1 See Erdrich, Where I Ought to Be: A Writer's Sense of Place, N.Y. Times Book Rev., July 28, 1985, at 1, 23: Many Native American cultures were annihilated more thoroughly than even a nuclear disaster might destroy ours, and others live on with the fallout of that destruction, effects as persistent as radiation-poverty, fetal alcohol syndrome, chronic despair. Through diseases such as measles and small pox, and through a systematic policy of cultural extermination, the population of Native North Americans shrank from an estimated 15 million in the mid–15th century to just over 200,000 by 1910. That is proportionately as if the population of the United States were to decrease from its present level to the population of Cleveland. Entire pre-Columbian cities wree wiped out, whole linguistic and ethnic groups decimated. Since these Old World diseases penetrated to the very heart of the continent even faster than the earliest foreign observers, the full magnificence and variety of Native American cultures were never chronicled, perceived, or known by Europeans.Google Scholar

2 F. Prucha, The Great Father 610 (1984).Google Scholar

3 Francis Parkman's rich account of La Salle's proclamation is found in J. B. White, The Legal Imagination 14 (rev. ed. 1985).Google Scholar

4 S. Bellow, The Dean's December 67—68 (1982).Google Scholar

5 U.S. Rep. Henry Jackson, quoted in United States v. Dann, 470 U.S. 39, 40 (1985).Google Scholar

6 B. Lowman, Author's Preface, 220 Million Custers (1978) (unpaginated).Google Scholar

7 County of Oneida v. Oneida Indian Nation, 420 U.S. 226, 268 (Stevens, J., dissenting).Google Scholar

8 Id. at 266.Google Scholar

9 Readjustment of Indian Affairs: Hearings on H.R. 7902 Before the Comm. on Indian Affairs, 73d Cong., 2d Sess 15 (1934) (memorandum of Comm'r Collier dated Feb. 19, 1934), quoted in F. Cohen, Handbook of Federal Indian Law 216 (1942) (Cohen I)(I have throughout employed the University of New Mexico's 1971 reprint of the original 1942 volume). On Cohen, see notes 54–55 infra and text thereto.Google Scholar

10 43 U.S.C. §§ 1601—1628. See, e.g., Note, Settling the Alaska Native Claims Settlement Act, 38 Stan L. Rev. 227 (1985).Google Scholar

11 F. Prucha, The Great Father 468 (1984).Google Scholar

12 R. Slotkin, The Fatal Environment 16–18 (1985); C. Bly, Letters from the Country 4 (1981).Google Scholar

13 Clinton, Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government, 33 Stan. L. Rev. 979, 1063 (1981) (“Clinton, Isolated in Their Own Country”).Google Scholar

14 A prior American Bar Foundation study notes that tribal courts are an imposed, non-Indian “improvement.” S. Brakel, American Indian Tribal Courts (1978). Most of this study is devoted to a description of tribal courts. But it does turn to a nondescriptive assessment and prescription. (“In addition to being professionally inadeqate, the tribal judges are politically and socially insecure.”Id. at 95.) And it advocates doing away with tribal courts: “In my view, official authority would be best utilized and personal power on the reservations would be best checked within the normal integrated setting of, and with the mechanisms available under, state and county jurisdiction,”id. at 100. Tribal courts “are imitations of white institutions,”id. at 102. It is a well-meant but terminationist position and is illustrative of the frustrations tribes face in their encounters with the dominant society.Google Scholar

15 It is important to record the difference between American Indians and other Americans, and I shall return to it in the conclusion. Vine Deloria calls attention to the point: The geographical proximity of Indians to the rest of America suggests a homogeneity that does not exist, and the avowed equality that American institutions espouse gives further testament to the belief that people are not only created equal but share the same viewpoints and values. Since there are so few places where tribal cultures dominate social relations, and since three quarters of the Indians today live away from the reservation, it hardly seems possible that a wide chasm of beliefs separates Indians from other Americans. [The]fundamental differences are primarily those of perspective, of attitude and orientation, and of the manner in which peoples tend to view the physical world and the human institutions in that world. These differences produce ceremonial and intellectual behavior which distinguishes groups from each other and creates the diversity that we see in human cultures. Indians have learned from their experience with the ecological movement that unless they outline differences clearly and distinctly, communication with non-Indians is blurred by the eagerness with which non-Indians want to identify with the Indian traditions. Deloria, Indians and Other Americans: The Cultural Chasm, Church & Society, Jan./Feb. 1985, at 10, 10—11.Google Scholar

