NOTES

Introduction

1. U.S. Constitution, Art. 1, sec. 8, cl. 3.

2. U.S. Constitution, Art. 1, sec. 2, cl. 3, and the Fourteenth Amendment, section 2.

3. See the Act of June 2, 1924, 43 Stat., 253, which mandated American citizenship for all Indians who had not yet been enfranchised by prior treaty provision or federal statute.

4. Ibid.

Chapter 1

1. See Francis G. Davenport, ed., European Treaties Bearing on the History of the United States and its Dependencies to 1698, Carnegie Institution of Washington Publication No. 254 (Gloucester, Mass: Peter Smith, 1967): 61–63.

2. See Lewis Hanke, “The ‘Requerimiento’ and Its Interpreters,” Revistade Historia de América, vol. 1 (Instituto Panamericano de Geografia e Historia: Mexico City, 1939), pp. 25–34 for a copy of the manifesto.

3. Other commentators have thoroughly examined these issues. See, e.g., Lewis Hanke, The Spanish Struggle for Justice in the Conquest of America (Philadelphia: University of Pennsylvania Press, 1949) and All Mankind is One: A Study of the Disputation Between Bartolomé de Las Casas and Juan Ginés de Sepúlveda in 1550 on the Intellectual and Religious Capacity of the American Indians (Dekalb: Northern Illinois University Press, 1974); Felix Cohen, “The Spanish Origin of Indian Rights in the Laws of the United States,” Georgia Law Review, vol. 31, no. 1 (1942); Charles Gibson, “Spanish Indian Policies,” in History of Indian-White Relations, vol. 4, Wilcomb E. Washburn, ed. (Washington, D.C.: Smithsonian Institution, 1988): 96–102; Robert A. Williams Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990), especially Chapter 2; and S. James Anaya, Indigenous Peoples in International Law (New York: Oxford University Press, 1996).

4. See, e.g., Yasuhide Kawashima, Puritan Justice and the Indian: Man’s Law in Massachusetts, 1630–1763 (Middleton, Conn.: Wesleyan University Press, 1986).

5. Several commentators have discussed the trust doctrine as a legal term of art that has adversely affected the rights of tribes. See, e.g., Milner Ball, “Constitution, Court, Indian Tribes,” American Bar Foundation Research Journal vol. 1 (1987), p. 62; and Petra T. Shattuck and Jill Norgren, Partial Justice: Federal Indian Law in a Liberal Constitutional System (Providence, RI: Berg Publishers, 1991): 115–121. And see Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), wherein the Supreme Court flatly stated that the trust doctrine was legally unenforceable and could not shield lands considered sacred by tribes from federal activity aimed at the construction of a road.

6. 7 Stat., 13.

7. Ibid., 15.

8. See Donald A. Grinde and Bruce Johansen, Exemplar of Liberty: Native America and the Evolution of Democracy (Los Angeles: American Indian Studies Center, University of California, 1991), for an account of the role American Indian tribal, political, and cultural ideas played in the genesis and shaping of American democracy.

9. See American State Papers, Foreign Affairs, vol. 1, pp. 278–279 for the treaty between Spain and the Creek at Pensacola on May 20–June 1, 1784 and p. 280 for a treaty with the Choctaw and Chickasaw at Natchez on May 14, 1790.

10. See Alfred B. Thomas, Forgotten Frontiers, (Norman: University of Oklahoma Press, 1932) pp. 329–332 for a treaty with the Comanche and Spain of February 25 and 28, 1786; and Marc Simmons, Border Comanches (Santa Fe: Stagecoach Press, 1967): 21–22 for a treaty with the Comanche of October 1785.

11. See David M. Brugge and J. Lee Correll, The Story of the Navajo Treaties, (Window Rock, Ariz.: Navajo Historical Publications, 1971) pp. 52–53; Frank Reeve, “Navajo Foreign Affairs,” Part II, New Mexico Historical Review, vol. 46, no. 3 (1971), p. 241; and Marian Lothrop, “The Indian Campaigns of General M. G. Vallejo,” Quarterly of the Society of California Pioneers, vol. 9, no. 3, pp. 161–205, for examples. See Annual Report of the Commissioner of Indian Affairs, 1873, p. 169 and 1875, p. 35 for reports of Mexican treaties with the Apaches.

12. Journals of the Continental Congress, vol. 24, May 1783, p. 319.

13. See Charles J. Kappler, comp., Indian Affairs: Laws and Treaties, vol. 2 (Washington, DC: Government Printing Office, 1903): 5–18 for the texts of these treaties and note the peace provisions and boundary clarifications.

14. Journals of the Continental Congress, vol. 34, May 1788, pp. 124–125.

15. The transcript of the Fort Laramie negotiations shows the American representatives describing the Sioux as a “small nation” with whom they did not want to go to war.

Chapter 2

1. See Grinde and Johansen, 1991.

2. See Jose Barreiro, “Indian Roots of American Democracy,” Northeast Indian Quarterly, vol. 4–5 (Winter–Spring, 1988–1989); and Gregory Schaaf, “From the Great Law of Peace to the Constitution of the United States: A Revision of America’s Democratic Roots,” American Indian Law Review, vol. 14 (1989), pp. 323–32.

3. Journals of the Continental Congress, vol. 31, 1786, pp. 656–658 has a resolution dealing with Virginia’s intent to invade the Indian country. The relevant part of the resolution reads:

Resolved, That the State of Virginia do abstain from committing Hostilities against, making Reprisals upon, or entering into War with all or any Tribes or Nation of Indians with which the United States are in Peace or any other; and that if any Troops have been levied or Men embodied for the purpose of committing Hostilities against, making reprisals upon or entering into War with the said Indian Nations or any other the executive of the said state of Virginia do cause the same forthwith to be disbanded.

4. Journals of the Continental Congress, vol. 25, Saturday, September 20, 1783, pp. 591 ff.

5. See Felix S. Cohen, Handbook of Federal Indian Law, (reprint Albuquerque: University of New Mexico Press, 1972): 418.

6. 1 Stat., 137.

7. Journals of the Continental Congress, vol. 31, Monday, August 7, 1786, pp. 588–593.

8. Contained in 1 Stat., 50, Act of August 7, 1789.

9. Ibid.

10. 1 Stat., 123.

11. James Madison, in The Federalist Papers, No. 24, Clinton Rossiter, ed. (New York: The New American Library, 1961): 264–265.

12. “George Mason, Patrick Henry and James Monroe, in the Ratifying Convention of Virginia, 4–12 June, 1788,” in Anti-Federalists versus Federalists, Selected Documents, John D. Lewis, ed. (Scranton, Penn: Chandler Publishing Co., 1967): 209.

13. Alexander Hamilton, in The Federalist Papers, No. 24, pp. 160–161.

14. Ibid., No. 25, p. 163.

15. Ibid., p. 165.

16. 4 Stat., 729.

Chapter 3

1. See his most famous work, The Spirit of the Laws, 2 vols. New and revised edition, J. V. Prichard, ed. (Littleton, Colo.: F. B. Rothman, 1991) first published in 1734. Montesquieu is mentioned much more frequently in the writings of the Constitutional fathers than John Locke, contrary to popular notions.

2. It was not simply the idea of difficulty of transportation and communication that made a large country unwieldy but also the fact that different places called forth different responses from the inhabitants. This idea, seen at that time with the rowdiness of the Kentuckians and the abortive “state of Franklin,” seemed to support Montesquieu’s philosophy. But Montesquieu was also cited approvingly by the Federalists because of his development of the idea of checks and balances as a constitutional mechanism to thwart any branch of government or any power within a nation from becoming absolute by being balanced or checked by another source of power within that same nation.

