CHAPTER V

THE HISTORICAL DEVELOPMENT OF CONSTITUTIONAL CLAUSES

A thorough analysis of the applicability of constitutional phrases and clauses to Indians and Indian affairs would require volumes of explanation and involve a discussion of hundreds of statutes and cases. The result of such a tour de force would be profound confusion, for it is not simply constitutional authority that must be discussed. The changing condition of American society creates a continuously evolving view of the Constitution, so that its applicability at any one time in American history may vary considerably from what has gone before and what will come. It is much better to take the major constitutional clauses and see how they have been applied over a period of time, examine at what point additional clauses and phrases have been mustered to bolster a novel or emerging view of the primary clauses and powers, and identify the several principles that refer to and affect Indian tribes that have appeared throughout American constitutional history.

For purposes of economy, and in order to establish a clear understanding of the major constitutional clauses and principles that have been cited as authority to justify the actions of the United States toward Indian tribes, we will confine our discussion to an examination of three clauses: the treaty-making clause, the commerce clause, and the property clause. Only these refer to relationships outside the domestic interest of the United States. When Indian tribes began their political relationship with the United States, they were considered to be outside the scope of the Constitution. And so it is in the context of the geographical incorporation of Indians within the boundaries and jurisdiction of the United States that these clauses prove most important for our understanding.

The constitutional clauses cited above do not form a critically important authority for the actions of the United States. They are more often seen as additional arguments raised as a means of giving direction and justification to a course of action that has been proposed. For example, a treaty may well require a tribe to agree to allow a road or series of roads to be built in or through its treaty-defined territory. The primary question is the exercise of treaty powers, but a peripheral consideration is the exercise of the federal responsibility to provide roads and post roads for its citizens. The argument may well run that the United States may use any of these three constitutional provisions to justify its actions, but in point of fact the treaty-making power is always cited because the clause authorizing the construction and maintenance of post roads is reasonably remote from the subject of Indians. Tradition, the familiarity of the treaty arguments, and the ease with which the treaty argument can be understood and assented to by Indians are all factors that mitigate in favor of using the treaty argument instead of another constitutional clause.

The constitutional authorities that provide the federal government with the power to deal with subjects foreign to or outside of the domestic sphere of activities—a power derived from and ceded by the states—are the clauses and powers that substantially affect the Indian tribes. This is the general rule for understanding the historical development of the relationship of the United States with Indians. Citation of other constitutional clauses and authorities, no matter how clearly and persuasively presented, have not been seen as sufficiently convincing to form an important part of federal Indian law or the federal relationship with Indians.

The Treaty-making Power

Without question the first generation of American statesmen believed the treaty-making power was the primary constitutional authority for dealing with Indian tribes. But this clause was always considered in conjunction with the power to regulate commerce. With the exception of the treaties signed in 1815 as a requirement of the Treaty of Ghent,1 and with the exception of the Indian-removal treaties of the 1820s and 1830s,² all treaties signed with Indians prior to 1849 can be said to have expressed the concern for the regulation of commerce with the tribes. Beginning in 1849 with the Treaty of Cheille (Canyon de Chelly) with the Navajo³ and continuing until 1865, again with some few exceptions, treaties made with Indian tribes are concerned with establishing the title to lands occupied by Indians in the United States, thereby precluding the claims of Mexico and Great Britain and confirming U.S. jurisdiction over lands that had been incorporated into the United States as a result of these treaties.

From 1865 through 1868 Congress emphasized the establishment of peace with the western plains tribes in order to restrict their activities and occupancy to a considerably more limited geographical area. From 1871 until 1914 there were a series of agreements with Indian tribes, primarily in the western states, that sought to gain large cessions of land and allot the remaining lands to tribal members. The major difference between agreements and treaties is that agreements are ratified in the form of regular congressional statutes, passed into law by both houses of Congress, and signed by the president, whereas treaties only need the approval of the Senate. Agreements are negotiated by special commissions or commissioners and so fall into the diplomatic format of negotiations.

With respect to allotment under the General Allotment Act,⁴ Congress authorized the president to proceed with the allotment of tribal lands “whenever in his opinion any reservation or any part thereof of such Indians is advantageous for agricultural and grazing purposes.”⁵ But the executive branch is required by the same statute to negotiate for the purchase and release of the Indians’ remaining lands:

That at any time after lands have been allotted to all the Indians of any tribe as herein provided, or sooner if in the opinion of the President it shall be for the best interest of said tribe, it shall be lawful for the Secretary of the Interior to negotiate with such Indian tribe for the purchase and release by said tribe, in conformity with the treaty or statute under which such reservation is held, of such portions of its reservation not allotted as such tribe shall, from time to time, consent to sell, on such terms and conditions as shall be considered just and equitable between the United States and said tribe of Indians, which purchase shall not be complete until ratified by Congress, and the form and manner of executing such release shall also be prescribed by Congress.6 [Emphasis added]

In these provisions we find the basic treaty format, containing at least three critical conditions necessary for a valid transfer of the Indian title to lands: the purchase must be in conformity with treaties or statutes already defining the rights of the tribe, it must secure Indian consent to the proposed action, and it must be ratified by the Congress in order to be regarded as legal and binding.

For the purposes of discussing the application of the treaty clause as it affects Indians, the principle involved is that laid down by Congress in the Northwest Ordinance of 1787. It declared: “The utmost good faith shall always be observed toward the Indians; their land and property shall never be taken from them unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them.”⁷ And since this ordinance is defined as the permanent policy of the United States in settling new territories and creating new states, presumably it is the standard by which the acts of the legislative and executive branches must be judged when they are dealing with Indians.

We have defined the period when the United States used the treaty format in dealing with Indians as 1778 to 1914 by including the agreement-making provisions as a thinly disguised form of the treaty-making power. Certainly it can be argued with powerful effect that the provisions of the General Allotment Act required negotiations with tribes, Indian consent, and the ratification of agreements by the Congress, all necessary and vital ingredients of the treaty-making process.

Within this period, however, there is a definite and profound discontinuity between the manner in which Indian treaties are seen by Congress and the manner in which agreements are understood. In 1871, after several years of controversy between the House and the Senate, a rider was attached to the 1871 Appropriation Act that stated:

Provided, That hereafter no Indian 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: Provided further, That nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.8

There is no question that the United States, or for that matter any other nation, can refuse to recognize another national entity for the purposes of making treaties or conducting other diplomatic relations. Following the Second World War the United States steadfastly refused to recognize the existence of Red China. And there are many instances in world history when existing nations refused to recognize another nation because it was under the control of a group of people distasteful to the family of nations. So the question here is not whether the United States may recognize Indian tribes or withdraw such recognition. To be precise, and if we include John Marshall’s description of Indian tribes from Cherokee Nation v. Georgia,⁹ Indian tribes had never been recognized as independent or separate from the United States. Rather, Indian tribes were believed to have the capacity to negotiate treaties and agreements with the United States, just as they had earlier negotiated with Great Britain.

A good question would be whether the United States felt so strongly about its primacy in native matters that it would have gone to war to prevent other nations from making treaties with the Indian tribes on its borders. Certainly the treaty-making powers and diplomatic horizons of the tribes were not exclusively focused on the United States. Chief Black Hawk continually traded with the British and considered himself a British subject regardless of how Congress looked at the Sac and Fox Indians. What Congress came to believe and what the Indians believed prior to the 1850s are radically different and cannot be reconciled.

