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2 NATIVE AMERICANS
Building on models already tested by the Spanish, the French, and the British,
America advanced its takeover of the lands held by Native Americans1 through resort to
treaties — easily made and as easily abandoned — open warfare waged with, first,
superior weapons and, later, with overwhelming numbers, and, ultimately, through
policies of the Spanish, who tracked and exterminated the Indians as they would wild
beasts, with those of the Americans, who accomplished the same end “with singular
violating a single great principle of morality in the eyes of the world. It is impossible to
destroy men with more respect for the laws of humanity.”3 De Tocqueville’s observation
is obviously tongue-in-cheek, because there was, in fact, great bloodshed and great
savagery directed at those deemed to be savages. His description does encompass how
the law was manipulated to justify whatever was necessary to get rid of the Indians, who
1
There is much discussion about what term should be used to refer to Native American peoples. Many
people, including people who are themselves Native American, choose to use the term “Indian” or
“American Indian” and see such use as a reclamation of an oppressive colonial nomenclature. Others prefer
“Native American” or “First American.” This author, as a non-Native American, has chosen to use the term
“Native American” as it reflects the fact that Native peoples are indigenous to America and moves away
from the often stereotypical term “Indian.” When other scholars or sources are cited, the terms they use are
not altered, which accounts for the variation throughout the chapter.
2
The traditional myths about the winning of the West have been deromanticized. The virtual eradication of
the Western Indian is painfully detailed, for example, in Dee Brown, Bury My Heart at Wounded Knee
(1970). Indian politics is surveyed with insight, wit, and militancy in Vine Deloria, Custer Died for Your
Sins (1969).
3
Cited in Rennard Strickland, Genocide-At-Law: An Historic and Contemporary View of the Native
American Experience, 34 U. Kans. L. Rev. 713, 718 (1985-1986). A more recent commentator observed:
“[H]eavy reliance on law is characteristic of many colonial societies that are typified by . . . extreme
imbalances of power. The use of law by colonizers to execute and rationalize oppressive policies, notably
the acquisition of native lands for European settlement, is poorly explained as an effort to gain the consent
of thoroughly dominated indigenous populations. Rather, . . . the use of law under such circumstances
reflects the needs of dominant colonial groups to maintain internal cohesion and morale, and, to a lesser
extent, to gain international approval for their policies.” George E. Bisharat, Land, Law, and Legitimacy in
Israel and the Occupied Territories, 43 Am. U. L. Rev. 467, 470-471 (1994).
refused to depart from what whites felt were lands that were part of the “manifest
destiny” of this nation. Indeed, American Indian law developed with and was closely tied
to the means by which whites displaced Indians. The Court adopted a number of policies
that to the observant were hardly more than rationalizations for that displacement. As one
article put it, a cynic would not be far off the mark who defined Indian law as based on
the separative premise when it was possible to move the Indians to other territory and on
the assimilative premise when land scarcity required that the Indian and his lands be
brought into the totally alien private-property system of the white man, where the Indian
could easily be dispossessed by such devices as inflated tax appraisals and long-term
Comedian Dick Gregory, fresh from a lengthy lecture on how American law dealt
with Native Americans, went outside and said, “Hey, look at that beautiful Cadillac car. I
§3.2.1 Federal Power over Indians: Its Sources, Scope, and Limitations5
The mystique of plenary power has pervaded federal regulation of Indian affairs from
the beginning. While the Articles of Confederation contained a general power over Indian
affairs, the Constitution enumerates only one power specific to these affairs: the power
“[t]o regulate Commerce . . . with the Indian tribes.”6 The Plenary Power Doctrine, a
4
Red, White, and Grey: Equal Protection and the American Indian, 21 Stan. L. Rev. 1236, 1238-1240
(1969). Chief Joseph, one of the last great Indian leaders observed, “The white men made us many
promises. They only kept one. They said they would take our land and they took it.”
5
Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev.
195 (1984). In a lengthy article, a major portion of which is excerpted here with her permission, University
of Denver Law School Dean Newton traces the judicial “flexibility” that categorized American Indian law.
Footnotes, where included, are renumbered to conform with those in this chapter.
6
U.S. Const. art. I, §8, cl. 3.
fixture of American Indian law since John Marshall provided its first justification in
1832,7 can be traced not only to this commerce power but also to the treaty, war, and
other foreign affairs powers, 8 as well as to the property power. 9 Each has been
characterized, historically, as vesting Congress (or the President) with almost unlimited
The absence from the Constitution of a general power over Indian affairs is not
surprising to students of history, for at the time the Constitution was drafted, the Framers
regarded Indian tribes as sovereign nations, albeit nations that would soon either move
west, assimilate, or become extinct. Thus, the same powers that sufficed to give the
federal government a free rein in the international arena were viewed as sufficient to
enable the new government to deal adequately with the Indian tribes. In formulating
federal policy toward Indian tribes in the early years of the Constitution, President
Washington and Secretary of War Knox followed the policy promulgated by the British
Crown — though not always followed by individual colonies — of dealing with Indian
tribes as sovereign nations. Their principal reason was practical: Earlier attempts by
individual colonies and some states under the Articles of Confederation to assert power
over Indian tribes, especially the power to seize tribal lands, had caused conflicts.
According to one historian, “[T]he country, precariously perched among the sovereign
nations of the world, could not stand the expense and strain of a long drawn-out Indian
7
Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557-562 (1832).
8
U.S. Const. art. II, §2 (treaty); id. art. I, §8, cls. 11-16 (congressional war powers).
9
U.S. Const. art. IV, §3 (property clause).
war.”10 Washington and Knox advocated a policy of respect for existing treaty promises.
In addition, they recommended that a series of new treaties be negotiated for the purpose
of acquiring Indian land by consent in an orderly fashion; the treaties would contain
promises to protect Indian tribes and tribal land from white incursions in exchange for the
land cessions. This policy of dealing with Indian tribes as nations capable of executing
The treaty powers of Congress and the executive branch were sufficient to carry out
this early policy. In addition to ratifying treaties, Congress also affected Indian affairs by
means of the Trade and Intercourse Acts, first enacted in 1790. These laws originally
individuals and states who had infringed on Indian land or dealt with Indians in violation
of treaties.
The judiciary further solidified the analogy of Indian affairs to foreign affairs. In
Worcester v. Georgia,11 Chief Justice John Marshall upheld the supremacy of federal over
state power regarding Indian tribes, an issue that threatened to split the nation apart at that
time, but which has never seriously been open to question since then. Chief Justice
Marshall premised much of his eloquent defense of federal power on his view of the
Constitution and whose dealings with the United States were governed by principles of
10
Francis Prucha, American Indian Policy in the Formative Years 44 (1962). See also A. Wallace, the
Death and Rebirth of the Seneca 159-162 (1969) (Indian battles resulting in high U.S. casualties).
11
31 U.S. (6 Pet.) 515 (1832). Georgia had attempted to assert jurisdiction and ownership rights over the
gold-rich lands of the Cherokee Nation. Invalidating the Georgia law, the Court held that the Constitution
assigned to the federal government exclusive power to deal with Indians. Consequently, the Court
concluded that the exclusivity of federal power alone would bar any state law and that federal laws as well
as treaties preempted state laws. Id. at 561-562.