3. Lewis, ed. Anti-Federalists, 209.

4. See Earl S. Pomeroy, The Territories and the United States: 1861–1890 (Philadelphia: University of Pennsylvania Press, 1947).

5. See, e.g., Yasuhide Kawashima, “Legal Origins of the Indian Reservation in Colonial Massachusetts,” American Journal of Legal History, vol. 13, (1969), pp. 42–56.

6. John Jay, The Federalist Papers, No. 3, p. 44.

7. See congressional debate on Indian removal in the 1830s, the conflict between President Andrew Jackson and the Supreme Court during the Cherokee cases; tension over Indian fishing rights in the 1960s–1990s involving Washington and Wisconsin, the tribes, and the federal government; and the recent controversies over Indian gaming pitting some federal officials against state legislatures and governors.

8. See, e.g., Samuel H. Beer, To Make a Nation: The Rediscovery of American Federalism (Cambridge: Harvard University Press, 1993); Thomas R. Dye, American Federalism: Competition Among Governments (Lexington, Mass: Lexington Books, 1990); and Paul E. Peterson, The Price of Federalism (Washington, D.C.: Brookings, 1995).

9. See Jules Lobel, ed., A Less Than Perfect Union: Alternative Perspectives on the U.S. Constitution (New York: Monthly Review Press, 1988).

10. See, e.g., Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); United States v. Holiday, 70 U.S. (3 Wall.) 407 (1866); United States v. Forty-three Gallons of Whiskey, 93 U.S. 188 (1876); Ex parte Webb, 225 U.S. 663 (1912); United States v. Sandoval, 231 U.S. 28 (1913); Perrin v. United States, 232 U.S. 478 (1914); United States v. Nice, 241 U.S. 591 (1916); McClanahan v. Arizona State Tax Commission, 411 U.S. 164 (1973); Morton v. Mancari, 417 U.S. 535 (1974); Ramah Navajo School Board v. Bureau of Revenue of New Mexico, 458 U.S. 832 (1982). Also see United States v. Kagama, 118 U.S. 375 (1886), which strangely rejected the commerce clause as a basis for congressional enactment of a system of criminal laws for Indians on reservations. However, the Court sustained the Major Crimes Act on the grounds that tribes were weak and dependent and that the United States had an obligation and the power to civilize them.

11. U.S. Government, American Indian Policy Review Commission, Final Report, vol. 1 (Washington, D.C.: Government Printing Office, 1977), pp. 571–612.

12. U.S. Constitution, Article 2, sec. 2, cl. 2. The clause states that the President “shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur. . . .”

13. 16 Stat., 544, 566.

14. 187 U.S. 553.

15. See, e.g., Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) and Mitchell v. United States, 34 U.S. (9 Pet.) 711 (1835).

16. United States v. Kagama, 118 U.S. 375 (1886).

17. There is, of course, ample evidence showing that at various times and notwithstanding the doctrine of equitable title (also known as Indian title, aboriginal title, and use-and-occupancy title), agencies of the federal government simply chose to ignore Indian land rights and acted as if the title tribes held was wholly inferior and not deserving of federal respect. See, e.g., Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823), the Indian removal period of the 1830s and 1840s, and the traumatic half-century known crudely as the General Allotment era—1880s–1930s.

18. 187 U.S. 553. For a good analysis of this important case see Blue Clark, Lone Wolf v. Hitchcock: Treaty Rights and Indian Law at the End of the Nineteenth Century (Lincoln: University of Nebraska Press, 1994).

19. U.S. Annual Report of the Commissioner of Indian Affairs, 1872 (Washington, D.C.: Government Printing Office, 1872): 12.

20. 72 U.S. (5 Wall.) 737, 758 (1867).

Chapter 4

1. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) and Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

2. See Randall B. Ripley and Grace A. Franklin, Congress, the Bureaucracy, and Public Policy, third edition (Homewood, Ill.: The Dorsey Press, 1984).

3. Linda Grant DePauw, ed. Documentary History of the First Federal Congress of the United States of America, vol. 2, Senate Executive Journal of Related Documents (Baltimore: Johns Hopkins University Press, 1974): 24. See also the discussion of the relationship between Washington and the Senate in Francis P. Prucha’s American Indian Treaties (Berkeley: University of California Press, 1994): 70–79.

4. Prucha, American Indian Treaties, 76–79.

5. 4 Stat., 411.

6. See Angie Debo, A History of the Indians of the United States (Norman: University of Oklahoma Press, 1970): 188 for a brief discussion of this tragic event.

7. Francis P. Prucha, The Great Father: The United States Government and the American Indian, vol. 1 (Lincoln: University of Nebraska Press, 1984): 501–533.

8. Herman J. Viola, Diplomats in Buckskins: A History of Indian Delegations in Washington City (Washington, D.C.: Smithsonian Institution, 1981).

9. Francis Leupp, The Indian and His Problem, (1910; reprint New York: Arno Press, 1971): 207.

10. John Collier, From Every Zenith (Denver: Sage Books, 1963), p. 292.

11. Executive Order 11399 “Establishing the National Council on Indian Opportunity” is printed in the Weekly Compilation of Presidential Documents, vol. 4 (Washington, D.C.: Government Printing Office, 1968): 448.

12. See Emma Gross, Contemporary Federal Policy Toward American Indians (Westport, Conn.: Greenwood Press, 1987): 65–71 for a good discussion of Nixon’s Indian policy orientation.

13. See Nicholas C. Peroff, Menominee Drums: Tribal Termination and Restoration, 1954–1974 (Norman: University of Oklahoma Press, 1982).

14. 85 Stat. 688 (1971).

15. Dwight D. Eisenhower, U.S. Public Papers of the Presidents of the United States, (Washington, D.C.: Government Printing Office, 1953): 166.

16. “Remarks to American Indian and Alaskan Native Tribal Leaders,” April 29, 1994, in Weekly Compilation of Presidential Documents (1994): 941.

17. Order of May 14, 1855, in Indian Affairs, Kappler, comp. See volume 1, pp. 846–47. This was the first executive-order reservation. It involved lands set aside for the Ottawa and Chippewa Indians of Michigan in Isabella and Emmet counties. And see Executive Orders Relating to Indian Reservations from May 14, 1855 to July 1, 1902 (Washington, D.C.: Government Printing Office, 1902) for a list of Indian executive-order reservations.

18. 24 Stat., 388.

19. See Secretary of the Interior Robert McClelland’s letter regarding the Ottawa and Chippewa executive-order reservation in 1855 in Executive Orders Relating to Indian Reservations, 45–46. It was not until the U.S. attorney general spoke in 1924 that executive-order reservations were extended a protected status comparable to treaty reservations. 34 Opinions of the Attorney General, 181 (1924).

20. 41 Stat. 3, 34.

21. 44 Stat. 1347.

22. Act of August 13, 1946, 60 Stat. 1049.

23. 4 Stat., 729.

24. 4 Stat., 735.

25. 9 Stat., 395.

26. 64 Stat., 967.

27. 64 Stat., 1100.

28. Act of August 8, 1946, 60 Stat. 939. See Prucha, The Great Father, vol. 2, p. 1037.

29. Act of June 18, 1934, 48 Stat. 984.

30. P. L. 93–628.

31. P. L. 103–413.

32. Colliflower v. Garland, 324 F2d. 369 (9th Cir. 1965).

33. See, e.g., Lane v. Pueblo of Santa Rosa, 249 U.S. 110 (1919); United States v. Creek Nation, 295 U.S. 103 (1935); Tooahnippah v. Hickel, 397 U.S. 598 (1970); and Morton v. Ruiz, 415 U.S. 199 (1974).

34. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978).

35. 1 Stat., 137.

