Tribal-state affairs: American states as 'disclaiming' sovereigns

Publius: The Journal of Federalism

Volumn 28, Issue 4, 1998, Pages 55-81

  Wilkins, David E ^a  

^a UNIVERSITY OF ARIZONA   (United States)

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[No Author keywords available]

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EID: 0032252506     PISSN: 00485950     EISSN: None     Source Type: Journal    
DOI: 10.1093/oxfordjournals.pubjof.a030001     Document Type: Article

References (129)

1. 272 F. 2d 131 (1959).
2. Broadly, it is country within which Indian laws and customs and federal laws relating to Indians are generally applicable. It is also defined as all the land under the supervision and protection of the United States government that has been set aside primarily for the use of Indians. This includes all Indian reservations and any other area under federal jurisdiction and designated for Indian use (Title 18, U.S. Code, Section 1151).
3. Tribes, as preexisting polities, exercise a number of political and legal powers that only sovereigns may wield, such as the power to adopt a form of government; to define the conditions of tribal citizenship/membership; to regulate the domestic relations of the tribe's citizens/members; to prescribe rules of inheritance with respect to all personal property; to levy dues, fees, or taxes on tribal citizens and non-Indian residents; and to administer justice. For details, see the Solicitor's Opinion, "Powers of Indian Tribes," Opinions of the Solicitor, 25 October 1934, 55 I.D. 14, vol. 1 (Washington, D.C.: U.S. Department of the Interior, 1974), pp. 445-477.
4. The "trust doctrine" or "trust responsibility," as defined by the U.S. Supreme Court in Seminole v. United States, holds that there is a "distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited peoples. In carrying out its treaty obligations with the Indian tribes, the Government is something more than a mere contracting party. Under a humane and self-imposed policy which has found expression in many acts of the Congress, and numerous decisions of this Court, it has charged itself with moral obligations of the highest responsibility and trust. Its conduct, as disclosed in the acts of those who represent it in dealings with the Indians, should therefore be judged by the most exacting fiduciary standards, 316 U.S. 286, 296-297 (1942).
5. See, Worcester v. Georgia, 31 U.S. 515, 559 (1832).
6. Constitutions of the United States: National and State: Alaska (Dobbs Ferry, NY: Oceana Publications, 1993), p. 75.
7. United States v. Ewing, 47 Fed. 809, 813 (1891), emphasis added.
8. The U.S. Supreme Court, Parker v. Richard, 250 U.S. 235 (1919), held as much when it determined that state courts act practically as a federal agency when the Congress delegates authority for them to act regarding Indian oil and gas royalties. "That the agency which is to approve or not is a state court is not material. It is the agency selected by the Congress and the authority confided to it is to be exercised in giving effect to the will of the Congress in respect of a matter within its control. Thus in a practical sense the court in exercising that authority acts as a federal agency.... Plainly, the restrictions have the same force and operate in the same way as if Congress had selected another agency, exclusively federal, such as the Superintendent of the Five Civilized Tribes" (p. 239).
9. Office of the President, Executive Order 13084, "Consultation and Coordination with Indian Tribal Governments," Weekly Compilation of Presidential Documents, 18 May 1998, vol. 34, no. 20, p. 869.
10. 5 Wall. 787 (1867).
11. See, for example, Heidi L. McNeil, "Indian Gaming: Prosperity and Controversy," American Indian Relationships in a Modern Arizona Economy, ed. Malcolm Merrill (Phoenix, AZ: Arizona Town Hall, 1994), pp. 105-121.
12. See, for example, Francis Paul Prucha, ed., Americanizing the American Indians: Writings by the 'Friends of the Indian:' 1880-1900 (Lincoln: University of Nebraska Press, 1973); Frederick E. Hoxie, A Final Promise: The Campaign to Assimilate the Indians, 1880-1920 (New York: Cambridge University Press, 1984).
13. See, for example, Francis Paul Prucha, ed., Americanizing the American Indians: Writings by the 'Friends of the Indian:' 1880-1900 (Lincoln: University of Nebraska Press, 1973); Frederick E. Hoxie, A Final Promise: The Campaign to Assimilate the Indians, 1880-1920 (New York: Cambridge University Press, 1984).
14. See Jill Norgren, The Cherokee Cases: The Confrontation of Law and Politics (New York: McGraw-Hill, 1996).
