American Indians, American Justice

Introduction

American Indians seem an enigma to most other Americans. The images portrayed in the movies, whether of noble redman or bloodthirsty savage, recall the stereotypes of western history. Newspaper stories dealing with oil wells, uranium mining, land claims, and the occupation of public buildings and reservation hamlets almost seem to speak of another group altogether and it is difficult to connect the two perceptions of Indians in any single and comprehensible reality. Literature on Indians provides no clues to understanding the present or remembering the past. Much contemporary literature is a thinly disguised romanticism that looks at Indians as the last and best spiritual hope for a society disheartened and disorganized.

Were a serious reader to attempt to understand the complexities of the present Indian situation, particularly in the fields of legal and political rights, he or she would not find much that is helpful. The classic treatise on Indian rights, the Handbook of Federal Indian Law, by Felix S. Cohen, has been revised twice and, although the authors and sponsors of the second and third editions cautioned that it must be understood as a reference work rather than an unassailable authority, it is viewed by everyone who uses it as the ultimate expression of Indian law. But the Handbook of Federal Indian Law is very specific in its intent: it is designed to be a ready and concise manual for the practicing attorney or judge who, suddenly confronted with an Indian case, can gain immediate understanding of the complexity of the topic while reviewing the major cases and statutes that have established both law and policy in such exotic subjects as Indian treaties, water rights, taxation, civil and criminal jurisdiction, and property.

Cohen’s masterpiece is designed to educate the specialists in federal law dealing with Indians, but it does not seek to provide much understanding of the manner in which things happened or how the different subjects came to be regarded as important. The Handbook will outline the powers of tribal governments without so much as a sketchy discussion of what tribal governments are and how they came to be. Other studies attempting to provide information on legal and political rights of American Indians seem to view Cohen’s work as the mountain they must scale in order to view the landscape. Some treatises seek to state the present condition of Indians in legal terminology. Other studies attempt to trace the flow of political power from one sovereign to another without telling the reader what sovereignty means in the modern world. The student is generally as baffled when he or she finishes the work as when the first page was turned, and the historical-cultural dimension of Indian life, its antecedents and its philosophical values, and the practicalities of modern Indian life remain hidden from view.

This study does not purport to be an exhaustive encyclopedia of the legal and political rights of American Indians. Rather, it focuses on a particular institution—the judicial branch of government. Courts—federal, state, and tribal—have become the most important branch of government. More than the legislative arm, which seems generally to frustrate the citizen, or the executive branch, which has recently appeared to be a futile exercise in public relations, the judicial institutions of our country affect most intimately the conduct of our lives. Whether a person views the Constitution as truth written in granite in 1789 or sees it as a flexible document capable of reinterpretation by each generation, few will deny that when a court announces its decision in a case certain things change and perceptions of society are never quite the same again.

In choosing the judicial function of government as the subject of a study, we therefore place ourselves in a position where we can see how law affects people. There are no abstract ideologies and concepts in a court of law although at times it appears that the judges do speak of a different world than that in which we live. Nevertheless, within the courts we find the tools whereby a society adjusts its daily patterns of behavior and where other institutions, both public and private, learn about the boundaries of acceptable behavior and conduct themselves accordingly.

Providing the student and the interested layperson with a study of tribal courts involves a recognition that most people do not understand how non-Indian judicial institutions operate. Thus it is not possible to examine and comment on tribal judicial institutions without referring to the corresponding non-Indian institutions so that where differences exist they will appear as clearly as possible. This study provides both historical and cultural background in American Indian history as well as comparisons with non-Indian institutions and their manner of operation. This format enables us to see how Indian tribes, once completely independent of all external influences, have adapted their institutions, customs, and values to the necessity of living in the modern world. While many Americans yearn for the romantic days of the past when seemingly noble Indian chiefs provided us with memorable aphorisms regarding the meaning of life, American Indians today do not live in that world. Like other Americans they have to adjust to economic trends, respond to changes in political climate and thought, and act responsibly in relation to others. Indians have survived and that means that they have successfully and consistently adapted themselves and their institutions to new situations.