36. 4 Stat., 729.

37. Ibid.

38. Treaty with the Delawares, 7 Stat., 13.

39. Act of November 2, 1921, 42 Stat., 208.

40. See Cohen, Handbook. See especially section 17, “Indian Appropriation Acts: 1789 to 1939,” p. 88, for a short synopsis of these important congressional measures.

41. 11 Stat., 749.

42. See Prucha, American Indian Treaties, 238–40.

43. 16 Stat., 544, 566.

44. 314 U.S. 339 (1941). In this case the United States, as trustee for the Hualapai Tribe of northern Arizona, sued to enjoin the railroad from interfering with the possession and occupancy by the Indians of their lands. The Court held that rights based on aboriginal Indian title are enforceable against parties even when those rights have not been recognized by treaty, congressional act, or other governmental action. Equally important, the Court held that Indian title had not been extinguished even though actions by governmental officials, including Congress, had treated the Hualapais’ land as public land because extinguishment of Indian title “cannot be lightly implied” and must be specifically evinced by Congress, or there must be a “voluntary cession” on the part of the tribe.

45. 15 Stat., 17. The Senators were John B. Henderson, chairman of the Committee of Indian Affairs, along with S. F. Tappan and John B. Sanborn.

46. See, e.g., 41 Stat., 738 (1920), an act that authorized the Sioux to bring a claim against the United States before the court of claims.

47. Leupp, The Indian and His Problem, 203.

48. The Burke Act, 24 Stat. 182, an amendment to the 1887 General Allotment Act, became law in 1906. The act, introduced by South Dakota Representative Charles Burke, was a congressional response to the Supreme Court’s 1905 decision, Matter of Heff, which held that Indian allottees became American citizens as soon as they accepted their land allotment, not at the end of the twenty-five year trust period stated in the allotment law. The Burke Act countered the Heff ruling by declaring that Indian allottees remained under federal trust protection and were not enfranchised until the expiration of the twenty-five year trust period. The act, however, also gave the secretary of the interior the authority to prematurely issue fee patents to so-called competent Indian allottees when the secretary determined that they were capable of “managing their own affairs.”

49. Leupp, p. 206. The situation of the Five Civilized Tribes—the Cherokee, Creek, Choctaw, Chickasaw, and Seminole—is particularly distinctive in federal Indian law annals because of their allegedly more “civilized” status in the eyes of federal administrators and because of the manner in which they were removed from their original territory in the southeast and relocated to lands in present-day Oklahoma. See Angie Debo, And Still the Waters Run: The Betrayal of the Five Civilized Tribes (Princeton: Princeton University Press, 1942) and Grant Foreman, Indian Removal (Norman: University of Oklahoma Press, 1932) for outstanding accounts of two traumatic periods in the history of these nations.

50. Leupp, p. 207.

51. Leupp, pp. 211–212.

52. 384 F. Supp. 312. Affirmed 520 F. 2d 676 (9th Cir. 1975). Certiorari denied 423 U.S. 1086 (1976).

53. See David E. Wilkins, “The ‘De-Selected’ Senate Committee on Indian Affairs and its Legislative Record, 1977–1992,” European Review of Native American Studies, vol. 9, no. 1 (1995): 27–34.

54. H. R. 1977, 104th Congress, 1st session, July 1, 1995, pp. 54–55.

55. New York Times, March 21, 1998, p. 14.

56. Authorized under Senate Resolution 79, 70th Congress, 1st session, Act of February 1, 1928.

57. 48 Stat. 985.

58. Act of July 1, 1932, 47 Stat. 564.

59. Act of April 16, 1934, 48 Stat. 596.

60. 60 Stat. 1049.

61. Act of April 11, 1958, 82 Stat. 73. Also see, e.g., U.S. Congress/Senate Hearings Before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, Constitutional Rights of the American Indian. 87th Congress, 1st session, September 1, 1961.

62. 88 Stat., 1910.

63. U.S. Senate, Final Report and Legislative Recommendation: A Report of the Special Committee on Investigation of the Select Committee on Indian Affairs, Senate Report No. 101–216, 101st Congress, 1st session, 1989.

64. See Chinese Exclusion Case, 130 U.S. 581 (1889), Asakura v. Seattle, 265 U.S. 332 (1923).

65. 116 U.S. 138 (1882).

66. 118 U.S. 394 (1886).

67. See, e.g., Felix S. Cohen, “Indian Rights and the Federal Courts,” Minnesota Law Review, vol. 24, no. 2 (January 1940), pp. 145–200; Charles F. Wilkinson, American Indians, Time, and the Law (New Haven: Yale University Press, 1987); and Julie Wrend and Clay Smith, eds., American Indian Law Desk-book (Niwot, Colo.: University Press of Colorado, 1993).

68. See David E. Wilkins, American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice (Austin: University of Texas Press, 1997).

69. 21 U.S. (8 Wheat.) 543 (1823).

70. 9 How. 356 (1850).

71. 11 U.S. (7 Cranch) 164 (1812).

72. 112 U.S. 94 (1884).

73. 187 U.S. 553 (1903).

74. 210 U.S. 50 (1908).

75. 78 (11 Wall.) 616 (1870).

76. 109 U.S. 556 (1883).

77. 118 U.S. 375 (1886).

78. 198 U.S. 371 (1905).

79. 219 U.S. 346 (1911).

80. See 28 Stat. 315, which is a ratification of the 1892 agreement with the Yankton. Article 16 reads:

If the Government of the United States questions the ownership of the Pipestone Reservation by the Yankton tribe of Sioux Indians under the treaty of April 19, 1858, including the fee to the land, as well as the right to work the quarries, the Secretary of the Interior shall, as speedily as possible, refer the matter to the Supreme Court of the United States to be decided by that tribunal, and the United States shall furnish without cost to the Yankton Indians at least one competent attorney to represent the interests of the tribe before the court.

81. 12 Stat. 765, 767.

82. See, for example, 21 Stat. 291 (1890), “An Act to carry into effect the second and sixteenth articles of the [1867] treaty between the United States and the Great and Little Osage Indians”; 27 Stat. 394 (1892), “Joint Resolution Construing Article 4 of the [1891] Agreement with the Citizen Band of Pottawatomie Indians in Oklahoma Territory; and 48 Stat. 927 (1934), “An Act to modify the effect of certain Chippewa Indian treaties. . . .” In each of these instances, the Congress acted to clarify and/or put into effect the meaning of specific treaty or agreement provisions.

83. 397 U.S. 598 (1970).

84. 420 U.S. 194 (1975).

85. Bob Woodward and Scott Armstrong, The Brethren, (New York: Simon & Schuster, 1979): 57–58, 359–360.

86. See, e.g., Russel L. Barsh and James Y. Henderson, “The Betrayal: Oliphant v. Suquamish Indian Tribe and the Hunting of the Snark,” Minnesota Law Review, vol. 63 (1979), pp. 609–640; and Vine Deloria, Jr., “Trouble in High Places: Erosion of American Indian Rights to Religious Freedom in the United States,” in The State of Native America: Genocide, Colonization, and Resistance, M. Annette Jaimes, ed. (Boston: South End Press, 1992): 267–290.

87. 448 U.S. 371 (1980).

88. Ibid., 435.

89. Ibid., 421–422.

90. See, e.g., Cotton Petroleum Corporation v. New Mexico, 490 U.S. 163 (1989); Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation, 492 U.S. 408 (1989); County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 112 S. Ct. 683 (1992); South Dakota v. Bourland, 113 S. Ct. 2309 (1993); Hagen v. Utah, 114 S. Ct. 958 (1994); Department of Taxation and Finance of New York v. Milhelm Attea and Brothers, Inc., 114 S. Ct. 2028 (1994); Seminole Tribe of Florida v. Florida, 134 L. Ed. 252 (1996); Strate v. A-1 Contractors, 117 S. Ct. 1404 (1997); South Dakota v. Yankton Sioux Tribe, No. 96–1581 (1998); and Alaska v. Native Village of Venetie Tribal Council, No. 96–1577 (1998).