16 H. Arendt, On Revolution 11 (1965).Google Scholar

17 Virgil, The Aeneid, bk. 1, line 68, p. 5 (R. Fitzgerald trans. 1983).Google Scholar

18 Id. at bk. 12, lines 188–89. I am dependent on Arendt's insights and interpretation. See H. Arendt, On Revolution 210–11.Google Scholar

19 H. Arendt, On Revolution 187–89, 210–12.Google Scholar

20 Among other notable missionaries to the Indians, Jonathan Edwards certainly thought he was doing them good and actually did try to protect Indians from some of his predatory countrymen. See S. Dwight, The Life of President Edwards 449–563 (1830). See also I. Edwards, Memoirs of the Rev. David Brainerd; Missionary to the Indians (S. Dwight ed. 1822).Google Scholar

21 More's Utopia employed terms strikingly similar to those of the ideology and literature of conquest justification of the Europeans who settled America. See T. More, Utopia, 36 Harvard Classics 143, at 194–95 (bk. 2, ch. 5.) For one account of European ideology, see W. Cronon, Changes in the Land: Indians, Colonists, and the Ecology of New England (983) (“Cronon, Changes in the Land”). See also W. Washburn, Red Man's Land/White Man's Law 346 (1971) (especially 3940 (More); 40–41 (Raleigh); 41 (Williams)). Hannah Arendt did not raise the destruction and displacement of Indians as primordial crime. She did talk about the enslavement of blacks in this way. Perhaps the republic may be said to rest upon more than one primordial crime. The law now makes room for blacks in a way that it does not for tribes.Google Scholar

22 For a recent, thorough treatment of the search by whites for regeneration through conquest of the wilderness and of savages, see Richard Slotkin's The Fatal Environment (1985). See also R. Nash, Wilderness and the American Mind (3d ed. 1982).Google Scholar

23 Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 590 (1823). (I employ this spelling rather than M'Intosh.)Google Scholar

24 Id. at 588.Google Scholar

25 “That law which regulates and ought to regulate in general, the relations between the conqueror and the conquered, was incapable of application to a people under such circumstances. The resort to some new and different rule, better adapted to the actual state of things, was unavoidable.”Id. at 590.Google Scholar

26 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).Google Scholar

27 Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 556–57 (1832). “The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states”Id. at 557.Google Scholar

28 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).Google Scholar

29 Of course, one may question the legitimacy of Western stories of origin as a literature of justification. If the Aeneid provided an ennobling interpretation for the Roman empire, it may have done so with validity only for the Romans. Who besides Romans looked upon Rome as a liberating, resurgent Troy? Was the crime acknowledged to lie at its core ever worked out of the Roman system? Was the Roman empire a series of treaty alliances among friends or, as Augustine thought, a great robbery dependent upon subjugation? For that matter, when has revolution in the West ever escaped the vicious cycle by which it finally fails, consuming itself and eventually producing the need for another revolution? When has there not been in the end as in the beginning a crime in the politics of the world?Google Scholar

30 For a trenchant theological analysis of the failure of and need for revolutions, see Paul Lehmann's The Transfiguration of Politics (1975).Google Scholar

31 This point has also been raised by Charles Wilkinson in The Place of Indian Law in Constitutional Law and History (1985). For example, Gerald Gunther's casebook no more than mentions Indians, although Professor Gunther is aware of the importance and potential of developments in the Indian cases. See Gunther, 8 Buffalo L. Rev. 1 (1958); Burke, The Cherokee Cases: A Study in Law, Politics, and Morality, 21 Stan. L. Rev. 500, 500 n. * (1969).Google Scholar

32 Art. 1, sec. 8 provides that Congress shall have power “to regulate commerce. with the Indian tribes.” Both art. 1, sec. 2, and Amendment 14, sec. 2, provide for apportionment of representatives “excluding Indians not taxed.”Google Scholar

33 See, e.g., Black Elk Speaks (J. Neihardt ed. 1979); R. Barsh & J. Henderson, The Road (1980); J. Lame Deer & R. Erdoes, Lame Deer: Seeker of Visions (1972). A narrow definition of “tribe” may be a white imposition. See Prucha, The Great Father at 943, 1010 (1984). The band or village may be an equally appropriate way to think of the tribe. See, e.g., H. Driver, Indians of North America 268–308 (2d ed. 1969). The standard is properly qualitative, not quantitative.Google Scholar

34 Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832).Google Scholar

35 See National Lawyers Guild, Rethinking Indian Law iv (1982) (“Rethinking Indian Law”).Google Scholar

36 The tribe is the focus of Indian law. See Clinton, Isolated in Their Own Country 979, 984-91 (cited in note 13).Google Scholar

