Maine Bar Journal
Winter 2005 #2.
December song: the waiting game for tribal sovereignty in Maine
Maine Bar JournalWinter 2005DECEMBER SONG: THE WAITING GAME FOR TRIBAL SOVEREIGNTY IN MAINEby L. Scott GouldYou may not have marked your calendar. Last June 18, sandwiched between Memorial Day and Independence Day, the Wheeler-Howard Act reached its seventieth anniversary.(fn1) On that date in 1934, Congress enacted sweeping reforms in its relationship with American Indians. The legislation, known officially as the Indian Reorganization Act, ended a nineteenth-century policy of forced assimilation.(fn2)
The former policy had carved reservations into allotments, intent on ending tribes by turning Indians into farmers. The policy had been a dismal failure. Wheeler-Howard had the opposite objective. Thenceforth Congress would affirm the sovereignty of tribes by advancing self-determination and self-government.
At the time Wheeler-Howard was enacted, Maine tribes were not formally recognized by Congress.(fn3) Even when Maine had been a part of Massachusetts, before its admission as a separate state in 1820, Congress did not deal directly with Maine tribes.(fn4) To the extent they were recognized at all, the tribes dealt with the state.(fn5) This relationship, unique among the states, continues to the present day. Maine tribes are now recognized by Congress, but their principal political relationship is with the state. The arrangement is formalized in complementary state and federal legislation settling land claims of Maine tribes.(fn6)
Unfortunately, when Congress enacted Wheeler-Howard it took little note of Maine. Its concern was primarily with tribes in western states, those that had suffered most from the allotment policy of the prior generation. In attempting to placate western states, the final version of the legislation fell short of its intended goal. Yet precisely because of the unusual relationship between Maine and its principal tribes, even seventy years after Wheeler-Howard was enacted, the Act can still fulfill its initial promise. In Maine, perhaps more than in any other state, Wheeler-Howard suggests the paradigm from which to fashion essential and robust tribal sovereignty. This essay suggests how this might be accomplished.
The federal relationship with tribes
Federal policy toward Indians has veered between two extremes over the course of the nation's history. At various times Congress has regarded tribes as separate nations. Until the 1870's, Congress dealt with tribes by treaty, creating reservations to maintain the separation. In Worcester v. Georgia, a Supreme Court decision many hail as the most important ever affecting Indians, Chief Justice Marshall found that tribes are sovereigns, and that state laws cannot reach into their territories absent their consent or the acts of Congress.(fn7)
At the other extreme, congressional policy toward Indians has sometimes favored the extinguishment of tribes. Assimilation, rather than separation, has been the goal.(fn8) In 1871, Congress enacted legislation declaring that tribes would no longer be recognized as separate nations with which the United States could treat.(fn9) Instead, tribes would be dealt with as the nation's wards, subject to the plenary power of the Congress.(fn10)
Congress' power reached its zenith in the 1880s. Near the end of that decade it enacted legislation to assimilate Indians into mainstream culture. If they but learned the skills of husbandry, the thinking went, Indians would prosper and cast off tribal ways. The General Allotment Act of 1887, known commonly as the Dawes Act after the Massachusetts senator who introduced it, set forth a comprehensive scheme to accomplish the assimilation.(fn11) Reservations were to be divided into as many tracts of 160 or 320 acres as would provide one tract each for the heads of tribal households. So-called "surplus" lands remaining after this division could be opened to settlement by non-Indians.(fn12)
The Dawes Act provided that Indian allotments would be held in trust for a period of twenty-five years, after which the occupants, by now established farmers, would receive their lands in fee. In practice, Indians lost the vast majority of allotted lands. Either because the parcels were not arable, or because Indians could not afford to farm them (and had not received promised funds to do so), or could not pay property taxes once they had title, most tribal lands eventually passed to non-Indians. Between 1887 and the early 1930s, the tribes lost 86 million acres, almost two-thirds of their former lands.(fn13) A large number of the 52 million acres that remained were little more than desert.
