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by N. Bruce Duthu
In both the United States and Australia today, Indigenous Peoples struggle to assert their inherent political rights to self-determination. A major difference, however, is that American law recognises Indigenous claims to both tribal lands and to retained, though diminished, tribal governmental powers within those lands. Australian law has only recently acknowledged the residual rights of Indigenous Peoples in lands occupied prior to invasion[2] but steadfastly refuses to recognize retained rights of Indigenous self-governance.[3]
This is not to suggest that the news regarding Indigenous rights from the United States is necessarily all good or that from Australia is all bad. Differences in the nature and pattern of colonisation, the emerging relationships between Indigenous and settler communities and the constitutional arrangements within each country caution against the wholesale importation or exportation of legal rules from one State to another. Nonetheless, it is significant that in both Australia and the United States today, Indigenous communities are regarded as the most disadvantaged in the country.[4] Why is this? The answers are complex and merit extensive treatment beyond the scope of this brief essay. In the American context, at least, there is support for the view that federal Indian law often operates jurispathically within tribal societies, obscuring or suppressing Indigenous law or acts coercively to channel tribal expressions of self-governance in ways acceptable to the dominant society.[5] The legacy of colonialism is inscribed in American legal rules, which perpetuate a subordinate and severely constrained political role for Indian tribes. This article will examine some of these rules and suggest that Australian jurists and Indigenous advocates tread cautiously when considering the moral and legal relevance of American precedents to domestic Australian law on Indigenous rights.
The United States Constitution empowers the Congress to ‘regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes.’[6] American constitutional history makes clear that this provision was intended merely to grant power to the federal government, as opposed to the states, for managing affairs with the Indian tribes.[7] In the foundational decisions in Cherokee Nation v Georgia[8]and Worcester v Georgia,[9] the United States Supreme Court recognised the political status of Indian tribes relying in part on this so-called ‘Indian Commerce clause.’ These cases considered the legality of laws enacted by the state of Georgia which it sought to apply within the Cherokee Nation’s territory. Chief Justice John Marshall found that treaties between the federal government and Indian tribes as well as other legislative acts,
manifestly consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied [sic] by the United States.[10]
However the Court made it clear that Indian tribes occupy a subordinate position within the constitutional framework: ‘they may, more correctly, perhaps, be denominated domestic dependent nations. . . [T]hey are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.’[11] In Marshall’s conception, the protectorate relationship between tribes and the federal government imposed fiduciary obligations on the latter to ensure the territorial integrity and political security of tribes.
By the end of the nineteenth century the Supreme Court had reconceptualised this relationship as one investing an extraordinary plenary authority in the federal government to make laws affecting Indian affairs. Unmoored from any textual footings within the Constitution and largely freed from the jurisdiction of reviewing courts, this conceptualisation of the relationship between Indian tribes and the federal government allowed Congress to legislate in Indian affairs with virtual impunity.[12] Paradoxically, during the same era, the Court recognized the pre-constitutional status of tribal sovereignty and held that inherent powers of tribal governance are not limited by the Constitution or the Bill of Rights.[13]
The modern Court favors the view that federal power in Indian affairs flows from the Indian Commerce Clause though there are still references to Congress’ ‘superior position over the tribes’ as a separate source of authority.[14] The Court does purport to review Congressional Acts affecting Indian affairs in the form of a ‘rational basis’ test which requires only some rational connection between the Act and Congress’ ‘unique obligation toward the Indians.’[15] However, given the wide berth the court accords Congress in Indian policy,[16] one doubts the efficacy of even this minimalist standard of review against Acts threatening tribal self-government.
Two Acts of Congress in the late nineteenth century dramatically affected the course of tribal/federal political relations and the scope of inherent tribal authority within Indian lands. Firstly, in the Appropriation Act of 1871,[17] Congress ended the practice of treaty-making with Indian tribes, while preserving existing treaty arrangements. In place of bilaterally negotiated treaties, this law empowered Congress to unilaterally impose laws and policies on tribes, eliminating the Marshall Court’s requirement of tribal consent. Both the practical and symbolic effect of such a measure was to substantially erode the political status of Indian tribes. Secondly, in 1887 Congress enacted the General Allotment or Dawes Act,[18] a law calculated to open up vast expanses of tribal lands to white homesteaders, to drastically alter the nature of tribal land tenure from communal to individually held title and, ultimately, to dissolve the political organs of tribal government. The Dawes Act was part of a broader assimilationist federal program which included boarding schools for Indian children and prohibitions on the practice of tribal languages, religion, dress and other cultural expressions.[19]
Congress halted the allotment process in 1934 by passing the Indian Reorganization Act[20] (‘the IRA’). By then, nearly two thirds of the Indian land base had passed out of tribal control, reservation demographics had changed in many areas to majority non-Indian populations and tribal political authority had been effectively shut down, largely because of the dissolution of cohesive tribal communities. This Act sought, in part, to provide a statutory mechanism to help tribes rebuild their land bases and their governments, albeit largely in the image of the federal government itself. Most tribes lacked the political leverage to resist these ’progressive’ measures and thus reorganized their governments in ways which displaced or severely compromised their traditional forms of government.