37 43 Stat. 253, 8 U.S.C. § 1401.Google Scholar

38 See generally Strickland et al., Felix S. Cohen's Handbook of Federal Indian Law 639–72 (1982 ed.) (Cohen III).Google Scholar

39 “Indians had to be made citizens so that the great experiment in coercive civilization could continue without possible legal impediments. Citizenship was conferred to benefit the government, not the tribes.” R. Barsh & J. Henderson, The Road 96 (1980).Google Scholar

40 470 U.S. 226 (1985).Google Scholar

41 On the subject of the eastern land claims see P. Brodeur, Restitution (1985); Clinton & Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 Me. L. Rev. 17, 23–29 (1979).Google Scholar

42 470 U.S. at 233–24 & n.3, 238 & nn. 16–18. See also United States v. Dann, 470 U.S. at 41 n.3; Strickland et al., Felix S. Cohen's Handbook of Federal Indian Law 486–93 (1982 ed) (Cohen III); Cohen, Original Indian Title, 32 Minn. L. Rev. 28 (1947).Google Scholar

43 The county contested the right of a tribe to bring suit. On this subject see 470 U.S. at 234 & n.5; 239 n.1; 235 n.12; 236.Google Scholar

44 Before 1959 few tribal power cases were brought by tribes. There were 10 Indian law decisions in the 1960s, 33 in the 1970s, 16 in the first five terms of the 1980s. The Supreme Court has become more active in this field than in, e.g., antitrust, securities, environmental, and international law. See generally C. Wilkinson, American Indians, Time, and the Law (1987).Google Scholar

45 County of Oneida v. Oneida Indian Nation, 470 US. 226, 256 (1985) (Stevens, J., dissenting).Google Scholar

46 United States v. Dann, 470 U.S. 39 (1985).Google Scholar

47 All three Marshall cases are to be found in National Farmers Union Insurance Cos. v. Crow Tribe, 53 U.S.L.W. 4649, 4651 (1985), and County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 234, 235 (1985). Johnson and Cherokee Nation are cited in United States v. Dann, 470 U.S. 39, 41 (1985), and Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237, 256 n.2 (1985) (Brennan, J., dissenting). Montana v. Blackfeet Tribe, 53 U.S.L.W. 4625, 4677 (1985), cites Worcester. Google Scholar

48 21 U.S. (8 Wheat.) 543 (1823).Google Scholar

49 30 U.S. (5 Pet.) 1 (1831).Google Scholar

50 31 U.S. (6 Pet.) 515 (1832).Google Scholar

51 County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 273 (1985) (Stevens, J., dissenting).Google Scholar

52 Id. As I shall point out, the Court makes a regular habit of attributing to the past its own present injurious practices. When “forefathers' misdeeds” rather than contemporary wrongs are said to be in issue, then the Court can follow the adage, “ancient claims are best left in repose.”Google Scholar

53 Mountain States Telephone & Telegraph v. Pueblo of Santa Ana, 472 U.S. 237, 256 n.2 (Brennan, J., dissenting); National Farmers Union Insurance Cos. v. Crow Tribe, 53 U.S.L.W. 4649, 4651 n.16; County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 234, 247; United States v. Dann, 470 U.S. 39, 41.Google Scholar

54 As I shall have occasion to discuss later, it had both positive and negative impact.Google Scholar

55 There is confusion in the way Cohen I, II, and II are cited. The 1942 Cohen, Cohen I, is the volume authored by Felix Cohen. The 1958 volume (Cohen II)—Federal Indian Law—purports to be a revision of Cohen's original and is sometimes cited as Cohen, although it deliberately changes the substance and tenor of Cohen I, and Felix Cohen did not author it. The 1982 volume (Cohen III)—Felix S. Cohen's Handbook of Federol Indian Law—holds itself out to be “Felix S. Cohen's” but is in fact the product of various authors and editors (none of whom was Felix Cohen) and is very different from Cohen I and II. The Court cites the three as though Cohen were the author of them all with only the dates changed (1942, 1958, and 1982). See, e.g., text at notes 372–77 and note 524 infra.The board of authors and editors of Cohen III should be compared to the list of participants in law review symposia on Indian law and the compilers of casebooks on the subject. A very small number of people—a limited establishment—are shaping Indian law.Google Scholar

