them an exclusive right to the soil, whether it was cultivated or not.
It is difficult to
perceive, why their title was not, in this respect, as well founded as the
title of any other nation, to the soil within its own boundaries. How, then, it may be asked, did the European
nations acquire the general title. . .?
The only answer which can be given, is their own assertion . . . that
their title was founded upon the right of discovery. . .
The truth is, that
the European nations paid not the slightest regard to the rights of the native
tribes. They treated them as mere
barbarians and heathens, whom, if they were not at liberty to extirpate, they
were entitled to deem mere temporary occupants of the soil. They might convert them to Christianity;
and, if they refused conversion, they might drive them from the soil, as unworthy
to inhabit it. They affected to be
governed by the desire to promote the cause of Christianity, and were aided in
this ostensible object by the whole influence of the papal power. But their real object was to extend their
own power and increase their own wealth, by acquiring the treasures, as well as
the territory, of the New World.
Avarice and ambition were at the bottom of all their original
enterprise.
This Justice Story no longer sits on the
Court and no longer defers to the “settled rule of law.
When Story
accepted Marshall’s reliance on Spanish and Portuguese experience, instead of
distinguishing the U. S. from the other America, his voice changed, and he
blasted the foundation as a hypocrisy:
“The right of discovery, thus asserted, has become the settled
foundation . . . and it is a right which, under our governments, must now be
deemed incontestable, however doubtful in its origins, or unsatisfactory in its
principle.” [at p. 30] What this means,
then, is that the principle of discovery yields the occupation of the territory
of North America, and perhaps even jurisdiction over it, but can by no means
yield “plenary power” over either individual Indians or tribes. Yet, one fears that the Commission Report
accepts precisely this result as incontestable, without seeing how doubtful and
unsatisfactory the principle is.
In light of this review, it is no longer possible for responsible policy
makers to accept the last two of Felix Cohen’s “four basic principles” of
federal Indian law: (1) The principle
of the legal (sic) equality of races; (2) the principle of tribal
self-government; (3) the principle of federal sovereignty in Indian affairs;
and (4) the principle of governmental protection of Indians. [“Spanish Origin of Indian Rights,” Legal
Conscience, p. 232].
[9] Cohen’s discussion of the development of the ward status in the
recent era illustrate the problem. In 1
Cohen 16 we find an explanation of the mounting pressure to end treaties with
Indians as a response to defections and attempts to treat with the Confederacy
during the War of American Union. Cohen
quoted interior Secretary Caleb Smith in 1862 to the effect that a conscious
choice was to be made: “A radical
change in the mode of treatment of the Indians should be adopted. Instead of being treated as independent
nations they should be regarded as wards of the government . . .” Smith said it had been mistaken theretofore to
treat tribes as “quasi-independent nations,” since they lacked all of “the
elements of nationality.” Even though
the formality of consent was acknowledged through treaties, in fact the Indians
always yielded to irresistible force.
In 1869 Interior Secretary Parker repeated the recommendation [1 Cohen
18] and observed along the way that the government had injured Indians “in
deluding this people into the belief of their being independent sovereignties,
while they were at the same time recognized only as its dependents and
wards.” In fact Parker called them
“subjects,” assimilating their status to that of a people governed by
relationships not derived from consent.
Actually, however, the argument for independence was made most forcefully
as early as 1828, when Attorney General William Wirt maintained three criteria
for tribal independence: government by
their own laws; absolute power of war and peace; and inviolable territory and
sovereignty. None of Wirt’s three
criteria apply to tribes in the United States of 1990, of course. To apply the term, sovereign, to them in
their present state is a cruel and inhuman pun—for they are capable of none of
the essential attributes of sovereignty.
It is an extreme aggravation of the joke, therefore, to deny Indians at
the same time the essential protections of citizenship. Nor does Cohen lighten the Indian’s burden
by his happy ejaculation, “the special status of the Indian is, by and large,
something that he has bought and paid for and that he can relinquish whenever
he chooses to do so.” [ “Indians Are Citizens!”, Legal Conscience, at
257]. One might have expected better of
Cohen, since the burden of his argument is actually to insist upon full rights
of citizenship for Indians, a point he reiterated in “Indian Wardship: The Twilight of A Myth,” [Legal
Conscience, 328]: “. . . the courts
have held that Indians are not wards under guardianship, but on the contrary
are full citizens of the United States and of the states wherein they reside,
and are entitled to all the rights and privileges of citizenship.” The catch, of course, is that this claim is
not understood to apply to the tribes, where Indians may be no less completely
members than they are citizens in the United States, but where their United
States citizenship is of little value to them.