Although the Court in Worcester recognized that Indian tribes possess inherent
sovereignty rights, the decision was really a defense of federal over state power, not a
defense of Indian tribal sovereignty — the tribe was not even a party to the suit. Indeed,
by relying on federal foreign relations power to free tribal sovereignty from state control,
Worcester subjugated that sovereignty to the will of Congress. This set the stage for a
One legacy of Worcester, then, is that courts applied to Indian affairs doctrines
peculiar to the federal foreign affairs power without necessarily distinguishing the special
status of Indian tribes as domestic rather than foreign nations. Under the last-in-time rule,
for example, Congress can abrogate a treaty with a foreign country, merely by passing a
later statute conflicting with it. Early on, this doctrine was applied to treaties with
Indians; moreover, courts continue to apply the doctrine today when Indian tribes are no
foreign affairs doctrines was the frequent invocation of the political question doctrine,
congressional power in Indian cases,13 even those raising individual rights concerns.14 For
12
See, e.g., Yankton Sioux Tribe v. United States, 623 F.2d 159, 181 (Ct. Cl. 1980) (statute permitting
Secretary of Interior to pay out shares of tribal funds to individuals abrogated a treaty promise that payment
for land sale be held in a tribal trust fund); see also Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977)
(statutes opening parts of a treaty reservation to settlers disestablished reservation). For a thorough
discussion of this controversy, see Comment, Statutory Construction — Wildlife Protection Versus Indian
Treaty Hunting Rights, 57 Wash. L. Rev. 225 (1981); see also Charles F. Wilkinson & John M. Volkman,
Judicial Review of Indian Treaty Abrogation: “As Long as Water Flows, or Grass Grows Upon the Earth”
— How Long a Time Is That?, 63 Cal. L. Rev. 601 (1975).
13
See, e.g., United States ex rel. Hualpai Indians v. Santa Fe Pac. R.R., 314 U.S. 339, 347 (1941) (“The
manner, method and time of such extinguishment [of aboriginal Indian title] raise political, not justiciable,
issues.”); Beecher v. Wetherby, 95 U.S. 517, 525 (1877) (“[A]ction towards Indians with respect to their
lands is a question of governmental policy. . . .”).
instance, although the integrity of tribal sovereignty was protected from state incursions
in Worcester, the federal government later forced the Cherokee Nation to march to Indian
territory by negotiating a treaty with a minority faction of the tribe. 15 Despite the
immediate protest of nearly all of the Cherokee people to the President and to Congress,
removal was ordered. 16 Judicial recourse would have been unavailing: The political
question doctrine would have barred the courts from questioning the procedures leading
up to the treaty.
power to deal with them, it is important to note that the Court did not view Indian tribes
as possessing all the attributes of sovereignty of a foreign nation. In the first Cherokee
case, Cherokee Nation v. Georgia,17 the Court held that Indian nations were not foreign
states for the purpose of invoking the Supreme Court’s original jurisdiction. The Court
reasoned that the Cherokee Nation was “a distinct political society, separated from others,
capable of managing its own affairs, and governing itself. . . .” Nevertheless, the nation
was neither a state of the union nor a foreign state, but a “domestic dependent nation”
14
See e.g., Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 281 (1955) (Indians not entitled to
compensation under Fifth Amendment for taking of timber by United States from aboriginal lands. The
“power of Congress is supreme.”).
15
Treaty with the Cherokees at New Echota, Dec. 29, 1835, 7 Stat. 478. The pressures from state and
public officials created two factions among the Cherokee Nation: the Treaty Party, comprising the elite
mixed bloods, and the Ross faction, supporters of Chief John Ross. Ross, who had the support of most of
the Cherokee people, was incarcerated while the Treaty Party representatives negotiated the treaty. The
treaty, ratified at New Echota, the capital of the Cherokee Nation, by only 20 persons, ceded all the tribal
land in Georgia in exchange for 7 million acres of land in Indian Territory. French, The Death of a Nation,
4 Am. Ind. J. 2, 3-4 (1978).
16
A petition protesting the treaty, signed by nearly sixteen thousand of the seventeen thousand members of
the Cherokee people, was presented to Congress. Grant Foreman, Indian Removal 269 (new ed. 1953).
More than four thousand of sixteen thousand Cherokees died in the camps where they awaited removal and
along the Trail of Tears, as the route to Indian Territory came to be called. Id. at 294-312; see also Grant
Foreman, The Last Trek of the Indians (1946).
17
30 U.S. (5 Pet.) 1, 16-17 (1831).
incapable of conducting foreign relations with countries other than the United States.
Instead, “[t]heir relation to the United States resembles that of a ward to his guardian.”
In sum, from the beginning, Indian tribes were in a truly anomalous position.
Congress and the President viewed them as separate nations in some respects.
Furthermore, individual Indians were regarded as domestic subjects, more akin to aliens
than citizens, until Congress granted them universal citizenship in 1924.18 The judicial
conducting foreign affairs and dealing with aliens attached to federal regulation of Indian
affairs. As domestic dependent nations, Indian tribes possessed sovereignty, but could not
invoke the jurisdiction of the federal courts. Indeed, the broad language in Cherokee
Nation about the peculiar status of Indian tribes, created doubt that tribes had standing to
sue in federal court, a matter that was subject to some question for many years. In short,
the integrity of tribal sovereignty rested precariously on the whim of Congress, owing, in
the early years, to the Court’s extraordinary deference to the political branches’ exercise
In the years preceding the Civil War, especially during the 1830s to the 1850s,
Congress had sought to remove the eastern Indian tribes west of the Mississippi, but as
settlers began opening up the west, continued removal began to be viewed as impossible.
After the Civil War and the pacification of the last tribes of the plains, a movement began
18
Citizenship Act of 1924, ch. 233, 43 Stat. 253 (current version at 8 U.S.C. §1401(b) (1982)).
Indian tribes as separate nations with power over their own people on their own land was
Divergent groups coalesced for very different reasons behind this assimilationist
policy. Some regarded Indians as barbarians who had to be civilized for their own
security and the security of those living near them. It was believed that if Indians were
citizens, individually owning small tracts of land, they would come under the civilizing
effects of the life of a farmer or a rancher and would abandon their nomadic and barbaric
habits. Large portions of surplus reservation land could then be sold to settlers, who were
clamoring for it. In addition, with the end of the reservations, promises that reservation
land would never be contained within a state’s limits would become meaningless; thus,
for the remaining territories, individual ownership would remove this barrier to statehood.
were moved by more benign motives. They argued that only by becoming citizens, voters,
and individual landowners would Indians be able to protect themselves and their land
from the settlers and from the federal government’s dishonorable practice of “breaking . . .
several hundred treaties, concluded at different times during the last 100 years. . . .”19 The
House of Representatives ushered in the new “Era of Allotment and Assimilation,” when
it decreed in a rider to the Appropriations Act of 1871 that henceforth “[n]o Indian nation
or tribe within the territory of the United States shall be acknowledged or recognized as
an independent nation, tribe, or power with whom the United States may contract by
treaty.”20 The legislators were motivated by the belief that Indian affairs should no longer
be a matter of foreign affairs now that the last remaining Indian tribes of a warlike nature
19
Helen Hunt Jackson, A Century of Dishonor 26 (1881 & photo. reprint 1965). Jackson’s indictment of
federal policy sparked the reform movement.