56 Land was directly involved in County of Oneida v. Oneida Indian Nation, in United States v. Dann, and in Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana. Kerr-McGee Corp. v. Navajo Tribe and Montana v. Blockfeet Tribe dealt with taxes on mineral extraction from Indian lands. The National Farmers Union case decided the issue of jurisdiction over civil action arising on land within reservation boundaries but owned by the state. Land and erroneous surveys of land were at the base of the controversy about hunting and fishing rights in Oregon Dep't of Fish & Wildlife v. Klamath Indian Tribe.On the subject of land as a principal issue see Lyons, When You Talk About Client Relationships, You Are Talking About the Future of Nations, in Rethinking Indian Law iv (cited in note 35). See generally, e.g., Cronon, Changes in the Land (cited in note 21); A. Josephy, Now That the Buffalo's Gone 127–50 (1982); Prucha, The Great Father 11–18 (cited in note 2); Washburn, Red Man's Land/ White Man's Law (1971).Google Scholar

57 470 U.S. 39 (1985).Google Scholar

58 The Court fixed its attention on whether a payment had been effected. No money had been distributed to the Shoshone. The Court found that payment had occurred when the government as debtor had appropriated funds and deposited them in a trust account for the government as trustee for the Shoshone. The opinion is consumed with concern for the technical question of whether payment had occurred, notwithstanding that it had never come into the hands of the Shoshone. The import of the opinion is that payment has extinguished aboriginal title, but the matter is certainly not free of confusion.Google Scholar

59 Act of Aug. 13, 1946, ch. 959, 60 Stat. 1049 (codified as amended at 25 U.S.C. §§ 70 to 70v-3).Google Scholar

60 470 U.S. 41–42.Google Scholar

61 Id. at 42.Google Scholar

62 Id. Google Scholar

63 Id. Google Scholar

64 706 F.2d 919, 922 & n.1, 928 (1983).Google Scholar

65 706 F.2d 919, 921–23, 925–27.Google Scholar

66 Western Shoshone Identifiable Group, Represented by the Temoak Bands of Western Shoshone Indians, Nevada v. United States: Excerpts from the Memorandum of the Duckwater Shoshone Tribe, the Battle Mountain Indian Community, and the Western Shoshone Sacred Lands Association in Opposition to the Motion and Petition for Attorney's Fees and Expenses, July 15, 1980, in Rethinking Indian Law at 63, 63 n.5 (cited in note 35).Google Scholar

67 See also Tullberg & Coulter, The Failure of Indian Rights Advocacy: Are Lawyers to Blame?, in id. at 51; Price, Lawyers on the Reservation: Some Implications for the Legal Profession, 1969 Law & Soc. Ord. 161.Google Scholar

68 472 US. 237 (1985).Google Scholar

69 See, e.g., Statement on Indian Policy, Jan. 24, 1983, 1 Public Papers of the President of the United States: Ronald Reagan, 1983, p. 96.Google Scholar

70 The Trade and Intercourse Acts and even the removal policy were viewed by some as measures that would allow Indians to be separate and, to a degree, self-governing.Google Scholar

71 See text at notes 412–14.Google Scholar

72 Kerr-McGee Corp. v. Navajo Tribe, 471 U.S. 195, 199.Google Scholar

73 The tribe had agreed to an easement. The circuit court found that the Nonintercourse Act applied to the transaction.Google Scholar

74 Mountain State Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237 (1985).Google Scholar

75 The Mountain States opinion recounts the legislative and Court history of the Pueblo Indians. In fulfillment of its treaty obligations and to discourage the exploitation of Indians (because it produced frontier conflict), Congress passed the first trade and intercourse law in 1790. See Strickland et al., Felix S. Cohen's Handbook of Federal Indian Law 110 (1982 ed.) (Cohen III). It was several times elaborated and amended. The last and current version was enacted in 1834. See id.; 472 U.S. 237, at 241 n.9. Its purported intent is to provide protected separation for the tribes. In 1877 and in accord with the policy of the day the Court held that the Pueblos were not an Indian tribe so their lands could be sold notwithstanding the Nonintercourse Act and applicable treaties. United States v. Joseph, 94 U.S. 614 (1877). In 1913 in accord with a different policy, the Court held that Pueblos were an Indian tribe so that they could be denied liquor. United States v. Sandoval, 231 U.S. 28 (1913). In 1926 the Court held that Pueblos were tribes and that the Nonintercourse Act included them. United States v. Candelaria, 271 U.S. 432 (1926). Non-Indian claims to Pueblo lands were thereby cast in doubt. Congress eventually responded to the land title confusion with a confusing statute, the Pueblo Lands Act of 1924, § 17, called “awkward and obscure,”“opaque,” a “muddle,” and a “statutory bog” in a dissent to Mountain States by Justice Brennan. 472 U.S. at 255–56. The statute was in issue in Mountain States. In that case, the Tenth Circuit Court of Appeals had held that the Nonintercourse Act applied to Pueblos. The Supreme Court reversed and held that Pueblo land sales do not require congressional ratification. It once again found the Pueblos are not an Indian tribe for statutory purposes.Google Scholar

