Tribal Sovereignty and the Constitution
In Law in American History, Vol. II, Professor White identifies three areas in which the Gilded Era Supreme Court claimed that the federal government enjoys plenary authority, based on an “extra-constitutional” font of inherent sovereignty: foreign affairs, immigration, and Indian affairs. I disputed the notion that the federal government has inherent powers not provided for in the constitution, because the Tenth Amendment specifically precludes such unenumerated federal powers. Inherent sovereign powers not expressly granted remain with We the People, or with the states.
But that doesn’t mean that these powers lack constitutional enumeration. Rather, we need to examine the constitution’s eighteenth century context to identify textual foundations that are not immediately apparent to our twenty-first century eyes.
Professor Ramsey argues counter-intuitively that the primary textual location of foreign affairs authority is Article II’s grant of executive power. And Professor Heeren, meanwhile, finds immigration authority in the constitution’s grant to Congress of power to regulate commerce with foreign nations. But what about the federal government’s asserted supremacy in dealing with native tribes and indigenous Americans?
First, we need some background, because Indian law is a truly unique, not to say weird, field of law. The foundations of federal Indian law were laid in the so-called Marshall Trilogy, a trifecta of cases penned by Chief Justice Marshall during the 1820s and 1830s.
The first of the Marshall Trilogy, Johnson & Graham’s Lessee v. McIntosh, involved a land dispute between parties, one of whom received the parcel in question from the Piankeshaw tribe, the other from the federal government. The court held for the government’s grantee, reasoning that under the “doctrine of discovery,” the federal government inherited legal title to lands conquered by Great Britain, while native tribes retained a mere “right of occupancy” in their ancestral homelands, which they could not convey to a third party.
In the second case, Cherokee Nation v. State of Georgia, the Cherokee Nation sought to invoke the Supreme Court’s original jurisdiction over disputes between states and foreign nations to enjoin Georgia’s attempt to strip its rights under state law. The court refused to hear the case, holding that native tribes were not foreign nations within the meaning of Article III, which provides for the court’s jurisdiction. Rather, the Cherokee Nation was a “dependent domestic nation” whose relationship to the federal government was that of a “ward to its guardian.”
But in the third of the trilogy, Worcester v. State of Georgia, Justice Marshall somewhat reversed course, overturning as unconstitutional a Georgia law prohibiting non-natives from entering native land without a state permit. Tribes did retain sovereignty vis-a-vis states, and only the federal government had authority to deal with them. Georgia law had no force or effect on tribal land.
In so holding, Marshall muddied his previous decisions, by adding that even the federal government was obliged to treat tribes “as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate.” Then-President Andrew Jackson is apocryphally credited with having commented of the decision that “John Marshall has made his decision; now let him enforce it.”
As the confusing reasoning of the Marshall Trilogy demonstrates, the status of native tribes under the constitution in the early years of the Republic was far from clear. Were they supposed to be canny foreign sovereigns negotiating at arms length with the federal government under international law, or were they domestic political entities, and indeed preferred ones at that, entitled to special consideration and protection by the federal government?
Throughout the Antebellum Period, the federal government dealt with tribes primarily through treaties, implying they were considered more like foreign nations. Naturally, the House of Representatives was dissatisfied with this states of affairs, because the House is constitutionally excluded from treaty-making. So, in an 1871 appropriations bill, the House inserted a gratuitous provision stating that
hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty.
An appropriations rider may seem like an odd way to extinguish the (increasingly nominal) autonomy of native peoples, but that single sentence ended federal treaty-making with tribes for good. From then on, Congress dealt with native Americans exclusively through unilateral legislation.
The problem was, if federal authority to regulate tribes was not based in the treaty power, where did it come from? In Lone Wolf v. Hitchcock, the Supreme Court drew on the doctrine of plenary sovereign power developed in the Chinese Exclusion Case to hold that Congress could abrogate the 1867 Medicine Lodge Treaty with the Kiowa-Comanche tribe, by selling its land without its consent.
Professor White comments:
The Court’s statement about Congress’s ‘plenary authority’ over the tribes was historically inaccurate, because the authority of the United States over tribal affairs had previously been conditioned on treaties, however one-sided they may have been. It was also a jurisprudential novelty, because it presupposed that federal power over tribes was extra-constitutional in nature and thus not subject to any constitutional restraints.
Thus the court’s lawlessness in upholding xenophobic immigration policies bolstered congruent lawlessness in its decisions denying the rights of indigenous peoples, all in the service of promoting the interests of white settlers.