Unfortunately, Congress did nothing to address the dilemma facing both tribes and non-Indian residents of reservations concerning whether and how tribal authority could embrace non-Indians who are unlikely to have anticipated the political renaissance of tribal governments (most now stamped indelibly with westernised legal structures) and who did not (and could not) participate in the political life of the tribe. These questions devolved to the courts, which have struggled, even into the present day, to find suitable answers. That courts throughout the United States must continue to grapple with these legal questions is testament to the tenacity of tribes in asserting their rights of self-government and to the enduring force of old treaty promises.
In their application of modern Indian law and the scope of inherent tribal authority within tribal lands, today’s courts tend to eschew notions of tribal territorial sovereignty - the view Chief Justice Marshall advanced in the Cherokee Cases. Instead, they apply rules which give prominence to the race and/or political status of the individual parties (Indian or non-Indian, tribal member or not) and the geographic location of the activity in question (whether on Indian trust lands or non-Indian owned fee lands within the reservation). This approach represents an uneasy compromise between giving full effect to the old treaty promises of complete tribal territorial sovereignty and giving full effect to the expectations of non-Indian settlers after allotment that tribal land bases would eventually be dismantled. That Indians are different from non-Indians in a political and racial sense is beyond question. Indeed, such differences provide an important justification for the perpetuation of a jurisprudence, which accords differential rights of self-government for tribes. The difficulty comes when tribal differences are associated with or linked to notions of inferiority, which may then be used to legitimate the divestiture of tribal powers. The Supreme Court’s 1978 decision in Oliphant v Suquamish Indian Tribe[21] employed this sort of analysis in divesting tribes of jurisdiction to prosecute non-Indians for crimes within Indian lands. The Oliphant court displayed a profound distrust of modern tribal legal systems’ ability to protect the rights of non-Indians, portraying tribal forums as arenas for frontier justice at best.
Where only Indians are concerned or interests other than individual liberty are involved, the Court evinces a greater trust in tribal self-government. Thus, a tribe may prosecute a non-member Indian defendant[22] as well as its own members.[23] In the regulatory area, tribes have inherent powers to tax all persons, even non-Indian corporate entities, for activities within Indian lands.[24] They possess inherent zoning powers to regulate land use, even lands owned in fee simple by non-Indians within reservations where the tribe dictates the ‘essential character’ of the area.[25] In the civil jurisdiction, tribes retain authority over activities occurring on tribal lands, even when non-Indians are involved. However, when the acts occur on non-tribal lands, (eg on fee lands owned by non-Indians or on rights-of-way in favor of state or federal governments), and in the absence of some pre-existing consensual relationship with the tribe or proof that the non-member’s acts substantially interfere with an important tribal interest, tribes lack authority over non-members.[26] The early rule which precluded application of state law within Indian territories has given way to a more flexible, ‘balancing of interests’ analysis, which tolerates extension of state law into Indian lands absent conflicting governing acts of Congress.[27] Furthermore, tribal authority may be constrained or preempted by express or implied federal laws.[28]
However, federal law may also operate to empower and energize tribal authority in particular spheres. The major federal environmental statutes were amended in the 1980's to provide meaningful roles for tribal governments as environmental stewards in partnership with the federal government.[29] Similarly, federal laws regulating gaming enterprises on Indian lands have allowed a handful of tribes to escape or alleviate widespread poverty and unemployment among Indian people.[30]
Tribal governmental activity within its retained spheres of influence must navigate the narrow passages which provide for meaningful expression of tribally-derived values yet exhibit ‘appropriate’ deference to majoritarian ideals, expectations and constraints.[31] The latter trait reflects the political reality that tribal sovereignty in America remains vulnerable to change by the federal government. The Supreme Court has stated this point bluntly: ‘[t]he sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance.[32] Clearly, the Court’s ‘sovereignty of sufferance’ conflicts with tribal expectations and aspirations to govern all persons and all property within Indian lands and prevailing American law on tribal rights promises only to exacerbate, not ameliorate, this conflict.
There is no assurance that eliminating paternalistic, even racist, elements within federal Indian law will substantially improve the lot of tribes and American Indians or cure the jurispathic tendencies of this body of law. More will be required than modification or overhaul of legal doctrine before an historical record over two centuries in the making will be righted. When legal inquiry focuses on the nature and manner of tribal authority exercised and not on whether such authority even exists, greater security for tribes’ exercise of self-government may be realised. For the United States, such a development would at least lend some credence to claims of commitment to the rule of law and may even restore a bit of the national honor in keeping at least some of its original promises to the Indigenous Peoples.
Bruce Duthu is a Professor of Law at Vermont Law School. He is a member of the United Houma Nation, an Indigenous tribe from southeastern Louisiana, US and was a Visiting Fellow, University of Wollongong Faculty of Law, in early 1999.
