The Legal Status of an Indian Tribe
Yesterday, I chanced on an interesting article in the business section of my local paper. The Seminole Indians purchased the Hard Rock Cafe for $965 million. That's a pretty large amount of money. That got me to thinking - how did the Seminoles get all that money? Are all Indian tribes that rich? And in what capacity - as a nation or a corporation - did the Seminoles make the transaction? Are the individual Seminoles shareholders in the Seminole Corporation, citizens of the Seminole nation, or both? And how does a group become certified as an Indian tribe? Could I gather a few friends, maybe some of my 6,000+ MySpace friends, declare that we're a tribe, and go into the casino business? So, salivating over the prospect of casino riches, I decided to do a little research on how, exactly, an Indian tribe is set up. There's a long and winding road associated with the answer to the question.
As I mentioned in my article about the legal basis of Indian ethnic cleansing, the Constitution grants to Congress, in the Commerce Clause, the power to regulate commerce with the Indian tribes. There's also another area in which our government has dealt with Indian tribes - as a nation, like England or France. In that capacity, the President, with the advice and consent of the Senate, has concluded many treaties with Indian tribes, as nations. The idea that Indian tribes were nations was, at the time of the ratification of the Constitution, so self-evident that the tribes are not singled out as separate from a nation when the Executive is given the treaty making power. It was just assumed.
As an early example, from the administration of George Washington, the United States government signed a "treaty of peace and friendship" with the Iroquois nation, on November 11, 1794. The treaty is known either as the Pickering Treaty, the Calico Treaty (because calico cloth was the official method of payment), or the Treaty of Canandaigua (for the location, near Rochester, New York, where the treaty was signed. I quote from the Preamble and the first two articles.
The President of the United States having determined to hold a conference with the Six Nations of Indians, for the purpose of removing from their minds all causes of complaint, and establishing a firm and permanent friendship with them; and Timothy Pickering being appointed sole agent for that purpose; and the agent having met and conferred with the Sachems, Chiefs and Warriors of the Six Nations, in a general council: Now in order to accomplish the good design of this conference, the parties have agreed on the following articles, which, when ratified by the President, with the advice and consent of the Senate of the United States, shall be binding on them and the Six Nations.
Article I. Peace and friendship are hereby firmly established, and shall be perpetual, between the United States and the Six Nations.
Article II. The United States acknowledge the lands reserved to the Oneida, Onondaga and Cayuga Nations, in their respective treaties with the state of New York, and called their reservations, to be their property; and the United States will never claim the same, nor disturb them or either of the Six Nations, nor their Indian friends residing thereon and united with them, in the free use and enjoyment thereof: but the said reservations shall remain theirs, until they choose to sell the same to the people of the United States who have right to purchase.
The Pickering Treaty has been formally observed continuously since then. Every year the Six Nations in New York receive calico as payment, and the Oneida Tribe of Wisconsin receives a check for $1,800, in accordance with its terms. The signing ceremony was reenacted on November 11, 2006 in Canandaigua. None of this, however, prevented the United States government from flooding 10,000 acres of Allegany Seneca Reservation land and the traditional Seneca religious building, the Cold Spring Longhouse, by the Kinzua Dam, in 1965, in violation of the 1794 Pickering Treaty. Apparently, when it comes to treaties with Indian nations (by some estimates, there have been over 400 of them solemnly sealed over the years), they are only enforced when it is convenient for the government. Imagine if the Indians wanted to flood midtown Manhattan and St. Patrick's Cathedral because they didn't think that the $24 payment in wampum was enough compensation for Manhattan.
The Pickering Treaty terms seem pretty clear. The Iroquois nation has a fee simple title to the land, complete with the "free use and enjoyment thereof", with the right to sell on terms agreeable to them, just like any landowner. Well, that was the plain meaning of the treaty in 1794. When the Supreme Court, led by Chief Justice John Marshall, (Johnson v. M'Intosh, 1823) actually ruled on whether the Native Americans could sell their land to a private party, the unanimous decision was that they could not because ultimate title belonged to the United States of America. Indians only had the "right of occupancy" because the Court held that the land was "discovered" by the European powers. Here's how Marshall stated it:
It is supposed to be a principle of universal law, that, if an uninhabited country be discovered by a number of individuals, who acknowledge no connexion with, and owe no allegiance to, any government whatever, the country becomes the property of the discoverers, so far at least as they can use it. They acquire a title in common. The title of the whole land is in the whole society. It is to be divided and parcelled out according to the will of the society, expressed by the whole body, or by that organ which is authorized by the whole to express it.
If the discovery be made, and possession of the country be taken, under the authority of an existing government, which is acknowledged by the emigrants, it is supposed to be equally well settled, that the discovery is made for the whole nation, that the country becomes a part of the nation, and that the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains, by that organ in which all vacant territory is vested by law.
In other words, the land was uninhabited until the white Europeans discovered it and it was only put to use when the white Europeans settled it. The native Americans became, by legal magic, invisible and unproductive.