Indian tribes, as we shall see, were once primarily judicial in the sense that the council, whether it was that of a village, a league of tribes, or a simple hunting band, looked to custom and precedent in resolving novel and difficult social questions that arose. Tribes were homogeneous units—linguistically, religiously, economically, and politically. All aspects of life were interwoven so that there were no sharp distinctions between the various aspects of life such as those we see in today’s world. Everyone knew and respected the customs and beliefs of the tribal community. The task of the council, when it had a difficult question to resolve, was to appeal to that larger sense of reality shared by the people of the community and to reach a decision that people would see as consonant with the tradition. Few new laws or customs were needed and when these occasions presented themselves the homogeneity of the community made the adoption of the innovation simple. Executive leadership in most tribes depended almost wholly on the prestige and charisma of individuals so that Indian chiefs did not need a program or platform to announce to establish their leadership in the community.

With the coming of the white settlers, Indians faced the problem of adjusting to new realities. Had the tribes abandoned their old ways and wholeheartedly adopted the new institutions of the intruders, we would have no identifiable Indians today. On the other hand, if they had absolutely resisted any changes, we most probably would not have Indians today either. Tribes might have stubbornly held their ground but they would not have been able to withstand many of the overtures and intrusions that contact with Europeans made inevitable and they most probably would have perished in their effort to remain stationary while the world about them changed. Consequently, tribes everywhere adjusted cautiously and did their best to keep what was good in the old culture while adopting those things that helped them deal with new realities and new people.

Indians will be with us for the foreseeable future. After a period of nearly five centuries of almost continuous contact with European culture, Indian tribes do not resemble the pristine and stable societies that existed in the remote past, but they do resemble those societies enough so that, given a choice between Indian society and non-Indian society, most Indians feel comfortable with their own institutions, lands, and traditions. In order to perpetuate themselves, tribes have successfully used many of the institutions of the non-Indian as a defense against further intrusions and erosions. Tribal courts have been one of the most successful institutions in assisting Indians to defend themselves against too rapid change and destruction, although it has not been until recently that tribal courts have received any significant financial support for their operations.

The social legislation of the last two decades sought to help reservations build the proper institutions for local self-government. In addition to locally controlled schools and economic development projects, tribal courts have been the beneficiaries of this new policy of self-determination. Although federal funding has been drastically reduced with the onset of the Reagan administration, there is every indication that tribal judicial systems have become an integral part of Indian life so that they will be able to survive and grow. Such pieces of legislation as the Indian Civil Rights Act and the Indian Child Welfare Act have provided tribal courts with a new basis for exercising their powers, and as the provisions of these acts take hold and become a part of contemporary Indian life tribal courts will also grow and prosper.

This study is designed to provide the reader with a knowledge of the Indian judicial system as it has come to be in our generation. Many cases and statutes are cited here but primarily for the purposes of illumination of the issues and understanding. A great deal of attention has been paid to the historical antecedents of tribal institutions. The sharp cleavages that many students of Indian affairs believe to exist are more abstract and remote than they would like to believe. In the daily lives of people on the reservations certain practical compromises are always in order and we have tried to highlight the practical aspect of life rather than the theoretical.

Those readers who wish to go into great depth concerning a particular legal or political problem can most certainly find the precision and sophistication they seek in the latest revision of the Handbook of Federal Indian Law. Our volume, on the other hand, should be particularly useful for the student of Indian affairs, the teacher of social science, the scholar in a related field, and the tribal council person who wishes to find in one place a comprehensive overview of the subject matter. Although future cases may alter somewhat particular interpretations of certain doctrines of law, they will most certainly not alter the manner in which the tribal judicial system has come into being and is recorded here.

As both Indians and non-Indians seek to refine their judicial institutions and make them more suitable for community purposes, we can anticipate institutional and procedural changes. Such new functions and tasks can only be understood in a historical perspective and, once understood as a continuing process of human adjustment to social realities, changes become second nature and are accepted without question. The spectrum of Indian life as we have experienced it in the last two decades indicates that Indian people are increasingly returning to examine their ancient traditions with the intent of adapting them to modern problems. Therefore, it is imperative that people understand the usefulness of tradition in human affairs. With the hope that as future problems arise our framework of interpretation will prove increasingly useful in understanding social and judicial change, we have tried, wherever possible, to give special emphasis to the manner in which Indians use tradition and informal procedures.