91. 485 U.S. 429 (1988).

92. 494 U.S. 872 (1990).

93. 374 U.S. 398 (1963).

94. 107 Stat. 1488.

95. 117 S. Ct. 2157 (1997).

Chapter 5

1. Article 9, December 24, 1818, 8 Stat., 218.

2. See, e.g., Treaty with the Choctaw Indians, Sept. 27, 1830, 7 Stat., 333.

3. September 9, 1849, 9 Stat., 974.

4. Act of February 8, 1887, 24 Stat., 388.

5. Ibid.

6. Ibid., 389–90.

7. Art. 3, 1 Stat., 50, 52.

8. Act of March 3, 1871, 16 Stat., 544, 566.

9. 30 U.S. (5 Pet.) 1 (1831).

10. Besides the treaty-ending debate, the 1885 Major Crimes Act (23 Stat., 385) also became law as a rider attached to an Indian appropriation bill.

11. U.S. Congressional Globe, March 1, 1871, Senate, p. 1824.

12. 15 Stat., 17.

13. Congressional Globe, March 1, 1871, Senate, p. 1824.

14. 72 U.S. (5 Wall.) 755 (1866).

15. Ibid., p. 755.

16. Congressional Globe, March 1, 1871, Senate, p. 1824.

17. Ibid.

18. Ibid., pp. 1824–1825.

19. Ibid., p. 1825.

20. Ibid., p. 1822.

21. Ibid.

22. Ibid.

23. Ibid.

24. Termination was the official policy of the federal government toward a number of Indian tribes from 1953 through the 1960s. It was most clearly enunciated through House Concurrent Resolution 108, enacted August 1, 1953 (67 Stat., B132). A “terminated” tribe had its share of federal benefits, programs, and services severed.

25. 3 Stat. 380.

26. 4 Stat. 721.

27. 5 Stat. 680.

28. Kappler, vol. 2, p. 1065; see H. R. Ex. Doc. 68, 47th Congress 2d session.

29. See Sen. Ex. Doc. 16, 50th Congress, 2d session, December 13, 1888.

30. Act of September 30, 1950, 64 Stat., 1094–95.

31. Art. 12, April 29, 1868, 15 Stat., 635.

32. Act of June 17, 1954, 68 Stat., 250–52.

33. 391 U.S. 404 (1968).

34. 67 Stat., 588.

35. 397 U.S. 619 (1970).

36. 101 S. Ct. 1245 (1981).

37. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

38. Ibid., p. 564.

39. Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902).

40. 187 U.S. 553, 568.

41. Ibid.

42. See, e.g., United States v. Lopez, 115 S. Ct. 1624 (1995); and Seminole Tribe of Florida v. Florida, 116 S. Ct. 1114 (1996). In these two 5-to-4 decisions, both written by Chief Justice Rehnquist, the Court rekindled a vision of dual Federalism in which the states are considered equal sovereigns to the federal government. With regards to Congress’s power to regulate commerce, in Lopez, which involved the 1990 Gun-Free School Zones Act, which restricted possession of firearms in school areas, Rehnquist wrote that Congress had exceeded its authority in enacting the gun-control act because “the possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce” (p. 1634). Rehnquist and the bare majority made it clear that the power to regulate firearms was a police power “of the sort retained by the States” (Ibid.).

The Seminole case involved a provision of the 1988 Indian Gaming Regulatory Act, but it only peripherally involved tribes per se. The provision in question authorized tribes to sue states if they failed to negotiate gaming compacts in good faith with the tribes. The Court declared, however, that states were sovereign entities and as such enjoyed immunity under the Tenth Amendment and therefore could not be sued without their explicit consent.

The fact that both cases were 5-to-4 decisions indicates that the matter of redefining Federalism is far from settled.

43. 1 Stat., 49.

44. 1 Stat., 50.

45. 1 Stat., 54.

46. See the Act of July 22, 1790, “An Act to regulate trade and intercourse with the Indian tribes” (1 Stat., 137), the first of a series of temporary measures that culminated in a permanent intercourse act on June 30, 1834, 4 Stat., 729. The first of several measures creating trading houses was established by Congress on April 18, 1796, 1 Stat., 452. The trading houses were abolished by an act of Congress on May 6, 1822, 3 Stat., 679.

47. 3 Stat., 516.

48. Ibid.

49. 60 Stat., 1049.

50. U.S. Congress, Committee on Indian Affairs, House Report No. 474, Regulating the Indian Department. 23d Congress, 1st session, May 20, 1834, pp. 1–2.

51. Act to Regulate Trade and Intercourse with the Indian Tribes, June 30, 1834, 4 Stat., 729; and Act to Provide for the Organization of the Department of Indian Affairs, June 30, 1834, 4 Stat., 735.

52. See, e.g., Article 6 of the Treaty with the Omahas of March 16, 1854. 10 Stat., 1043, which provides for family allotments and is repeated in a number of other treaties of that year, e.g., Treaty with the Nisqually and Puyallup, December 26, 1854, 10 Stat., 1132, Article 6.

53. See “Report to the President by the Indian Peace Commission,” January 17, 1868, CIA, AR, 1868. Serial 1366, pp. 496–510.

54. 109 U.S. 556.

55. See Sidney L. Harring, Crow Dog’s Case (New York: Cambridge University Press, 1994), which traces the manipulations of the BIA with regard to the exercise of self-government by the Indians beginning in the mid 1860s.

56. 23 Stat., 362, 385.

57. 118 U.S. 375.

58. Ibid., pp. 378–79.

59. Ibid., pp. 379–80.

60. Ibid., pp. 383–84.

61. See the case law cited in note 90 in Chapter 4.

62. See 1 Stat., 549, “An Act for an amicable settlement of limits with the state of Georgia. . . .”

63. See Jill Norgren, The Cherokee Cases: The Confrontation of Law and Politics (New York: McGraw-Hill, 1996): 37 for discussion of this period.

64. 21 U.S. (8 Wheat.) 543 (1823).

65. Ibid., pp. 572–73.

66. Ibid., p. 574.

67. Ibid., p. 584.

68. Ibid., pp. 591–92.

69. A better reading of this doctrine can be found in Mitchel v. United States, 9 Pet. 711 (1835).

70. 30 U.S. (5 Pet.) 1 (1831).

71. Ibid., pp. 1, 27.

72. Ibid., pp. 1, 17.

73. Ibid., pp. 1, 53.

74. 21 U.S. (8 Wheat.) 543 (1823).

75. 187 U.S. 553 (1903).

76. 78 U.S. (11 Wall.) 616 (1870).

77. 14 Stat., 799.

78. The key question, of course, is if or when the “trust” status of Indian lands has been terminated. See, e.g., County of Yakima v. Yakima Indian Nation, 112 S. Ct. 682 (1992), which held that state governments and their subdivisions, the counties, could impose an ad-valorem tax on patented reservation land owned by tribes and individual Indians. While the majority held that the Yakima lands had lost their trust status, the dissent suggested the land was still in trust. However, many state attempts to impose other types of taxes on Indians inside Indian country have been defeated. See, e.g., Oklahoma Tax Commission v. Citizen Band Potawatomie Indian Tribe of Oklahoma, 498 U.S. 505 (1995), concerning cigarette taxes; Oklahoma Tax Commission v. Sac and Fox Nation, 508 U.S. 114 (1993), concerning vehicle excise tax and registration fee; and Oklahoma Tax Commission v. Chickasaw Nation, 115 S. Ct. 2714 (1995), concerning motor fuel tax. But see Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989) and Dept. of Taxation and Finance of New York v. Milhelm Attea & Bro’s., 114 S. Ct. 2028 (1994), which allowed states to impose taxes on non-Indian corporations doing business on reservation lands and taxes on Indian traders who sell tobacco and tobacco-related products to non-Indians.