15. See Peter S. Onuf, Statehood and Union: A History of the Northwest Ordinance (Bloomington: Indiana University Press, 1987); Daniel J. Elazar, ed., "Land and Liberty in American Society: The Land Ordinance of 1785 and the Northwest Ordinance of 1787," Publius: The Journal of Federalism 18 (Fall 1988): entire issue.
16. See Peter S. Onuf, Statehood and Union: A History of the Northwest Ordinance (Bloomington: Indiana University Press, 1987); Daniel J. Elazar, ed., "Land and Liberty in American Society: The Land Ordinance of 1785 and the Northwest Ordinance of 1787," Publius: The Journal of Federalism 18 (Fall 1988): entire issue.
17. Paul W. Gates, History of Public Land Law Development (Washington, D.C.: Government Printing Office, 1968), p. 72.
18. Robert N. Clinton, Nell Jessup Newton, and Monroe E. Price, American Indian Law: Cases and Materials, 3rd ed. (Charlottesville, VA: Michie, 1991), pp. 500-501.
19. Arizona v. San Carlos Apache Tribe of Arizona, 463 U.S. 545, 562 (1983).
20. 104 U.S. 621 (1881).
21. Carole Goldberg-Ambrose, "Public Law 280: The Limits of State Jurisdiction Over Reservation Indians," UCLA Law Review 22 (October 1974): 570.
22. Ibid.
23. 27 Fed. Cas. No. 16, 373 (1868).
24. Ibid., 1289.
25. 7 Stat. 311-15.
26. Ibid., 311.
27. Ibid., 355.
28. 10 Stat. 979.
29. U.S. Congress, House, Committee on Territories, Admission of Dakota, Montana, Washington, and New Mexico into the Union, 50th Cong., 1st sess., 1888.
30. U.S. Government Printing Office, "Temporary Government for the Territory of Dakota," The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies, ed. Francis N. Thorpe, vol. 5 (Washington, D.C.: Government Printing Office, 1909), pp. 28-46.
31. U.S. House, Admission of Dakota, p. 24.
32. Maxwell Carr-Howard, "Tribal-State Relations: Time for Constitutional Stature?" New Mexico Law Review 26 (Spring 1996): 294-295.
33. Michael Lieder, "Adjudication of Indian Water Rights Under the McCarran Amendment: Two Courts are Better Than One," Georgetown Law Journal 71 (February 1983): 1031.
34. Glen E. Davies, "State Taxation on Indian Reservations," Utah Law Review (July 1966): 137.
35. 72 U.S. (5 Wall.) 737 (1866).
36. Ibid., 755-757.
37. United States v. Ewing, 47 Fed. 809, 813 (1891).
38. 231 U.S. 28 (1913).
39. 411 U.S. 164 (1973).
40. Ibid., 175.
41. Ibid.
42. Earl S. Pomeroy, The Territories and the United States: 1861-1890 (Philadelphia: University of Pennsylvania Press, 1947).
43. Thorpe, Federal and State Constitutions, p. 2986.
44. Article 1, sec. 2, clause 3; Fourteenth Amendment, sec. 2.
45. 5 Stat. 10.
46. Ibid., 11.
47. Thorpe, The Federal and State Constitutions, vol. 2, 1112.
48. 9 Stat. 323.
49. Thorpe, The Federal and State Constitutions, vol. 7, 3963.
50. 10 Stat. 277.
51. Ibid., 277-278.
52. Thorpe, The Federal and State Constitutions, vol. 7, 4106.
53. See, for example, Grant Foreman, The Five Civilized Tribes (Norman, OK: University of Oklahoma Press, 1934); Angie Debo, And Still the Waters Run: The Betrayal of the Five Civilized Tribes (Princeton, NJ: Princeton University Press, 1940).
54. See, for example, Grant Foreman, The Five Civilized Tribes (Norman, OK: University of Oklahoma Press, 1934); Angie Debo, And Still the Waters Run: The Betrayal of the Five Civilized Tribes (Princeton, NJ: Princeton University Press, 1940).
55. 4 Stat. 729.
56. Thorpe, The Federal and State Constitutions, vol. 5, 2940.
57. 26 F. Sup. 270 (1939).
58. Ibid., 275.
59. Gates, History of Public Land Law, 289.
60. Clyde A. Milner II et al., eds., The Oxford History of the American West (New York: Oxford University Press, 1994), p. 184.
61. Felix S. Cohen, Handbook of Federal Indian Law, ed. Rennard Strickland, et al., revised ed. (Charlottesville, VA: Michie, Bobbs-Merrill, 1982), p. 268.
62. 12 Stat. 126-127.
63. Lieder, "Adjudication of Indian Water Rights," 1032-1033.
64. 16 Stat. 544.
65. 70 U.S. (11 Wall.) 116 (1871).
66. Davies, "State Taxation on Indian Reservations," 136.
67. 104 U.S. 621.
68. Lieder, "Adjudication of Indian Water Rights," 1033.
69. Davies, "State Taxation on Indian Reservations," 137.
70. Lieder, "Adjudication of Indian Water Rights," 1033.
71. 25 Stat. 676.
72. Ibid., 677.
73. 34 Stat. 267-268.
74. 36 Stat. 557.
75. Ibid., 559.
76. G. Alan Tarr, ed., Constitutional Politics in the States: Contemporary Controversies and Historical Patterns (Westport, CT: Greenwood Press, 1996), p. xiv.
77. Constitutions of the United States, National and State, Montana, 1995 (Dobbs Ferry, NY: Oceana Publications, December 1995), p. 1.
78. Ibid., March 1995, 36.
