Two Promises, Two Propositions: the Wheeler-howard Act as a Reconciliation of the Indian Law Civil War
| Publication year | 1990 |
"[T]reaty rights with respect to reservation lands must be read in light of the subsequent alienation of those lands."(fn1)
I. Introduction
Increasingly over the last thirty years, American Indian tribes have asserted broad governmental power over persons living and doing business within the boundaries of Indian reservations. These persons include as many as 350,000 non-Indian reservation residents and countless other nonmembers(fn2) who conduct business on the reservations.(fn3) Surprised and angered at such assertions, nonmembers have begun challenging tribes on the ground that such assertions are beyond the scope of tribal governmental power.
In the face of these challenges, courts have had difficulty articulating the nature and scope of tribal governmental power. The United States Supreme Court has stated that Indian tribes are "unique aggregations possessing attributes of sovereignty over both their members and their territory."(fn4) It is said that those attributes of sovereignty that have never been extinguished(fn5) retain their preconstitutional status; those attributes are thereby shielded from constitutional scrutiny.(fn6) In theory, of course, Indian tribes must respect some of the Bill of Rights protections as embodied in the Indian Civil Rights Act of 1968 (ICRA).(fn7) In fact, constitutional protections are often unavailable because of the Supreme Court's holding in
For example, one of the preconstitutional powers of an Indian tribe is the power to select the members of the tribe.(fn11) Only members may participate in the tribal governmental process. Thus, simply because of their race,(fn12) non-Indians are denied the right to vote in tribal elections, the right to participate as candidates for tribal office, and the right to organize and meaningfully participate in the tribal political process. In any other context, the denial of such fundamental rights by a local government would be quickly challenged and struck down as unconstitutional.(fn13) For historical reasons, however, Indian tribal governments merit special consideration.
The United States made treaty promises to Indians whereby the tribes were removed to lands where they were to continue to enjoy their original independence and sovereignty.(fn14) Pursuant to these treaties and the overall early federal policy of nonintercourse with Indian tribes,(fn15) non-Indians were forbidden to pass over or settle on these reservations.(fn16) In light of this nonintercourse policy, the treaties essentially promised that, in exchange for confining themselves to reservations, the tribes would be allowed to retain their powers of self-government over tribal members in Indian country. This Article will refer to this promise of tribal self-government as "the first promise."
Pursuant to its plenary power over Indian affairs, the United States later broke its first promise,(fn17) however, by breaking up the communal tribal property system. In its stead, through the allotment acts of the late 1800s, the federal government instituted a system of private property ownership. Under those acts, individual Indians were allotted 160-acre parcels carved from reservation lands.(fn18) The allotment acts were an effort to "Americanize" the Indians; that is, to teach them the virtues of farming and private property ownership and, eventually, to make them American citizens. To further this policy of assimilation, the allotment acts provided that Indian allottees were to have "the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside . . . ."(fn19) Thus, Indians were to be subject to the white men's law, but the white men were to be free from tribal law.
When the United States abrogated its treaty promises, it also made new promises-to which this Article will collectively refer to as "the second promise"-to non-Indian American citizens. To facilitate the process of assimilation of Indians into American society, the federal government invited non-Indians to purchase surplus reservation lands and to establish their homes and businesses there. Inherent in this invitation was the non-Indian expectation that they would be governed by, and be afforded the protections of, state (or territorial) and federal law.(fn20) Indeed, the allotment acts contemplated the end of all tribal governmental power.(fn21)
The current "civil war"(fn22) being waged over the extent of tribal government power over nonmembers(fn23) and their lands and resources within the original reservation boundaries simply reflects the tension(fn24) between the two sets of promises: the first promise made to the Indian tribes in the treaties and the second promise made to non-Indian citizens in the allotment acts. In federal judicial forums, litigants generally base their arguments on either the first promise or the second promise. For that reason, federal courts must often reconcile the two. Academic commentators, however, generally focus only on the first promise, largely ignoring the ramifications of the second.(fn25) In an attempt to open up the academic debate, therefore, section II of this Article will examine the nature and scope of tribal governmental power, and will survey and critique the competing theories thereon.
This Article submits that the Indian law "civil war" can be settled through a judicial interpretation of the Wheeler-Howard Act's reconciliation of the two promises. In section III(C), perhaps for the first time, the legislative history of that major piece of legislation will be thoroughly tracked and analyzed.(fn26)
With that legislative history as a backdrop, section IV rethinks the state of Indian law, beginning with an analogy to the tenth amendment. Applying that analogy, this Article argues that current Supreme Court reasoning concerning the reserved powers of state governments undermines Supreme Court reasoning with respect to the retained powers of tribal governments. This Article also argues that tribal assertions of power over nonmembers constitute "state action" and, as such, should be subject to constitutional due process and equal protection constraints. Third, this Article will apply its thesis by discussing and critiquing a recent Supreme Court decision concerning tribal zoning authority over nonmembers. Fourth, the Article posits an explicit theory concerning tribal governmental powers that is consistent with the legislative history of the Wheeler-Howard Act and the implicit reasoning of recent Supreme Court decisions.
As part of this theory, this Article also posits two general normative propositions that will help produce a just and efficient resolution of the current civil war within Indian country. First, subject to extensive federal oversight and control, an Indian tribe should maintain exclusive jurisdiction over its tribal members and their property and resources. This first proposition allows the tribes to maintain their powers of internal self-government. Second, states should maintain exclusive jurisdiction over nonmembers and their property and resources. This second proposition should ameliorate the current threat to constitutional protections afforded nonmember citizens.
Finally, to ensure that these general propositions do not operate too harshly and do not nullify each other in practical operation, this Article proposes that the Court explicitly establish and apply a mirror image, strict scrutiny test that is consistent with the implicit reasoning of some recent Court decisions. Under this test, tribes would maintain some jurisdiction over nonmembers or their property and resources, but only if such tribal jurisdiction is necessary to protect the tribe's effective control over its members, their property, or resources. Likewise, in similar circumstances, states would maintain some jurisdiction over tribal members and their property and resources. This test thus recognizes that some tension between these two propositions might still remain, and provides a means of resolving that tension. This Article, therefore, offers a practical escape from the current jurisdictional labyrinth of Indian law.
II. The Nature and Scope of Indian Tribal Power
The uncertainty surrounding the nature and scope of tribal governmental powers has created the modern Indian law civil war. The summation of these powers is sometimes referred to as "tribal self-government," and other times as "tribal sovereignty." The distinction is significant because self-government merely connotes governmental power over a limited class of persons, i.e., tribal members, whereas true sovereignty includes governmental power over territory and all persons within that territory.
While the word "sovereignty" is both powerful and elusive, it is...
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