The congressional debate in the Senate in the late 1860s and early 1870s gives us some insight into the nature of the controversy over the provision to end treaty making with Indians. Part of the difficulty lay in the fact that both houses of Congress were slack in performing their legislative duties. Instead of extensive floor debate over the provisions of proposed legislation, it was becoming standard practice to authorize a conference committee to work out all the miscellaneous riders attached to bills by each house of Congress to be considered by the other house. The committee’s report was accepted as the final version of congressional thinking as if there had been full floor debate and deliberations by each house. Thus, on more than one occasion radically different changes of policy were effected by a few people sitting in the conference committee without consideration of the issue by both houses of Congress and without consultation or consent of the affected Indians.10

The original rider attached to the appropriation bill by the House of Representatives reads as follows: “That nothing in this act contained shall be construed to ratify any of the so-called treaties entered into with any tribe, band, or party of Indians since the 30th of July, 1867.”¹¹ This provision is not difficult to understand. The act of July 20, 1867¹² had authorized a Peace Commission composed of three army officers, the commissioner of Indian affairs, the chairman of the Committee of Indian Affairs of the Senate, and two prominent civilians to negotiate treaties with the plains tribes in order to secure a permanent home for the Indians and guarantee security for a number of railroads then being constructed and contemplated that would cross Indian country. Some members of the House vigorously disagreed with the provisions of these treaties because they involved the expenditure of massive sums of money for prolonged periods of time. The rider was a means of protesting both the expense and the fact that House of Representatives had played no part in the commission.

Senator Eugene Casserly of California objected to the methods used by the House regarding the treaty provision. “I was speaking of a great and growing evil in our legislation admitted to be such by every person who had had occasion to consider it. . . . Because the Senate proposed a very proper provision guaranteeing the integrity of past treaties with the Indians, the House of Representatives, disagreeing in that and other amendments, as it would seem, obtained a conference. The result of that conference is that while that provision is retained we have this in addition: That hereafter no Indian nations or tribe within the territory of the United States shall be acknowledged or recognized as an independent tribe or power with whom the United States may contract by treaty.”¹³

Casserly then reviewed the history of the treatment of the Indian tribes and cited approvingly the words of the Supreme Court in a recent case, The Kansas Indians,¹⁴ which described the Indians as a “people distinct from others, capable of making treaties.”15 The objection, or sting, as Casserly described it,

is not in the word “independent,” so much as in the assertion that the Indians are not a people “with whom the United States may contract by treaty.” I deny the right of either or both Houses of Congress to pass such a law. The Indians are not a part of the people of the United States; still less are they a portion of the citizens of the United States. I speak now of course of the Indians as tribes. It is not easy to define expressly their political relation to the United States, but I shall speak with sufficient accuracy when I say that their relations are those of a State having an existence of its own, having a certain independence of its own, but still under the protection and control of the United States according to treaty stipulations.¹⁶

Senator Casserly then adopted and clarified the statement of John Marshall in the Cherokee Nation case: “We find this amply recognized in the constitutional grant to Congress of the power ‘to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.’ The tribes are something different from foreign nations or from the States, more independent than the States, less independent than foreign nations.”¹⁷

In other words, Casserly understood the commerce clause as vesting a particular status in Indian tribes that could not constitutionally be denied by any subsequent congress. “It is more than doubtful whether Congress, dealing with a people like the Indians, whose relations with us are so well established by treaty after treaty, and the whole practice of the Government, can annul, as to them, the treaty-making power vested in the President and the Senate, But the main objection is that the tribes are under the protection of the Constitution and the treaties and the laws made in accordance therewith. Of that protection they cannot be deprived but with their own consent”¹⁸ [emphasis added]. The Constitution, therefore, in mentioning Indians, extended its protection to the degree that acting outside the treaty-making power in dealing with them was believed to be unconstitutional. Casserly suggested an alternative course for Congress to take:

Instead of attempting to abrogate the provisions express and implied, of the Constitution, and to override the unvarying current of authorities in our own courts and of practice in our Government, we should let time solve it. Time will solve it if we have patience, either by the disappearance of these dwindling races or by their own voluntary acceptance of the relations of citizenship. In my judgment, it is only in this way that you can ever undertake to deal with these tribes. The United States has no peaceful control over them for any purpose whatever except through treaties made with them. It is by treaties that you exercise your authority. It is by treaties or by war that you regulate your relations with them; and yet here is a provision that we shall not again make treaties with them.19

Other senators were more concerned about the effect on the treaty-making powers of the Senate and president than about the effect of the provision on Indians. Senator Samuel C. Pomeroy of Kansas argued that: “it would be difficult by a law of Congress to limit the power of the President and Senate over treaties as provided in the Constitution. The Constitution of the United States defines and fixes the powers of the Executive and the Senate in regard to treaties; they are the treaty-making power. Now, you come in here on an appropriation bill, and by an act of Congress prohibit that power, contract it, limit it, when no law can have anything to do with it.”²⁰ Senator Garrett Davis of Kentucky was even more specific: “Now, the principle is this: the whole treaty-making power is vested by the Constitution in the President and the Senate. The House of Representatives have nothing to do with it except to pass appropriation bills that may be necessary to execute treaties. Beyond this power of appropriation the House has nothing to do with the subject of treaties either with foreign nations or with the Indian tribes.”²¹ Davis’s argument is sound constitutional law. Could the House of Representatives dictate to the president which foreign nations he could recognize for the purposes of making a treaty simply on the basis that they would refuse to appropriate funds if the president made a treaty with a country they did not like?

Davis said some prophetic words regarding the future course of Indian affairs:

Is not the President of the United States competent to execute the power, according to his discretion, of negotiating a treaty with an Indian nation? Do we not all know that there are about eighty thousand Indians in the southwest part of the United States, who are civilized, who are advancing in civilization and in all the developments of civilization, where they have their own government, their own constitution, their own language, their own alphabet, their own literature, and where they are making rapid progress in human improvement? Well, what is the effect of this article in the report of the committee of conference in relation to them? That the President in the future shall not have the power to negotiate a treaty with those Indians, either as tribes or as a confederate nation?22

Davis concluded his speech dramatically: “I deny the power of the committee of conference to concede that great principle. I deny the power of the Senate to sacrifice it. I deny the power of the Congress of the United States to expunge it from the Constitution. It is as deeply moored, as fixed and immutable in the foundations of the Constitution as any other power whatever or any other principle established by it”²³ [emphasis added].

In view of these forceful arguments raised against the prohibition of recognizing Indian tribes as political entities capable of making treaties, it is indeed ironic that the General Allotment Act and other legislation later passed by Congress allow that the president should be given instructions and authority to negotiate with the tribes for the cession of their lands. The section of the General Allotment Act that gives the president the authority to negotiate with the tribes in fact restores to the chief executive a power previously limited by Congress.

It has become the practice of Congress to insist that the tribes agree, at least informally and in principle, to legislation that affects them. For example, during the termination hearings of the 1950s, the Joint Subcommittee on Indians was constantly assured by the Bureau of Indian Affairs that the tribes being terminated had agreed to the move. And when the tribes came to Congress to get their termination acts repealed, members of the congressional committees threw back at them the accusation that they had agreed to the termination legislation.²⁴

The record of the United States in upholding the existing treaties with Indian tribes has been spotty at best. There has been no consistent approach to interpreting or enforcing treaty rights. The Congress generally was rigorous in abiding by the provisions of the treaties that did not require the expenditure of funds. In the early days of the Republic, Congress would carefully amend or interpret treaty provisions so as to abide by the spirit of the treaty. Thus the act of March 3, 1817,25 made provisions for the location of lands reserved for the Creek chiefs in the Treaty of August 9, 1814; the Act of June 30, 1834,²⁶ carried into effect the fourth article of the Treaty of January 8, 1821, with the Creeks; the Act of June 17, 1844,²⁷ interpreted the treaty with the Chippewa of Saginaw of January 23, 1838. That practice continued into this century. Thus it was Congress, not the federal courts, who originally interpreted treaty provisions.

Congress generally abided by the provisions of the treaties, with some notable exceptions. In 1882–1883 the government negotiated an agreement with the Sioux to reduce the great Sioux reserve, but when the Congress discovered that it lacked the proper number of signatures, the act, although already negotiated, failed of passage.²⁸ Congress again passed the same basic agreement in 1888²⁹ but when the proper number of Sioux did not approve the act, even though it had been passed by Congress, it was regarded as inoperative.

