Federal Indian Law - a primer


            Federal Indian law - those laws that define government-to-government relationships between sovereign Indian nations and the republic of the United States,  are older than the republic itself.   In 1778, ten years before the republic elected its first president and convened its first Congress, revolutionary colonists were anxious to make treaties of peace and friendship with Indian tribes lest those tribes form alliances with the British during the War of Independence.   The first tribe to make such a solemn compact - with representatives of the Continental Congress - were the Delaware.  Over the course of the next century, the United States government would authorize the negotiation of more than 500 more treaties.  In time, three hundred and seventy one of those were ratified by the U.S. Senate.   These treaties, and article VI, clause 2, of the Constitution, which deems these solemn pacts to the 'supreme law of the land,' and the Commerce Clause, which reserves (to Congress and excludes states) the exclusive right to engage in commercial activities with Indian tribes, form the backbone of federal Indian law.

             What follows is a cursory listing of important precursors to American Indian law and the subsequent cases heard in American courts that have played such an important role in shaping federal Indian law as we know it today.  Recent cases, such as the 1998 caseIsleta Pueblo v. City of Albuquerque, and the 1999 decision inMinnesota v. Mille Lacs Band of Chippewa Indians, are leading indicators of the battles that will be fought over natural resources in the decades to come as those resources become more and more scarce.



        Innocent III and IV -  Midway through the 13th century, Pope Innocent IV, an intellectual pontiff known as the 'lawyer pope,' wrote a commentary on Innocent III's papal decree of 1204,Quod super his,thereby distinguishing the legal status and rights of non-Christian societies and cultures against the emerging background of legal scholarship known as natural law.  Innocent IV would ask: "Is it licit to invade a land that infidels possess, or which belongs to them?"  He went on to construct a broad-based defense of the Crusades and the conditions justifying Christian warfare against infidel peoples occupying the Holy Lands.  Innocent IV's underlying legal premise under the rubric of 'natural law' was that Christ's life and death had consecrated the Holy Lands as Christian territory.  Therefore, Christ's followers, not Muhammad's, should dwell there.

            Turning Aristotle's humanism upside down, Innocent IV reasoned that infidels indeed had a natural law right to the ownership of land, but there was a catch.  Pagan worship of idols and other rights constituted an unpardonable breach of natural law, said Innocent, and these blasphemous practices require Christ's supreme representative on earth (himself) to intervene and set things right.  At the heart of his argument was the premise that every rational creature was bound by the dictates of Christian and Eurocentric precepts of natural law, standards of conduct that the pope was require to enforce by the mantle of responsibility transferred to him by divine law.  Furthermore. The pope's privileged authority on divine law made obedience to him the only means of salvation.  Today's lawyers would call this a 'bright line,' or, a clearly defined boundary between what was holy and what was blasphemous.

           Innocent IV's commentary midway through the 13th century would profoundly influence the thinking of kings and conquistadors in discovery-era Europe two centuries later.  Legal scholar and author Robert Williams explains how Innocent IV's commentaries successfully rooted themselves in the ensuing discourses on conquest: "Secular power could be invoked to suppress ecclesiastically defined evil in a world governed by the divinely constructed precepts of natural law...Secular authority in and of itself possessed no inherent function or aspect...it was only an auxiliary power to be used by the pope in appropriate circumstances and at his sole, divinely inspired discretion.  This, needless to say, suited the ambitions of the medieval popes.  By abstracting the principles of divine justice and remitting them in an earthly form of crusading armies, the feudal-era papacy was fulfilling its divinely ordained responsibility to establish the Christian church as the dominant reality on earth." 

             This theocratically derived legal construct became the foundation for the Doctrine of Discovery, a tenet of international law that was eventually abandoned by European monarchs in the 18th century at the same time the founders of the United States of America were building this papal inspired doctrine into the founding charter of the new republic.