76 See note 33.Google Scholar

77 Barsh & Henderson, The Road, at 244–45 (1980).Google Scholar

78 Id. Google Scholar

79 See generally Canby, American Indian Law in an Nutshell 3–6 (1981); Strickland et al., Felix S. Cohen's Handbook of Federal Indian Law 3–26 (1982 ed.) (Cohen III).Google Scholar

80 See, e.g., Prucha, The Great Father (1984); Getches, Rosenfeld, & Wilkinson, Federal Indian Law 69–106 (1982); Strickland et al., Felix S. Cohen's Handbook of Federal Indian Law 127–80 (1982 ed.) (Cohen III); Price & Clinton, Law and the American Indian 77–86 (1983). A good summary and analysis of termination is provided by Note, Terminating the Indian Termination Policy, 35 Stan. L. Rev. 1181 (1983).Google Scholar

81 See Strickland et al., Felix S. Cohen's Handbook of Federal Indian Law 221–25 (1982 ed) (Cohen III); Wilkinson & Volkman, Judicial Review of Indian Treaty Abrogation: “As Long as Water Flows or Grass Grows upon the Earth”—How Long a Time Is That? 63 Calif. L. Rev. 601 (1975).Google Scholar

82 County of Oneida v. Oneida Indian Nation, 470 U.S. at 247.Google Scholar

83 Ken-McGee Corp. v. Navajo Tribe, 471 U.S. at 200; Montana v. Blackfeet Tribe, 53 U.S.L.W. at 4627.Google Scholar

84 United States v. Dann, 470 U.S. 39 (1985).Google Scholar

85 Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237, 255, 256–57 (1985) (Brennan, J., dissenting).Google Scholar

86 471 U.S. 195 (1985).Google Scholar

87 On the question of tax generally see the thorough and interesting analysis of Barsh, Issues in Federal, State, and Tribal Taxation of Reservation Wealth: A Survey and Economic Critique, 54 Wash L. Rev. 531 (1979).Google Scholar

88 It is not insignificant that the government, with its freely elected governing body, appeared to the Court to resemble that of the United States. There was one exception: among tribal members the voter turnout was 69%.Google Scholar

89 471 U.S. 201. The distinction between business partner and sovereign is collapsed.Google Scholar

90 53 U.S.L.W. 4625 (1985).Google Scholar

91 On the question of allotment and the leasing of Indian land, see text at notes 342–46.Google Scholar

92 53 U.S.L.W. 4627.Google Scholar

93 105 S. Ct. Rep. 3420 (1985).Google Scholar

94 105 S. Ct. 2447 (1985).Google Scholar

95 See, e.g., Clinton, Criminal Jurisdiction over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503 (1976).Google Scholar

96 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).Google Scholar

97 105 S. Ct. 2451.Google Scholar

98 435 U.S. 313, 322-26 (1978).Google Scholar

99 On the appropriateness of treaty-specific legal representation see Clinton, Reservation Specificity and Indian Adjudication: An Essay on the Importance of Limited Contextualism in Indian Law, 8 Hamline L. Rev. 543 (1985).Google Scholar

100 See, e.g., Treaty with the Wyandot, 1785, art. II, in Kappler, 2 Indian Affairs: Laws and Treaties 6, 7 (1904).Google Scholar

101 105 S. Ct. 2452 n.4.Google Scholar

102 Id. at 2451 n.10.Google Scholar

103 10 U.S. (6 Cranch) 87 (1810).Google Scholar

104 See C. Magrath, Yazoo (1966).CrossRefGoogle Scholar

105 10 U.S. 143, 146–47 (Johnson, J., dissenting).Google Scholar

106 Id. at 147.Google Scholar

107 10 U.S. at 142–43.Google Scholar

108 11 U.S. (7 Cranch) 164 (1812).Google Scholar

109 21 U.S. (8 Wheat.) 543 (1823).Google Scholar

110 Professor Robert Williams, in a fine study of the early European origins of thought about the status of Indians, employs the word “incorporation” in the context of the papally inspired and royally implemented Spanish encomienda, whereby groups of Indian villages were “commended” to colonists. Williams, The Medieval and Renaissance Origins of the Status of the American Indian in Western Legal Thought, 57 S. Cal. L. Rev. 1, 47, 3648 (1983). Another article by Williams—The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man's Indian Jurisprudence, 1986 Wis. L. Rev. 219—came into my hands too late for me to take it into account in this study. It includes analysis of U.S. constitutional law and jurisprudence and a reflection upon the possibilities of Native American legal thought as embodied in the Two Row Wampum. It is one of the most creative and illuminating pieces in the field of Indian law.Google Scholar