Considering the wide variety of allotment agreements made with tribes, the exercise of power given to the executive by the General Allotment Act greatly resembled the latitude the president had enjoyed when vested with his full treaty-making powers. Agreements made under this provision were with tribes who did not have treaties and whose reservations had been set aside by executive order prior to the allotment act. Some reservations were inhabited by various Indian tribes who had been told simply to go and live there; the inhabitants had no previous tradition of having a government to represent them. Yet all Indians on all reservations who made the allotment agreements were asked to approve the terms of the agreements as if they were owners in fee simple. So frantic was the government to obtain permission of tribal members that federal employees even invaded the boarding schools in the east to obtain the signatures of the Indians. Thus Jim Thorpe, when but a young man, was asked to approve an agreement with the Sac and Fox as if he were a regular reservation resident and eligible adult tribal member.

In authorizing the construction of dams on the Missouri River in North and South Dakota, for instance, Congress instructed the army chief of engineers and the secretary of the interior to negotiate settlements with the Standing Rock and Cheyenne River Indians and required that “no such contract shall take effect until it shall have been ratified by Act of Congress and ratified in writing by three-quarters of the adult members of the two respective tribes.”30 This formula is the necessary number required by the Fort Laramie Treaty of 1868 with the Sioux.³¹

On some occasions the Supreme Court has rigorously examined the hearings of Indian legislation to determine whether or not the Congress has intended to violate an Indian treaty. For instance, the termination legislation of the Menominee Tribe in 1954 contained a provision that “all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to the members of the tribe.”³² According to this language, the Menominee seemed to have lost even their hunting and fishing rights. But the Supreme Court in Menominee Tribe of Indians v. United States (1968)³³ ruled that the hunting and fishing rights granted or preserved by the Wolf River Treaty of 1854 survived the 1954 termination act. The Court was able to connect the termination act with another piece of legislation, Public Law 280,³⁴ which specifically preserved the hunting, trapping, and fishing rights to all tribes—clearly a law that affected the Menominee because of their status as Indians.

A tedious review of the case law would only serve to prove the utter inconsistency of the record. In the 1970 case Choctaw Nation v. Oklahoma,³⁵ for example, the Supreme Court held that the tribe was entitled to half the bed of the Arkansas River on the basis of a treaty provision; while in Montana v. United States³⁶ the Court held that the Crow tribe did not own the bed of the Big Horn River. In the Choctaw case the river formed a boundary for a reservation that had previously been abolished; in the Crow case, the river ran through the reservation, and the reservation was still intact.

There is presently no accurate way to predict or anticipate how the Supreme Court will interpret an Indian treaty, nor is there any way to determine whether or not the Congress will require a federal or state agency to follow the provisions of an Indian treaty. But the Court has held that Congress does not have to seek the consent of a tribe before a treaty provision can be disregarded by Congress.³⁷ In 1867 the Kiowa, Comanche, and Apache signed a treaty with the United States that contained the provision that no further land cessions would be regarded as valid unless three-quarters of the tribes’ adult males agreed. In 1892 the three tribes were asked to sign an agreement allotting their lands and selling the surplus to the United States. The required three-fourths of adult males did not agree, and after much delay legislation approving a very changed version of the agreement was passed by Congress. Lone Wolf, a Kiowa chief, sued to prevent the secretary of the interior from enforcing the legislation.

The Supreme Court turned aside the argument of the Indians that the three-quarters provision prohibited the Congress from making material changes in the agreement and passing it into law. The Court ruled that “to uphold the claim would be to adjudge that the indirect operation of the treaty was to materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians, and to deprive Congress, in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, of all power to act, if the assent of the Indians could not be obtained.”38

The reasoning of this decision is spurious and fictional, but because it is a Supreme Court decision, it is regarded as good law. First, the three-fourths provision was inserted in the treaty at the initiative of the United States as a pledge of good faith and assurance to the tribes that there would be some tangible protection of tribal lands in the future. Second, such a provision does not act indirectly. It is what is called a self-operating provision. That is to say, it does not heed any further action by Congress to become effective. Finally, there was no emergency when the agreement was proposed to the tribes and no emergency arose during the consideration of the legislation that would require a hasty conclusion to the matter. Almost as if the Court were embarrassed at its rhetorical evasion of the protections the treaty offered the Indians, the justices added a final touch. Citing a case that had been decided that term wherein the Court had declared that Congress possessed full administrative power over Indian tribal property,³⁹ the Court characterized the actions of Congress as “an exercise of such power, a mere change in the form of investment of Indian tribal property.”⁴⁰

Finally, the Court simply gave up its effort to justify the decision and declared:

We must presume that Congress acted in perfect good faith in the dealings with the Indians of which complaint is made, and that the legislative branch of the government exercised its best judgment in the premises. In any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation. If injury was occasioned, which we do not wish to be understood as implying, by the use made by Congress of its power, relief must be sought by an appeal to that body for redress and not to the courts.41 [Emphasis added]

The problem is that unless the treaty-making process is continued in some formal manner, the treaty-making clause does not apply and there is no protection under the Constitution for Indian tribes at all. Tribal rights of self-government predate the Constitution and derive not from the American people or the Constitution but from the inherent sovereignty of a given tribe. When a controversy involves the relationship of the federal government to the tribes, nothing compels the United States to deal justly with the tribe because the nature of the relationship is political; it is diplomatic and without appeal to the family of nations because Indians are now considered a domestic matter of the United States. So there are no checks and balances available that would prevent any branch of government from doing whatever it wanted with Indians and their lands and rights. The Constitution provided a form of protection for Indian tribes because it identified tribes as having a particular political status that demanded treaty (bilateral) relationships and not simply legislative (unilateral) deliberations. When Congress limited the president’s ability to deal with Indians in the usual manner and instead assigned him the task of negotiating with tribes on a piecemeal basis under separate authorizing acts, it eliminated the flexibility of the chief executive to deal with Indians realistically according to the best discretionary authority of his office. Congress thereupon intruded upon the powers of the executive and in fact assumed those powers for itself.

After the disclaimer of treaty making in 1871, any previous constitutional protections for Indians were no longer recognized. The doctrine of discovery, which justified the claims of the United States, was at that time nullified. Indians were made subject to the powers of Congress as subjects of the country but had no rights and no standing to contest their change in status. Unfortunately there have been no corrective actions taken to remedy this situation. Indian tribes are still recognized as sovereigns by the United States, but they are deprived of the one power all sovereigns must have in order to function effectively—the power to say “no” to other sovereigns.

The Power to Regulate Commerce

The commerce clause is the heart and soul of the Constitution. Under its auspices the federal government has done almost anything it wanted. It has been expansively interpreted to provide benefits and services to the citizens, has become the vehicle for almost all civil rights legislation, and has allowed Congress a free hand in determining the fate and conditions of American Indians.

There are some spotty indications, at least from the Supreme Court’s perspective, that Congress’s days of wielding largely unrestricted power in regards to issues of federalism under the commerce clause may have run its course and that federal power to enact a cornucopia of legislation designed to regulate state and local activities is to be limited.42 The result of this shift in emphasis is that federal legislation is now being interpreted so that it will favor state governments. Thus long-standing doctrines of interpretation are being turned upside-down. The Court no longer cares about hearing what the Indians understood was happening to them. The movement now is to strip the tribes of every possible right by developing novel doctrines of the “intent” of Congress in the face of overwhelming evidence to the contrary.

The liberal reading of the commerce clause in the field of Indian affairs preceded by half a century the expansion of the power of Congress in other areas of American life. Initially Congress saw its duty toward Indians as one of adjusting the commercial relationships between the United States and the tribes adjoining the settled areas of the eastern United States. The first three acts passed by Congress dealing with Indians demonstrated the manner in which the legislative branch understood its duties under the commerce clause. The first act, of August 7, 1789,⁴³ established the War Department and authorized that agency to assume whatever duties relative to Indians that the president should assign it. The second act,⁴⁴ passed the same day as the first, confirmed and adopted the Ordinance of 1787 and established policies for the settlement of new territories and for the treatment of Indians. We will deal with this ordinance when we discuss the part of the property clause that is directly on point. The third statute,⁴⁵ enacted August 20, 1789, appropriated a sum not exceeding $20,000 to defray the expenses of negotiating with Indian tribes and provided for the appointment of commissioners to negotiate the treaties. Taken together these acts indicate that Congress saw its task as one of arranging the internal authorities and institutions of the United States so that it could deal on a diplomatic basis with the Indian tribes and provide services promised in the treaties.