            Sepulveda v. Bartholome de las Casas - After spending twenty-some years among the Caribbean Indians on the islands of Hispaniola, the Dominican friar Bartholome de Las Casas returned to his native Spain in 1555 to defend the natural law rights of the natives in 'newly discovered lands.'  The battle between the prelate, arguing Innocentian law, and the dogmatic philosopher Sepulveda, became the most celebrated debate in discovery-era Europe.  Sepulveda argued that the law of nature was honored and understood only by the wisest and most prudent of the higher races.  Therefore, heathen Indians could not possibly live by the law of nature.  The Dominican priest countered with the argument that the Indians had demonstrated the rational capacity to comprehend the gospel (he estimated that 20 million Indians had been exterminated by the Spanish conquistadors in less than half a century).  Despite his passion and logic, Las Casas's appeal to the crown failed to convince the king or his lawyers that the Indians had a legitimate claim to rights and privileges.


            Lord Coke and Robert Calvin - In 1608, a decision in a case tried in Elizabethan England would have consequences for Indians in the New World for the next three centuries.  A Scotsman named Robert Calvin filed a suit to recover land that he claimed had been taken from him unjustly.  The opposing attorney argued that the claimant Calvin was "an alien born" and therefore, since he was out of allegiance to the king of England, his claim on English turf was specious.

            In considering this argument, Lord Coke, who had for the first time systematized English common law, attempted to play Solomon by making fine distinctions under the broad category of aliens: "A perpetual enemy, as distinguished from friendly aliens, cannot maintain any action or get anything within this realm.  All infidels are in lawperpetui inimici,perpetual enemies [of enlightened people], and between them, as with devils whose subjects they be, and the Christian people of the European states, there is perpetual hostility, and there can be no peace."

            Once the New World was claimed by the discoverer (the English crown), the land and everything and everyone on it fell under the province of the king.  Therefore, the legal status of 'savages and infidels' in the New World had already been decided in an English court before the first colony was established at Jamestown.

              Lord Coke, in fact, would help draw up the official royal charter for sir Walter Raleigh's new Virginia Company in 1606.  As agents of the king, Raleigh's company had the responsibility for the propagation of "Christian religion to such people as yet living in darkness and miserable ignorance of the true knowledge and worship of God, and may in time bring the infidels and savages to living civility."  The king and his agents had not only a right but a responsibility to be at war with infidels who refused conversion to Christianity.  Thanks to Lord Coke, explains Robert Williams, Innocent IV's thirteen-century commentaries on natural law had become the invisible hand that wrote the official royal charter for the first English colony in the New World.


Landmarks in Indian Law

         The Marshall Trilogy - The following cases,Johnson v McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832),comprise what is known today as the Marshall Trilogy.  In these three early Indian law cases,  U.S. Supreme Court Chief Justice John Marshall laid down the foundation of Indian law at the same time he laid out the boundaries of the federal trust relationship with the tribes, and realigned the working cogs and wheels of government, known asfederalism, in order to account for the hundreds of sovereign Indian nations co-existing with the federal government inside a common boarder.

              The chief justice explained that treaties protect Native Americansovereigntyas a preexisting condition to the ratification of any treaty with the federal government.  T complicate this state of affairs for their descendants (us), the founders insisted that the constitutional convention adopt treaties as the "supreme law of the land."  By doing so, the founders spread the jaws of a trap that their descendants would step into many times over the next two hundred years.  In the 1990s, the waste industry was only too happy to embrace Indian sovereignty when it attempted to build landfills on Indian reservations all over the country since Indian land was beyond the reach of federal regulators.  When the tribes began to use sovereignty as a legal tool to withhold resources and to coerce tough deals with extraction companies, sovereignty suddenly ceased to be such a wonderful thin in the eyes of non-Indians.


            Lone Wolf v. Hitchcock -  In this watershed case from 1903, the U.S. Supreme Court ruled that the United States Congress had 'plenary power' over Indian tribes.  Legal scholars have reminded Congress ever since that those powers are balanced against their ongoing responsibilities to treaty tribes to act in the tribe's best interest as legal trustee.  Finding themselves in conflict with the will of Congress, tribes such as the Mandan, Hidatsa, and Arikara commonly encounter a Congress anxious to exercise its 'plenary power" but reluctant to balance that power against its responsibilities to protect Indian lands, resources, and self-governance.


