The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States has always been an anomalous one, and of a complex character. (1)
There is nothing in the whole compass of our laws so anomalous, so hard to bring within any precise definition, or any logical and scientific arrangement of principles, as the relation in which the Indians stand toward this [United States] government and those of the states. (2)
The legal relationship of Indian (3) tribes to non-Indian governments in what is now the United States, and the tribes' status as sovereign or quasi-sovereign or semi-sovereign governments, has been a perplexing problem for centuries and remains so. This article seeks to address current concepts of tribal sovereignty as articulated by the Supreme Court of the United States and by tribal advocates who vehemently disagree with the high court's rulings. (4) We seek to examine how these varying views on tribal sovereignty give rise to jurisdictional conflicts in the real world, especially in the State of New York where significant disputes have been litigated in recent times. Our goal is to provide the reader with an understanding of the nature and extent of the jurisdictional conflicts that are in the courts now and where conflicts may arise in the future, not just in New York but wherever tribes seek to exercise claimed sovereign rights. (5)
A PRIMER ON INDIAN TRIBAL SOVEREIGNTY
The history of the relation of Indian tribes to the early settlers in North America, English colonies, the confederal government, the states under the Articles of Confederation, and ultimately the United States of America and the states of the Union under the Constitution, is long, nuanced, and multi-faceted. The interactions occurred on political, legal, and cultural levels. Relations developed between and among Indian tribes and the many non-Indian communities and individuals they encountered. The non-Indians at any given time might represent the European colonial government or the domestic national government. White traders and missionaries frequently initiated the contacts. These interactions often led not only to economic, political, and cultural engagement, but also to open conflict, including raids, massacres, and reprisals. In the Declaration of Independence, the founding fathers referred to Indians as the "merciless Indian savage." (6) Upon achieving independence from Britain, the founders appreciated the serious threat to their fledging government presented by independent tribes who controlled strategic locations between British-occupied areas and the newly-formed United States. (7) Even without British provocateurs fomenting unrest, the threat of Indian wars remained a recurring feature of American political life well into the 19th century. (8) Indians were vilified in the press and popular culture; references to them as "savages" persisted for generations. The judges who were called upon to address the "Indian problem" were not immune to these cultural forces; contemporaneous judicial opinions reflect the prevailing racist attitudes and language. (9) A detailed treatment of this history is beyond the scope of this article. Rather, we offer a "primer" focused on Indian tribal sovereignty law, documenting its development over the past two centuries, to enable readers to put current jurisdictional conflicts in context.
The first Western civilization explorers and settlers in North America found indigenous people living here. (10) These indigenous people and their families, communities, or tribes were sovereign in the sense that they were not subject to external control or the exercise of power by European or other nations from which these explorers or settlers came. There were, however, numerous Indian groups in North America; and the relationships between and among these indigenous groups were marked variously by friendship, coexistence, competition, conflict, and conquest. At times, some Indian groups were under the control or power of other groups of Indians. (11) As European settlement increased, competition and conflict between Indians and non-Indians increased. Eventually, a treaty system evolved by which the Indians and non-Indians negotiated agreements of mutual compromise at first, although as Indian power declined and the numbers of non-Indians and the power of the United States increased, the United States' and the individual states' ability to dictate terms increased. (12)
Many Indian tribes occupied colonial New York but "the Iroquois ... long [occupied] the most conspicuous position." (13) At the height of their military power, about 1660, their warlike expeditions ranged from New England to the Mississippi River and from the St. Lawrence to the Tennessee River. (14) They "reached their culminating point" about 1700 when they "had reared a colossal Indian empire." (15) Nevertheless, by the end of the 18th century, wars with other Indian tribes and the French, the Revolutionary War, advancing European settlement, and internal divisions took their toll. "When their power and sovereignty finally passed away, it was through the events of peaceful intercourse, gradually progressing to this result, rather than from conquest or forcible subjugation." (16) The 1783 peace treaty between Great Britain and the United States made no provision for the Iroquois; and, wrote anthropologist Henry Lewis Morgan in the mid-nineteenth century, "[t]his was, in effect, the termination of their political existence. The jurisdiction of the United States was extended over their ancient territories, and from that time forth they became dependent nations." (17) As events of the late twentieth and early twenty-first century have shown, Morgan's mid-nineteenth century pronouncement of the demise of the political existence of the New York tribes, and their claims to sovereignty, was premature. But we are getting ahead of our story.
The Constitution of the United States became effective March 4, 1789. Indians are referred to only twice in the Constitution as originally ratified. Article I, Section 1 vests all legislative powers in Congress. Section 2 provides for the House of Representatives and excludes from the apportionment of Representatives among the several states "Indians not taxed." (18) Section 8 enumerates the powers of the Congress, and clause 3 authorizes Congress "[t]o regulate Commerce with foreign Nations and among the several States, and with the Indian tribes." (19) The grant of power to Congress under the "Indian commerce clause" has been construed to give Congress plenary authority over Indian tribes. Referring to this clause in Cherokee Nation v. Georgia, Chief Justice John Marshall wrote for the Court that the Constitutional Convention intended "to give the whole power of managing [Indian] affairs to the government." (20) He confirmed in Worcester v. Georgia that relations between the United States and the Cherokee Nation specifically were, under the Constitution, "committed exclusively to the government of the union." (21) He elaborated that the constitutional "powers of war and peace; of making treaties, and regulating commerce with foreign nations, among the several states, and with the Indian tribes ... comprehended all that is required for the regulation of our intercourse with the Indians [and] are not limited by any restrictions." (22) The Supreme Court has recently affirmed Congress' plenary authority over Indians, including the authority to divest the tribes of any attributes of sovereignty. (23)
Many scholars, representing diverse viewpoints, reasonably question whether the Framers, by enumerating power over Indian commerce intended to give Congress exclusive authority over Indian affairs and with it plenary power over Indians and Indian tribes. (24)
As the Supreme Court stated recently, "[t]ribal sovereignty, it should be remembered, is sovereignty outside the basic structure of the Constitution." (25) Thus, Congress continues to regulate tribal affairs and the Supreme Court continues to define the nature, extent, and limits of Indian tribal sovereignty. (26) The Constitution adds little. (27)
Congress has enacted numerous statutes that deal with Indians.
The purpose of this section is to highlight some of the most important acts of Congress as they bear on the development of Indian tribal sovereignty under federal law.
Indian Trade and Intercourse Acts
Beginning in 1790, a series of acts was adopted to regulate "trade and intercourse" with the Indians. (28) The original purpose of these acts has been explained as follows:
Unrest on the frontiers threatened the peace of the young nation, and President Washington and Secretary of War Knox called on Congress to provide legislation to prevent further outrages. Congress replied in July 1790 with the first of a series of laws "to regulate trade and intercourse with the Indian tribes." These laws, which were originally designed to implement the treaties and enforce them against obstreperous whites, gradually came to embody the basic features of federal Indian policy. (29) These acts were temporary in duration as enacted in 1790, 1793, 1796 and 1799; Congress passed a "permanent" version in 1802, followed by a truly final Indian Trade and Intercourse Act in 1834 ("ITIA"). (30) The ITIA addressed a range of subjects. The 1790 version dealt with licensing those who traded with Indian tribes, recalling such licenses for "transgressing" applicable rules and regulations, penalizing trading without a license, requiring sales of Indian lands to be made by public treaty held under the authority of the United States, and punishing offenses by citizens of the United States committed in Indian Territory. The 1790 version has been characterized as giving "a practical and...