20
Act of Mar. 3, 1871, ch. 120, §1, 16 Stat. 566 (codified at 25 U.S.C. §71 (1976)).
had been subdued. Thus, the treaty-making era came to an end. Indian law became more
a matter of domestic law, with Indians regarded as subjects to be governed, rather than as
foreign nationals.
With the end of the treaty-making era came statutes designed to implement the new
assimilationist policies. Many of these statutes could not be viewed as either effectuating
treaty promises or regulating trade. Thus the Court was forced to develop new rationales
to justify federal actions concerning Indians. From two concepts — property interest and
extraconstitutional.
The notion that the federal government had a property interest of some sort in Indian
land provided the central element in the analysis resulting in guardianship power. Thus,
to briefly trace the history of the Doctrine of Discovery, the source of the property
interest. Johnson v. McIntosh, 21 decided in 1823, was the first major case directly
concerning the validity of Indian property interests to reach the Court. Drawing
inspiration from international law regarding the sovereign rights of the nations that had
colonized the New World, Chief Justice Marshall held that by virtue of discovering a
whose subjects, or by whose authority, it was made, against all other European
governments, which title might be consummated by possession.” This title gave the
government the preemptive right to purchase Indian land or to confiscate it after a war.
The Indians, on the other hand, remained “the rightful occupants of the soil, with a legal
as well as just claim to retain possession of it.” Until the sovereign exercised its
preemptive right to extinguish Indian title, the Indians’ right to the land was sacrosanct.
Thus, a purchaser from the Indians could not obtain a fee simple absolute title without
The Doctrine of Discovery protected federal, individual, and tribal interests. Federal
power to control acquisition of new land was supreme. Individuals tracing title to past
grants had their title confirmed, although, if Indians still inhabited the land,
extinguishment of the Indian title was necessary to perfect their interests. Finally, tribal
rights to aboriginal land were confirmed and protected to some extent.22 Although the
Doctrine of Discovery was a concept designed in part to protect Indian rights to land as
well as to protect the principle of federal exclusivity in dealing with Indians regarding
their land, later judicial misinterpretations of the doctrine are in large part responsible for
arguments in favor of virtually unreviewable federal power over Indian lands. These
arguments were prevalent in the late eighteenth and early nineteenth centuries and are
22
See Felix S. Cohen, Original Indian Title, 32 Minn. L. Rev. 28, 48-49 (1947); accord Russel Lawrence
Barsh & James Youngblood Henderson, Contrary Jurisprudence: Tribal Interests in Navigable Waterways
Before and After Montana v. United States, 56 Wash. L. Rev. 627, 635-636 (1981); Howard R. Berman,
The Concept of Aboriginal Rights in the Early Legal History of the United States, 27 Buffalo L. Rev. 637,
644-645 (1978). See generally Henderson, Unraveling the Riddle of Aboriginal Title, 5 Am. Indian L. Rev.
75 (1977).
While the early decisions of the Marshall Court viewed the government’s property
interest in land as a preemptive right to purchase, or a sort of glorified option to buy the
land, subsequent decisions denominated the government’s interest as a title interest and
the tribal interest as a possessory one. The more the government’s interest was
to govern Indian affairs, the Court found it to be inherent, first by analogy to early
decisions regarding the power to regulate activities within the territories. Drawing
support from cases upholding congressional power to govern territories before statehood,
the Court in Kagama stated that the power over territories derived “from the ownership of
the country in which the Territories are.”23 The Court quoted an earlier opinion by Chief
Justice Marshall regarding territorial government: “[T]he right to govern may be the
Court found inevitable the right to govern activities of reservation Indians whether within
or without state boundaries. The Doctrine of Discovery gave the United States “ultimate
title” over Indian land wherever located and the exclusive right to acquire that land. Thus
the federal government owned the country in which the Indian tribes lived, and this
ownership interest in turn vested the government with the right to govern them. Finally,
the Court relied on the history of federal supremacy over the states in Indian affairs and
the historic, protective role that the government played toward Indians. These Indian
tribes (the Court held) are the wards of the nation. They are communities dependent on
23
United States v. Kagama, 118 U.S. 375, 380 (1886).
24
Id. (quoting American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 542 (1828)).
the United States: dependent largely for their daily food and dependent for their political
rights. They owe no allegiance to the states and receive from them no protection. Because
of the local ill feeling, the people of the states where the Indians are found are often their
deadliest enemies. From the Indians’ very weakness and helplessness, so largely due to
the course of the federal government’s dealings with them and to the treaties through
which the government made its promises to them, there arises the duty of protection and,
At first glance the practical solution seems a happy one. The states had proven
themselves to be the greatest enemies of the Indian tribes, and the federal government
had insisted on the exclusive right to deal with the tribes since the founding of the
republic. Moreover, the practical solution did no violence to the allocation of powers
between nation and states in the Constitution. Although the Court might have taken
greater care to demonstrate that the continued power to legislate regarding Indian affairs
was a necessary inference from the history and the text of the Constitution, still the
narrow result of Kagama — the supremacy of federal over state power — was a just one.
Yet the Court in Kagama failed to consider tribal rights. Consent of the governed had
been a cardinal principle of the founders. Nevertheless, that Indians were not citizens and
could not vote did not seem relevant to the Court. Once again, by concentrating on
justifying federal power, the Court reinforced earlier precedents abdicating its role in
accommodating the legitimate but competing interests raised by the federal government’s
interference with tribal rights. Such accommodation was left to the political arena: an
toward federal regulation of Indian affairs more than a prescription concerning the proper
balance of the interests at stake. It is unnecessary at this late date to argue that such a
the Court’s subsequent reliance on Kagama well into the twentieth century.
From the time of Kagama until well into the twentieth century, policy makers denied
tribal Indians the basic freedoms accorded other Americans, on the theory that their
relation to the United States was “an anomalous one and of a complex character.”26 Even
now, an increasing number of Justices on the Supreme Court are getting distraught about
individual rights provisions of the Constitution, like other noncitizens, Indians and Indian
tribes in fact could not vindicate their rights in the courts. While the Fourteenth
Amendment had been held to guarantee all persons equal access to the state courts,
irrespective of their race, 28 Elk v. Wilkensn 29 and subsequent cases cast considerable
Indians. Moreover, the 1866 Civil Rights Act guarantee that “citizens . . . shall have the
25
See, e.g., Mormon Church v. United States, 136 U.S. 1, 44 (1890) (upholding law breaking up Mormon
Church and providing for seizure of Church property); Dred Scott v. Sandford, 60 U.S. 393, 451-452
(1857) (fundamental property rights of slave owners); cf. William E. Nelson, The Impact of the Antislavery
Movement upon Styles of Judicial Reasoning in Nineteenth Century America, 87 Harv. L. Rev. 513 (1974)
(the formalistic “rules” approach of the late nineteenth century was in part a reaction to freewheeling
instrumentalist opinions like Dred Scott).
