A common law for our age of colonialism: the judicial divestiture of Indian tribal authority over nonmembers.

AuthorFrickey, Philip P.
  1. INTRODUCTION

    Surely Oliver Wendell Holmes, Jr. gave federal Indian law no thought when he wrote that "experience" --including "[t]he felt necessities of the time" and "even the prejudices which judges share with their fellowmen"--contributes more "than the syllogism" to the development of judge-made law.(1) Nor was federal Indian law on his mind when he contrasted an "ideal system of law" based on "science" with the one he inhabited, in which "tradition, or vague sentiment" produced doctrines that were "accidental relics of early notions."(2) Yet his aphoristic analysis strikingly resonates with both sides in a key dispute of federal Indian law--whether a tribe may regulate all persons within the historical boundary of its reservation--that has produced both incoherent Supreme Court precedents and incandescent controversies in the lives of the people subject to them. Consider an example.

    Located in rural South Dakota, the Cheyenne River Sioux Reservation may seem far removed from the great legal controversies of our day. Yet, in less than a decade, it was the setting for two important cases concerning contemporary tribal authority. In the first, Solem v. Bartlett,(3) the Supreme Court held that reservation borders specified in a nineteenth-century treaty survived the later enactment of a federal statute that opened the reservation for non-Indian homesteading and that has resulted in a significant non-Indian population there. The Court concluded:

    When both [the statute] and its legislative history fail to provide substantial and compelling evidence of a congressional intention to diminish Indian lands, we are bound by our traditional solicitude for the Indian tribes to rule that diminishment did not take place and that the old reservation boundaries survived the opening.(4) As a result, the tribe has potentially significant authority over non-Indian reservation landowners.(5) At least some of these non-Indians feel betrayed. In their view, Solem ignored their reasonable expectations and those of their predecessors that non-Indian lands were outside the reservation. They complain of being subject to a sovereign in which they have no say, a sort of "taxation without representation" foreign to America.(6) They could invoke Holmes to contend that "tradition, or vague sentiment" --what the Court in Solem called its "traditional solicitude for the Indian tribes"--has produced an "accidental relic" of tribal sovereignty inconsistent both with longstanding congressional and private expectations and with fundamental fairness.

    In the second case, South Dakota v. Bourland,(7) the Court held that the tribe could not regulate non-Indian hunting and fishing in an area where Congress had taken reservation land to build a dam, reservoir, and public recreation area. Even though the land remained within reservation boundaries, the Court concluded that, "when Congress has broadly opened up such land to non-Indians, the effect of the transfer is the destruction of preexisting Indian rights to regulatory control."(8)

    Bourland and Solem fit together awkwardly in both law and life. Doctrinally, the focus in Bourland on the effect of the congressional alienation of Indian land seems inconsistent with Solem, where the reservation remained intact despite the congressional alienation of Indian land because no clear congressional intent to diminish tribal authority had been shown. As a practical matter, Bourland probably antagonizes tribal members as much as Solem angers non-Indian reservation residents. Because of Bourland, the tribe lacks integrated regulatory authority over its territory. Tribal leaders, too, could invoke Holmes in contending that tribal sovereignty, long recognized by the Supreme Court, was displaced by a one-sided perception of non-Indian "felt necessities" to be free from tribal authority that are rooted in the "prejudices which judges share with their fellow-men [and women]."

    The controversy at Cheyenne River is contemporary federal Indian law in microcosm. What the Supreme Court said long ago remains true today: The relation of Indian tribes to the broader American system "has always been an anomalous one and of a complex character."(9) The Constitution does not clearly delineate the relationship among tribes, the federal government, and the states.(10) It is unsurprising, then, that the task of rationalizing the field has largely fallen to the Supreme Court. Given the lack of guidance in positive law, the complexity of the issues, and the tangled normative questions surrounding the colonial displacement of indigenous peoples to construct a constitutional democracy, it is also not surprising that the resulting decisional law is as incoherent as it is complicated.(11)