Beginning in 1790 and continuing until 1834, aside from the ratification of treaties Indian legislation reflected a goal of providing rules and regulations under which non-Indians could deal with Indian tribes. Traders were required to have licenses, provisions were enacted to punish non-Indians committing crimes against Indians, and a series of trading houses or factories were authorized to enable the federal government to make an effort to dominate Indian trade and set the standards against which private ventures would be measured.46 Congress well understood that the United States was competing for both trading privileges and political loyalty against Great Britain and Spain, whose colonies encompassed the new republic just beyond the Indian lands to the north, west, and south.

Federal legislation might have remained a wholly commercial venture had it not been for the humanitarian impulse of the United States. In 1819, at the urging of many people concerned about the precipitous population decline of the frontier tribes, Congress passed an act “making provision for the civilization of the Indian tribes adjoining the frontier settlements.”⁴⁷ The first section of this statute stated:

That for the purpose of providing against the further decline and final extinction of the Indian tribes, adjoining the frontier settlements of the United States, and for introducing among them the habits and arts of civilization, the President of the United States shall be, and he is hereby authorized, in every case where he shall judge improvement in the habits and condition of such Indians practicable, and that the means of instruction can be introduced with their consent, to employ capable persons of good moral character, to instruct them in the mode of agriculture suited to their situation.⁴⁸

The importance of this provision cannot be underestimated. It meant that Congress had adopted a policy of civilization instead of a policy of extermination and that the task of Congress divided into two basic responsibilities: first, to consider and pass laws that were necessary to carry out the provisions of treaties made with the Indians, and second, to pursue a policy of civilization, assimilation, and eventually absorption of the Indians into the body politic of the United States. The first responsibility derives from the constitutional provisions for treaty making and the power to regulate commerce, but the second mission is a wholly gratuitous task that Congress voluntarily assumes. Later, of course, these so-called gratuitous expenditures would be credited to the United States’ “offsets” against land claims filed by Indian tribes under the provisions of the Indian Claims Commission.49 Allowance of these expenses freely made as a policy of the government in effect meant that Indians were made to pay for their own cultural destruction. But the first congresses could not have foreseen this development. Their efforts can even be characterized as good-faith attempts to assume responsibility for the aboriginal inhabitants under the requirements of the doctrine of discovery, although at no time did Congress cite this responsibility as a motive for its actions.

The desire to civilize cannot be logically and clearly tied to the exercise of power under the commerce clause. Nevertheless, since it was framed with a benevolent purpose, few people questioned the actions of Congress in this regard. Basically the philosophical framework involved in this decision was one that regarded culture as a function of commerce rather than the reverse. Ironically, the tribes to whom this policy was first applied were among the best organized and most sedentary peoples the United States would encounter in its history, with the possible exception of the Pueblo groups of New Mexico. These Indian nations were the Five Civilized Tribes, the Indian confederacies of the Ohio Valley, and the Six Nations of New York. The primary difference between the Indian settlements and the non-Indian settlements insofar as civilization and agriculture were concerned were two: non-Indian agriculturists looked forward to achieving commercial status whereas Indian agriculturists were predominantly concerned with subsistence, and Indian land tenure was by assignments that were unalienable rather than by the division of lands into plots regarded as private property and disposable at the will of the owner. Ultimately, then, it is the presence or possibility of the profit motive that distinguished Indian from non-Indian agriculture and settlement.

The difficulty facing Congress once its motives and goals had been complicated by the introduction of its self-imposed responsibility to civilize the Indians can be seen in the Committee of Indian Affairs’ report that accompanied the 1834 acts of regulating trade and organizing the Department of Indian Affairs:

The committee are aware of the intrinsic difficulties of the subject—of providing a system of laws and of administration, simple and economical, and, at the same time, efficient and liberal—that shall be suited to the various conditions and relations of those for whose benefit it is intended; and that shall, with a due regard to the rights of our own citizens, meet the just expectations of the country in the fulfillment of its proper and assumed obligations to the Indian tribes. . . . The Indians, for whose protection these laws are proposed, consist of numerous tribes, scattered over an immense extent of country, of different languages, and partaking of all the forms of society in the progression from the savage to an approximation to the civilized. With the emigrant tribes we have treaties, imposing duties of a mixed character, recognizing them in some sort as dependent tribes, and yet obligating ourselves to protect them, even against domestic strife, and necessarily retaining the power to do so. With other tribes we have general treaties of amity; and with a considerable number we have no treaties whatever.50

In looking at the larger picture of Indian affairs, Congress could not determine a consistent policy regarding Indians because the condition of Indian tribes varied so significantly. The two acts passed in 1834⁵¹ are both well within the scope of the commerce clause because the first act creates a more universal set of rules for conducting trade with the tribes while the second establishes an institutional framework within which treaty services can be properly delivered. Yet this report and these acts project an image of confusion over the scope of congressional responsibility. We see no determination to cease treaty making but instead find in the congressional intent and legislation a genuine puzzlement over how to deal with the broad spectrum of Indian conditions.

Subsequent events in American history demonstrate that as Indian trade declined in importance, the task of the institutional bureaucracy increased. Because the department of Indian affairs was supported primarily by gratuitous expenditures, as time passed there would be an increasing cry for a reduction of the cost of funding Indian services and programs, leading eventually to a final termination of the responsibilities of the national government toward tribes. This conflict can be seen as early as the 1830s’ removal treaties, when provisions were made for tribal members to reject tribal membership, take allotments, and remain in the South as private citizens. By 1854 the full weight of the government was being placed on the idea of allotting Indian lands and bringing individual Indian families into the small town/family farm way of life.52 Thereafter, if the debates in Congress are any measure, almost all policy decisions were driven by the budget. In 1868 Indian Commissioner Nathaniel G. Taylor estimated that it would cost $1 million for each Indian killed by the army, that it would take $6 billion to kill all the Indians, and that in the process 7.5 million whites would be killed.⁵³ Thus the Peace Commission was formed.

Beginning with the Reagan administration and continuing through the Clinton years, we have seen a reenactment of this basic dilemma. The government, in seeking to end or at least dramatically reduce Indian dependence on federal largesse, has stressed the unbridled development of reservations’ natural resources—in effect, the reinstitution of Indian trade. And the contemporary recognition of Indian tribes as sovereigns under the banner of Indian self-determination may well be regarded as a step toward restoring the original balance between commercial relations and gratuitous expenditures encouraging the civilization of the Indians. But restoring this balance requires a concomitant move to recognize, respect, and protect the self-governing aspects of tribal life and, particularly, to provide a mechanism whereby tribes can reject (or at least insist that the government recast) the overtures of the United States. This kind of protection, as we have seen from our discussion of the treaty-making power, has not been restored.

After 1834 it was merely a matter of time before the Congress usurped the self-governing powers of Indian tribes and substituted a large and cumbersome administrative agency to direct the lives of Indians. Gratuitous expenditures to encourage civilization soon became coercive measures to force assimilation. Indians were given no relief from this pressure, and by the 1880s almost everything that happened on Indian reservations was under the control of the federal government. Then two Supreme Court decisions and a federal statute created havoc in the placid waters of the commerce clause.