The efficacy of law ultimately depends on society’s perception of its ability to provide justice. People obey laws they consider just and rebel at laws they see as unjust; but the perception is not rational, it is emotional. Indian people, from the establishment of the reservations, were forced into a situation where they could not always perceive the justness of federal laws. And the federal laws were not always just, nor were they suited to the needs of many tribes. In recent decades the great gulf that once existed between the Indian people’s perception of law and its effect on their lives has considerably narrowed. The predictable result of this change is that tribal judicial systems have gained much respect and have become an important part of the everyday lives of people. We hope this study will contribute to further understanding of the judicial process and assist tribal courts in their task of helping Indians govern themselves.

1. American Indians in Historical Perspective

American Indians are a unique branch of the human family possessing a wide variety of cultural expressions, origins, and traditions. The very diversity of Indian tribes has dampened efforts to treat Indians as a monolithic group although historians have often struggled to bring meaning and understanding to what the non-Indian community views as the Indians. Almost all generalizations that have been constructed to explain the nature of Indian life have dissolved when the particularities of tribal existence have been noted. Complicating an analysis of Indian history is the fact that it has been written largely from the non-Indian point of view by advocates of that position. The perspective of the non-Indian, generally colored by the uncritical acceptance of cultural evolution as the definitive experience of our species, has rarely coincided with the view from the reservation. Some Indian advocates would argue against cultural evolution, feeling that it is not an accurate characterization of events that their traditions inform them have been most important in shaping their perception of the world.

It is impossible to understand American Indians in their contemporary setting without first gaining some knowledge of their history as it has been formed and shaped by the Indian experience with Western civilization. Many of the customs and traditions of the past persist in the minds and lives of Indians today and have been jealously preserved over several centuries of contact with non-Indians as the last remaining values that distinguish Indians from the people around them. This is particularly true in the case of Indian notions of law and justice. Indian judicial systems call upon a special blending of the past and the present in order to solve intratribal disputes. This blending has not been an easy task. Indians must continually choose to follow the dictates of their traditions or to accept the values of the outsider. History, therefore, cannot be divorced from an analysis of American Indian life. But it must be tempered with a knowledge of the Indian perspective, which provides it with the substance for understanding the cultural conflict it represents.

The following historical examination will be divided into separate periods of federal Indian policy, each phase of which may be characterized by the impact of some kind of federal initiative in resolving the continuing problem of dealing with American Indians. With this tentative outline of policy development in hand, we will be better able to understand the development and operation of the contemporary Indian legal system. We will be able to see its historical roots and note the expedient compromises that both Indians and non-Indians made and must continue to make in order to ensure that the institutions that affect people today continue to grow and to serve people. Division of Indian history into six separate periods, then, is a convenient way of giving us sufficient data for reflection and orientation so that we can transcend mere information and come to our own conclusions about the future of Indian societies as exemplified in their contemporary institutions.

DISCOVERY, CONQUEST, AND TREATY-MAKING (1532–1828)

When the European settlers arrived in America, long before the establishment of the United States government, they were faced with a formidable problem. How were the newly arrived immigrants to deal with the native inhabitants of the land—the American Indians? The laws of discovery and conquest had been applied in different fashions throughout human history. Those who discovered and conquered other lands were entitled to them, their riches, and their spoils. The conquered people could be treated as slaves, banished to other lands, or assimilated into the society and institutions of the conquering people. Indeed, human history had been the story of conquest, assimilation or extinction, and yet more conquest. But the discovery of America was different. New continents had not been conquered before and the richness of the prize inspired the maritime powers of Europe to gain whatever advantages they might in the new hemisphere.

Felix Cohen traced the historical antecedents of Indian legal history back to 1532, when the popularly supported solution to the European dilemma on Indian relations was conceived. At that time the emperor of Spain, a devout Catholic monarch, in order to ensure that his country followed the dictates of the religion it strongly professed, sought the advice of Francisco de Vitoria, a prominent theologian, as to the rights the Spanish should claim in the new world (Cohen, p. 46). Vitoria reached the conclusion that the natives were the true owners of the land. Since the Indians owned the land, the Spanish could not claim title through discovery, for title by discovery could only be justified where property is ownerless (Vitoria, p. 139). Furthermore, in the absence of a just war, which was defined with theological precision and could not be undertaken at a whim, only the voluntary consent of the aborigines could justify the taking of Indian land. So long as the Indians respected the natural rights of the Spaniards, recognized by the law of nations, to travel in their lands and to sojourn, trade, and defend their rights therein, the Spaniards could not wage a just war against the Indians and therefore could not claim any rights by conquest (as summarized by Cohen, pp. 46–47).