111 21 U.S. at 573.Google Scholar

112 Id. at 574.Google Scholar

113 Id. at 584–85.Google Scholar

114 Id. Google Scholar

115 Id. at 590.Google Scholar

116 Id. at 591.Google Scholar

117 Id. at 592.Google Scholar

118 Id. at 603.Google Scholar

119 Id. at 590.Google Scholar

120 Id. at 593.Google Scholar

121 Id. Google Scholar

122 Id. at 594.Google Scholar

123 Id. at 596–97. Nor had unlicensed purchases been cured by ratification. Id. at 603–4. Nor were colonial prohibitions to be taken as evidence that prior purchases were valid. Id. at 604.Google Scholar

124 Locke, Of Civil Government, ch. 8, par. 119–20. Although this passage was not included, Locke was argued to the Court. 21 U.S. 567, 569, 570.Google Scholar

125 The Road at 37 (1980).Google Scholar

126 21 U.S. at 593.Google Scholar

127 See generally Williams (cited in note 110) for a study of the early background of European attitudes and legal practices toward Indians. See also Cohen, The Spanish Origin of Indian Rights in the Law of the United States, 31 Geo. L.J. 1 (1942).Google Scholar

128 21 U.S. at 589.Google Scholar

129 Id. at 590.Google Scholar

130 Id. Google Scholar

131 Id. Google Scholar

132 Id. at 591–92. It is possible to read some sentiment for the notion of conquest in Johnson v. McIntosh. Marshall's opinion does make one direct statement about war in the New World, but the statement does not refer to Europeans making war upon the natives. Rather, as in Worcester and in similar reference to the territory east of the Mississippi, Marshall means hostilities between European nations as they attempted to assert and defend territorial claims:” The British government which was then our government, and whose rights have passed to the United States, asserted a title to all the lands occupied by Indians, within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right to extinguishing the titles which occupancy gave to them. These claims have been maintained and established as far west as the river Mississippi, by the sword.” 21 U.S. at 588. Earlier Marshall had noted that discovery gives the right to acquire title from the native inhabitants “either by purchase or by conquest.”Id. at 587. In neither Cherokee Nation nor Worcester was there any possibility that the Cherokee and their lands had been the object of conquest. But Marshall then stated: “However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear … it becomes the law of the land.”Id. at 591. Several interpretations of this statement are possible. For example:1. The discovery rights were exercised through conquest rather than purchase. That is, the possibility of acquiring title—discovery—was realized by the English by an act of conquest. 2. The right of acquisition was not exercised by purchase. Instead acquisition was realized by the fiction of conquest. That is, there had been no conquest in fact, but there had been one in law. 3. The matter was deliberately left ambiguous by Marshall. 4. There was no purchase, no conquest in fact, and no conquest in law. Title was acquired in another way. The subject lands had become unoccupied. The Indians had withdrawn from them but not because of conquest in any traditional legal or factual sense. In the immediately preceding passage, Marshall asserts that, after the appearance of Europeans, “[f]requent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. European policy, numbers and skill prevailed; as the white population advanced, that of the Indians necessarily receded; the country in the immediate neighborhood of agriculturists became unfit for them; the game fled into thicker and more unbroken forests, and the Indians followed. The soil, to which the crown originally claimed title, being no longer occupied by its ancient inhabitants, was parcelled out according to the will of the sovereign power, and taken possession of by persons who claimed immediately from the crown, or mediately, through its grantees, or deputies.”Id. at 590–91. Instead of conquest or purchase, there had been Indian abandonment and non-Indian acquisition.Google Scholar

133 The admission that American law is unnatural and uncivilized warrants close scrutiny. Europeans asserted the claims of discovery of North America. This legal fiction was one unnatural extravagance admitted by Marshall. There was another. A limitation was thought to be placed on the tribes. There had been no conquest and no incorporation. The rule was that Indians could not transfer absolute title. Marshall laments this rule. But what is the sin he confesses? As I have noted, the restriction placed upon the tribes was an abstract tautology with no real impact. Absolute title could not be conveyed by Indians, but absolute title only meant something as between past European “discoverers.” Even so, the rule constitutes a non-Indian pretension lacking a civilized, natural, or factual basis. Minor though it is, it is illegitimate. Marshall found that this minor encroachment necessitated confession. And if he thought this offense grievous, I infer that he would regard a greater offense as more greatly intolerable. This inference is supported by the Marshall Court's next two Indian cases.Google Scholar