[1] The term ‘jurispathic’ is described as a legal phenomenon whereby courts ‘kill law created by communities’. See Judith Resnick, ‘Dependent Sovereigns: Indian tribes, States and the Federal Courts’, (1989) 56 University of Chicago Law Review 671, 732. My use of the term here connotes the tendency of federal Indian law to stifle Indigenous expressions of self-governance by means of legal rules which entrench Congressional prerogative to control tribal affairs with minimal interference from reviewing courts.
[2] Mabo v Queensland (No. 2) [1992] HCA 23; 175 CLR 1.
[3] See Mick Dodson and Sarah Pritchard, ‘Recent developments in Indigenous policy: the abandonment of self-determination?’ (1998) 4 (15) Indigneous Law Bulletin 4.
[4] See eg Heather McRae, et al. Indigenous Legal Issues: Commentary and Materials (2nd ed, 1997), 10; David H. Getches et al. Federal Indian Law (4th ed, 1998) 15.
[5] This echoes Maori legal scholar Moana Jackson’s notion of the ‘dialectic of colonization’. See Moana Jackson, ‘Justice and political power: Reasserting Maori legal processes’, in Kayleen M. Hazlehurst (ed) Legal Pluralism and the Colonial Legacy (1995) 243, 262 .
[6] US Constitution, Article I, Section 8, cl. 3.
[7] See generally Robert N. Clinton, ‘The Dormant Indian Commerce Clause’, (1995) 27 Connecticut Law Review 1055.
[8] 30 US [1831] USSC 6; (5 Pet) 1 (1831).
[9] 31 US [1832] USSC 39; (6 Pet) 515 (1832).
[10] 31 US 557. In Johnson v McIntosh, 21 US [1823] USSC 22; (8 Wheat) 543 (1823) the Court held that Indian tribes held residual beneficial title to their aboriginal homelands with the ‘radical’ title belonging to the ‘discovering’ sovereign nation, ie colonizing European Christian nations.
[12] United States v Kagama, [1886] USSC 194; 118 US 375 (1886).
[13] Talton v Mayes, [1896] USSC 157; 163 US 376 (1896). To complete the paradox, Congress passed a law in 1968, the Indian Civil Rights Act 25 USC 1301-1303, (‘the ICRA’) which imposed most, though not all, of the limitations of the Bill of Rights upon Indian tribes in exercising their inherent powers. Actions to enforce alleged violations of the ICRA must generally be brought in tribal court; see Santa Clara Pueblo v Martinez, [1978] USSC 76; 436 US 49 (1978).
[14] For example, in Merrion v Jicarilla Apache Tribe, [1982] USSC 27; 455 US 130 (1982), it was said at 155 that ‘[w]hen Congress acts with respect to the Indian tribes, it generally does so pursuant to its authority under the Indian Commerce Clause, or by virtue of its superior position over the tribes’.
[15] Delaware Tribal Business Committee v Weeks, [1977] USSC 28; 430 US 73, 85 (1977).
[16] ‘Congress has plenary authority to limit, modify or eliminate the powers of local self-government which the tribes otherwise possess.’ Santa Clara Pueblo v Martinez, [1978] USSC 76; 436 US 49, 56 (1978).
[19] See generally Frederick E. Hoxie, A Final Promise: The Campaign to Assimilate the Indian, 1880-1920, (1984).
[20] 25 USCA 461.
[21] [1978] USSC 34; 435 US 191 (1978).
[22] 25 USC 1301(2), effectively overruling Duro v Reina, [1990] USSC 78; 495 US 676 (1990).
[23] United States v Wheeler, [1978] USSC 44; 435 US 313 (1978).
[24] Merrion v Jicarilla Apache Tribe, [1982] USSC 27; 455 US 130 (1982).
[25] Brendale v Confederated Tribes and Bands of the Yakima Indian Nation, 492 US 208 (1989).
[26] Strate v A-1 Contractors, [1997] USSC 32; 117 SCt 1404 (1997).
[27] California v Cabazon Band of Mission Indians, [1987] USSC 25; 480 US 202 (1987).
[28] El Paso Natural Gas Co. v Neztsosie, 119 SCt 1430 (1999) (federal law regulating the nuclear power industry precluded the exercise of tribal civil jurisdiction in a tort claim for money damages stemming from uranium mining on the reservation).
[29] See eg the Clean Water Act, 33 USC 1377 (e); the Clean Air Act, 42 USC 7401-7642.
[30] See the Indian Gaming Regulatory Act (‘the IGRA’), 25 USC 2701-2721. It should be noted that the National Gambling Impact Study Commission, a federal investigatory body, released its report on June 18, 1999, which called for a moratorium on further growth of the gambling industry, including on reservations. The report noted that Americans spent nearly $50 billion on gambling, with tribal gambling accounting for nearly $7 billion of that total. The Commission’s report is available online at <www.ngisc.gov>.
[31] This is what the noted legal writer Frank Pommersheim calls ‘scrutiny from below’ and ‘scrutiny from above.’ See Frank Pommersheim, Braid of Feathers: American Indian Law and Contemporary Tribal Life (1995), 96.
[32] United States v Wheeler, [1978] USSC 44; 435 US 313, 323 (1978).
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