CHAPTER 1 EMERGENCE OF A NATIONAL INDIAN POLICY: PARENS PATRIAE AND INDIAN TRIBAL SOVEREIGNTY

• Jurisdiction: United States

Mineral Development On Indian Lands
(Feb 1989)
CHAPTER 1
EMERGENCE OF A NATIONAL INDIAN POLICY: PARENS PATRIAE AND INDIAN TRIBAL SOVEREIGNTY
Robert A. Williams, Jr.
Professor of Law, University of Arizona Member, Lumbee Indian Tribe of North Carolina
Tucson, Arizona

...Let me tell you just a little something about the American Indian in our land. We have provided millions of acres of land for what are called preservations — or the reservations, I should say.

They, from the beginning, announced that they wanted to maintain their way of life, as they had always lived there in the desert and the plains and so forth. And we set up these reservations so they could, and have a Bureau of Indian Affairs to help take care of them.

At the same time, we provide education for them — schools on the reservations. And they're free also to leave the reservations and be American citizens among the rest of us, and many do.

Some still prefer, however, that way of life — that early way of life. And we've done everything we can to meet their demands as to what they — how they want to live.

Maybe we made a mistake. Maybe we should not have humored them in that, wanting to stay in that kind of primitive lifestyle. Maybe we should have said, "No, come join us. Be citizens along with the rest of us."

As I say, many have. Many have been very successful...

And you'd be surprised, some of them became very wealthy because some of those reservations were overlaying great pools of oil. And you can get very rich pumping oil.

And so I don't know what their complaint might be.

Ronald Reagan in Moscow, June 1, 1988¹

[Page 1-2]

I. Introduction

Ignorance and myth not only dominate popular perceptions of American tribal Indians and their historical relationships with the United States federal government. The United States' Indian law is also dominated by convenient distortions of history and unexamined prejudices and assumptions. Earlier generations of European-descended Americans believed that tribal savages were incapable of exercising fundamental human rights of self-determination according to the values of white civilization. Today their cultural biases and racial prejudices are preserved in a national mythology sustaining the white man's continuing assumption that he knows what is best for Indian people. And that national mythology, not surprisingly, finds itself clearly reflected in the foundational doctrines of the United States federal Indian law.²

In Part I of this Article, I trace the historical descent of the mythology sustaining the Congressional plenary power and trust doctrines of modern federal Indian law. My primary intent in this part of the Article is to illustrate the historical use of those central doctrines of modern federal Indian law as instruments of destruction of tribal self-determination and dispossession of tribal land and natural resources. Throughout this part of the Article, I will refer to the mythology sustaining the legitimacy of these legal doctrines of tribal destruction and dispossession as based on a belief that the federal government exercises parens patriae authority in Indian affairs.

The term parens patriae originates in the English common law and refers traditionally to the role of the state as sovereign and guardian of persons under legal disability. As delineated in numerous decisions of the modern Supreme Court, the joint operation of the plenary power and trust doctrines in federal Indian law vests the federal government with ultimate power and management responsibility over the lands and resources of American Indian tribes. This superior sovereign's guardian power over its Indian wards extends beyond mere control of the tribal trust corpus. It also extends to tribal nations' treaty-guaranteed rights of self-determining autonomy.³ As the Supreme Court has repeatedly emphasized in a number of its recent major Indian law decisions: "[A]ll aspects of Indian sovereignty are subject to defeasance by Congress."⁴ Thus, with its origins in the English Crown's prerogative power to protect persons with legal disabilities such as infants, idiots, and lunatics presumed incapable of managing their lives without a guardian's superintendence, the term parens patriae provides a convenient shorthand description of the underlying conceptual foundation sustaining the Congressional plenary power and trust doctrines in modern federal Indian law. As I will argue in Part I of this Article, the historical reality of the plenary power and trust doctrines's operation in federal Indian law illuminates the

[Page 1-3]

speciousness of the myth that the federal government can exercise a disinterested and uncompromised parens patriae authority in Indian affairs.