            Winters Doctrine -  Indian law has evolved through several seventy-year cycles.  In the first decade of the 20th century, the U.S. Supreme Court heard a case now referred to simply asWintersthat built on the Marshall Trilogy and the 'Indian trust doctrine.'  InWinters,  the court ruled that by entering into a treaty wit the united States government some years prior, the Gros Ventre tribe of Montana had reserved unto itself and its tribal members all the natural rights of nationhood.  The court further explained that one of these reserved rights, which did not have to be stipulated in the treaty to exist but rather existed as a precondition to the treaty, was the tribe's right to sufficient water to conduct its affairs, to engage in commerce, and to raise crops or harvest fish.  The water in question flowed from the Milk River in Montana.  White farmers and ranchers were seeking to divert flow from the Milk River for their own economic purposes.  To their astonishment, the 'reserved rights' of the tribe prevailed.  This has set a standard for all subsequence Indian law cases in which reserved rights are at stake.


            Canons of Construction -   Acannon of construction is a term of art used by the courts to identify a legal principle that has become axiomatic -- a legal guidepost ensuring continuity of interpretation from one generation to the next.  These legal aids to navigation, so to speak, illuminate what would otherwise be a murky world.  Two canons of construction cited regularly in both the federal courts and the Supreme Court areHagen v. Utah andWashington v. Washington State Commercial Passenger Fishing Vessel Ass'n.

            In the former, the court established the idea that ambiguities and conflicts that arise in the interpretation of statutes "are to be resolved in favor of the Indians."  In other words, both a win, and a draw, go to the tribes.   This is a crucial and deciding factor in many cases at the lower court level.  Nevertheless,Hagenis seldom cited or explained in news stories dealing with Indian law decisions.

            Similarly, in the latter case, the U.S. Supreme Court laid down a powerful guiding principle when it ruled that the terms of treaties and agreements with Indian tribes must be construed and interpreted "in the sense in which they [the treaty conditions] would naturally be understood by the Indians."  Justice Sandra Day O'Connor cited both of these canons when she wrote the majority opinion in the high court's controversial 1999 decision inMinnesota v. Mille Lacs Band of Chippewa Indians,in which the tribe's usufructory rights to fish in their ancestral lakes was upheld over the protests of the state of Minnesota (see following entry).


             Minnesota v Mille Lacs Band of Chippewa Indians  -  In this classic case that pits a tribe against a state over the disposition of treaty-protected 'usufructuary rights,' the court upheld the Mille Lacs Chippewa's claim to 19th century treaty rights guaranteeing it 'reserved rights' to fish in Mille Lacs Lake in central Minnesota.  Non-Indian sports fishing groups, supported by the state, fought the tribe's claim.  The typical five-to-four decision in this case (favoring the tribe) is an important reaffirmation of earlier 'usufructuary rights' cases, such as the infamous Boldt Decision of 1974 (see below).  What was interesting about this case was the fact that the lake in question lies outside the modern boundaries of the Chippewa reservation.  Century-old usufructuary rights guaranteed the tribe perpetual rights to fish, gather, and hunt in their accustomed forests and lakes.

            A few weeks later, the high court let stand a lower court ruling in a case in Washington state that ruled in favor of seventeen Puget Sound tribes who asserted a similar right of access to traditional shellfish beds.  In a decision that mirrored Mille Lacs in many respects, the 9th Circuit Court of Appeals ruled that neither the state of Washington nor the private property owners could deny tribal members the right to cross private land in order to harvest shellfish in their 'traditional and accustomed' manner.


            The Boldt Decision -  About seventy years after theWintersdecision (right on schedule) the 9th Circuit Court of Appeals was asked to rule on a case that challenged the foundations of Indian law.  Treaty tribes on the West Coast, and in Puget Sound in particular, began to assert their treaty rights over the storied salmon runs of the Pacific Northwest.  Clearly, salmon were already a dwindling resource.  In 1974,  Judge George Boldt wrote a landmark opinion for the court - one that the Supreme Court let stand on appeal - that remains as controversial today as it was at the time.  Building on both Marshall's Trilogy andWinters(and the underlying trust doctrine) the court ruled that the 'reserved rights' of West Coast tribes guaranteed the Indians fully half of the annual catch of the prized fish.  White legislators, politicians, and commercial fishermen were stunned.