Cohen concluded the article with the hopeful anticipation that we will
eventually dispel the “lingering legend of wardship,” whether of individual
Indians or of tribes. That surely will
not be accomplished for so long as the so-called special “government to
government” relationship persists.
[10]
The Constitution of the
United States prescribes no criteria for legitimacy in government, other than
the republican. Tribal heritage may be
a legitimate basis of government, but it is not one known to the Constitution. It may operate, therefore, only
independently of the Constitution.
Tribal governments—pre-constitutional and pre-republican—have always
been at a disadvantage trying to find a secure space under and within the
Constitution of the United States. They
are in fact tolerable under the Constitution only to the extent that they may
be treated as private associations.
Cf., Johnson, at 985.
[11] Cf., Indian Child Welfare:
A Status Report, “Final Report of the Survey of Indian Child Welfare
and Implementation of the Indian Child Welfare Act and Section 428 of the
Adoption Assistance and Child Welfare Act of 1980,” prepared by CSR
Incorporated (Washington, D. C.) and Three Feathers Associates (Norman, OK) for
the Administration for Children, Youth and Families, U. S. Department of Health
and Human Services and the Bureau of Indian Affairs, U.S. Department of the
Interior, April 18, 1988. This must
come as no surprise to any who have regarded closely the results of the ICWA. The abuses which I have personally
documented, received innumerable complaints about, and seen reflected in
official testimony and reports, are all too apparently the natural concomitants
of the systemics liabilities of this approach to cultural preservation. Considering the five leading consequences of
the ICWA to date:
1. Fewer
adoptions, coupled with increasing resistance to termination of parental
rights.
2. Concerns
about a lack of tribal accountability which undermines even potentially
positive enforcement of the act.
3. A
not insignificant absence of tribal courts in many places and, hence, adequate
due process.
4. Federal-level
efforts to communicate performance standards and to monitor or enforce
compliance have been limited.
5.
No reduction in the flow of Indian children into substitute care
has resulted, coupled with a dramatic shortage of Indian foster homes, and a
decline in adoption rates spells disaster for Indian youths.
The fact is, the ICWA is a
blunderbuss where a rifle was called for; pinpoint accuracy in addressing human
suffering is a moral necessity, not a mere budgetary luxury. Of the many concrete cases of abuse that
have resulted, perhaps none is more compelling than the story of the child with
20:500 vision, who loves to read and who was restored to her tribe, only to be
deprived of the prosthetic her foster parents had provided and subjected to
physical abuse as well! This tragedy
resulted in significant measure as a consequence of the ICWA.
[12] The problem aimed at by the “Duro-fix” did not originate with 1950s self-determination nor even the 1934 “Reorganization Act,” as the Report implies. Like so many other evils it originated in the paternalism of the early 19th century. 1 Cohen 2-3 offers a compelling account of its early origins. A primitive version of “self-government” policy was contained in the 1834 Trade and Intercourse Act: “That so much of the laws of the United States as provides for the punishment of crimes committed within any place within the sole and exclusive jurisdiction of the United States, shall be in force in the Indian Country: Provided, the same shall not extent to crimes committed by one Indian against the person or property of another Indian” [note omitted]. In short primitive “self-government” was nothing but a federal license for Indians to abuse one another, even if it did convey by implication a kind of racially construed “sole and exclusive jurisdiction” to tribes themselves. Since U. S. jurisdiction must follow the power to punish crimes by whites aginst Indians and crimes by Indians against whites, clearly the tribes cannot have “sole and exclusive jurisdiction” within their territory however construed. This comports with Cohen’s definition of “Indian Country” at p. 5 as “country within which Indian laws and custom and federal laws relating to Indians are generally applic