26
Kagama, 118 U.S. at 381.
27
Philip P. Frickey, (Native) American Exceptionalism in Federal Public Law, 119 Harv. L. Rev. 431
(2005).
28
Yick Wo v. Hopkins, 118 U.S. 356 (1886).
29
112 U.S. 94 (1884).
same right . . . to sue, be parties, and give evidence” explicitly excluded Indians from
citizenship. Even when access to the courts was granted, this lack of familiarity with state
law and procedures, state laws excluding them from juries and declaring them
Access to federal courts was also problematic. First, being neither citizens nor true
aliens, individual Indians and Indian tribes could not sue in federal court on nonfederal
questions. Although Indian tribes and individuals bringing class actions on behalf of
tribes did raise federal questions in federal courts, their status as wards of the government
Undoubtedly, racial and cultural prejudice played no small role in federal actions
toward Indians during this period. The reported justifications for these federal actions
rested on the guardianship theory of United States v. Kagama, cited frequently in the
cases of that era. Yet one key to the Court’s finding of a congressional guardianship
power over Indians was its view of their racial and cultural inferiority. Repeatedly, the
decisions of that era invoked this inferiority in terms that would be intolerable in a
judicial opinion today. The undisguised contempt for the native culture was unrelieved by
an open-minded assessment in any of the principal cases studied. Rather, the Indians
The relationship between the federal government and the Indian was frequently
termed as one between a superior and inferior. The white race was called more intelligent
and highly developed. The government’s representatives held the implicit belief that a
higher civilization justly replacing that of a passing race whose time was over and whose
existence could no longer be justified. The very weakness of the Indians in resisting the
tide seemed to be one of their greatest moral shortcomings, but one not as serious as the
Indian communal tradition. To the white observer, the lack of proprietary interest
generally displayed by tribal members was repulsive and backward. Removing the “herd”
instinct was deemed by some to be the key to civilizing the Indian. The ethnocentric
outlook of the times may well have tainted the Court’s view of the legitimacy of Indian
rights claims and may explain, if not excuse, some of the more egregious violations of
Forced allotment of Indian lands and assimilation of Indians into the dominant culture
became the primary policy of the federal government during the years following Kagama.
Tribal land was subdivided, some apportioned to individuals with no compensation to the
tribe, and the rest sold to non-Indian settlers, often at far less than fair market value. The
Court aided this process, holding that the plenary power of Congress, derived from the
simple property, into quasi-public land “subject to the administrative control of the
government.” This authority permitted Congress, acting through the Secretary of the
Interior, to lease, sell, or allot any tribal land without tribal consent, even in violation of
solemn treaty promises. The money gained by these ventures was placed in trust funds
managed by the government and disbursed as the government believed wisest, often for
the purpose of assimilating and civilizing the Indians. For example, tribal trust money
was often spent to pay missionaries to educate Indian children in the ways of white
society and Christianity — without consulting the tribe. Furthermore, money promised
the tribe as an entity in treaties could be paid to members per capita, thus drastically
The Court supported these federal actions by eschewing any role in accommodating
the competing interests at stake. Congress had decided in 1871 to govern Indians by
statute, and its actions were not justiciable: Plenary authority over the tribal relations of
the Indians has been exercised by Congress from the beginning, and the power has
always been deemed a political one, not subject to be controlled by the judicial
department of the government. Indians abandoned the attempt to restrain federal action.
Instead, tribes used what resources they had to persuade Congress to pass statutes
permitting them to sue for compensation for land that was taken.
The legacy of Kagama dominated Indian sovereignty issues, and citation of Kagama
frequently signaled judicial deference to Congress. Chief Justice John Marshall had
protectorate relationship with the federal government, like “that of a nation claiming and
receiving the protection of one more powerful: not . . . submitting as subjects to the laws
of a master.” Nevertheless, in Kagama, the Court interpreted the 1871 statute ending the
practice of making treaties with Indian tribes as establishing the premise that the federal
government intended to govern the tribes by acts of Congress. Thus, the Court upheld
federal power to take from Indian tribes jurisdiction over crimes among Indians, the first
major federal inroad into tribal internal affairs. The court subsequently invoked the
Kagama guardianship power and the political question doctrine as justifying judicial
Having obtained such a judicial seal of approval for the exercise of its power,
peoples. The dissolution of tribal governing structures was a cardinal aim of the
Allotment Period. For instance, in 1906, Congress denied the legislatures of the Five
Civilized Tribes the right to meet more than 30 days per year, and their legislative action
was made subject to veto by the President of the United States. Legislative intervention
even extended to federal power over tribal money. Statutes provided that money due to
tribes from tribal assets could be appropriated at the discretion of Congress. The
Secretary of the Interior’s power over disbursement of Indian money enabled him to
manipulate the tribe with a concomitant weakening effect on tribal sovereignty. Moreover,
Congress, not the tribes, had the ultimate authority to determine who was a tribal member
for purposes of distributing property, annuities, and trust money and to determine, further,
how that money was spent. Finally, Congress even authorized the consolidation of tribes
As one commentator has noted, by these and other measures, “the Indian Agent and
his staff were ‘the government’ for most tribes from the cessation of treaty-making to the
1930’s.”30 While the courts did not explicitly endorse every erosion of tribal political
sovereignty occurring during this time, they certainly shared responsibility for it, because
Kagama and its progeny had eviscerated any litigation strategy to protect tribal
sovereignty rights.
30
Theodore W. Taylor, The States and Their Indian Citizens 17 (1972).
Judicial abandonment of Indians was not limited to rights asserted by tribes. The
Court also treated individual Indians as constitutional castaways. For instance, according
to Kagama, Indians were within the geographical limits of the United States and thus
were subject to whatever laws Congress deemed appropriate. A year and a half before
Kagama, however, the Court had held in Elk v. Wilkins31 that Indians were not citizens,
thereby upholding a state’s denial of the right to vote to an Indian who had severed
relations with his tribe and become a lawful resident of the state. Over the dissent of the
first Mr. Justice Harlan, the Court reasoned that, although the petitioner was born in the
United States, he was not “subject to the jurisdiction” of the United States for the
purposes of the Fourteenth Amendment, because all Indians “owed immediate allegiance
to their several tribes, and were not part of the people of the United States.” Indians might
be subject to United States jurisdiction in some respects, but the Fourteenth Amendment
required more: They must be “completely subject to [United States] political jurisdiction,
and owing them direct and immediate allegiance.” While the Court in Elk reaffirmed
even those who had assimilated, could not become citizens of the United States without
permission of Congress. Many other noncitizen aliens who claimed direct allegiance to
other nations had a choice that Indians never had: They could go home and remain
subject to the sole jurisdiction of the country of their birth. Indians, on the other hand,
were alien subjects of a federal power they had not chosen and could not escape.
Eventually, those who favored the assimilationist policy because of concerns for
Indian well-being urged successfully that Indians who received allotments should be
31
112 U.S. 94 (1884).
made U.S. citizens. 32 This grant of citizenship permitted Indians to take part in the
political process. Nevertheless, those Indians whose lands escaped allotment remained
noncitizen subjects.
