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April 18, 2003
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The devolution of U.S. Federal Indian Law
By Jeff Armstrong
Exploiting the 1883 Supreme Court finding in Ex Parte Crow Dog that the U.S.
government lacked legal authority to prosecute murder charges against
Indians within reservation boundaries, the BIA took just two more years
to fulfill its “decade-long campaign to get Congress to extend
jurisdiction over Indian Country.” The 1885 Major Crimes Act
constituted a serious encroachment on even the fragile autonomy
envisioned six decades earlier by the Marshall Court, usurping tribal
jurisdiction over an expanding number of felonious crimes in favor of
the federal government. This assault on indigenous sovereignty was
followed in short order by the expropriation of the overwhelming
majority of Indian land--much of which was reserved by international
treaty—under the disastrous 1887 General Allotment Act. While the
ideological orientation of U.S. Indian policy often fluctuated between
paternalism and genocide, the Dawes Act promoted by self-styled
reformers combined elements of both. The 1898 Curtis Act took the next
logical step of terminating federal recognition of existing tribal
governments.
It remained only for the judicial system to construct a new legal
theory to legitimate the absolutism of Congress. In 1886, the Supreme
Court in Kagama rejected the
“strained” contention that the commerce clause of the constitution
granted Congress authority to enforce the Major Crimes Act on
reservations, but held instead that the supremacy of U.S. power endowed
it with legislative fiat over all but state sovereignty within its
asserted national boundaries. From Marshall’s domestic dependent
nationhood, tribes were rhetorically relegated to a dependent wardship
under which they were to be subject to exploitation and abuse at the
whim of their superiors. Facing the potentially daunting obstacle of
establishing a basis for congressional authority to contravene treaty
provisions in its exercise of plenary power, the Court in 1903
paradoxically concluded that “it was never doubted that the power to
abrogate existed in Congress...if consistent with perfect good faith.”
The Lone Wolf Court never
answered the obvious question of how the U.S. could have negotiated in
good faith treaties it evidently never intended to honor.
John Collier’s 1934 Indian Reorganization Act represented a rare
federal attempt to codify tribal autonomy in a constitutional manner,
but the original bill was significantly diluted in the legislative
process and its enactment was marked by questionable electoral
administration by the BIA. While many traditionalists did and do view
the IRA as a more sophisticated incarnation of political and cultural
assimilation policies, indigenous peoples faced a more direct threat
less than two decades later during the Termination Era, in which the
U.S. abruptly resumed its longstanding drive to dissolve the vestiges
of tribal sovereignty and landholdings. Such attacks prompted growing
Native awareness and resistance, and beginning in the late 1970s with
decisions such as Martinez,
the Court began subjecting such intrusions to strict scrutiny on the
basis of a presumed pre-existing sovereignty. Congress, too, enacted a
series of laws to provide funding and support for tribal government
functions, particularly in education. Even the stranglehold of Public
Law 280 was loosened under decisions such as Bryan v. Itasca County.
Under the leadership of Chief Justice Rehnquist, however, the Court has
reverted to defining tribal authority in terms of delegated federal
powers rather than on the basis of retained inherent
rights.
Virtually every usurpation of tribal self-determination rights by the
federal government was couched in terms of the social betterment of
primitives, but such civilizing rationales were little more than a
cloak of convenience for the outright theft of indigenous land and the
brutal suppression of communal cultural ties which stood in the path of
the colonial program. Most were devised by corrupt and self-serving
bureaucrats in the Indian agencies long before they were submitted to
Congress. In 1869, Indian Affairs Commissioner Ely Parker took aim at
the treaty-making authority of Native nations, saying the U.S. must
correct its wards who had become “falsely impressed with the notion of
national independence.” But it took a power dispute between the senate
and the house to prompt passage of a rider to the 1871 Indian
Appropriations Act which revoked U.S. recognition of tribes as
independent entities capable of entering into future treaties.
Also in 1869, the Board of Indian Commissioners noted the “shameful
record” of federal trusteeship and recommended that “tribal relations
should be discouraged” in favor of the division of reservation land
into individual allotments and the promotion of Christianity. The
resulting General Allotment Act of 1887 was hailed by would-be Indian
Rights Association reformers who spoke of lifting up Natives to the
light of equality and civilization, but its intent at bottom was to
open up reservations to land-hungry white settlers. Similarly, the
extension of criminal jurisdiction to reservations had been a project
of the BIA since 1874 based upon allegedly rampant lawlessness on
reservations. Although the Indian Rights Association had favored the
imposition of state and territorial law upon reservation Natives since
1880, the 1885 Major Crimes Act granted only federal jurisdiction for
several enumerated serious crimes. It would be 68 years before states
would be granted broad jurisdiction over many tribes under Public Law
280.