In Part II of this Article, I briefly describe the emergence in modern federal Indian law of a resurgent legal discourse of tribal self-determination. This discourse asserts a direct challenge to the dominant mythology of federal parens patriae authority in federal Indian law sustaining the federal plenary power and trust doctrines.

In the conclusion to this Article, I suggest several fundamental rearticulations of national Indian policy that respond to contemporary American Indian tribalism's resurgent discourse of tribal self-determination. These suggested changes in national Indian policy would definitively renounce the cultural biases and racial prejudices reflected in the foundational doctrines of modern United States federal Indian law. This long-overdue renunciation of the mythology of the federal government's parens patriae authority over Indian Nations would mean that the white man would no longer have to humor himself into believing that he acts in Indian peoples' best interest in denying them fundamental human rights of self-determination over their lands and natural resources.

Part I. THE MYTHOLOGY OF PARENS PATRIAE IN MODERN FEDERAL INDIAN LAW DISCOURSE

A. The Burdens of History

Modern federal Indian law discourse is dominated by a mythological legal narrative that the federal government, since the earliest days of the Republic, has possessed and exercised exclusive power and a benignly-administered guardian's control over Indian tribes, their land, and their resources. In several recent cases, the United States Supreme Court has interpreted this mythology of the national government's self-assumed role of superior sovereign and guardian over its incompetent Indian wards to mean that "all aspects of Indian sovereignty are subject to defeasance by Congress."⁵ In other words, as interpreted by the present-day Supreme Court, federal Indian law grants Congress the plenary power to interpret its trust responsibility in Indian affairs in any way it pleases with regard to defining, confining, or even exterminating the fundamental human right of self-determination for Indian tribal peoples.⁶

Only the power of long-held and revered myths could sustain such authority. The mythology sustaining modern federal Indian law descends from European medieval and Renaissance era legal theories and discourses on the superior, divinely-mandated rights of civilized, European Christian nations to dispossess and assume a guardian's responsibilities over savage and "barbarous" tribal peoples.⁷ It was the awesome

[Page 1-4]

power of this myth which led Europeans to believe that the pope could divide the western hemisphere into spheres of colonial privilege for Spain and Portugal,⁸ and that King James I of England could grant the Virginia Company "a colony...in America...not now actually possessed by any Christian Prince or People" in order to bring "the Infidels and Savages, living in those Parts, to human Civility, and to a settled and quiet Government."⁹ It was this same myth, modernized by Europe's nineteenth century colonial powers, which inspired the 1884-1885 Berlin Africa Conference to declare the "civilized" world's obligation "to watch over the preservation of the native tribes, and to care for the improvement of the condition of their moral and material well-being."¹⁰

In the United States, modern federal Indian law discourse translates this ancient myth of the West's superior authority and guardianship duties over tribal peoples as the foundation of the federal government's plenary power and trust responsibility over Indian tribes and their lands. The myth, as revealed in the Supreme Court's Indian law jurisprudence, assumes the existence of a detached and wise Congress legislating with little fear of judicial interference in Indian affairs, and acting upon principles of humanity and disinterested, uncompromised concern for the tribal Indian's welfare and resource base. An earlier school of European-derived racist, imperial discourse nobly referred to these types of assumptions as the White Man's Burden.¹¹ Peoples of color around the world who have carried the weight of these assumptions ironically have called such noble ideas much the same thing.

History, however, even a conqueror's history, carries its own burdens. A detached historical examination of the reality behind the myth of a benignly administered federal parens patriae power over Indian Nations reveals that national Indian policy has rarely reflected principles of humanity or a disinterested, uncompromised concern for the tribal Indian's welfare or resource base. Instead, the mythology sustaining the doctrines of federal plenary power and trust responsibly in Indian affairs has permitted tribal Indians' fundamental human rights of self-determining autonomy to be manipulated in the grossest fashion by state and partisan interests (most usually large, resource-consuming industrial interests). These parochial interests, most usually firmly committed to dispossessing tribal Indians of their self-governing rights, and land and resources, have historically experienced little difficulty in capturing the political processes by which national Indian policy has been defined and...