On this basis, the Europeans decided to adopt much, but certainly not all, of Vitoria’s philosophy. The Indian tribes, at least in North America, were recognized as legitimate entities capable of dealing with the European nations by treaty. Since the first settlements were very small, mere outposts in a hostile land, and rarely contained more than a few hundred inhabitants, treaty-making was a feasible method of gaining a foothold on the continent without alarming the natives. Most early settlements in fact needed the protection of larger Indian tribes in order to survive threats made by smaller groups whose lands they invaded. Treating with the Indians, then, brought an air of civility and legitimacy to the white settlers’ relations with the Indians and provoked no immediate retaliation by the tribes. Instead of the Indians being subjected to bondage or their lands merely seized through the use of force, which Spain eventually did, civility reigned in North America. Indian land and the rights to live in certain areas were purchased at formal treaty sessions.

The impact of Vitoria’s view on European-Indian relations for the next two hundred years was very important because it encouraged respect for the tribes as societies of people. Treaty-making became the basis for defining both the legal and political relationships between the Indians and the European colonists. And when the young colonies finally became the United States, the treaty-making powers that earlier had been exercised by the European nations were assumed by the Americans with their independence. In 1778 the United States government entered into its first treaty with the Indians—the Delaware tribe. In the course of the next century over six hundred treaties and agreements were made with the tribes and nations of North America. Not only were these treaties designed, as was the first treaty, to ensure peaceful relations with the Indians but, even more important, they were also a means of securing an orderly transfer of landownership from the tribes to the United States.

In 1823 in the case of Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823), Chief Justice John Marshall both adopted and amended Vitoria’s theory for the domestic law of the United States. He suggested that discovery did indeed give title to the land and that this title was recognized by the other European countries. It was a title that gave exclusive right to extinguish the Indians’ title, which became, as a matter of course, something of an equitable title or occupancy. Thus Indian rights, according to Marshall, were not extinguished but merely impaired by European assertions. Since the Indians were unaware of the complexity of Marshall’s revision and since there was no international forum in which such a claim could be challenged had the Indians known and objected, Marshall’s definition in effect traded a vested property right for a recognized political right of quasi sovereignty for the tribes.

This judicial acknowledgment of Indians as recognized political bodies is also affirmed in the Cherokee Nation Cases (to be discussed at length in the next chapter). Marshall was again confronted with the necessity of making new law where none had previously existed. He characterized Indian nations as domestic dependent nations (Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)). Though subject to the guardianship protection and superior political power of the federal government, Indian nations did possess some degree of sovereignty. Thus, while the tribes did not fall within the category of foreign nations that possessed full sovereignty, they did constitute legitimate legal and political entities that could manage their own affairs, govern themselves internally, and engage in legal and political relations with the federal government and its subdivisions. This notion was extended even further in the second of the Cherokee Nation Cases, Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). Marshall, building on this foundation of domestic dependency, interposed a limited sovereignty enjoyed by the Indian nations to prevent the state of Georgia from extending its power over the Cherokee Nation’s lands. Andrew Jackson’s refusal to enforce Marshall’s decision gave him mute testimony that, if the tribes had legal rights affirmed by the highest court in the land, their political status made it easy to void such rights.

Much of the legal history relating to the problems of Indian tribes was shaped by the events that occurred during this first period of discovery, conquest, and treaty-making. Indian nations negotiated at least partially from a position of strength. As the white settlements moved west it became increasingly difficult to supervise, administer, and protect the Indian tribes that stood in their way, and frequent conflicts arose. The United States quickly learned in the Seminole wars of the 1830s that fighting Indians was a very expensive task, and many treaties were made as an alternative to a prolonged war, which the Indians were certain to lose but which would prove extremely costly and politically unsettling. The treaty-making era came to an end when Congress, through a rider to an appropriation bill in 1871, declared that no Indian nation would henceforth be recognized for the purposes of making treaties. This action was a bit premature since various commissions continued making treaties with the tribes until 1914, when the Ute Mountain Utes signed the last major agreement with the United States. But these treaties, because of the prohibition by Congress, had to be called agreements when being presented for ratification.