79. Ibid., January 1994, 40-41.
80. Ibid., 41.
81. 104 U.S. 621 (1881).
82. 116 U.S. 28 (1885).
83. 12 Stat. 808.
84. 67 Stat. 588.
85. Goldberg-Ambrose, "Public Law 280," 563.
86. 67 Stat. 588.
87. Schwartz, "State Disclaimers of Jurisdiction," 188.
88. See, for example, "Public Law 280," p. 538; Carole Goldberg-Ambrose, Planting Tail Feather: Tribal Survival and Public Law 280 (Los Angeles, CA: American Indian Studies Center, 1997).
89. See, for example, "Public Law 280," p. 538; Carole Goldberg-Ambrose, Planting Tail Feather: Tribal Survival and Public Law 280 (Los Angeles, CA: American Indian Studies Center, 1997).
90. This crucial dimension was changed with amendments to the act in 1968, the Indian Civil Rights Act (ICRA) (82 Stat. 77). One of the ICRA's provisions is that future assertions of state jurisdiction under P.L. 280 will require Indian consent. States can also return jurisdiction to the federal government if they desire.
91. U.S. Congress, Senate, Committee on Interior and Insular Affairs, Conferring Jurisdiction on the States of California, Minnesota, Nebraska, Oregon, and Wisconsin, With Respect to Criminal Offenses and Civil Cases and Action Committed or Arising on Indian Reservations Within Such States, 83rd Cong., 1st sess., 1953, S. Rep. 699, p. 7.
92. Ibid., 6.
93. Goldberg-Ambrose, "Public Law 280," 569.
94. Golberg-Ambrose, "Public Law 280," 569-570.
95. See, for example, Organized Village of Kake v. Egan, 369 U.S. 60 (1961).
96. See, for example, Worcester v. Georgia, 582, where Chief Justice John Marshall said that "the language used in treaties with the Indians should never be construed to their prejudice...How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction."
97. Goldberg-Ambrose, "Public Law 280," 573.
98. 369 U.S. 60 (1961).
99. Ibid., 69.
100. Ibid.
101. Schwartz, "State Disclaimers," 187-190; Goldberg-Ambrose, "Public Law 280," 571-573.
102. Schwartz, "State Disclaimers," 187-190; Goldberg-Ambrose, "Public Law 280," 571-573.
103. Goldberg-Ambrose, "Public Law 280," 571.
104. Ibid.
105. Ibid.
106. Schwartz, "State Disclaimers," 187-188, says that Ralph Barney, then chief of the Indian Claims Branch of the Justice Department and the author of Alaska's enabling act disclaimer, testified during Senate hearings that the disclaimer was meant to preserve the federal government's police power over Alaskan natives on reservations. This testimony seems contrary to the view expressed in Kake that the disclaimer limited only the state's "proprietary" interest in indigenous lands.
107. Ibid., 188-189.
108. 400 U.S. 423 (1971).
109. 411 U.S. 164 (1973).
110. Worcester v. Georgia, 515.
111. See, for example, Catton 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. Yakima Indian Nation, 502 U.S. 251 (1992).
112. 102 Stat. 2475.
113. 188 U.S. 432 (1903).
114. Ibid., 441.
115. 208 U.S. 340 (1907).
116. 215 U.S. 291 (1909).
117. 290 U.S. 357 (1933).
118. Ibid., 365.
119. 261 P. 2d 135 (1953).
120. Ibid., 138.
121. 90 NM 203 (1977).
122. Ibid., 206.
123. The Navajo Nation, for example, in 1994, worked out such an accord with the governors of Arizona, New Mexico, and Utah. The idea behind the accord, according to the Navajo president, Peterson Zah, "is that since we must coexist as neighbors we must recognize the sovereignty of one another in order to effectively meet the needs of our common constituents and resolve our common problems." (Author has copy of accord and Zah's memorandum describing the policy.)
124. See, for example, The Kansas Indians, 72 U.S. (5 Wall.) 737 (1867); Ex parte Crow Dog, 109 U.S. 556 (1883); Elk v. Wilkins, 112 U.S. 94 (1884); Talton v. Mayes, 163 U.S. 376 (1896); United States v. Wheeler, 435 U.S. 313 (1978); Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
125. See, for example, The Kansas Indians, 72 U.S. (5 Wall.) 737 (1867); Ex parte Crow Dog, 109 U.S. 556 (1883); Elk v. Wilkins, 112 U.S. 94 (1884); Talton v. Mayes, 163 U.S. 376 (1896); United States v. Wheeler, 435 U.S. 313 (1978); Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
126. See, for example, United States v. Kagama, 118 U.S. 375 (1886); Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
127. See, for example, 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, 502 U.S. 251 (1992); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); Strate v. A-I Contractors, 520 U.S. 438 (1997).
128. 102 Stat. 2475.
129. See, for example, County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 251; Cass County, Minnesota v. Leech Lake Band of Chippewa Indians, 118 S.Ct. 1904 (1998).