79. Roy W. Meyer, History of the Santee Sioux (Lincoln: University of Nebraska Press, 1967): 127–28.

80. Act of February 22, 1889, 25 Stat., 399.

81. Act of February 22, 1889, 25 Stat., 677.

82. Act of June 16, 1906, 34 Stat., 267.

83. Act of June 20, 1910, 36 Stat., 557.

84. West’s Revised Code of Washington, Annotated: Constitution of the State of Washington (St. Paul, Minn.: West Publishing Co., 1988): 358–59.

85. United States v. Winans, 198 U.S. 371 (1905); Winters v. United States, 207 U.S. 564 (1908); Dick v. United States, 208 U.S. 340 (1908); and Antoine v. Washington, 420 U.S. 197 (1975) were important decisions affirming federal supremacy over state law in Indian affairs. But see United States v. McBratney, 104 U.S. 621 (1882); Ward v. Race Horse, 163 U.S. 504 (1896); and most recently Crow Tribe of Indians and Thomas Ten Bear v. Repsis, 73 F. 3d 982 (1995), which confirmed the viability of the equal footing doctrine as a principle sufficient to elevate states’ rights over federal treaty rights.

86. Act of August 15, 1953, 67 Stat., 588.

87. Act of April 11, 1968, 82 Stat., 73, 77–81.

88. Confederated Tribes of Siletz Indians v. U.S., 841 F. Supp. 1479, 1487 (D. Or., 1994).

89. Cited in David M. O’Brien, Constitutional Law and Politics, 2d edition, vol. 1 (New York: W.W. Norton, 1995): 319.

90. Wolsey v. Chapman, 101 U.S. 755, 769 (1879).

91. Cohen, Handbook, 101.

92. 110 F. 3d 688 (9th Cir., 1997).

93. Ibid., p. 698.

94. Act of February 24, 1855, 10 Stat., 612.

95. Act of March 3, 1863, 12 Stat., 765, 767.

96. Act of March 3, 1891, 26 Stat., 851.

97. See Larry C. Skogen, Indian Depredation Claims, 1796–1820 (Norman: University of Oklahoma Press, 1996).

98. Lewis Meriam, et al., The Problem of Indian Administration (Baltimore: Johns Hopkins Press, 1928).

99. Act of August 8, 1946, 60 Stat., 939.

100. Act of October 8, 1976, 90 Stat., 1990.

Chapter 6

1. Act of June 2, 1924, 43 Stat. 253. Of course, prior to this act, some Indians had been naturalized as U.S. citizens via treaty provisions, specific Indian statutes, or tribal-specific legislation. The 1924 act, while declaring Indians to be citizens of the U.S., also, and importantly, provided that “the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.” In other words, Indians retained their previous rights as tribal citizens to property.

2. U.S. Congress, Senate, Hearings Before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, Pursuant to S. Res. 53, pt. 1. Constitutional Rights of the American Indian. 87th Congress, 1st session, August 29, 30, 31, and September 1, 1961, (Washington, D.C.: Government Printing Office, 1962): p. 8.

3. Generally, the double-jeopardy clause applies only to criminal cases and actually has three distinctive constitutional protections: 1) protection against a second criminal prosecution for the same offense after acquittal; 2) protection against a subsequent prosecution for the same offense after conviction; and 3) protection against multiple punishments for the same offense.

4. See, e.g., Robert F. Berkhofer, Jr., Salvation and the Savage: An Analysis of Protestant Missions and American Indian Response, 1787–1862 (Lexington: University of Kentucky Press, 1965). An interesting bit of history in this area is Missionary Ridge, which overlooks Chattanooga, Tennessee, to the east and was the site of a great Civil War battle. It received its name from a prohibition by the Cherokees against missionaries who wished to visit their village in the bend of the river below. That ridge was as close as the missionaries were allowed to come.

5. 7 Stat., 47.

6. 7 Stat., 160.

7. 31 U.S. (6 Pet.) 515 (1832).

8. Act of April 10, 1869, 16 Stat., 40.

9. Prucha, The Great Father, vol. 1, pp. 517–19.

10. Ibid., p. 519.

11. Ibid., p. 523.

12. Ibid., p. 524.

13. Ibid., pp. 524–25.

14. 25 Stat., 783.

15. Ibid., p. 785.

16. 30 Stat., 62, 79.

17. 210 U.S. 50.

18. Ibid., pp. 76–77.

19. 34 Stat., 1221.

20. 152 U.S. 114 (1894).

21. Ibid., pp. 117–18.

22. Eisenhower’s comments are in U.S. Public Papers of the Presidents of the United States: Dwight D. Eisenhower (Washington, D.C.: Government Printing Office, 1953): 166.

23. Leupp, The Indian and His Problem, 296.

24. See Cohen, Handbook, p. 175, note 347.

25. Ibid., pp. 175–76.

26. This circular is reprinted in Prucha’s The Great Father, vol. 2, pp. 951–52.

27. Act of June 18, 1934, 48 Stat., 985.

28. For a good discussion of the peyote issue, see Omer C. Stewart, Peyote Religion (Norman: University of Oklahoma Press, 1987).

29. Employment Division v. Smith, 494 U.S. 872 (1990).

30. See Robert H. Keller and Michael F. Turek, American Indians and National Parks (Tucson: University of Arizona Press, 1998).

31. 92 Stat., 469.

32. U.S. Congress, Committee on Interior and Insular Affairs, American Indian Religious Freedom, House Report No. 95–1308, 95th Congress, 2d session, June 19, 1978, p. 1.

33. 620 F. 2d. 1159, (6th Cir. 1980), cert. den. 449 U.S. 953.

34. 638 F. 2d 172 (10th Cir. 1980), cert. den. 452 U.S. 954.

35. 541 F. Supp. 785, aff’d 706 F. 2d. 856 (8th Cir. 1983), cert. den. 104 S. Ct. 413.

36. 708 F. 2d 735 (D. C. Cir 1983), cert. den. 104 S. Ct. 37.

37. 48 F. Supp. 182 (1982), aff’d 746 F. 2d 570 (9th Cir. 1985), cert. den. 474 U.S. 820 (1985).

38. 476 U.S. 693 (1986).

39. 485 U.S. 439 (1988).

40. 858 F. 2d 404 (8th Cir., 1988).

41. 494 U.S. 872 (1990).

42. In Bowen v. Roy the Supreme Court denied free-exercise relief to an Abenaki Indian who wanted to prevent the government from assigning his child a social security number.

43. In Smith, the Supreme Court essentially jettisoned the compelling interest test and held that the only independent protection offered by the free-exercise clause was in its prohibition of laws inspired by a desire to disadvantage religion, on the grounds that such laws impose an intentional burden, not merely an incidental burden, on religious exercise.

44. Northwest Indian Cemetery Protective Association v. Peterson, 565 F. Supp. 586 (1983), aff’d in part and vacated in part, 795 F. 2d 688 (9th Circ. 1986). This decision was overturned by the Supreme Court in 1988 in 485 U.S. 439.

45. See Deloria, “Trouble in High Places,” 267–290.

46. Northwest Indian Cemetery Protective Association v. Peterson, 565 F. Supp. 586 (1983). Virtually all of the ensuing facts are drawn from this district-court opinion.