Although treaty seems to imply an equal bargaining position, the Indians were often at a clear disadvantage when negotiating such arrangements. The actual document was always written in English and was generally interpreted by people who had a stake in a successful outcome of the proceedings, so the Indians were not always told the truth during these sessions. Toward the end of the treaty-making period, when extensive debate on ratification became tedious, the Senate would often amend the treaties to change their meaning completely. Most often the term of years for annuities and the articles dealing with social services would be changed since the Senate had to negotiate the appropriation of funds with the House of Representatives whenever it agreed by treaty to provide benefits to the tribes. The amended form of the treaty would then be taken back to the tribe and a few chiefs would be found to touch the pen, in effect ratifying the amended wording. More than one Indian war began because the wrong group of Indians agreed to altered treaty provisions.

Not all legal authorities on Indian matters agree with the popular notion that the Indians were cheated during the making of treaties. Felix Cohen has argued that, absent a few cases where the military took the land by duress, the price that the whites paid for the land was one that satisfied the Indians (Cohen, pp. 42–43). Cohen reasons that most of the treaties were fairly negotiated. In return for their land, Indians received such goods as knives, axes, cloth, and instruments of a new technology that provided them with capabilities they would not otherwise have had. More important, according to Cohen, Indians received the recognition that they had to be treated on a seller-buyer basis. The foremost authority on Indian affairs did admit that this history was not without its dark pages, but he concluded that, in these real estate transactions, the whites had been human, not angelic, and this was as much as could be expected. Subsequent claims against the United States filed by the tribes in the Indian Claims Commission for unconscionable dealings based on treaties gave the tribes more than $600 million, which indicates that Cohen was reflecting the attitude of a government attorney when he made such statements.

REMOVAL AND RELOCATION (1828–1887)

During the early years of American history the white community felt that it could live peacefully with the Indians. People believed that over a period of time the Indians would be assimilated into the white culture and become Christianized in the European tradition. Indeed, the colony of Massachusetts divided its Indian relations into three separate categories: the praying Indians, who had already been converted and were living in towns specifically set aside for them; the Indians on its western frontier, who were virtually helpless and caused troubles but were not yet Christianized; and the stronger groups, such as the Iroquois, who were still a distinct military threat to the colony’s existence.

The expectations that the colonists had were naive and proved to be in error. An atmosphere of hostility developed between the two communities shortly after settlements were established because the cultural gap between the two groups was too wide to inspire confidence and trust. From Jamestown to Plymouth, within a generation after the colonists had landed, brutal wars had decimated the indigenous tribes and a pattern of frontier violence had been established. During the administration of Thomas Jefferson, a preview of future Indian policy was revealed when Jefferson proposed to move the Cherokee Indians out of the land obtained under the Louisiana Purchase. He, like so many others of his generation, rejected the idea that Indians and whites could live peacefully together in the same neighborhood and he saw removal as the most humane way to solve this problem. But it was Andrew Jackson who eventually seized on Jefferson’s idea and turned it into an official government program.

Jackson won the election of 1828 and was pledged to support westward expansion. In his first message to Congress, on December 8, 1829, Jackson urged voluntary removal by the Indians as a means of protecting both the tribes and the states. When no voluntary migrations began, Jackson’s supporters in Congress, mostly southern and western congressmen, introduced a bill to compel the Indians to move. The Indian Removal Act was passed on May 28, 1830, after vigorous debate in which the eastern senators and representatives deplored the policy as a violation of American honor. It was, nevertheless, immediately put into force when the southern tribes were notified that they must meet U.S. treaty commissioners to begin discussing their removal across the Mississippi.