In 1883 the Supreme Court heard the case of Ex parte Crow Dog,⁵⁴ in which Crow Dog, a Brule Sioux, had been convicted by a territorial court of murdering Spotted Tail, chief of the tribe. Crow Dog’s relatives had settled the incident according to traditional Sioux custom by compensating Spotted Tail’s relatives. The Court relied upon two sections of the Revised Statutes of the United States—2145 and 2146, the latter of which allowed an Indian tribe to preserve certain subjects from federal jurisdiction through treaty provisions—to free Crow Dog and overturn his conviction. The Bureau of Indian Affairs, which had been planning to test these sections of the Revised Statutes for several years, promptly worked to stir up public outrage at the decision, interpreting it as allowing a murderer “to pay money instead of suffering punishment.”55 Pressure from the public, Christian reform organizations, and the ever insistent calls by the BIA that lawlessness reigned in Indian country convinced Congress to pass the Seven Major Crimes Act in 1885.⁵⁶ This act purported to extend federal jurisdiction over several enumerated crimes—murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny—on all Indian reservations. Although worded to apply universally, strangely this act was not believed to be applicable to the Five Civilized Tribes because of their treaties—the exact situation in which the Sioux had found themselves.

The first test of this statute came in the fall of 1885, when the Supreme Court heard the case of United States v. Kagama,⁵⁷ involving a convicted Hoopa Indian who had killed another Indian on the Hoopa reservation in California and was questioning the basis for federal jurisdiction. Kagama is a stunning rejection of the commerce clause and a confused rendering of a combination of the property clause, the treaty-making power, and a smattering of natural-law philosophy. Because the case is so important to the understanding of the commerce clause and because it has proven remarkably noncontroversial in spite of its reasoning, it is important that we examine the decision carefully.

The opinion reads:

The mention of Indians in the Constitution which has received most attention is that found in the clause which gives Congress ‘power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.’ This clause is relied on in the argument in the present case, the proposition being that the statute under consideration is a regulation of commerce with the Indian tribes. But we think it would be a very strained construction of this clause, that a system of criminal laws for Indians living peaceably in their reservations, which left out the entire code of trade and intercourse laws justly enacted under that provision, and established punishments for the common-law crimes of murder, manslaughter, arson, burglary, larceny, and the like, without any reference to their relation to any kind of commerce, was authorized by the grant of power to regulate commerce with the Indian tribes.”58 [Emphasis added]

In view of the extensive body of federal law dealing with Indian tribes and the unbroken tradition of congressional legislation dealing with Indians and commerce, the rejection of the commerce clause by the Supreme Court was nothing short of astounding. Possibly the Court was criticizing the abrupt insertion of such a far-reaching provision in an appropriation act, but it does not specifically cite the misuse of an appropriation statute for a major policy change. About the best that can be made of this rejection is that had the Congress established a strong code for trade and intercourse prior to dealing with criminal law, the criminal code would naturally follow from the commercial definitions. In fact, as we look at the two 1834 statutes dealing with Indian trade, there is no reason to suppose that Congress had not already more than fulfilled the Court’s expectations in that respect.

The Court then turned to its own reasons for upholding the Seven Major Crimes Act, and here the justices’ logic is confusing at best:

But these Indians are within the geographical limits of the United States. The soil and the people within these limits are under the political control of the Government of the United States, or of the States of the Union. . . . What authority the State governments may have to enact criminal laws for the Indians will be presently considered. But this power of Congress to organize territorial governments, and make laws for their inhabitants, arises not so much from the clause in the Constitution in regard to disposing of and making rules and regulations concerning the Territory and other property of the United States, as from the ownership of the country in which the Territories are, and the right of exclusive sovereignty which must exist in the National Government, and can be found nowhere else.”⁵⁹ [Emphasis added]

Proprietorship, then, carries with it all necessary powers and attributes that the Constitution itself would otherwise have vested in the national government.

The property clause, however, is not the source of federal power either, according to the Court:

These Indian tribes are wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. 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 they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealings of the Federal Government with them and the treaties in which it has been promised, there arises a duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this Court, whenever the question has arisen.60 [Emphasis added]

The property clause and the treaty-making clause seem to be peripheral elements of constitutionality in this case; they give the decision a superficial veneer of legality. The commerce clause is rejected in its entirety, and the power to pass a criminal code applicable to reservation Indians seems to originate in the fact that the United States throughout its history possessed the power to pass laws dealing with Indians and Indian affairs because it was, through its relationship with the Indians, creating a dependency among them. Conceivably this is an equity argument in which the United States must accept responsibility for Indians because they are helpless—rendered helpless by federal policies. But why that responsibility would accrue to a property owner is never explained by the Court.

The Seven Major Crimes Act is regarded generally as a substantial intrusion on the rights of Indians on reservations to govern themselves, hence a drastic deterioration of the sovereign right to self-government. If the Court here implies that a kind of tort or equitable liability accrues to the United States for its actions toward Indians, it does not follow that this history justifies further intrusion and disruption. If the reference to treaties is to be taken seriously, then the application of the Seven Major Crimes Act must be subject to the consent, through negotiations, of the Indians affected.

The final analysis of the Kagama case, a conclusion that most lawyers and federal officials are reluctant to draw, is that somehow the Supreme Court held a federal statute applying to Indians to be constitutional while rejecting every possible constitutional clause and phrase that would render it so. How a judicial forum can step outside the Constitution to hold a law constitutional is yet to be explained. The fact remains that, as with the treaty-making clause, Indians stand outside the Constitution insofar as that document limits any branch or agency of government from legally doing what it wishes with Indian lives and properties. The allusions to land ownership are certainly subject to the paramount doctrine of discovery, but that doctrine is nowhere admitted in Kagama to be worthy of consideration or mention.

The mixture of motives detected in the two 1834 acts becomes the Gordian knot the Court cannot or will not unravel. At its best reading, the Court seems to be saying that because the United States voluntarily undertakes a mission of humanitarian concern on behalf of Indians, there is no limit to the powers the government can exercise over them, whether the Indians wish to receive such humanitarian aid or not. The Constitution, and its powers of specific authorization, are naught in comparison to this long history of benignly intended involvement of the United States with Indian tribes. It remains, then, to examine the property clause to determine if and how the Constitution actually empowers the federal government to deal with Indians and under what conditions and auspices.

There should be no question, however, that in the mainstream of American legal thinking, easily identifiable in the acts of Congress, there is a substantial body of law dealing with Indians and passed by the Congress as an exercise of its powers under the commerce clause. In general, when these laws are carefully examined, it is apparent that the most precise use of the commerce clause occurs when the Congress acts to fulfill the provision of treaties and agreements. The further from this function Congress strays, the more peripheral and extraneous become arguments in Supreme Court decisions attempting to find constitutional validity in congressional acts. There must be, therefore, a limit to the exercise of powers under the commerce clause, but it is yet to be articulated clearly and unequivocally.

The current trend of the Rehnquist Court to curtail Congress’s exercise of commerce power vis-à-vis states and to a lesser extent tribes might be interpreted in a positive light as an effort by the Court to reign in congressional plenary power. However, while this clearly seems to be the case regarding the expanding idea of state sovereignty, in various cases the Court has expressed a much narrower view of tribal sovereignty and continues to maintain that Congress may wield extraordinary power over tribes while at the same time legitimizing state efforts to exercise an increased amount of jurisdictional authority over tribes and their resources.61

The Property Clause

Although it never seems to play a prominent role in the deliberations of either Congress or the federal courts when they deal with Indian matters, an analysis of critical decisions of the Supreme Court seems to suggest that the property clause, and/or the fact of American claims to legal title to lands in North America under the doctrine of discovery, plays an important part in determining the posture and actions of the United States toward Indians. Much of the impact of this clause originates, as does the treaty-making power, from the general background within which the constitutional fathers lived and acted. The property clause itself, contained in Article 4, section 3, paragraph 2, is a model of restraint:

The Congress shall have Power to dispose of and make all needful Rules and Regulation respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State. Within the context of post–Revolutionary War political thought this paragraph asserts a national rather than a state claim to property while promoting a compromise between the federal government and specific state claims.

One of the most critical problems encountered at the Constitutional convention concerned the relationship between the larger states, such as Virginia, Pennsylvania, New York, and Massachusetts, and the smaller states. A political compromise was reached wherein the legislative body was divided into two parts, one to represent state sovereignty and therefore to testify to the basic equality of the states, the other to reflect the actual disposition of the population, thereby recognizing the people as such.