In the intervening years, under FDR’s activist Commissioner of Indian
Affairs John Collier, the federal government radically redirected its
policy orientation toward the preservation of indigenous landholdings
and functions of self-government. As Collier testified to Congress on
behalf of the Wheeler-Howard Indian Rights Bill, “The allotment act
contemplates total landlessness for the Indians of the third generation
of each allotted tribe.” Adopted by Congress in 1934 and approved
individually by 181 tribes over the succeeding two years, the Indian
Reorganization Act has served as the theoretical framework for
contemporary tribal government, withstanding even the termination and
relocation acts of the repressive 1950s.
Among the most significant pieces of federal legislation aimed at the
protection of Native human rights were the 1968 Indian Civil Rights Act
(ICRA) and the 1978 Indian Child Welfare Act (ICWA). While both acts
are commonly cited in relevant cases, their practical effects have been
minimized by a lack of effective enforcement mechanisms, along with
state and federal court deference to tribal sovereignty. ICRA was
enacted against concerted opposition from tribal officials, who viewed
its extensions of the major provisions of the U.S. Bill of Rights to
Indian Country as a threat to the integrity of tribal courts.
Provisions which would have allowed for a federal court review of any
tribal conviction or would alternately have empowered the Attorney
General to investigate and take action upon a pattern of violations
were considered and rejected by Congress at the urging of tribes. From
the start, ICRA created tension between principles of
self-determination and civil rights, hence generating ambivalence and
confusion on the part of those in support of both. In 1978, the Supreme
Court in Martinez determined that the Act’s restrictions on tribal
government were only enforceable by means of federal habeas corpus
petition in criminal cases because Congress did not explicitly “permit
the additional intrusion on tribal sovereignty that adjudication of
such actions in a federal forum would represent.”
The 1978 Indian Child Welfare Act was enacted in part to effect
compliance with the Genocide Convention’s Article II (e) ban on
“forcibly transferring children of the group to another group,” a
practice which has been prevalent since boarding school days. While the
act has to some extent served the purpose of providing an obstacle to
the wholesale removal of Native children from their homes, it has been
routinely violated by states and does not apply to tribes themselves.
Although it has commonly been interpreted as an expansion of tribal
sovereignty, it could well be argued that in the wake of the Bryan
decision two years earlier the act was in reality an intrusion of state
and federal authority into tribal civil regulatory jurisdiction, much
as the Indian Gaming Regulatory Act was an effort to limit the effects
of a pro-sovereignty court decision. In Public Law 280 states such as
Minnesota, state-tribal agreements entered into under ICWA have
resulted in a streamlining of child placement cases, limiting the
protections of the law to the extent to which tribal officials or
employees assert them.
As the federal judicial system becomes an increasingly unreliable forum
for testing assertions of tribal sovereignty, and the executive branch
is governed by a president who campaigned under the banner of expanding
state jurisdiction over reservations, it will be imperative for
indigenous nations to define their own sovereignty in their own forums
without reference to a federal Indian Law founded upon racist
assumptions. Since treaties by definition are concluded between two or
more parties with distinct interests, no one party can possess
exclusive powers of interpretation or enforcement, as the U.S. claims
with regard to Natives. Tribal courts could and should be asked to
interpret treaty provisions on the basis of equality, recasting
congressional “plenary power” abrogation for what it is—a treaty
violation. Tribal governments might also adopt--and, to the extent
possible--enforce international human rights conventions, both to
assert themselves as sovereign entities in the world community and to
increase public confidence in the institutions of government. Adoption
of international conventions, many of which explicitly recognize the
right of all peoples to self-determination, would provide tribal courts
an effective legal foundation for political independence and internal
human rights.
While such a course of action is exceedingly unlikely to yield
immediate liberation from the yoke of colonialism, it may serve as the
only basis for negotiations which could lead to agreements in which a
workable form of autonomy might begin a transition towards genuine
self-determination. It is essential that any such agreement explicitly
preserves tribal claims to unfettered sovereignty within accepted
reservation boundaries and that it be regularly submitted to the tribal
public for a referendum vote. Tribal courts’ current reliance upon
federal law as a basis for their authority poses a danger of
incorporating federal domination into emergent tribal law, possibly
damaging future attempts to internationally challenge the hegemony of
the United States and its constituent state governments.
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