The 1830s witnessed the massive migration of Indian tribes from the Ohio and Mississippi valleys to the western plains. Nearly sixteen thousand Cherokees walked silently and resigned from Georgia to their new homes in what became eastern Oklahoma. This journey has been called the Trail of Tears because the Indians were leaving their ancestral lands under the most harsh conditions imaginable. But the Cherokees were not the only Indians who were pushed to western reservations. Pursuant to the treaty of Dancing Rabbit Creek, the Choctaws surrendered all their land east of the Mississippi, more than ten million acres, and moved west. Those Indians who remained behind in Mississippi lost their Choctaw citizenship and fared poorly as state citizens in spite of a federal guarantee that they could reserve a homestead of 640 acres and assimilate into southern society.

The relocation of eastern Indians to reservations in the west did not solve the problem of Indian-white relations; it merely postponed it. From an Indian perspective, life on the reservation was still dominated by white intrusions. The sustenance on many reservations was almost wholly dependent upon some kind of annuity assistance from the federal government. Christian missionaries and teachers flooded the reservations in an attempt to civilize and assimilate the Indians. The army was conspicuous in its attempts to provide security, but its efforts were almost always directed at keeping the Indians at peace rather than protecting them.

Removal and relocation as policy were doomed from the beginning. Expansionist forces beyond the government’s control inevitably destroyed the effort to keep the Indian and white communities apart. The increasing sophistication of American technology enabled settlement where none was thought possible so that, as the Indians were pushed farther west, they were replaced by a civilization that could not easily be dislodged, a civilization that was intimately linked to eastern industrial society. The coming of the railroads meant the destruction of the great buffalo herds, the discovery of gold and its efficient exploitation meant the coming of industrial corporations to the west, and the general movement of non-Indians to support these activities eventually enclosed the open spaces with boundary lines, roads, and settlements. If a policy of removal and isolation was impossible to bring about, what direction could the government move in order to deal with Indian problems? In the 1880s a radical reversal of thinking occurred: if you can no longer push Indians westward to avoid contact with civilization, and it is inhumane to conduct wars of extermination against them, the only alternative is to assimilate them.

ALLOTMENT AND ASSIMILATION (1887–1928)

Allotments of land were not a new idea in the history of Indian policy. The Pilgrim Fathers in Massachusetts had insisted that the praying Indians each take up a plot of ground and become farmers like their white neighbors. Indeed, farming was somewhat akin to the Christian life with its long hours of hard work and reliance on the rural community that watched over one’s moral behavior. In the removal treaties tribal members had been given a choice of moving west or accepting land scripts that entitled them to take allotments within the areas they had ceded and to become state citizens. The 1854 treaty with the Omaha tribe had a provision (article 6) that at some future date the president could survey the reservation and distribute allotments to tribal members. But there was no firm federal policy on dividing up the tribal land estate. Some smaller tribes promised to accept the Omaha formula and the larger tribes who signed the famous 1867–1868 treaties on the plains had a tribal Land Book to register tracts of land that individual members might want. Apart from these provisions, which were administered in a haphazard manner, allotments were not a major feature of federal policy because no firm ideology undergirded them.

In 1881 the first indication was given that allotments might become a national policy when President Chester A. Arthur, in delivering his first annual message to Congress, proposed a plan by which Indians would be brought into the mainstream of American life. The solution to the nagging Indian problem, he felt, was simply to introduce among the Indians the customs and pursuits of civilized life and gradually to absorb them into the mass of our citizens. Considering the times, it was a bold stroke that had a solid humanitarian base. Reconstruction was finished, the Hayes-Tilden deal had been struck and the white southerners were back in control of the South, and the Chinese Exclusion Act was on the horizon. To have suggested that a dark-skinned minority, one that had resisted American overtures for centuries of hostility, might be peacefully assimilated with full citizen rights into the society of that day was a daring if somewhat idealistic move.

Congress responded to President Arthur’s Indian policy by proposing the Coke Act of 1883, but it failed to achieve a majority in the Senate and inspired some vigorous debate since it appeared to favor railroads and land speculators rather than the Indians. But allotment was an idea whose time had come. Everyone could agree that the Indians owned too much land and that holding land in tracts of millions of acres unnecessarily impeded the orderly settlement of the western states.

Senator Henry Dawes of Massachusetts assumed leadership of the forces that sought to make allotment and assimilation the national policy and, with the help of such private interest groups as the churches and the newly formed Indian Rights Association, he was able to get a new law passed in 1887. The General Allotment Act, or Dawes Act