The national government agreed to assume the debts of the respective states which had been incurred during the Revolutionary War; Alexander Hamilton saw in the sale of public lands to the west the financial solution to this burden. Consequently, a good deal of negotiations between the federal government and the various states began with the adoption of the Constitution, with the goal that the federal government would become the eventual owner of lands and/or land claims the states possessed under their original colonial charters. These charters naively and benevolently bestowed on individual colonies the title to lands to the South seas, not realizing that the continent was considerably larger than anyone had suspected. As early as 1780, in order to maintain the allegiance of the smaller colonies who had no expansive land pretensions, New York and Connecticut ceded their claims to the United States as a means of settling the question. After the adoption of the Constitution, only Georgia and North Carolina maintained the fiction that they possessed western lands to the exclusion of the United States. Finally in 1802, under special articles of agreement and cession, Georgia surrendered her dubious claims to the west to the federal government,62 but only after extracting a pledge from Congress that it would oversee the extinguishment of Creek and Cherokee title to land Georgia wanted for her own citizens, land that the federal government had guaranteed to the Indians in prior treaties.⁶³

With the cession to the national government of land claims assumed to be valid under the old colonial charters, the United States consolidated its position with respect to England and Spain, its two competitors east of the Mississippi, and with respect to the Indian tribes who inhabited the area east of the Mississippi and south of Canada. Land titles within this area were presumed to be valid only if they were derived from patents issued by the states or colonies prior to the time of cession to the United States or issued since then by a land office or officer of the United States.

In 1823 in the case of Johnson v. McIntosh,⁶⁴ the Supreme Court received its first clear opportunity to articulate the position of the United States on its claim to legal land titles. At issue was the question of whether a land title given by the Indians under British supervision at an open public sale was superior to a title derived from the United States through a sale by designated federal land officers. The opinion is long and to some degree incoherent because the Indian land title was in fact transferred under the supervision of the British at a time when England was the dominant sovereign on the continent. The land was conveyed using the regular process that all colonial deeds used prior to the establishment of the United States. The Court therefore had no valid reason for calling the transaction into question—indeed, all deeds given under the Crown would have to have been questioned.

A selective citation of the salient points of Justice Marshall’s argument is enlightening in that it clarifies the understanding of the United States, insofar as its proprietary rights to land and the ensuing privileges this ownership entailed are concerned:

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.65 [Emphasis added]

Marshall continued:

In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle that discovery gave exclusive title to those who made it.66 [Emphasis added]

The basic outlines of the doctrine of discovery have been emphasized in the quotations above. They seem to fall easily into a strangely logical sequence: the culture and religion of indigenous peoples was judged inferior to that of Europeans, civilization and Christianity were offered them as compensation for their lands, discovery gave title to a government against other Europeans, the Indians were still the rightful owners of the land, but their sovereignty was reduced by the European agreement to restrict the sale of land to the discovering country. Here, sovereignty and land proprietorship are regarded as the same thing, an idea that certainly originates in the feudal system of land tenure in Europe.

Marshall connects the American claim to the European doctrine as follows:

By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the ‘propriety and territorial rights of the United States,’ whose boundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to these states. We had before taken possession of them, by declaring independence; but neither the declaration of independence, nor the treaty confirming it, could give us more than that which we before possessed, or to which Great Britain was before entitled.⁶⁷

Here is the incoherence: under Marshall’s own reasoning this deed had to be valid. The Indians had transferred their land at public auction under the supervision of British officers prior to the Revolution.

Although the decision in McIntosh was politically dependent upon the fact that all land titles were premised upon this reasoning, the fact remains that Marshall felt that to overturn it at that point would have wreaked untold havoc on the American political system:

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear, if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by courts of justice.68 [Emphasis added]

Whatever the pretensions of English-speaking colonists against the Indian nations, once it was accepted that colonial- and imperial-supervised land sales in all other instances had given good title—not from the Indians but from the Crown or colonial governor—it seems incontrovertible that when the United States assumed the claims of Great Britain it also assumed the responsibility for bringing civilization and Christianity to the natives. It also seems true that this responsibility accrues prior to the claim to legal title to the lands. Further, it appears that the Court is saying that political and legal sovereignty are a function of land ownership and that both the Indian tribes and the United States are sovereign to the degree that they are possessors of land. But if sovereignty of the tribes is dependent upon ownership of land, then each loss of land entails an irretrievable loss of status.

Marshall’s analysis lacks a certain crispness and precision that is often missing in Supreme Court decisions. If the doctrine of discovery is acceptable as a legal concept, how do European nations purchase the equitable titles from non-Christian peoples with whom they have dealings? In North America this question was settled through the treaty-making process in which France, England, Spain, and Russia all engaged with tribes. Once sovereignty of the Indians is admitted—and this admission would be made by the purchase agreement—the transaction should end without additional burden of preaching Christianity or civilization. We are not, after all, asked to subscribe to new ways of living when we purchase lands, houses, automobiles, or any other form of property. In giving the land purchase a thin coating of morality—i.e., religion and culture—Marshall completely confused the argument for subsequent generations reading his opinion.69

In Cherokee Nation v. Georgia,⁷⁰ Chief Justice Marshall struggled with a definition of the tribe that would justify denying its motion for an injunction against Georgia, tediously examining the treaty provisions for signs of political vulnerability. Justice William Johnson in a concurring opinion went straight to the point. He described the status of the Cherokees by using a biblical analogy:

Their condition is something like that of the Israelites, when inhabiting the deserts. Though without land that they can call theirs in the sense of property, their right of personal self-government has never been taken from them; and such a form of government may exist though the land occupied be in fact that of another. The right to expel them may exist in that other, but the alternative of departing and retaining the right of self-government may exist in them. And such they certainly do possess; it has never been questioned, nor any attempt made at subjugating them as a people, or restraining their personal liberty except as to their land and trade.⁷¹

It is not simply the fact that the Cherokees did not hold good title to their lands in the eyes of the Americans that made this situation complicated. Rather it was the location of these lands that made all the difference. They were now inside the territorial confines of what had become the United States. John Marshall observed that “the Indian territory is admitted to compose a part of the United States. In all our maps, geographical treatises, histories, and laws, it is so considered. In all our intercourse with foreign nations, in our commercial regulations, in any attempt at intercourse between Indians and foreign nations, they are considered as within the jurisdictional limits of the United States, subject to many of those restraints which are imposed upon our own citizens.”⁷²

Consequently it was the fact that the Cherokee lands were contiguous to the American lands that made the Cherokees a dependent people. Had the Cherokees occupied Cuba, with an intervening body of water between them and the United States, the case would almost certainly have reached a much different conclusion. But it is a characteristic of human societies to regard natural features as the limiting factors in their definition of themselves, their lands, and their governments.

Faced with Marshall’s geographical realities, Justice Smith Thompson in dissent made the only argument possible: that the Cherokees were foreign in the political sense. Citing Emmerich de Vattel copiously, he contended that:

Every nation that governs itself, under what form so ever, without any dependence on a foreign power, is a sovereign state. Its rights are naturally the same as those of any other state. Such are moral persons who live together in a natural society, under the law of nations. It is sufficient if it be really sovereign and independent: that is, it must govern itself by its own authority and laws. We ought, therefore, to reckon in the number of sovereigns those states that have bound themselves to another more powerful, although by an unequal alliance. The conditions of these unequal alliances may be infinitely varied; but whatever they are, provided the inferior ally reserves to itself the sovereignty or the right to govern its own body, it ought to be considered an independent state.73

Although we have been taught to regard the Cherokee Nation case as settling the question of the status of Indian tribes, in fact this interpretation makes law out of fictional reasoning. The real substance of the case is in its application of the idea of property and proprietorship earlier articulated in Johnson v. McIntosh.⁷⁴ Subsequent American political history demonstrates that the ideas of Justices Johnson and Thompson fluctuate back and forth as definitions of the status of Indian tribes. Inchoate nationhood and the foreign nature of jurisdiction when it involves the exercise of self-government by Indian tribes remain with us today. Instead of the constitutional system defining the rights of Indian tribes through treaty or commercial relations, the feudal system of holding land, adapted to fit the North American social setting, actually controls the manner in which people think about Indians and their relationship to the United States. As the recognition and exercise of the proprietary functions increase and decrease, so does everything else relating to Indian tribes.