The Wheeler-Howard Act:
vision and astigmatismThe failure of the Dawes Act was brutally apparent in 1933 when Franklin Roosevelt took office. In response, the president appointed John Collier, a noted tribal advocate, as commissioner of Indian affairs. Collier, together with Felix Cohen, who would become Indian law's foremost scholar, drafted legislation to reorganize the nation's relationship with tribes.(fn14) The intent was not simply to end the depredations of the Dawes Act, but also to restore to tribes the territorial sovereignty Justice Marshall had envisioned a century before.
Key to the legislation would be "chartered communities" - federally-created municipalities in which tribes would exercise powers equivalent to states.(fn15) Tribal governments would have broad authority to enact legislation. Tribal courts would have jurisdiction not just over members, but over all persons present in their territory.(fn16)
Wheeler-Howard was to be the vehicle for accomplishing this goal. But the Dawes Act had created a hodgepodge of Indian and non-Indian ownership on allotted reservations. If chartered communities were to succeed, tribes would need to consolidate their lands into "solid geographic [cores]."(fn17) This meant that nonmembers unwilling to sell their lands must be compelled to do so through condemnation.
Congress balked at giving tribes this power.(fn18) It was one thing to stop the process of allotting reservation lands. It was quite another to reverse the process. The final version of the Wheeler-Howard Act dropped the concept of chartered communities and any reference to territorial sovereignty. It did end forced assimilation, but Wheeler-Howard left in place the fractured patterns of land tenure created by allotment. With Indians and non-Indians both now inhabiting reservations, disputes over the extent of tribal jurisdiction were certain to erupt. By failing to address the underlying issues, Wheeler-Howard left the scope of tribal sovereignty to be decided by the Court.
The Court tries legislating
For nearly one hundred and fifty years, Worcester stood for the principle that tribes are sovereigns over their own territories. In that decision, however, Chief Justice Marshall did not confront the question of whether Indians could assert jurisdiction over nonmembers of their tribes. The question remained unanswered until the 1970s, when a non-Indian living on the heavily-allotted Port Madison reservation across Puget Sound from Seattle contested the criminal jurisdiction of a tribal court. Resolving the question against the tribe, the Supreme Court commenced a series of decisions that would profoundly limit tribal sovereignty. Oliphant v. Suquamish Indian Tribe announced that Indians are prohibited from exercising powers that are "'inconsistent with their status.'"(fn19) By submitting to the overriding sovereignty of the United States, the Court decided, Indians had lost their power to prosecute non-Indians.(fn20)
In a stroke, Oliphant changed the paradigm. At least respecting criminal jurisdiction, tribes did not possess sovereignty equivalent to states. So were tribes sovereign at all, or merely delegates of Congress? In United States v. Wheeler the Court confirmed that the source of tribal power is inherent.(fn21) Tribes can therefore prosecute their own members.(fn22) But Wheeler also intimated that tribes might lack any inherent authority over nonmembers on their lands.(fn23) In 1990, the Court confirmed this possibility with respect to criminal jurisdiction over Indians who are not members of the forum tribe. Duro v. Reina decided for reasons similar to those announced in Oliphant that tribes are stripped of power to try nonmember Indians.(fn24)
Oliphant and Duro had devastating consequences for tribes on many reservations. The decisions meant that non-Indians and nonmember Indians could commit crimes with virtual impunity, facing unenforceable civil fines or, at most, expulsion.(fn25) Because many tribal households comprise both tribal members and nonmember Indians, effective law enforcement became virtually impossible.
Reaction to Duro was intense. Congress responded by enacting legislation that recognized the inherent power of tribes to prosecute all Indians.(fn26) This so-called "Duro fix" was helpful, but tribal governments continued to be crippled because Congress did not recognize a similar inherent power for tribes to prosecute non-Indians.(fn27)
Meanwhile the Supreme Court had begun limiting the civil authority of tribes. In Montana v. United States, a 1981 decision that has arguably replaced Worcester as the most important in the field, the Court announced the general proposition that "the inherent sovereign powers of an Indian tribe do not extend to the activities of...