134 30 U.S. (5 Pet.) 1 (1835).Google Scholar

135 Id. at 16.Google Scholar

136 Id. at 17.Google Scholar

137 Id. Google Scholar

138 See generally C. Warren, 1 The Supreme Court in United States History 729–79 (1924); Burke, The Cherokee Cases: A Study in Law, Politics, and Morality, 21 Stan. L. Rev. 500 (1969). In an opinion concurring in the judgment, Justice Johnson used the occasion to say: “there are strong reasons for doubting the applicability of the epithet ‘state’ to a people so low in the grade of organized society as our Indian tribes most generally are.” 30 U.S. at 21. An opinion by Justice Baldwin gave expression to similar sentiments. Id. at 31.Google Scholar

139 31 US. (6 Pet.) 515 (1832).Google Scholar

140 Id. at 542.Google Scholar

141 Id. at 542–61.Google Scholar

142 Id. at 542–43.Google Scholar

143 Id. at 543–44.Google Scholar

144 Id. at 545.Google Scholar

145 Id. at 544–45.Google Scholar

146 Id. at 546. “[D]efensive war alone seems to have been contemplated.”Id. at 545.Google Scholar

147 Id. at 546–47. Great Britain had officially treated the tribes as self-governing and independent. Id. at 548.Google Scholar

148 Id. at 549.Google Scholar

149 Id. Google Scholar

150 Id. at 561.Google Scholar

151 Justice McLean, concurring, came to largely the same conclusion. See id. at 562, 579–81. His perspective, however, was somewhat different. McLean thought the self-government and independence enjoyed by tribes within the boundaries of a state were temporary. He anticipated that the tribes would either exchange lands within a state for lands in the western territory or remain in the state and become amalgamated. Justice Butler dissented both on procedural grounds—an improper record—and on substantive grounds (the reasons given in Cherokee Nation). Id. at 596.Google Scholar

152 Mitchel v. United States, 34 (9 Pet.) 711 (1835), concerned title to land in Florida. Grants had been made by Indians under the authority of Spain, before cession. Marshall wrote that portion of the opinion denying a motion to postpone final disposition. Id. at 723. Baldwin wrote for the Court. He followed the Johnson scheme, id. at 745–46, but referred also to English conquest, id. at 748–49. Spain had allocated to Indians a property right, and the United States was bound by the right under treaty. Id. at 752, 755–56.Google Scholar

153 31 U.S. at 559.Google Scholar

154 Id. Google Scholar

155 Id. at 557.Google Scholar

156 Id. Google Scholar

157 Id. at 561–62.Google Scholar

158 105 S. Ct. 2451 (1985).Google Scholar

159 Id. at 2452 n.14.Google Scholar

160 435 U.S. 313 (1978).Google Scholar

161 Id. at 323.Google Scholar

162 Id. at 326.Google Scholar

163 414 U.S. 661, 667–68 (1974).Google Scholar

164 31 U.S. 559–60.Google Scholar

165 10 U.S. 147.Google Scholar

166 435 U.S. 191 (1978).CrossRefGoogle Scholar

167 Barsh, The Betrayal: Oliphant v. Suquamish Indian Tribe and the Hunting of the Snark, 63 Minn. L. Rev. 609 (1979).Google Scholar