Even after the bestowal of citizenship on all Indians,33 Congress continued to legislate
pervasively on Indian matters. The Court supported this exercise of power, holding that
conferral of citizenship did not end the guardian-ward relationship. Moreover, the Court
held that an individual Indian had no power to terminate the guardian-ward relationship
unilaterally.
Legislation of this era curtailed individual Indian property rights by placing restraints
on the alienation of allotted land, including fee simple allotted land. The right of Indians
to make contracts affecting trust property and to dispose of trust property was
largess bestowed on them. Statutes granting individuals property rights in the most
explicit language were overturned by later statutes enlarging the class of beneficiaries and
even, when congressional policy favoring tribal self-government resurfaced in the 1930s,
First Amendment rights, too, were curtailed drastically. Indian religions were banned
upon threat of criminal prosecution in the Courts of Indian Offenses set up by the Bureau
of Indian Affairs. Children were forced to attend boarding schools to receive rations
promised in return for land cessions. Moreover, the children were denied the right to
32
The General Allotment Act provided that Indians receiving allotments under any treaty or statute would
become citizens; General Allotment Act of 1887, ch. 119, §6, 24 Stat. 388, 390 (codified as amended at 25
U.S.C. §349 (1976)). The act also declared Indians living separate and apart and “adopting the habits of
civilized life” to be citizens.
33
Indian Citizenship Act of 1924, ch. 233, 43 Stat. 253 (current version at 8 U.S.C. §1401(b) (1982)).
speak their own language at the schools. They were educated only in English, and then
only about American values. This coerced education in Indian boarding schools
continued even after the Supreme Court recognized the fundamental right of non-Indian
families to oversee the education of their children by sending them to private schools or
to schools where foreign languages were taught. Finally, individual Indians were subject
to liquor laws, whether or not they had severed tribal relations and whether or not they
lived on a reservation.34
In modern times, the Supreme Court has apparently repudiated both the ethnocentric
overtones of the doctrine of plenary power and the doctrine itself, at least as far as the
power over Indian affairs. U.S. v. Lara35 is a recent example. This case involved a man
who was prosecuted in Tribal Court but was later charged by the federal government.
Lara invoked the Double Jeopardy Clause of the U.S. Constitution (which states that the
government may not subject any person “for the same offence to be twice put in jeopardy
of life or limb”)., claiming that he had already been charged in Spirit Lake Tribal Court
on the basis of prosecutorial power that Congress had delegated to tribes through a 1991
34
See, e.g., Hallowell v. United States, 221 U.S. 317 (1911) (upholding prosecution for violation of law
against selling liquor to an Indian or Indian allottee). These liquor laws were explicitly racial. In Hallowell,
for instance, despite the fact that the defendant had been active in county and state governments as a judge,
county attorney, county assessor, and director of a public school district, he was still subject to the law
because of his status as an Indian. See id. at 320, 324.
35
United States v. Lara, 541 U.S. 193 (2004). See Alex B. Roberts, “Reservations on Tribal Sovereignty:
How United States v. Lara will affect Indians, Tribes and the Fight to Regain Independence”, available at
http://www.houstonlawreview.org/archive/downloads/43-2_pdf/Roberts.pdf; see also Alex Tallchief
Skibine, United States v. Lara, Indian Tribes, and the Dialectic of Incorporation, 40 Tulsa L. Rev. 47
(2004).
amendment to the Indian Civil Rights Act. The Supreme Court held that the Spirit Lake
Tribe's prosecution of Lara was an exercise of the “inherent sovereignty” of the Spirit
Lake Tribe, and not an exercise of a federally delegated power of prosecution. Thus, the
Double Jeopardy Clause did not prohibit the Federal Government from proceeding with
More Restrictive View of the Guardian Ward Relationship (1930s to the Present)
As demonstrated above, barriers to the Indian tribes’ access to the judicial system and
that system’s deference to Congress, coupled with indifference to tribal and individual
rights on the rare occasions when Indians were allowed into court, marked the plenary
power era, which lasted at least until the 1930s. In the 1930s and 1940s, Congress
repudiated the allotment and assimilation policy, which had come under much criticism,
and adopted a policy of protecting tribal cultures and encouraging tribal self-government.
First, both Congress and the judiciary opened the doors to the courthouses for Indians
long denied ready access to the courts. For instance, the Court finally clarified the murky
question of whether tribal Indians had standing to sue in federal court absent a
congressional grant. During the allotment era, the Court had upheld the power of the
executive to bring suit on behalf of Indian wards and had intimated that Indians not only
could have no say in the litigation, but might also have no right to sue on their own behalf
once the United States had undertaken their representation. In 1943, the Court entertained
a suit brought under a statute expressly permitting an aggrieved tribe to seek appellate
review of a determination of the value of land taken by railroads. The Court held that the
statute gave the tribe the right to sue, but added that Indian tribes also have “a general
legal right” to bring lawsuits.36 Finally, in 1968, the Court made plain that an individual
Indian’s status as a ward of the United States did not preclude him or her from bringing
suit on his or her own behalf.37 More important, Congress, by enacting the Indian Claims
Commission Act of 1946, finally removed the barrier of sovereign immunity to money
claims against the government that had hindered tribes in the 83 years since the Court of
Claims was created. Within 5 years, tribes filed more than five times as many claims
against the government as they had during the entire 65 previous years. Finally, the 1976
immunity for claims based on that statute, enabled Indians and Indian tribes to seek
review of wrongful agency actions.38 As more Indian claims reached the judiciary, the
Court began to narrow the Plenary Power Doctrine and repudiated the notion that
Congress’s plenary power could prevent the courts from reaching the merits of specific
constitutional claims by Indian tribes. It held that plenary authority over Indians did not
enable the United States to give the tribal lands to others, or to appropriate them to its
for them; for that “would not be an exercise of guardianship, but an act of confiscation.”39
Concurrently, the Court began to rely on specific provisions of the Constitution in place
36
Creek Nation v. United States, 318 U.S. 629, 640 (1943).
37
Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 370-371 (1968) (construing Heckman v. United States, 224
U.S. 413 (1912), as implying that standing to sue existed).
38
Act of Oct. 21, 1976, Pub. L. No. 94-574, 90 Stat. 2721 (codified at 5 U.S.C. §702 (1982)). For a
discussion of pitfalls in suing the federal government, see Newton, Enforcing the Federal-Indian Trust
Relationship after Mitchell, 31 Cath. U. L. Rev. 635 (1982).