    As the Cheyenne River cases indicate, one of the most vexing clusters of questions involves the geographical extent of reservations containing many non-Indians and the authority of tribes to regulate nonmembers found in "Indian country."(12) Over the past four decades, the Supreme Court has decided six cases concerning reservation boundaries in addition to Solem.(13) Although the cases purport to follow Solem's injunction that only clear congressional intent may work a reduction in reservation size, Part III demonstrates that their results cannot be squared with that standard. As Part IV documents, over the same period the Court has decided the remarkable number of fourteen cases involving tribal criminal, civil, and judicial authority over nonmembers found on reservations.(14) Tribes prevailed in two seemingly easy cases--considering whether Congress could authorize tribal civil regulation of nonmembers(15) and whether a tribe could tax the sale of a product to a nonmember(16)-- as well as in three more controversial settings.(17)

    Three other cases reached peculiar compromises.(18) The other six decisions diminished the tribal capacity to deal with nonmembers who fail to comply with reservation law. Are these opinions defeats for legitimate tribal authority, a kind of ongoing judicial colonization in Indian country? Or do they reflect a proper respect for the civil rights of American citizens who, because they cannot participate in tribal government or serve on tribal juries and are not members of the ethnic group exercising sovereign authority, lack the actual and virtual representation that provides the customary nonjudicial protection from governmental abuse in the United States?(19) Moreover, whatever might be the appropriate normative conclusions about these decisions, do they fit together into a conceptual whole or disaggregate into incoherence?

    This Article examines the concept of tribal sovereignty that was originally developed by the Supreme Court and that has evolved as the result of clashes with the interests of nonmembers. Part II traces the traditional model of tribal authority, which at least implicitly assumed that tribes have geographical sovereignty over their reservations and all persons found there. In recent years, the Supreme Court has undercut this understanding in two fundamental ways. As Part III demonstrates, the Court has sometimes reduced tribal geographical sovereignty by diminishing reservation boundaries to free largely non-Indian areas from tribal control. As Part IV documents, the Court has also substantially undermined tribal authority even within acknowledged reservation borders by concluding that tribes have no criminal, and only limited civil, jurisdiction over nonmembers found there.(20)

    On the surface, the analysis in Parts III and IV seems to reveal an incoherence between the outcomes of these decisions and their purported doctrinal underpinnings. Part V suggests, however, that an unstated assumption underlies all of them: Tribal sovereignty over non-Indian areas and tribal authority to regulate significant nonmember interests are inconsistent with what the Supreme Court presumes to be the wishes of Congress. Because in these cases the congressional intent is unstated, however, the outcomes turn on judicial presumptions, rather than legislative resolutions, concerning the question whether tribes are sovereigns or merely membership organizations. Thus, it is the Court, not Congress, that has exercised front-line responsibility for the vast erosion of tribal sovereignty. The coherence that underlies the doctrinal confusion in the cases is a strong, albeit largely unarticulated and undefended, judicial aversion to basic claims of tribal authority over nonmembers that is implicitly projected upon Congress as well.

    That the Court has exercised this extraordinary authority in an area in which Congress has long operated with plenary power(21) supports the disturbing conclusion that the Court has assumed a legislative function--that of implementing the ongoing colonial process.(22) Part V suggests that the Court has done so by flattening federal Indian law into the broader American public law by importing general constitutional and subconstitutional values into the field. The Court has undertaken this task without congressional guidance. A half-millennium after the colonial process began, in our time of great skepticism concerning colonization,(23) our least democratic branch has become our most enthusiastic colonial agent.

    The primary purpose of this Article is to engage in a wide-ranging and open-minded exploration of the contemporary Supreme Court's consideration of tribal sovereignty. I have attempted to be generous to the Court in searching for descriptive coherence and normative support for its work, even when that leads to conclusions inconsistent with my views supporting tribal sovereignty. In doing so, I articulate a variety of possible coherentist interpretations of the decisional law. This speculative and polite search for coherence should not be confused with either doctrinal reality or normative attractiveness. Indeed, as I shall explain, my speculations riot only have descriptive...

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