If the Indian tribes were a nation, they were certainly a curious nation. They did not own their land. In an 1831 case, Cherokee Nation v Georgia, the Marshall court defined the Cherokees as a "domestic, dependent nation", as opposed, I guess to England, which was an international, independent nation. In Worcester v Georgia, an 1832 case, the Marshall Court held that only the Federal government, not the states, could negotiate treaties with Indian tribes. The Treaty of New Echota, made by the United States government with a few dozen Cherokees, many of whom were assassinated by the other 17,000 Cherokees who opposed it, which made "official" the removal of the Cherokee nation to Oklahoma, was a formal treaty, negotiated by the President and ratified by the Senate, in line with the ratification procedure for any treaty. By the terms of that treaty, the Cherokee Nation was supposed to be able to set up their independent government in Indian territory (present day Oklahoma), forever, without any interference from the white man. White settlement in Indian Territory was expressly forbidden.
This arrangement worked until enough whites wanted to steal the land promised to the Indian "forever". By the eve of the Civil War, each tribe that was "relocated" to Indian Territory had its own fragment of land. The land intended for the Cherokee Nation and other relocated tribes was already occupied by other Indian tribes, principally the Osage and the Qawpaw, as the official Oklahoma history Web site explains. By a treaty of 1808, amazingly, the Osage were promised the entire state of Oklahoma in return for relocating from Kansas. In other words, far from being empty, uninhabited prairie, Indian Territory was already populated. The tribes from the east were given land stolen from the tribes already living in Indian Territory. A competition for food and land among the relocated tribes and the tribes already living their ensued.
When the white Europeans, such as ranchers, farmers, and mining companies, discovered that Oklahoma land and resources were valuable, the government needed to come up with a legal way to circumvent the inconvenient treaties they had made with the various Indian tribes. The most important law passed by Congress was the Dawes Act, enacted in 1887. Section One authorizes the President to survey Native American tribal land and divide the arable area into allotments for the individual Native American. It says that the head of any household will receive 160 acres (647,000 m²), and each single individual above the age of 18 and each orphan will receive 80 acres (324,000 m²), and each minor will receive 40 acres (162,000 m²). In other words, native American tribal land was converted to individual homesteads for each Indian who could prove to the satisfaction of the United States Government that he or she was a proper member of the tribe. The result of the Dawes Act was to destroy the tribal rights, negotiated by treaties, that the government was supposed to preserve. The Dawes Act also destroyed the Indian tribal culture. Each Indian had to enroll in the Dawes Roll, and, in a process hauntingly similar to what the Nazis did in Germany, prove that they had the required amount of Indian blood. By the way, if you were of mixed Indian ancestry - say 50% Cherokee and 50% Osage - you had to choose, which meant that you were deprived of the tribal rights of the other tribe. Hitler had similar rules about percentage of Jewishness to make you eligible for the gas chamber. The idea of dealing with the tribes as sovereign nations was dead as a doornail. In fact, in 1871, Congress passed a law which forbade the President from negotiating any more treaties with Indian tribes.
In my US history textbook published in the 1950s, I remember a picture of the famous Oklahoma Land Rush of 1889. There were all those wagons and horses lined up at the Oklahoma border, waiting for the starter to give the signal to occupy the empty land across it. In reality, the land was overcrowded with Indians trying to survive. The land was not empty - it was stolen from the Cherokees and other tribes who had solemn treaty obligations to it. The government pressured the tribes to cede "unassigned lands" - those lands where there were no formal Indian settlements - for white settlers - for minimal compensation. So the Oklahoma Land Rush should more properly be called the Oklahoma Land Theft.
With each Indian reduced to his own homestead, and with little knowledge of this contorted history, unscrupulous white land agents took advantage of the Indians, effectively stealing whatever allotment was supposed to be available, and impoverishing those who still remained. This Indian privatization scheme was disastrous to the native Americans.
This situation was partially relieved only in the New Deal era, with the passage of the Indian Reorganization Act of 1934 (also known as the Wheeler-Howard Act or the Indian New Deal). The terms of the Act allowed the Indian tribes to organize as a tribe, appoint legal counsel, and negotiate contracts. A tribe could adopt its own "constitution", subject to approval by the Secretary of the Interior. Although the Act did not fully restore Indian tribes to complete nationhood, it did provide the legal foundation for contracts such as the Seminole contracts with gambling casinos.
Although there have been various twists and turns - a potentially disastrous twist occurred during the 1950s, in the Eisenhower administration, when the policy of "terminating" Indian tribes, basically returning them back to the Dawes Act era, was tried and failed - the Wheeler-Howard Act is the basic document underpinning the legal status of Indian tribes. Termination was nearly a disaster for the Menominee tribe (the government wanted to make a state park out of the Menominee tribal land) and the Colville River tribes. So can I get a group of my friends together, declare ourselves as a tribe, and get in on the casino action? Not exactly. We have to prove that we're biologically and genetically Indian, get the historians and anthropologists in on the action to prove that our ancestors acted as a tribe, and then apply to the US government for certification. Some tribes, like the Lumbee in North Carolina, have been trying for over 100 years. Maybe there's a loophole somewhere - can I be adopted by an official tribe? Any of my native American MySpace friends, please contact me (firstname.lastname@example.org) - I'm available!