             The losing attorney in that case, Slade Gorton (the attorney general for the state of Washington) went on to become a U.S. senator.  As a national legislator, Gorton repeatedly attempted to undermine Indian sovereignty by introducing contrary legislation, or budget riders, that sought to erode Congress' responsibilities under the trust doctrine.  This was a tried and true strategy of state governments and white law makers, one that had always failed because their efforts inevitably came up against a solid wall of long-settled law that circumscribed state power, and/or held the federal government responsible for protecting Indian resources. Boldtwas a powerful reaffirmation of theWintersdecision, in the modern era, just as Indian tribes were beginning to assert their treaty rights and assess their assets and wealth in natural resources, such as water, timber, gold, oil, gas, copper and timber.


            United States v. Michgan -  In the 1979  case ofUnited States v. Michigan, Judge Noel p. Fox was asked to determine whether the 20th century descendants of 19th century Chippewa treaty signatories had retained fishing rights under their treaties.  Further, if those rights were still secure, the suit asked how many and what kind of fish could the Indians take.

            In a powerful postscript to the Bold Decision, Judge Fox strongly affirmed in a very wide-ranging decision the Indians' rights as secured to them by the treaties of 1836 and 1854.  He wrote: "The mere passage of time has not eroded, and cannot erode, the rights guaranteed by solemn treaties that both sides pledged on their honor to uphold.  The Indians have a right to fish today wherever fish are to be found within the area of cession, a right established by aboriginal right and confirmed by the Treaty of Ghent and the Treaty of 1836."

            Fox further emphasized the basis of these rights as being grounded in treaties: "Because the right of the...tribes to fish in ceded waters of the Great Lakes is protected by treaties...that right is preserved and protected under the supreme law of the land, does not depend on state law, is distinct from the rights and priviledges held by non-Indians, and may not be qualified by an action of the state..."


            The Voigt Decision Nearly ten years after Boldt, states' rights activists in Washington D.C. and state capital took another hit from a federal appeals court, one that expanded on Boldt in ways no one had anticipated.  Oddly, Boldt centered on salmon while the Voigt Decision focused on walleye perch.

         In the early 1980s, Wisconsin's Chippewa tribe claimed a treaty right to spear walleye in their ancestral lakes. Year after year, Indian spear fishing provoked violent protests from white sports-fishing groups.  Year after year, Indians and whites spilled each other's blood on regional boat landings.  Initially, inLac Courte Oreilles v. Voigt,Judge James Doyle decided against aboriginal fishing claims.  But on appeal, the 7th Circuit reversed Doyle.   At that time, Lester Voigt was the director of the Wisconsin Department of Natural Resources.  The "Final Judgment" in this contentious case was written by Judge Barbara Crabb.  Crabb's ruling was issued in March 1991.  White/Indian relations in the Upper Midwest have never been the same since. 

         Judge Crabb ruled that the usufructuary rights of the tribes arising from the Treaties of 1837 and 1842 included "rights to those forms of animal life, fish, vegetation, and so one that they utilized at treaty time...on their ancestral land, lakes, and rivers, regardless of modern day reservation boundaries."  Once again, non-Indians were stunned.  Wisconsin appealed.  Six months later the U.S. Supreme Court denied certiorari and refused to retry the case.  Wisconsin Governor Tommy Thompson was so angry that he tried to buy out the Chippewa's treaty rights.  The Indians refused to sell.  As with Boldt, Crabb's ruling has held sway ever since.


            Isleta Pueblo v. City of Albuquerque -After fighting its way through the court system for nearly ten years, the Isleta Pueblo tribe of New Mexico won a landmark case in a federal court of appeals that upheld the tribe's right to establish its own water-quality standards.  Those standards, fiercely contested by their upstream neighbor, the city of Albuquerque, would force the city to spend $300 million in upgrading its water-treatment facilities in order to come into compliance with the Indians' water quality standards.  The tribe was the first in the nation to act on a little known provision in the federal Clean Water Act of 1976 that allowed tribal governments to establish water-quality standards independently of the state in which they reside.  In 1998, the U.S. Supreme Court upheld a lower court that ruled in favor of the Pueblo.  Since that victory, dozens more tribes have followed the Isleta's lead in a rush to protect their water from off-reservation polluters.  This avalanche of regulatory freelancing by the tribes is viewed somewhat dimly by state governments, developers, city planners, and mining-industry lobbyists.