Although not articulated clearly, and perhaps not even part of the conscious motivation of congressional actions regarding Indian tribes, the propensity to appropriate funds for the civilization of Indians is a substantial part of the old doctrine of discovery. Until the Constitution can recognize and offer significant protections for Indian property, there can be no resolution to the problem of the relationship between Indian tribes and the United States.

A case pitting the treaty-making power against the property clause occurred at the beginning of this century—Lone Wolf v. Hitchcock.75 The Kiowas and Comanches had made a treaty with the United States in 1867 as part of the work of the Peace Commission. As with all treaties made by this group, it contained provisions and promises that the United States would never thereafter consider a land cession valid against the tribes unless it were approved by three-quarters of the Indians involved. In the 1890s the Jerome Commission made another agreement with these tribes but was still not able to get the required number of signatures. At least part of the reason for failure was the inability of the Indian agent to count the Indians and figure a percentage. Seeking to stop the allotment of their lands, several chiefs filed a suit to enjoin the secretary of the interior from carrying out the provisions of the statute ratifying the amended agreement, which had changed the original agreement so substantially that, they argued, it was no longer what they had bargained for.

The Court ruled against the tribes, arguing that in a time of emergency the United States could not be held to a previous treaty agreement. This reasoning sounds logical to the layperson, although treaty case law indicates that foreign governments and their citizens do not lose their property rights even in times of war. The only limitation that appears to be placed on alien governments’ property is that property that would aid in the prosecution of war cannot be used by them. The Court cited no pressing emergency that would have justified the division of lands and distribution of the tribal property estate. As if to add insult to injury, the Court gratuitously concluded that the Indians had not lost anything, anyway, because the transaction was merely a change of investment and therefore basically an administrative action to benefit the tribes. Had this rationale been accepted from the beginning of colonization, Indian tribes might have provided the capital for the Industrial Revolution in Europe by a simple distribution of their homelands. Here the treaty does not hold against an arbitrary power to transform wealth by the national government—wealth that it did not own but for which it merely acted as a trustee.

Another, earlier case illustrates the power the concept of property has when measured against the treaty provisions. In The Cherokee Tobacco,76 the Supreme Court faced the question of whether a section of the revenue laws, passed two years after an Indian treaty, acted to repeal or abrogate a treaty provision. Section 107 of the 1868 Revenue Act imposed taxes on distilled spirits, fermented liquors, tobacco, snuff, and cigars that were produced anywhere within the exterior boundaries of the United States. Article 10 of the 1866 Cherokee Treaty, however, provided that “Every Cherokee Indian and freed person residing in the Cherokee nation shall have the right to sell any products of his farm, including his or her livestock, or any merchandise or manufactured products, and to ship and drive the same to market without restraint, paying any tax thereon which is now or may be levied by the United States on the quantity sold outside the Indian territory.”⁷⁷

The Cherokees contended that the Revenue Act did not extend to Indian territory and that consequently the Internal Revenue Service could not levy the tax. Not surprisingly, the Court found that the Cherokees were within the exterior boundaries of the United States—even though the treaty clearly delineated lines between the United States and Indian territory and even though it was demonstrated that there was no revenue collection district that included the Cherokee lands, making it impossible to purchase revenue stamps for the tobacco and whiskey the Indians produced. The Court ruled that the treaty had been repealed by the succeeding statute, not because Congress intended to do so—for there was no language to that effect, a point noted by the dissent—but because the Cherokees were within the lands and jurisdiction of the United States.

The application of the property clause is not always detrimental to Indians, however. It continues to form a significant, though no longer unassailable, protective barrier for the tribes against state taxation because the states cannot tax federal property; as long as Indian lands are held by the United States in trust for the Indian tribes, there is no way that the states can intrude into the situation with their taxing power.⁷⁸ Cessions of civil and criminal jurisdiction over the same lands, however, are fraught with controversy because the exercise of tribal sovereignty over the reservations involves the recognition of an additional political entity, the tribal government, which does not assert ultimate and absolute title to its lands.

In concluding our discussion of the three major constitutional clauses that have affected the rights and status of American Indians, we can make the following observations. First, the commerce clause has two aspects: regulation of the manner in which the tribes and American citizens, states, and federal agencies will have political and economic relationships, and the gratuitous policy of Congress’s providing civilization and Christianity to the Indians. Second, the substance and meaning of both the treaty-making power and the property clause depend upon ideas and assumptions about the world once prevalent in European political circles. If there was no question in the minds of the constitutional fathers that Indian tribes should be dealt with by treaties, there was also no doubt in their minds that the United States owned the lands it claimed at the end of the Revolutionary War and that subsequent purchases of land from either the Indians or European colonial powers would vest absolute title in the United States.

The principle of Indian consent is highly visible in the treaty-making process, and even identifiable in the exercise of the commerce clause, but is nowhere to be seen in the application of the property clause. Consent by Indians is necessary under the doctrine of discovery, and presumably the Constitution is based upon the principle of the consent of the governed. But absolute proprietorship precludes the consent of anyone except the owner in selling property, and although Indians were regarded as having equitable title to their lands, the United States consistently used every tactic available to force tribes to sell their lands. When American political history is understood in the light of the property clause, the importance of the commerce and treaty-making powers diminishes considerably.

Miscellaneous Constitutional Clauses

Initially we listed the constitutional clauses that had a measure of applicability to Indians, excluding for the moment the general-welfare and war-making powers. The original list of constitutional powers contained some obvious clauses, such as the power to make all necessary laws for executing the other powers. The power to make post roads can be seen in the background of consideration in several treaties, and it is often mentioned but never invoked today when the federal government wishes to build a road through a reservation. Basically it is much easier to simply use the power of condemnation of the sovereign—better known as eminent domain—than to go through the tortuous procedure of justifying a proposed action by using the post-road power.

The presidential power to grant reprieves and pardons has been used once to benefit Indians. In 1862 the Sioux of Minnesota, after suffering much abuse from their agent, attacked the settlements in that state. Overwhelmed by whites after a few weeks of conflict, the Sioux found themselves imprisoned at Fort Snelling and other military outposts where they were given the semblance of a military trial. Some 303 Sioux were found guilty of murder and sentenced to death. President Abraham Lincoln insisted on seeing the trial record, and he assigned two men to go over the proceedings with care to determine which of the Indians might actually be guilty of a crime and which were only responding to the general confusion and defending themselves, their homes, or their families. Lincoln pardoned all but 40 of the Indians.79

The power to make new states and the power to protect states from domestic violence can probably be discussed together. There is no question that in stationing army troops near Indian reservations as late as the First World War, the president was exercising this power to protect both the settlers against the Indians and the Indians against the land-hungry Boomers and Sooners, who always loafed near the fringes of reservations clamoring for land cessions. Since everyone knew that Indians were a wholly federal matter, there was no need to invoke this power as separate and distinct from the larger plenary power that had been exercised from the beginning of the republic. It is noteworthy, however, that the protest at Wounded Knee II in 1973 was exclusively a federal matter, although surely the State of South Dakota had an interest in the outcome.