39
United States v. Creek Nation, 295 U.S. 103, 110 (1935).
of inherent authority as the source of congressional power over Indians. The process was
a gradual one. By 1965, the Court relied solely on the Indian commerce clause in holding
that a federal law regulating trading activities on Indian reservations preempted state
taxation of those activities. Since the 1960s, the Court has looked increasingly to
enumerated powers, especially the power to effectuate treaties, the Indian commerce
clause, or both. Moreover, the Court repudiated the notion that Congress’s plenary power
was extraconstitutional, ruling rather that it was “drawn both explicitly and implicitly
of judgment funds by the Secretary of the Interior. The Court noted that power over tribal
property, while plenary, is “rooted in the Constitution” and may be challenged when it
infringes constitutional rights. Moreover, the Court served notice that the political
question doctrine, which had been invoked often in the past as a bar to reviewing
congressional action adverse to Indian claims, had no place in cases raising individual
rights guarantees. By 1980, the Court had dismissed the political question doctrine.41
During this process of narrowing the Plenary Power Doctrine, the Court also began to
relationship of Kagama was the basis for the power to impose federal criminal laws on
tribal Indians, Kagama itself and other allotment era cases also referred to duties toward
treated the duties as self-imposed moral obligations, not legally enforceable. Nevertheless,
in cases in which Congress had waived sovereign immunity, the judiciary began to
40
Morton v. Mancari, 417 U.S. 535, 551-552 (1974).
41
United States v. Sioux Nation, 448 U.S. 371, 413 (1980).
impose duties on the government, akin to those imposed on ordinary fiduciaries, to
manage Indian money and land responsibly. Indian breach of trust cases proliferated, and
many were successful. Courts rendered specific relief or assessed money damages for
law, the trust relationship, although not constitutionally based and thus not enforceable
against Congress, is a source of enforceable rights against the executive branch and has
In United States v. White Mountain Apache Tribe42 the tribe sought damages for the
U.S. failure to protect and preserve Fort Apache and the Supreme Court held that the
breach.43 In United States v. Navajo Nation, 44 on the other hand, the tribe also sought
damages for the government’s mismanagement of a mineral lease. 45 In this case, the
Court held that the U.S. cannot be held liable for a breach of trust with an Indian Tribe in
connection with the negotiation of a mining lease, when the U.S. has violated no specific
statutory or regulatory duty established in the Indian Mineral Leasing Act of 1938.46
42
537 U.S. 465 (2003).
43
Id. at 466.
44
537 U.S. 488 (2003).
45
According to the Indian Mineral Leasing Act of 1938 (IMLA) Indian tribes, with the approval of the
Secretary of the Interior, can to lease the mining rights on their tribal lands to private companies. In 1964,
Navajo Nation entered into a lease with the predecessor of Peabody Coal Company, allowing Peabody to
mine on the tribe's land in return for a royalty, but after 20 years, the tribe's royalty was only worth 2% of
Peabody's gross proceeds.
46
The Court ruled that an Indian Tribe must “identify a substantive source of law that establishes specific
fiduciary or other duties.” See also Gros Ventre Tribe v. Unite States, 469 F.3d 801 (holding that there is
no specific duty on the United States to regulate third parties or non-tibal resources for the benefit of the
Tribes.) Gros Ventre Tribe, Assiniboine Tribe, and the Fort Belknap Indian Community Council had filed
suit in the District of Montana against the United States, its Bureau of Land Management (“BLM”), the
Bureau of Indian Affairs, and the Indian Health Service alleging that the government had violated specific
and general trust obligations to protect tribal trust resources (primarily water rights) by authorizing and
planning to expand two cyanide heap-leach gold mines located upriver from the Tribes’ reservation.
Perhaps the success of breach of trust claims has obscured the fact that the Plenary
Power Doctrine has not been expunged completely from Indian law. Tribes wishing to
impose fiduciary duties on the government did not challenge the government’s power to
manage and control Indian resources, but argued that the power carried duties along with
it. Moreover, with the taming of the doctrine in recent years, most commentators have
come to regard the term “plenary power” as referring only to the notion that the existing,
fairly sketchy references to sources of power over Indians in the Constitution are to be
read broadly, much as are the references to foreign affairs, and thus as giving the federal
nurtured in the plenary power era remain, especially in the areas of tribal sovereignty and
property rights where the Court continues to rely on an inherent Indian affairs power of
almost unlimited scope. For instance, the Court characterizes tribal sovereignty as
existing “only at the sufferance of Congress,” which has “plenary authority to limit,
continues to recognize Congress’s “paramount power over the property of the Indians.”
Moreover, the Court quite frankly explains that this power is derived “by virtue of
[Congress’s] superior position over the tribes” or even “the conquerors’ will” — the kind
jurisprudence.
In City of Sherrill v. Oneida Indian Nation47 the Supreme Court held that the doctrine
of laches barred the Oneida Nation from recovering sovereignty by purchasing back its
47
City of Sherrill v. Oneida Indian Nation of N. Y., 125 S. Ct. 1478 (2005).
land. The Court explained, “[the] doctrine [of laches] focuse[s] on one side’s inaction and
the other’s legitimate reliance [to] bar long-dormant claims for equitable relief.”48
The following is a partial list of the congressional actions receiving the Court’s
sanction in modern times, often in decisions citing the major cases of the plenary power
era. The Court has upheld congressional power to reduce the boundaries of a reservation
without tribal consent or compensation, thereby reducing, for all practical purposes, a
tribe’s power to govern. In addition, the Court has upheld power to divest a tribe of all
criminal, civil, or regulatory jurisdiction; to abrogate treaties; and to subject tribal laws
remains as sweeping as it was during the plenary power era. Congress may require the
Secretary of the Interior to approve land sales and leases by tribes and contracts
obligating money held by the federal government but owed to the tribe. Congress may
abrogate without liability future interests in Indian lands granted by earlier statutes and
may enlarge or decrease the class of beneficiaries of tribal trust funds or lands. Congress
may take one kind of tribal property, aboriginal Indian property, without paying
the guise of management and sell it at less than fair market value without liability, as long
as the tribe receives some proceeds. According to some observers, it may even extinguish
legal land claims of Indian tribes by retroactively extinguishing both title to the land and
any claims based on that title. The Court’s continued failure to attempt to define the
extent of Congress’s power over Indian affairs has encouraged further undue assertions of
that power.
48
Id. at 1491.
Though a full discussion of the concept of native or aboriginal title lies outside the
scope of this section, a few notes on U.S. law in this area should be considered.49 Native
ownership of or title to their historical homelands within the legal system of a colonizing
power. The claim for title grounds itself in the historical, cultural, and spiritual
connection between indigenous peoples and the land they inhabited both before and after
the arrival of colonial regimes. In countries such as Canada and Australia, both of which
historical, non-colonial connection to disputed lands, the legal ownership of that land
under the domestic law of the colonial power flows to the indigenous peoples or tribe.50
Though fraught with legal complications, the recognition of native title has been hailed as
a crucial step in the liberation of indigenous peoples from the continuing effects of
In opposition to growing trends in international law, the U.S. does not recognize the
right of Native Americans to native title in their historical lands. In the case of Tee Hit
Ton Indians v. United States, 51 the U.S. Supreme Court rejected a Fifth Amendment
takings claim brought by Native American tribes. In order to make a takings claim, the
land taken must have been the legal property of the claimant. The Court explicitly
rejected Native title as the basis for land ownership and held that Native American tribes
could claim only lands not already held by the tribe in fee simple if an explicit act of
49
Thank you to Elizabeth Loeb, J.D./Ph.D. candidate at New York University School of Law, for her
assistance on researching Native American title claims.
