Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-era Settlers

• Publication year: 2012

Washington Law ReviewVolume 36, No. 1, Fall 2012

Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers

Ann E. Tweedy(fn*)

"[T]he feeling [among non-Indians in the vicinity of the Cheyenne River Sioux Reservation] is that the Indian is fair game for anyone who can hit the mark . . . ."

-Superintendent Thomas J. King, March 25, 1912(fn1)

I. Introduction

During the allotment era, the federal government took land from tribes and parceled some of it out to individual tribal members, while, in most cases, selling off the remainder to non-Indian settlers. Those actions, which are properly understood as unconstitutional takings, have been reinforced through decades of Supreme Court precedent. Specifically, the Court has used the now repudiated federal allotment policy, which contemplated eventual abolition of tribal governments, to justify contemporary incursions on tribal jurisdictional authority as well as other limitations on tribal sovereign rights. In this way, the Court builds new injustices upon old ones.

This Article responds to this Supreme Court precedent with two main points. First, it shows that non-Indians at the time had notice that the allotment policy was unfair to tribes (and that they sometimes directly advocated for its injustices). From this information, I argue that non-Indian purchasers of tribal lands-and subsequent purchasers from them-should not be understood to have had justifiable expectations that the reservations would disappear and that they therefore could not be subject to tribal jurisdiction in the future. Second, I argue that the Supreme Court should stop using the troubled history of allotment, which it construes based on incomplete information and without taking account of tribal interests and perspectives, to justify further restrictions on tribal sovereignty. In the late 1800s, the federal government embarked on a program of taking communally held tribal lands and redistributing some of the taken lands to individual Indians to force Indians to espouse a white understanding of property rights. Remaining "surplus" reservation lands were usually sold off to whites.(fn2) This allotment of tribal lands was part of a broader scheme to assimilate Indians, the overarching goal of which was to "kill the Indian . . . and save the man."(fn3) Allotment was halted in 1934, but not before tribes had lost a total of 90 million of the 138 million acres they had held at the beginning of the allotment period.(fn4) The allotment process left affected reservations in complicated, checkerboard patterns of Indian and non-Indian ownership, which continue to interfere with effective governance of such reservations and to cause considerable jurisdictional confusion today. These difficulties are due, in large part, to the Supreme Court's reluctance to hold that tribes have jurisdiction over nonmembers, despite federal law to the contrary.(fn5) Moreover, as discussed below, the Supreme Court frequently invokes, both explicitly and implicitly, the justifiable expectations of non-Indian allotment-era purchasers regarding the disappearance of reservations to support its holdings denying tribal jurisdiction.(fn6)

While the Supreme Court routinely relies on the "justifiable expectations" of non-Indian purchasers to support rulings that are adverse to tribes,(fn7) the Court never uses historical sources to unearth the true substance of these expectations, nor does it explain why they were justifiable. These presumed expectations thus form a significant part of the Supreme Court's justification for impeding tribes from effectively governing their own reservations, and the Court's use of these expectations helps to maintain an atmosphere of lawlessness on reservations.(fn8)

My purpose in this Article is to question both the substance of these presumed expectations and their justifiability. I begin this questioning with a thorough analysis of previously unexamined historical newspaper articles concerning non-Indian settlement of Indian reservations during the allotment era. I then argue that, as reflected by the above quote from Superintendent King, most non-Indians during the allotment period cared little about whether Indians were treated justly. Furthermore, I argue that many non-Indians had notice that tribes were being unjustly deprived of their lands through the allotment process, and that some non-Indians even advocated for this very injustice to occur. Both notice of injustice and complicity in the government's unjust actions precluded non-Indian purchasers from forming justifiable expectations. This rigorous, context-specific look at non-Indian expectations suggests that, in sharp contrast to current Supreme Court practice, tribal jurisdiction over non-members should generally be upheld and Indian reservations should not generally be held to have been diminished or disestablished as a result of allotment.

In examining the history of allotment, I focus on one of the largest tribes, the Sioux Nation, which lost over 30 million acres in two early cessions to the federal government(fn9) and which continued to lose lands throughout the allotment period. I particularly concentrate on one of its constituent tribes, the Cheyenne River Sioux Tribe. As is its practice generally when deciding tribal jurisdiction and reservation diminishment cases, the Supreme Court has repeatedly analyzed and relied upon land cessions by constituent tribes of the Sioux Nation in determining whether individual Sioux reservations have been diminished and whether these tribes have jurisdiction over non-Indians on their reservations. And the Cheyenne River Sioux Tribe has been involved in more than its share of such cases.(fn10) Moreover, the three poorest counties in the United States today are home to Sioux reservations in South Dakota, and one of them comprises part of the Cheyenne Sioux Reservation.(fn11) Crime on several of these reservations is literally epidemic.(fn12) Both the widespread poverty on these reservations and their lawless character can be linked to the now repudiated allotment policy.(fn13)

Part II of this Article explains the substance of the General Allotment Act(fn14) (GAA) and the means by which the federal government implemented both the GAA and the broader federal allotment policy. Part III describes the Supreme Court's current use of the repudiated allotment policy, including reliance on non-Indian expectations, in deciding cases on tribal jurisdiction and reservation boundaries. Based largely on my own original historical research, Part IV first delineates the substance of non-Indian expectations during the allotment era-especially with regard to purchases of Sioux lands-and then assesses the justifiability of these expectations under several distinct tests. Finally, Part IV ultimately concludes that any non-Indian expectations that may have existed regarding the disappearance of reservations and the consequent foreclosure of any possibility of tribal jurisdiction were, most likely, not justifiable.

II. The General Allotment Act and Its Implementation

The allotment period of federal Indian policy lasted roughly from the 1880s through the 1920s,(fn15) and its centerpiece was the GAA.(fn16) Enacted in 1887, the GAA-also known as the Dawes Act-was an attempt to forcibly assimilate Indians by breaking up tribal land holdings and distributing allotments of the land to individual Indians.(fn17) The federal policy reflected in the GAA contemplated the eventual "transformation of Indian people into United States citizens with the corresponding disappearance of tribes and reservations."(fn18) Under the GAA, different amounts of acreage were distributed to individual Indians depending on family status and age, with larger amounts going to heads of household, smaller amounts going to single persons and orphans, and the smallest amounts going to non-orphaned minor children. (fn19) The GAA established congressional policy regarding allotment and specified a general procedure. That policy was then implemented by individual statutes that pertained to specific reservations.(fn20) The allotments were initially to be held in trust by the federal government for the benefit of the individual Indian owner for a period of twenty-five years, after which the Indian owner would hold the land in fee and be free to alienate it.(fn21) But the pressure to create opportunities for non-Indians to acquire tribal lands led to multiple legislative and administrative attacks on this trust period. These attacks were implemented at various points until allotment efforts were formally terminated, and the allotment policy repudiated, in 1934.(fn22)

Under the allotment policy, reservation lands that remained after individual Indians received their allotments were considered "surplus" lands and were, at least under initial plans, to be purchased from the tribes and then sold off to white settlers.(fn23) While the GAA itself provided for tribal consent for the government's purchase of surplus lands and its subsequent sale of them to non-Indian settlers, Congress soon became frustrated with tribes' refusals to sell surplus lands in some cases and their demands for high prices in others.(fn24) Accordingly, once the Supreme Court proclaimed Congress's right to unilaterally abrogate its treaties with Indian tribes in a now infamous 1903 case, Lone Wolf v. Hitchcock,(fn25) Congress began to ignore the...