47. Ibid., p. 591.

48. Ibid., p. 590.

49. Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972), which, taken together, provide protection of religious exercise by holding that the government may burden the free exercise of religion only if it is protecting a compelling interest by the least intrusive means possible.

50. 565 F. Supp. 586, 595 (1983).

51. Ibid.

52. Ibid.

53. Ibid.

54. Ibid., p. 597.

55. Canby is no novice to Indian law questions, having published a federal Indian law legal text, American Indian Law in a Nutshell (St. Paul, Minn.: West Publishing, 1981) that was updated in 1998.

56. 98 Stat., 1619.

57. 764 F. 2d 581, 589 (1985).

58. Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988).

59. 374 U.S. 398 (1963).

60. Lyng, pp. 451–52.

61. Ibid., p. 453.

62. Ibid., p. 455.

63. Ibid.

64. Ibid., pp. 458–59.

65. Ibid., p. 468.

66. After their firing, Smith and Black applied for unemployment compensation. The employment division of the Department of Human Resources of the state of Oregon considered their applications in a number of administrative hearings and appeals. After the first hearing, the referee determined that the claimants’ use of peyote was merely a case of “poor judgement” and that the two should not be denied benefits. This decision was appealed by their employer, a nonprofit organization, Alcohol and Drug Abuse Prevention and Treatment (ADAPT), to the Employment Appeals Board (EAB), which reversed the referee’s decision and denied Smith and Black unemployment benefits. The two then appealed, in separate cases, to the Oregon Court of Appeals. In a per-curiam decision, Smith v. Employment Division, 709 P. 2d 246 (Or. 1985), the court reversed and remanded for reconsideration in light of the companion case, Black v. Employment Division, 707 P. 2d 1274 (Or. 1985), which was reversed.

Each of these decisions was appealed to the Oregon Supreme Court. Oregon’s high court in Smith v. Employment Division, 721 P. 2d 445 (Or. 1986) affirmed as modified, and the court in Black v. Employment Division, 721 P. 2d 451 (Or. 1986), affirmed as modified and remanded. In these cases Oregon’s highest court held that while the denial of unemployment compensation benefits to the counselors after they used peyote did not violate provisions of Oregon’s constitution, the court held that it did violate the free-exercise clause of the U.S. Constitution. The court, in closing, concluded that “the ingestion of peyote is a sacrament of the Native American Church, that the claimant was a member of that church and that his religious beliefs were sincerely held” (p. 454).

The employment division then sought and secured a writ of certiorari to the U.S. Supreme Court. In that decision, Employment Division v. Smith, 485 U.S. 660 (1988), Justice Stevens for the majority held that the combined cases had to be remanded back to Oregon’s supreme court for a “definitive ruling as to whether the religious use of peyote [was] legal in Oregon. . . .” The Oregon Supreme Court in Smith v. Employment Division, 763 P. 2d 146 (Or. 1988), reaffirmed its earlier rulings by holding that though the state statute against controlled substances, which includes peyote, provides no exception for sacramental use of peyote, the state could not, in keeping with the federal Constitution’s First Amendment, deny unemployment compensation to the two counselors. The case was then sent back to the U.S. Supreme Court, which issued its penultimate decision in 1990.

67. 110 S. Ct. 1595 (1990).

68. 110 S. Ct. 1595 (1990).

69. 374 U.S. 398 (1963).

70. 406 U.S. 205 (1972).

71. 98 U.S. 145 (1879).

72. Frederick Mark Gedicks, “Religion,” in The Oxford Companion to the Supreme Court of the United States, Kermit L. Hall, ed. (New York: Oxford University Press, 1992): 724.

73. 110 S. Ct. 1595, 1602–06 (1990).

74. Ibid., p. 1598.

75. Ibid., p. 1600.

76. Ibid., p. 1602.

77. See, e.g., Manybeads v. United States, 730 F. Supp. (1989); Attakai v. United States, 746 F. Supp. 1395 (1990); Havasupai Tribe v. United States, 752 F. Supp. 1471 (1990); and Lockhart v. Kenops, 927 F. 2d 1028 (1991), which followed Lyng’s reading of the Religious Freedom Resolution, which held that the act was not legally enforceable.

78. In a lobbying effort predating Lyng and Smith but that was intensified after these two rulings, tribes and their supporters formed the Indian Religious Freedom Coalition and sought an omnibus congressional law that would provide comprehensive protection of Indian religious freedom severely damaged by court cases and left largely unguarded by the 1978 AIRFA. Various bills were introduced; the broadest measure would have guaranteed protection in four general areas: use of peyote, sacred sites, Indian prisoners’ rights, and religious use of eagles and other animals. This omnibus measure failed, but a separate bill that focused on peyote was eventually enacted into law on October 6, 1994. The bill legalized the use of peyote throughout the United States so long as its use is connected with the practice of NAC ceremonies (108 Stat., 3125).

In addition, during his first term President Clinton signed executive orders specifically involving Indian religious issues. The first, which became effective on April 29, 1994, dealt with eagle feathers. This measure is intended to clarify and expedite the federal process that Indians must go through before obtaining eagle feathers from the various federal agencies that receive them. The second order, signed May 24, 1996, promotes accommodation of access to sites considered sacred by traditional Indian religious practitioners. Although all the above measures are positive steps, they do not provide the comprehensive protection required to guarantee Indian religious freedom, for they are tailored responses to specific problematic areas.

79. 96–CV–063–D (1996).

80. The issue in the Bear Lodge case of 1996 involved a private organization.

81. 98 U.S. 145 (1878).

82. Ibid., pp. 166–67.

83. 133 U.S. 333 (1889).

84. Ibid., p. 342.

85. See Annual Report of the Secretary of the Interior, House Executive Document No. 1, 48th Congress, 1st session, (Washington, D.C.: Government Printing Office, 1883), pp. x–xiii. And see United States v. Clapox, 35 Fed 575 (D.C. Ore. 1888) and Tillett v. Lujan, 931 F. 2d 636 (1991), which are the only federal cases that deal specifically with the legality of these courts. These institutions in their early years were empowered by the Indian agents to arrest and convict Indians engaged in traditional cultural or religious practices. They remained the dominant law-and-order institution on many reservations until the federal government, guided by John Collier’s influence in the 1930s, replaced them with more modern tribal court systems. A handful of the original Courts of Indian Offenses, later termed CFR courts (because their guidelines are charted in the Code of Federal Regulations), remain in existence on those reservations lacking established tribal governments. They have jurisdiction over all civil suits wherein the defendant is a tribal member within their jurisdiction and over all other suits between members and nonmembers that are brought before the courts under the stipulation of both parties.

86. 82 Stat., 77–80.

87. 2 Stat., 6.

88. 4 Stat., 729.

89. 11 Stat., 329.

90. 48 Stat., 787.

91. Cohen, Handbook, 174.

92. Ibid., p. 175; citing Connors v. United States, 33 C. Cls. 317, 323–24 (1898).

93. Felix S. Cohen, “The Erosion of Indian Rights, 1950–1953: A Case Study in Bureaucracy,” Yale Law Journal, vol. 62 (1952–1953), p. 356.

94. Edgar S. Cahn, ed., Our Brother’s Keeper: The Indian in White America (New York: New Community Press, 1969): 120–21.

95. 48 Stat., 787.

96. Cohen, “Erosion of Rights,” 359.

97. Ibid.

98. U.S. Senate, Hearings Before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, Constitutional Rights of the American Indian, 89th Congress, 1st session, June 1965 (Washington, D.C.: Government Printing Office, 1965): 270.

99. Ibid.

100. 545 F. 2d. 1255, 1258 (1976).

101. 435 U.S. 313, 322 (1978).