50
See Mabo v. State of Queensland, 107 A.L.R. 1 (1992); Guérin v. Canada, S.C.R. 335 (1984).
51
348 U.S. 272 (1955).
Congress granted the land to the tribe.52 The Tee Hit Ton decision continues to vigorously
function as good law within the United States.53 Although state disenfranchisement of
Indians continued into the twentieth century, individual Indians now facially enjoy the
same constitutional rights as other Americans. It is, however, important to note that, in
certain instances, federal constitutional provisions may not apply on “Indian country.”54
While on Native land, persons, both Native and non-Native, may be subject to the
jurisdiction of tribal courts and laws, which do not mirror exactly federal constitutional
protections.55
52
Id. at 274.
53
See Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voight, 700 F.2d 341, 351+ (7th Cir.
1983); Karuk Tribe of Calif. v. Ammon, 209 F.3d 1366, 1374+ (Fed. Cir. 2000); Alabama-Coushatta Tribe
of Tex. v. United States, 2000 WL 1013532 11 (Fed. Cl. 2000); Zuni Indian Tribe of N.M. v. United States,
16 Cl. Ct. 670, 671+ (1989).
54
“Indian country,” as defined at 18 U.S.C. §1151, means “(a) all land within the limits of any Indian
reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any
patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities
within the borders of the United States whether within the original or subsequently acquired territory
thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to
which have not been extinguished, including rights-of-way running through the same.” The Court has held
that this definition applies to questions of both criminal and civil jurisdiction. California v. Cabazon Band
of Mission Indians, 480 U.S. 202, 208 n.5, citing DeCoteau v. District County Ct., 420 U.S. 425, 427, n.2.
The applicability of these doctrines in Alades Hawaii involves additional complexities.
55
The relationship between Indian lands and the Constitution, and the Bill of Rights in particular, is a
complicated as well as somewhat ambiguous one, as Lucy A. Curry writes:
An unavoidable tension results from recognizing tribes as sovereign entities with the powers of self-
government that are necessarily diminished under the historic and pervasive control of the dominant Anglo-
American norms and prejudices. The inherent conflicts arising from this arrangement are most apparent
when Indian tribes assert their sovereign powers over non-Indians living or transacting on tribal lands. For
example, Congress passed the Major Crimes Act, extinguishing tribal jurisdiction over all major crimes,
and passed both the IRA and the ICRA, respectively giving tribes the official power of self-governance and
statutorily restricting tribal exercise of its powers based on the Anglo-American liberties of the Bill of
Rights. Read together these laws allow tribes to operate as separate sovereigns with the jurisdiction to
prosecute only minor crimes occurring on Indian land with the due process protections of the Bill of Rights,
including habeas corpus relief in federal courts. With this status of the relevant law in mind, it is difficult to
understand why the Supreme Court, in Oliphant v. Squamish Indian Tribe, chose to impliedly divest tribes
of what remained of its sovereign power to prosecute and punish non-Indians for the minor crimes they
commit on Indian territory. Not only does the status of the law render it puzzling, the Court’s reasoning
revived principles hundreds of years old found in the Doctrine of Discovery, which had remained dormant
in the Court’s Indian law jurisprudence for nearly 150 years.
A Closer Look at Santa Clara Pueblo v. Martinez: Membership by Sex, by Race, and by Tribal Tradition,
16 Wis. Women’s L.J. 161 (2001). See also In re NEGP, 245 Mich App 126, 133-34. (2001).
In Nevada v. Hicks 56 , 533 U.S. 353 (2001), the Supreme Court reiterated –citing
Worcester- that the “Indians’ right to make their own laws and be governed by them does
not exclude all state regulatory authority on the reservation . . . Though tribes are often
referred to as “sovereign” entities . . . ‘the Court departed from Chief Justice Marshall’s
view that `the laws of [a State] can have no force' within reservation boundaries. The
court also held that “the exercise of tribal power beyond what is necessary to protect
tribal self-government or to control internal relations ... cannot survive without express
The application of tribal law, as opposed to federal or state law, on Native lands is too
The jurisdiction of tribal courts over non-Native Americans, or over all nontribal
members, has been the subject of much recent litigation in tribal and federal courts.
Tribal property and political sovereignty rights are a different matter, however. Attempts
to assert constitutional protection for these rights have been largely unsuccessful.
The task of constructing a constitutional framework that will protect tribal rights finds
its most formidable barrier in the legacy of the plenary power era — the long tradition of
56
533 U.S. 353 (2001) Respondent Hicks is a member of the Fallon Paiute-Shoshone Tribes of western
Nevada and lives on the Tribes' reservation. After petitioner state game wardens executed state-court and
tribal-court search warrants to search Hicks's home for evidence of an off-reservation crime, he filed suit in
the Tribal Court against, inter alios, the wardens in their individual capacities and petitioner Nevada,
alleging trespass, abuse of process, and violation of constitutional rights remediable under 42 U. S. C.
§1983. The Tribal Court held that it had jurisdiction over the tribal tort and federal civil rights claims, and
the Tribal Appeals Court affirmed. Petitioners then sought, in Federal District Court, a declaratory
judgment that the Tribal Court lacked jurisdiction over the claims. The District Court held that the wardens
would have to exhaust their qualified immunity claims in the Tribal Court. In affirming, the Ninth Circuit
concluded that the fact that Hicks's home is on tribe-owned reservation land is sufficient to support tribal
jurisdiction over civil claims against nonmembers arising from their activities on that land. See also
Worcester v. Georgia, 6 Pet. 515, 561 (1832).
57
Montana v. United States, 450 U.S. 544, 564. (1981)
judicial analysis justifying extraordinary federal power over Indian tribal property and
judicial scrutiny of federal actions affecting tribal claims. Such a task is also hampered by
the long and invidious history of discrimination against Indian peoples that has yet to be
fully acknowledged and dealt with by the dominant society and whose tentacles extend
Federal Native American policy in the past 20 years has been marked by a devolution
regularly acted to diminish the legal sovereignty of Native peoples and to restrict Native
self-government upon reservations.59 Legal issues affecting Native people that are at the
current forefront of debate include60 the scope of federal regulations such as Title 7 on
Indian land; the whaling rights of the Makah Indian tribe; 61 and Native water rights,
particularly in western lands.62 And for instance, the Supreme Court held in Hicks that the
Tribal Courts had no jurisdiction over the §1983 claims because “the historical and
58
See Tracy Becker, Traditional American Indian Leadership: A Comparison with U.S. Governance (DL
8/27/01), available at http://www.airpi.org/research/tradlead.html.
59
For a more in-depth analysis of Native American policy and jurisprudence, see generally Frank
Pommersheim, Coyote Paradox: Some Indian Law Reflections from the Edge of the Prairie, 31 Ariz. St. L.J.
439 (1999); John Fredericks, America’s First Nations: The Origins, History and Future of American Indian
Sovereignty, 7 J.L. & Pol’y 347 (1999); Derek C. Haskew, Federal Consultation with Indian Tribes: The
Foundation of Enlightened Policy Decisions, or Another Badge of Shame?, 24 Am. Indian L. Rev. 21
(2000).
