Indian Law

The Supreme Court's interpretation of the fundamental, constitutional relationship between American Indians and the national government has not followed the vacillating pattern of statutory and regulatory relations emanating from legislative and executive actions. Not that the Court has been any more consistent than the political branches of the government, it has just had its own fits and starts largely independent from Congress and the executive.

Congressional and executive actions are often categorized in chronological periods designated by the terms Removal (1789-1871), Allotment and Assimilation (1871-1928), Reorganization (1928-1945), Termination (1945-1961), and Self Determination (1961-present).

Supreme Court rulings appear to have their own logic derived from the constitutional delegation of powers to make treaties and regulate commerce among the Indian tribes, the concept of a trust relationship, Congress's plenary power, and the doctrine of tribal sovereignty.

Treaty Power. European nations and then the United States made treaties with Indian tribes. The Confederation (1776-1788) made 26 treaties with Indian tribes. Under the Constitution (1789-present) the treaty power stems from Article II, Section 2, clause 2: "[The President] . . . shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur...." The U.S. government negotiated and ratified a number of treaties with tribes from 1789 to 1871. (See the Sioux Treaty of 1868.) Then, without abrogating those treaties in effect, the government stated in a statute, 25 U.S.C. sec. 71, that it would no longer make treaties with Indian tribes. Of course, this meant that while future relations between the government and Indian tribes would not be based on new treaties, they would rely on statutory law and executive orders.

Some argue that the practice of making treaties with Indian tribes gives tribes equal status to states in a Tenth Amendment sense. They say that tribes possessed absolute sovereignty until parts of that sovereignty were removed by treaties. Then, like states under the Tenth Amendment, which retain all powers not delegated to the national government nor prohibited to the states, tribes retain all those powers that are not denied to them by treaties. Others point out that treaty-making is not the same as constitution-making. The U.S. Constitution reserves powers to the states, but treaties and statutes may take powers away from tribes. Today, treaties still in effect may account for such practices as allowing special hunting and fishing privileges for members of some tribes, even off reservations.

But in the G-O Road controversy treaties could not be employed, because they were "lost." So an understanding of the complexity of the issue must be related to a history of Land Tenure in California. Although both sides negotiated the treaties in good faith, the United States Senate never consented to their ratification by a two-thirds vote. One of the lost treaties was made in the Klamath area in 1851.

Commerce Power. According to Article I, section 8, clause 3 of the U.S. Constitution, [Congress shall have the power] to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Controversies have arisen over the meaning of the words "regulate," and "commerce." Generally, the Court has said that regulation means the power to prohibit or encourage, as well as governing, the way in which commerce is conducted. Commerce includes not only the buying and selling of goods and services but also the extraction of raw materials and the processing prior to the buying and selling of products.

Trust Relationship. The idea of a trust relationship comes from Chief Justice John Marshall's opinion in Cherokee Nation v. Georgia (1831), which said that Indian tribes do not have the status of a foreign nation nor a state of the union, but are "domestic dependent nations" resembling "that of a ward." The next year in Worcester v. Georgia Marshall referred to tribes as being "under the protection of the United States." Like any guardianship the trust relationship implies rights and benefits, obligations and duties for both the trustee and the beneficiary.

In 1974 the Supreme Court supported its decision in Morton v. Mancari to uphold a law giving Indians preference over others in working for the Bureau of Indian Affairs by citing "Congress's unique obligations toward the Indian...." And in Nevada v. U.S. (1983) the Court emphasized that the "United States owes a strong fiduciary duty to its Indian wards."

Today, questions arise about whether the trust relationship extends to all Indians or only members of a tribe, when does a group meet the legal definition of a tribe, when is an individual a member of a tribe, and whether the trust is a permanent relationship or one that may expire when or if Indians are assimilated.

The Code of Federal Regulations (25 C.F.R. 83) addresses two of the questions. It defines a tribe as

any Indian or Alaska Native tribe, band, pueblo, village, or community within the continental United States that the Secretary of the Interior presently acknowledges to exist as an Indian tribe.
It defines a tribal member as
an individual who meets the membership requirements of the tribe as set forth in its governing document or, absent such a document, has been recognized as a member collectively by those persons comprising the tribal governing body, and has consistently maintained tribal relations with the tribe or is listed on the tribal rolls of that tribe as a member, if such rolls are kept.

Plenary Power. Plenary power means Congress can do whatever it wants so long as it does not violate any prohibitions against government action in the U.S. Constitution. Since statutes and treaties are considered equal in legal hierarchy and the more recent of the two takes precedence, the Court decided in Lone Wolf v. Hitchcock (1903) that a statute may abrogate a treaty with an Indian tribe. Further, in 1972 in Affiliated Ute Citizens v. U.S., the Court ruled that Congress has the power unilaterally even to severe the trust relationship.

Tribal Sovereignty. The doctrine of tribal sovereignty, which was recognized in Worcester v. Georgia (1832), was restated in U.S. v. Wheeler (1978). For a unanimous Court Justice Stewart considered the question whether the power to punish tribal offenders is "part of inherent tribal sovereignty, or an aspect of the sovereignty of the Federal Government which has been delegated to the tribes by Congress." He concluded:

The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.

An especially helpful book is Wilkins, David E. (David Eugene), and K. Tsianina Lomawaima. 2001. Uneven Ground : American Indian Sovereignty and Federal Law. Norman : University of Oklahoma Press.

Office of Tribal Justice, U.S. Department of Justice

Tribal Constitutions


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