CHAPTER 3 GOVERNMENTAL POWER IN AND AROUND INDIAN COUNTRY: An Essay Containing Both a Primer for Newcomers and Some Suggestions For Reform-Minded Oldtimers

JurisdictionUnited States
Mineral Development On Indian Lands
(Feb 1989)

GOVERNMENTAL POWER IN AND AROUND INDIAN COUNTRY: An Essay Containing Both a Primer for Newcomers and Some Suggestions For Reform-Minded Oldtimers

Robert Laurence *
University of Arkansas School of Law
Fayetteville, Arkansas


This paper is prepared for presentation to the Institute on Mineral Development on Indian Lands, co-sponsored by the Rocky Mountain Mineral Law Foundation and the American Bar Association's Committee on Native American Natural Resources Law. The readership, I am told, is likely to be a diverse group made up of both lawyers and non-lawyers, some of whom are new to the field of American Indian law and some of whom are more expert than I. A paper addressed to such a group is a difficult one to prepare. At the risk of pleasing no one, I have written below to try to please everyone. The "Primer" begins from first principles and lays the groundwork of Indian country jurisdiction for the uninitiated. Interspersed and summarized at the end is a more advanced discussion, attempting a sophisticated analysis of a few of the most debated issues in the field and making recommendations for change. With any luck, the resulting conglomeration will serve the needs, in part, at least, of most participants in the Institute.

The Primer

A. Initial Observations.

Governmental authority in Indian country is tri-lateral. The tribe, the federal government, even the state in which the reservation lies: these all have a role to play in the governance of the land, the people who live on the land and the people who do business or pass through the land. We Americans, of course, are comfortable with the notion of the over-lapping jurisdictions that federalism requires; Indian country presents, then, a problem different in degree, not in kind, from non-Indian country, at least at this elementary level.

Those seeking a guiding principle — a rule of thumb — are in luck. While there are many complex and sometimes contradictory exceptions, we may begin here: in parcelling out the aspects of jurisdiction to the three governments involved, Congress gets to decide who gets what. The Constitution gives to Congress the authority to "regulate Commerce with the Indian

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Tribes",1 and this clause has come to be read quite broadly to the advantage of the Washingtonians and to the inconvenience and detriment of both state and tribal governing bodies.

Once again, to lawyers more familiar with non-Indian than Indian law, this result rings true. At least to those of us trained after the civil rights legislation of the '60s, and probably even to those trained since the Depression, the more-familiar Interstate Commerce Clause has come to mean a grant of power to Congress, substantially unfettered as to subject matter, to regulate the Nation's internal affairs. Ask Ollie's Barbecue.2

When Congress acts pursuant to the Indian Commerce Clause, those enactments trump conflicting state jurisdiction, under the Supremacy Clause.3 As discussed below, they also work limitations on tribal jurisdiction; here it is more difficult to explain why, but it is clear that that is the result. So, we begin here: when it comes to Indian country jurisdiction, Congress gets to decide.

I will add here a few words on the definition of "Indian Country" before turning to the details of the three sides of the jurisdictional triad. Congress has defined the phrase "Indian Country" for the purposes of the federal criminal law in Title 18 of the United States Code.4 The Supreme Court uses that definition even in civil contexts and, while there has been some resistance below, so do most state courts.5

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The easiest case under that definition is that all land lying within a reservation is Indian Country. It is unimportant in exactly whom title lies, or whether the land has ever been allotted, or whether an easement (for a highway, for instance, or a railroad) has been granted, or whether the reservation was created by treaty or executive order. All land lying within the boundary of an Indian reservation is "Indian Country" to which the jurisdictional rules set out below apply.6 We may begin, then, with tribal jurisdiction as it exists in Indian country, and the limitations upon it.7

B. Tribal Jurisdiction.

I begin with tribal jurisdiction because they were here first. As Justice Thurgood Marshall has noted, in the landmark case of McClanahan v. Arizona State Tax Commission,8 tribal claims to and exercise of power over North American land and people far predates that of the government of the United States.9