60
Thank you to Damien Pfister, Ph.D. candidate at the University of Pittsburgh, for his research assistance
on current Native American issues.
61
See generally William Bradford, Save the Whales v. Save the Makah: Finding Negotiated Solutions to
Ethnodevelopmental Disputes in the New International Economic Order, 13 St. Thomas L. Rev. 155 (2000).
62
See generally Rebecca Tsosie, The Challenge of Differentiated Citizenship: Can State Constitutions
Protect Tribal Rights?, 64 Mont. L. Rev. 199 (2003). For further discussion of the contest over Native
American water rights, see Taiawagi Helton, Indian Reserved Water Rights in the Dual-System State of
Oklahoma, 33 Tulsa L.J. 979 (1998).
federal statutes is missing with respect to tribal courts.”63 In addition, the contested issue
No legal issue affecting Native Americans may be more controversial than that of
gaming on Native lands. This issue is a complex one whose scope is beyond the purposes
of this text. A brief overview is useful, however, both because the issue is so important
and because it highlights the ongoing tensions between state and tribal sovereignty as
Mission Indians 66 were critical to the development of current Indian gaming law. 67 In
Seminole, the Court of Appeals for the Fifth Circuit held that a Florida bingo statute
could not be enforced against the Seminole Indian tribe. The court further held that
Native Americans as well as non-Native Americans could play bingo on Indian land.68 In
63
The Court reasoned that Congress has not purported to grant tribal courts jurisdiction over §1983 claims,
and that such jurisdiction would create serious anomalies under 28 U. S. C. §1441.
64
See generally Steve Russell, A Black and White Issue: The Invisibility of American Indians in Racial
Policy Discourse, 4 Geo. Pub. Pol’y Rev. 129 (1999). For further discussion of blood quantum, see Scott L.
Gould, Mixing Bodies and Beliefs: The Predicament of Tribes, 101 Colum. L. Rev. 702 (2001).
65
658 F.2d 310 (5th Cir. 1981).
66
480 U.S. 202 (1987).
67
See Jeffrey A. Dempsey, Surfing for Wampum: Federal Regulation of Internet Gambling and Native
American Sovereignty, 25 Am. Indian L. Rev. 133 (2000); Gary C. Anders, 556 Annals 98 (Mar. 1998).
68
Supra note 53.
69
480 U.S. at 207, citing United States v. Mazurie, 419 U.S. 544, 557 (1975).
nations in some matters and held that a state could not regulate gaming on Indian lands so
In 1988, after Cabazon was decided, Congress passed Public Law Number 100-497,
the Indian Gaming Regulatory Act (IGRA).71 The act was intended to strike a balance
between tribal sovereignty and state interests. 72 IGRA was designed “to provide a
statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal
economic development, self-sufficiency, and strong tribal governments,”73 and “to ensure
that the . . . tribe is the primary beneficiary of the gaming operation.”74 Also at play were
the powerful interests of the gaming industry. 75 The IGRA divides Indian gaming
activities into three distinct classes, each with separate rules. 76 The distinctions are
generally based on the type of game and the size of the potential prizes. The IGRA also
77
creates a regulatory framework for gaming operations. Under this framework,
regulatory authority is allocated at four separate levels: tribal, state, federal, and National
Indian Gaming Commission.78 In general, under the IGRA, tribes have greater regulatory
authority over gaming then they had previously. The IGRA mandates that all tribal
gaming revenue be used exclusively for the welfare of the tribe and its members, tribal
a tribe may petition the Secretary of the Interior to allow per capita distributions to its
70
Id.
71
Pub. L. No. 100-497, Oct. 17, 1988, 102 Stat. 2467, United States Public Laws 100th Cong., 2d Sess.,
convening Jan. 25, 1988 (S. 555).
72
Dempsey, supra note 55; Anders, supra note 55.
73
TOMAC, Taxpayers of Mich. Against Casinos v. Norton, 433 F.3d 852, 865 (D.C. Cir. 2006) (quoting
25 U.S.C. § 2702(1)).
74
25 U.S.C. § 2702(2)
75
Anders, supra note 55.
76
Id.
77
Dempsey, supra note 55; Anders, supra note 55.
78
Anders, supra note 55.
79
Id.
members. 80 Although the IGRA generally protects Native sovereignty over gaming, it
also imposes some forms of state control. For this reason, some tribal members and
leaders object to the act’s infringement on total sovereignty and call attention to the fact
that, under the IGRA, an individual state is allowed to exercise power over Indian land
that they are not allowed to exercise over another individual state.81 The act is even more
broadly contested by many states, which argue that the IGRA violates the Tenth and
as judged from the perspective of Native Americans as well as the states, is a complex
and nuanced topic. Briefly, it is worth noting that gaming has often provided desperately
needed revenues for tribes living in abject poverty. Gaming revenues have been used to
build houses, provide drug and alcohol treatment programs, allow tribal members to go to
college, fund retirements, build hospitals and clinics, and provide other social services.83
In addition, gaming revenues have increased the general economic well-being of many
tribes. Such assistance is greatly needed given the harshness of conditions facing many
Native Americans today, particularly those living on reservations. According to the U.S.
Indians living on reservations or trust lands live below the official poverty line; more than
20 percent of American Indian housing units on reservations or trust lands lack complete
American Indians and the total population. 84 In addition, many Native American
80
Id.
81
Dempsey, supra note 55.
82
Anders, supra note 55.
83
Id.
84
“We the . . . First Americans,” U.S. Dep’t of Commerce, Economics and Statistics Administration,
Bureau of the Census (Sept. 1993), available at http://www.census.gov/apsd/ wepeople/we-5.pdf.
communities, particularly those on reservations, are plagued by disproportionately high
rates of drug and alcohol abuse, suicide, and unemployment. 85 Gaming has been
successful at generating tribal revenues virtually every place it has been established.86
Gaming has also been credited with creating jobs, increasing Native American choice
over economic development, elevating the status of tribes, and increasing political
mobilization.87 The lack of resources and troubling social conditions facing many Indians
is viewed by many as a clear indicator of the need for the revenue generated by gaming
on Indian lands. There are also, however, disadvantages to gaming, some of which are
more difficult to precisely quantify. 88 Commentators such as Gary Anders have noted
disadvantages, for example, compulsive addictions; spousal and child abuse and neglect;
missed workdays; gambling addictions; increased drug and alcohol abuse; increased
opportunities for theft, embezzlement, and criminal infiltration; the undermining of the
and large tribes; the prevalence of casino jobs, which are “low-wage, high-turnover
positions”; and the possibility that gaming may draw money from other local
businesses.89 Gaming may also open tribes up to organized crime involvement. Although
many social ills, whether gaming helps or exacerbates the problem is a matter for debate.
In conclusion, the issue of gaming on Native lands is one that calls attention both to
the plight of many tribes and to the ongoing tensions between state and tribal sovereignty.
85
Anders, supra note 55.
86
Id.
87
Id.
88
Id.
89
Id. at 104
As the heated debate over gaming draws on, how courts and legislators continue to act