102. Ibid., pp. 326–27.

103. 342 P. 2d. 369 (1965).

104. Ibid., pp. 373–74.

105. Ibid., pp. 378–79.

106. See, e.g., Martinez v. Southern Ute Tribe of Southern Ute Reservation, 249 F. 2d 915 (1957); Barta v. Oglala Sioux Tribe of Pine Ridge Reservation, 259 F. 2d 553 (1958); Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F. 2d 929 (1967); and Groundhog v. Keeler, 442 F. 2d 674 (1971).

107. 187 U.S. 553 (1903).

108. See, e.g., South Dakota v. Bourland, 113 S. Ct. 2309 (1993), wherein Justice Clarence Thomas, in his first Indian law opinion, stated that although Congress had not passed an express act declaring its intent to extinguish Cheyenne River Sioux tribal jurisdictional authority as recognized in the 1868 Fort Laramie Treaty, the Court ruled that Congress had so abrogated those treaty rights through implicit language in the 1944 Flood Control Act and the 1954 Cheyenne River Sioux Act, which created the Oahe Dam and Reservoir project. But as Justice Blackmun noted in dissent, “the majority, however, points not even to a scrap of evidence that Congress actually considered the possibility that by taking the land in question it would deprive the tribe of its authority to regulate non-Indian hunting and fishing on that land” (p. 2322).

109. Act of July 10, 1952, 66 Stat., 560.

110. 401 U.S. 520.

111. 401 U.S. 527.

112. This doctrine, also described as the “implied reservation of water,” was established in Winters v. United States, 207 U.S. 564 (1908). The basic principles of the Winters doctrine are the following: 1) Congress has the power to reserve water for federal lands, which include Indian reservations; 2) when Congress sets aside land for a specific purpose, it reserves by implication a sufficient amount of water to fulfill that purpose; 3) Indian reservations, regardless of how they are created—by congressional statute, treaty, or executive order—are established with the intention of making them habitable and productive, and whatever amount of water is necessary to fulfill these goals of habitability is thereby reserved by implication for the tribe’s use and benefit; 4) congressional or presidential measures that created Indian reservations must be interpreted liberally in favor of the tribe; thus even if the treaty, statute, or executive order is silent about water rights, the tribe is still presumed to have a right to a sufficient amount of water to satisfy the reservation’s purpose for the present and future needs of the resident population. See Harold Ranquist, “The Winters Doctrine and How it Grew: Federal Reservation of Rights to the Use of Water,” Brigham Young University Law Review (1975); and Daniel McCool, Command of the Waters: Iron Triangles, Federal Water Development, and Indian Water (Tucson: University of Arizona Press, 1987).

113. McCarran resolution.

114. This expression first appears in Mitchel v. United States, 34 U.S. (9 Pet.) 311, 345–46 (1835), wherein the court wrestled with how to define aboriginal Indian land rights.

115. Act of August 8, 1946, 60 Stat., 939.

116. See, e.g., Russel L. Barsh, “Indian Land Claims Policy in the United States,” North Dakota Law Review, vol. 58(1982), pp. 7–82; Harvey D. Rosenthal, Their Day in Court: A History of the Indian Claims Commission (New York: Garland Publishing, 1990).

117. 348 U.S. 272 (1955).

118. 390 F. 2d. 686 (1968).

119. Ibid., p. 691.

120. Ibid., p. 694.

121. 448 U.S. 371 (1980).

122. 23 Stat., 362, 385, 18 U.S. C. 548.

123. 27 Stat., 612, 631.

124. Ibid. This provision was also written into the U.S. Code 25 and U.S. Code 175.

Chapter 7

1. 14 Stat., 755.

2. Ibid., p. 756.

3. 14 Stat., 769.

4. 14 Stat., 785.

5. 14 Stat., 799.

6. Ibid., Article 9.

7. 31 Fed. 327 (1886).

8. Ibid., p. 329.

9. Ibid.

10. July 27, 1868, 15 Stat., 264.

11. 18 Stat., 146, 176.

12. Cohen, Handbook, 340.

13. Act of March 3, 1875, 18 Stat., 420, 449.

14. Annual Report of the Commissioner of Indian Affairs, 1875 (Washington, D.C.: Government Printing Office, 1875): 526.

15. U.S. Senate, Committee on the Judiciary, “The Effect of the Fourteenth Amendment on Indian Tribes,” Senate Report No. 268, 41st Congress, 3d session, (Washington, D.C.: Government Printing Office, 1871).

16. Ibid., p. 11.

17. Ibid., p. 10.

18. Ibid., p. 11.

19. Ibid.

20. 16 Fed. Cas. No. 8840 (D. C. Ore. 1871).

21. Ibid., p. 166

22. 2 Fed. 58 (1880).

23. Ibid., p. 61.

24. 112 U.S. 94 (1884).

25. 25 Fed. Cas. 14891 (1879).

26. 24 Stat., 388, (1887).

27. Ibid., section 6, p. 390.

28. 43 Stat., 253.

29. Administration of the Indian Office, Bureau of Municipal Research Publication No. 65 (1915), p. 17 as quoted in Cohen, Handbook, 155.

30. 197 U.S. 488 (1905).

31. 241 U.S. 591 (1916).

32. Ibid., p. 598.

33. For a good introduction to Indian voting, see Vine Deloria, Jr. and Clifford M. Lytle, American Indians, American Justice (Austin: University of Texas Press, 1983): 222–226. See also Helen L. Peterson, “American Indian Political Participation,” Annals of the American Academy of Political and Social Science, vol. 311 (May 1957), pp. 116–126; Leonard G. Ritt, “Some Social and Political Views of American Indians,” Ethnicity, vol. 6, no. 1 (March 1979), pp. 45–72; Daniel McCool, “Indian Voting,” in American Indian Policy in the Twentieth Century, Vine Deloria, Jr., ed. (Norman: University of Oklahoma Press, 1985): 105–133; Glenn A. Phelps, “Representation Without Taxation: Citizenship and Suffrage in Indian Country,” American Indian Quarterly, vol. 9 (1985), pp. 135–148; Richard L. Engstrom and Charles J. Barrilleaux, “Native Americans and Cumulative Voting: The Sisseton-Wahpeton Sioux,” Social Science Quarterly, vol. 72, no. 2 (June 1991), pp. 388–393; Orlan J. Svingen, “Jim Crow, Indian Style,” in The American Indian: Past and Present, Roger L. Nichols, ed. (New York: McGraw Hill, 1992): 268–277; and Jeff Corntassel and Richard Witmer, II, “American Indian Tribal Government Support of Office-Seekers: Findings From the 1994 Election,” Social Science Journal, vol. 34, no. 4 (1997), pp. 511–525.

Indian gaming revenues have, of course, altered the role that some tribes play in the American political process. As tribal revenues have increased, so has their ability and willingness to participate in local, state, and federal campaigns. In part, this comes from a desire to have an active role in selecting candidates who will protect tribal rights to self-determination. And in part it is both an offensive and defensive strategy—offensive in the sense that tribes want to support political candidates who have a good track record of assisting tribes and the distinctive concerns they have, defensive in the sense that as some tribes have become economically better off, this has prompted a massive backlash among many state and federal officials who are intent on curtailing if not eliminating Indian gaming operations and weakening other tribal rights as well.

A recent conference on the Gila River Reservation in central Arizona, “Arizona Indian Voters’ Convention ’98,” (September 18–19) focused on celebrating the fiftieth anniversary of an Arizona Supreme Court case, Harrison v. Laveen (1948), which affirmed the right of Indians to vote in the state. Another goal of the conference organizers, several tribes in the state, was to convince the state’s Indians that unless they voted in local, state, and federal elections they stood to lose not only gaming rights but other important benefits as well.