1. The Principle of Inherent Sovereignty.

"Perhaps the most basic principle of all Indian Law," wrote Felix Cohen in his monumental treatise on the subject, "is the principle that those powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished."10

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Even as it is a basic principle of federal Indian law that tribes retain important aspects of inherent sovereignty, it is a basic fact of North American life that tribes do not share the full sovereignty of the nations of the world. The native nationhood of pre-Columbian days has eroded over the years in reaction to what the Supreme Court calls "the familiar forces" of European westward advancement.11 According to the famous formulation of Oliphant v. Suquamish Indian Tribe,12 diminishments of tribal sovereignty can come about in three ways: (1) voluntary surrenders by the Indians, (2) unilateral Congressional action in derogation of tribal power and (3) implied surrenders of powers "inconsistent with their status".13 I will discuss each, briefly, in turn.

2. Voluntary Surrenders

Not uncommonly in the early days and up through mid-last-century, the tribes would voluntarily surrender some of their sovereignty to the United States. This ordinarily was done in the context of treaty-making, and the surrenders were in exchange for bargained-for promises by the United States. Such surrenders are theoretically unobjectionable, with the usual caveats that we will conclude only with some reluctance that such an important thing as sovereignty would ever be given up,14 that the word "voluntary" in white-Indian negotiations can be put to a very strained meaning15 and that this first occasion for diminishment

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of sovereignty should only apply when the whites were acting in perfect good faith, as they rarely were.16

3. Unilateral Diminishments by Federal Action

As I will mention below, the existence of the power in the United States unilaterally to diminish the sovereign power of governments more ancient than itself is historically, jurisprudentially and theoretically problematic. The fact that such power exists, though, is, in my view, not nearly so problematic, and is unquestioned by the Supreme Court.17 It is a power whose existence is much more debated by law professors than by lawyers, more often in law reviews than in court. I will leave that debate unaddressed here.

It is a different matter, though, and of practical importance, whether the exercise of that power is unfettered. In my view, the answer to that question must be clear: the government of the United States does nothing unfettered. The Bill of Rights imposes substantial restrictions on the dealings of the United States with American Indians. Even while admitting that those Amendments have not always meant to Indians what they have to other Americans, it should be clear that Indians are entitled as much freedom of speech and religion, as much due process and equal protection as anyone.

What, though, of governmental acts that do not restrict individual activity, but which diminish tribes qua tribes, rather than Indians as individuals? Does the Bill of Rights protect tribal sovereignty? Professor Newton has argued persuasively that it does, but even she admits that Supreme Court case law subjects diminishments of sovereignty to a level of scrutiny more invisible than minimal.18

This question is of more than passing interest. It was not long ago, as such things are measured, that we all suffered through President Eisenhower's "Termination Period", when the United States was set on the course of destroying Indian tribes, converting them into state-chartered corporate entities, all in

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the name of some mythic "melting pot".19 Happily, President Nixon set us right, and with the support of Congress and the Courts, reaffirmed the recognition of tribal sovereignty as national policy.20 And every president since — with a short lapse by President Reagan at the 1988 Moscow summit — has followed Nixon's lead. Still, only the truly optimistic are sure that no second Termination Period lies ahead. In such a battle between tribal advocates and those who are not fans of tribal sovereignty, Professor Newton's constitutional theory stands as a barrier to the disappearance of tribes as we know them.

4. "Inconsistent with Their Status" Implied Surrenders

The objection that tribal advocates have to exercises of federal plenary power which result in diminishments of tribal sovereignty pales in comparison to the reception that Oliphant v. Suquamish Indian Tribe21 and Montana v. United States22 receive. Those cases, and their lower court cousins, hold that tribes are impliedly divested of those aspects of sovereignty that are "inconsistent with their status".23 Here is an exception to the general principle given above that Congress decides questions of Indian country jurisdiction, for the "inconsistent with their status" inquiry comes from judge-made common law and not from any statute, treaty or other congressional action.24

It is easy enough to give examples of what kinds of things are inconsistent with the status of Indian tribes. These are the holdings of the...

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