The power to admit new states took a deliberate turn when states from the midcontinent were considered for admission to the union. The fact that they possessed sparse populations and had large Indian tribes within their borders meant that the new states would quickly look to the Indian lands for sources of revenue and wealth in order to keep themselves and their institutions viable. Thus it was that Congress, in admitting new states to the union, exempted Indians and Indian property from the application of state laws. In the enabling acts for a number of western states, including North Dakota, South Dakota, Montana, and Wyoming;80 Washington;⁸¹ Oklahoma;⁸² and Arizona and New Mexico⁸³ are provisions often termed “disclaimer clauses” that specify what the state may not do inside Indian country. Article 26 of Washington State’s constitution is typical:

That the people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries of this state, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States and that the lands belong to citizens of the United States . . . and that no taxes shall be imposed by the state on lands or property therein, belonging to or which may be hereafter purchased by the United States or reserved for use: Provided, That nothing in this ordinance shall preclude that state from taxing as other lands are taxed any lands owned or held by an Indian who has severed his tribal relations, and has obtained from the United States or from any person a title thereto by patent or other grant, save and except such lands as have been or may be granted to any Indian or Indians under any act of Congress containing a provision exempting the lands thus granted from taxation, which exemption shall continue so long and to such an extent as such act of Congress may prescribe.⁸⁴

The federal government made the disclaimer clauses a requirement for state admission to the union. States have argued, with only sporadic success, that these limitations placed them on a less than equal status with existing states of the union.⁸⁵ Yet a combination of the commerce and treaty-making clauses with the power to admit new states has prevailed in the courts until the present time. In 1953, when Congress passed PL-280,⁸⁶ it gave permission for the states to amend their constitutions to omit the exclusionary disclaimer clause and to assume jurisdiction over Indian reservations within their borders if they so desired. In 1968, in the Indian Civil Rights Act,87 the provisions of PL-280 were amended to provide for Indian consent before states could assume such jurisdictional control.

Another important though little-discussed constitutional power, one that even Felix Cohen did not cite in the section of Handbook of Federal Indian Law entitled “Sources of Federal Power Over Indian Affairs,” is the appointment power vested in the president under Article 2, section 2. This gives the president the power to: “nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the supreme court, and all other officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the appointment of such inferior officers, as they may think proper, in the president alone, in the Courts of Law, or in the Heads of Departments.” He also has the power to make “recess appointments” when the Senate is not in session. These appointees can hold office through the next session even without Senate confirmation. In fact, the major concern of the appointments clause is to ensure that executive power remain independent, free from congressional encroachment.⁸⁸

Theoretically, the nomination of government officials is the “sole act of the President,” as Chief Justice John Marshall stated in Marbury v. Madison in 1803.⁸⁹ And these are important acts indeed, for, excepting the president and vice-president, all persons in the civil service of the federal government are appointed, including the top administrative officials who carry out the bulk of U.S. treaty and trust obligations to tribes—the secretary of the interior and the assistant secretary of Indian affairs (formerly the commissioner of Indian affairs).

Such Indian policy appointees, the Supreme Court has held, act on behalf of the president, and their actions are presumed to be those of the president.⁹⁰ Administrative powers of the secretary of the interior, under direction or delegation of the president, include enforcing Indian preference hiring policies; establishing superintendencies, agencies, and sub-agencies; appointing the Indian Arts and Crafts Board; appointing various Indian Bureau employees; and discontinuing services of agents, interpreters, and the like.⁹¹

In Confederated Tribes of Siletz Indians v. U.S.⁹², the Confederated Tribes contested the denial (after an initial approval) by the secretary of the interior of their application to have lands taken in trust for their benefit for the purpose of setting up a gaming facility when Oregon’s governor refused to concur with the plan. The secretary’s rejection of the tribes’ application was based on his interpretation of a key provision of the 1988 Indian Gaming Regulatory Act (IGRA), which required that gaming on newly acquired trust lands have the concurrence of the governor of the state where the trust land is located.

The U.S. District Court held that the governor’s concurrence provision violated both the appointments clause and the separation-of-powers doctrine, but the court still granted summary judgement for the United States and upheld the secretary’s rejection of the Indians’ application. Cross appeals were taken. The ninth circuit court of appeals, however, held that the governor’s-concurrence provision was a valid delegation of congressional legislative authority and did not violate the appointments clause or the separation-of-powers doctrine.

“The Governor’s authority,” said Chief Judge Hug, “under IGRA extends only to making a single determination—which is unlikely to arise often in a particular state. This narrow concurrence function does not impermissibly undermine Executive Branch authority, when exercised by the Governor as a state officer, in the performance of a state function, under an express delegation of congressional power to control Indian lands.”93 This is a situation in which the separation-of-powers doctrine holds true at the national level, but where the doctrine of federalism is defined in such a way as to allow states’ veto power over a clearly defined congressional authority.

The two clauses granting the power of judicial review and the power to constitute interior tribunals should also be taken together. They constitute a mixed blessing for Indians. Judicial review is the only avenue open to Indians since the foreclosure of treaty and agreement making, but, as we have seen in the discussion of the Cherokee cases, it is hazardous to predict how the courts will view Indian plaintiffs. In 1855 Congress established the U.S. Court of Claims⁹⁴ as a means of eliminating the hundreds of requests from private citizens for redress from real and imagined wrongs visited upon them by the United States. In 1863, however, Congress changed the jurisdiction of the court by prohibiting it from hearing any claims based upon treaties, thus effectively closing this forum to Indian tribes who might have used it as a means of enforcing their treaty rights.⁹⁵ Thereafter, Indian tribes could file suit only with the legislative permission of Congress in a special jurisdictional act that clearly laid down what was to be the subject of litigation and the conditions under which the case would be heard. Indians generally fared very badly in these cases because the court of claims interpreted the jurisdictional basis for Congress’s granting admission very narrowly, eliminating many causes of action.

In 1891, after processing numerous claims made against the Indian tribes as the result of the final wars on the plains and in the southwestern United States, Congress decided to allow the court of claims to hear all cases brought against the tribes for alleged violation of treaties in what was known as the Indian Depredation Act.96 While Indian tribes were barred from any judicial relief except that which was carefully crafted by legislative deliberations, the court of claims allowed even the most frivolous suits to be filed against the Indians.⁹⁷

Throughout the first part of this century, an increasing number of Indian tribes went to Congress seeking legislation that would open the court of claims to them. Fundamental to any successful effort to settle their claims was the demand by the government that Indians admit that the United States had taken their lands and that they were seeking only a monetary compensation; the lands could not be returned to them. In 1928 the Meriam Report⁹⁸ advised that Indian claims should be settled as quickly as possible, so throughout the 1930s efforts were made to pass legislation establishing an Indian Claims Commission. In 1946 the commission was finally authorized.⁹⁹ Although designed to be a commission, not a court, and to handle the claims with a fair degree of flexibility, the prevalence of attorneys accustomed to dealing with the court of claims’ procedures made it inevitable that the commission would adopt regular courtroom procedures. Finally, in 1978, Congress let authorization for the Indian Claims Commission lapse and sent all remaining claims to the court of claims, later reconstituted as the U.S. Claims Court.¹⁰⁰

These “inferior tribunals” substantially altered the idea of land cession and materially changed the interpretation of American history. In order to file a claim a tribe would have to agree to hire an attorney approved by the Department of the Interior, and since all attorney contracts were approved by the United States, the government ensured that it would have cooperative attorneys to represent the Indian plaintiffs. Attorneys received a minimum 10 percent of recoveries, and so they were inclined to settle cases as quickly as possible. Consequently, many important facts and points of law were stipulated in an effort to make the cases simpler. Attorneys had almost complete control over the course of litigation, informing their Indian clients only when it was felt they had a need to know or when they wanted the tribal government to approve a major step in the litigation. The net result of the Indian Claims Commission was to set to rest long-standing problems of land cession in which, after the tribe had agreed to accept the commission’s award, res judicata would preclude the tribe from raising the issue again in a federal court. The process had been a denial rather than an affirmation of justice.

The two remaining clauses mentioned in our original list are the power to lay and collect taxes and the power to establish a rule for naturalization of citizens. Both of these clauses, insofar as they affect American Indians, were later the topic of constitutional amendments, and we will discuss them later in that context. In summary, we can conclude that the record looks mixed when we examine how miscellaneous constitutional phrases and clauses have been applied to American Indians. In some instances the outcomes were beneficial, in others they were detrimental. In no case was there a sufficiently significant development of power as it was applied to American Indians. Rather the overwhelming presence of the three major clauses—treaty-making, commerce, and property—precluded any development of other constitutional powers in the treatment of American Indians.