34. 442 F. 2d 674 (1971).

35. Ibid., p. 682.

36. August 1, 1937, Memorandum for the Secretary, Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs, 1917–1974, vol. 1, pp. 777–781.

37. Ibid. p. 778.

38. Ibid. p. 779.

39. Porter v. Hall, 271 P. 411, 34 Ariz. 308 (1928).

40. See Alison Bernstein, American Indians and World War II (Norman: University of Oklahoma Press, 1991): 138.

41. Frederic Kirgis, “Right of Franchise—State Law”, Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs, 1917–1974, vol. 1 (GOP: Washington, D.C., n.d.): 799–802.

42. Ibid., p. 802.

43. Nathan Margold, M–31039, Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs, 1917–1974, vol. 1 (GPO: Washington, D.C., n.d.): 990–997.

44. See Margold, “Method of Determining ‘Indians not Taxed’” M–31039, Supplemental memo, in Opinions of the Solicitor, 997–1000.

45. 67 Ariz. 337, 196 P2d. 456 (1948).

46. A statutory three-judge federal court, New Mexico (1948) (unreported)—cited in Bernstein, 139–140.

47. Ibid.

48. Cohen, Handbook, 254.

49. See M. Maureen Murphy, “Taxation Within Indian Lands: The Legal Framework,” Congressional Research Service Report for Congress, 87–249A (July 1987), for a general discussion of taxation within Indian country. See also Richmond L. Clow, “Taxation and the Preservation of Tribal Political and Geographical Autonomy,” American Indian Culture and Research Journal, vol. 15, no. 2 (1991), pp. 37–62. Notwithstanding the tax-exempt status of tribes as corporate bodies, the federal government has considered and actually introduced legislation in recent years that would directly tax tribal nations with gaming operations.

For example, in 1994 the Clinton administration briefly considered a special tax on tribal casinos to finance welfare revisions. The administration dropped the idea in the face of concerted tribal opposition. And in 1995 a House committee approved a measure that would have imposed a 34 percent corporate income tax on Indian gaming operations (The Kansas City Star, October 2, 1995, p. B1). That measure was also defeated, although others in Congress are continuing a push to tax Indian gaming operations.

50. 17 U.S. (4 Wheat.) 316 (1819).

51. Squire v. Capoeman, 351 U.S. 1 (1956).

52. 24 Stat., 388 (1887).

53. 24 Stat., 388–89 (1887).

54. The issue of state taxes of individual Indian property has been made more problematic by two recent U.S. Supreme Court rulings: County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251 (1992) and Cass County v. Leech Lake Band of Chippewa Indians, No. 97–174 (1998). Yakima held that a county could assess an ad-valorem tax on reservation land owned in fee by individual Indians or the tribe that had originally been made alienable when patented under the General Allotment Act. Cass County, following Yakima, held unanimously that Cass County had acted properly in levying property taxes on reservation land that had originally been made alienable by Congress and sold to non-Indians but then repurchased by the tribe.

55. See Francis P. Prucha, American Indian Policy in the Formative Years: The Indian Trade and Intercourse Acts, 1790–1834 (Lincoln: University of Nebraska Press, 1962), especially Chapter 6, “The Crusade Against Whiskey,” pp. 102–138, for a good discussion about what animated the federal government’s policy toward liquor and Indians. For an excellent treatment of federal Indian liquor laws prior to 1942 see Cohen, Handbook, especially Chapter 17. For more recent laws, see the Cohen revision, edited by Rennard Strickland et al., (Charlottesville, Va. : Michie, Bobbs-Merrill, 1982): 305–308. And see United States v. Mazurie, 419 U.S. 544 (1975), which upheld Congress’s authority to delegate to tribal governments the power to regulate the distribution of alcoholic beverages on Indian land.

56. 11 Stat., 743.

57. 28 Stat., 314.

58. 28 Stat., 286.

59. 28 Stat., 314.

60. 28 Stat., 319.

61. 232 U.S. 478 (1914).

62. 265 U.S. 344 (1924).

63. 27 Stat., 260; as amended by the Act of January 30, 1897, 29 Stat., 506, and the Act of May 25th, 1918, 40 Stat., 563.

64. 41 Stat., 305.

65. 265 U.S. 344, 346.

66. 58 F2d. 782 (1932).

67. 41 F2d. 782 (1930).

68. Michael Melich, “The Eighteen-Year-Old Vote Amendment of the U.S. Constitution as Applied to Tribes,” M–36840, November 9, 1971, in Opinions of the Solicitor of the Department of the Interior Relating to Indian Affairs, 1917–1974, vol. 2 (GPO: Washington, D.C., n.d.): 2041–2043.

Chapter 8

1. 163 U.S. 376 (1896).

2. Ibid., p. 384.

3. 272 F. 2d. 131 (1959).

4. Ibid., p. 134.

5. 687 F. Supp. 1380 (D. Alaska 1988): p. 1392.

6. Ibid.

7. See, e.g., Goodell v. Jackson, 20 John. 693 (1823); The Kansas Indians, 72 U.S. (5 Wall.) 737 (1867); McKay v. Campbell, 16 Fed. Cas. No. 8,840 (1871); Ex parte Reynolds, 20 Fed. Cas. No. 11,719 (1879); United States v. Osborn, 2 Fed. 58 (1880), Ex parte Crow Dog, 109 U.S. 556 (1883), State v. McKenney, 18 Nev. 182 (1883); Elk v. Wilkins, 112 U.S. 94 (1884); Talton v. Mayes, 163 U.S. 376 (1896); Patterson v. Council of Seneca Nation, 157 N. E. 734 (1927); Toledo v. Pueblo de Jemez, 119 F. Supp. 429 (1954); Native American Church v. Navajo Tribal Council, 272 F. 2d 131 (1959); Glover v. United States, 219 F. Supp. 19 (1963); Groundhog v. Keeler, 442 F. 2d 674 (1971); Jacobson v. Forest County Potawatomi Community, 389 F. Supp. 994 (1974); Janis v. Wilson, 521 F. 2d 724 (1975); Tom v. Sutton, 533 F. 2d 1101 (1976); United States v. Wheeler, 435 U.S. 313 (1978); Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); Merrion v. Jicarilla Apache Tribe, 109 U.S. 556 (1982); Dubray v. Rosebud Housing Authority, 565 F. Supp. 462 (1983); R. J. Williams Co. v. Fort Belknap Housing Authority, 719 F. 2d 979 (1983); and Imperial Granite Co. v. Pala Band of Indians, 940 F. 2d 1269 (1991).

8. Alaska v. Native Village of Venetie Tribal Government, No. 96–1577 (1998).

9. 82 Stat., 73, 77–81; as amended on October 27, 1986, 100 Stat., 3207.

10. For a good treatment of the Indian Civil Rights Act see Donald L. Burnett, Jr., “An Historical Analysis of the 1968 ‘Indian Civil Rights Act,’” Harvard Journal of Legislation, vol. 9 (May 1972), pp. 557–626.

11. 113 Congressional Record, 35472 (1967).

12. 88 Stat., 2203.

13. Congress, at the behest of tribes, enacted the Tribal Self-Governance Demonstration Project as a five-year experiment in 1988 (102 St. 2296). A limited number of tribes were entitled to receive consolidated block grants that would enable them to plan and implement programs formerly carried out by the federal government. The success of the initial tribes led Congress to make this a permanent law in 1994 (P. L. 103–413). By 1996 some 53 tribes had entered into the self-governance process.

14. 85 Stat., 688 (1971).

15. 23 Stat., 24 (1884).

16. 31 Stat., 321 (1900).

17. 72 Stat., 341 (1959).