168 435 U.S. at 208.Google Scholar

169 Id. at 208–10.Google Scholar

170 Worcester v. Georgia, 31 U.S. at 559.Google Scholar

171 Quoted from Marshall's opinion in Johnson v. McIntosh is a statement about diminishment of Indian sovereignty. Marshall's statement was made as he began elaborating his twofold analytic scheme (discovery among Europeans; chosen regulation between European and Indian). The sentence appears in Johnson in context as follows: In the establishment of [the relations of discovery], the rights of the original inhabitants were, in no instance, entirely disregarded, but were, necessarily, to a considerable extent impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil, at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy. 21 U.S. (8 Wheat.) 543, 574 (1823). It will be remembered that Johnson v. McIntosh involved a title dispute between non-Indians. The title of one of the parties was derived from a direct purchase from Indians. Purchase of land from Indians would, following the logic of Locke, mean the incorporation of the buyer into the tribe of the seller. Purchase of land from Indians had to take place through the discovering European sovereign—licensed purchase—to prevent this result. The doctrine of discovery allowed Marshall, without actually harming Indian interests, to avoid unsettling both chains of title and theories of non-Indian incorporation into tribes. Quite apart from subsequent modifications of his approach, Marshall's only indication in Johnson of diminished tribal sovereignty was the reference to ultimate dominion or absolute title. This abstraction had no practical effect on tribes and, in any event, was certainly not imposed by conquest or implied by incorporation.Johnson is an odd choice for Rehnquist to have made as supporting authority for incorporation. It is the case in which Marshall specifically allowed for the incorporation of non-Indians into the tribes and specifically rejected the notion that tribes had been or could be incorporated into the United States. Justice Rehnquist also quotes from Marshall's opinion in Cherokee Nation. The quotation is taken from the point in the opinion where Marshall distinguished Indian from foreign nations. One of the rhetorical sources consulted by Marshall was international attitude. Hence the sentence selected by Rehnquist: “They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them, would be considered by all as an invasion of our territory and an act of hostility.” 30 U.S. at 17–18. This is a version of discovery describing the effects of the doctrine upon competing foreign sovereigns. It is not a statement of incorporation. There is language in Cherokee Nation that can be construed as depreciating the tribes' independent sovereignty, but it cannot be read as supporting their incorporation or as reversing Marshall's expressed view that incorporation is impossible. The words of disparagement must be read in light of the opinion's reaffirmation of Marshall's commitment to the tribe's nationhood: So much of the argument as was intended to prove the character of the Cherokees as a state, as a distinct political society, separated from others, capable of managing its own affairs and governing itself, has, in the opinion of a majority of the judges, been completely successful. They have been uniformly treated as a state, from the settlement of our country. The numerous treaties made with them by the United States, recognize them as a people capable of maintaining the relations of peace and war, of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States, by any individual of their community. The acts of our government plainly recognize the Cherokee nation as a state, and the courts are bound by those acts. Id. at 15. The absence of incorporation continued to be one of the first principles of Marshall's thinking about tribal status as it had been since Johnson v. McIntosh. The third Marshall Court case employed by Justice Rehnquist is Fletcher v. Peck Rehnquist quotes from the conclusion of Justice Johnson's concurrence, which argued that Indians hold fee simple title to their land. Johnson noted that treaties entered with the Cherokee acknowledge them to be an independent people. 10 U.S. (6 Cranch) 87, 146–47. He also noted that the United States legislated “upon the conduct of strangers or citizens within [tribal] limits” and had acted to restrain “all persons from encroaching upon their territory.”Id. He also said, in the statement quoted by Rehnquist: “the limitation upon [tribal] sovereignty amounts to the right of governing every person within their limits, except themselves.” The question is what Johnson meant by this limitation and whether he referred to a derogation of sovereignty implied by incorporation. That is, did the United States exercise governmental authority over non-Indians in Indian country and did it do so in challenge to tribal government? Just what was “the right of governing every person” in Indian country except Indians? Johnson wrote in 1810. His reference to legislation governing non-Indians in Indian country was undoubtedly a reference to the trade and intercourse laws. A listing of the statutes from 1789–1810 bearing on Indians is provided in Cohen, Handbook of Federal Indian Law 485–87 (1942) (Cohen I). In treaties, Indians had agreed to deliver to American authorities any non-Indians accused of major crimes. See Treaty with the Cherokee, 1785, Art. 6, Kappler, 2 Indian Affairs: Laws and Treaties 8, 9–10 (1904). The 1786 treaties with the Choctaw and the Chickasaw had similar provisions. See id. at 11, 14. If this agreement constituted a qualification of tribal sovereignty, it was consensual. Legislation pursuant to treaties was enacted in order to bring a needed and sought-after accord with Indians. Peace had been repeatedly threatened by the encroachment of non-Indians seeking land as well as profits from sharp trade practices. The treaties had promised protection for the tribes and the integrity of their territorial boundaries. The promises did not coincide with frontier realities. The reliability of the United States as a treaty signatory was cast in doubt. There was unrest among the tribes. To protect Indians from treaty violations by non-Indians and to secure peace and guarantee Indian rights, Congress responded with legislation that made private purchases of land invalid, subjected trade to licensing and regulation, and provided for punishment of injuries done to Indians. As Prucha summarizes: The trade and intercourse laws were necessary to provide a framework for the trade and to establish a licensing system that would permit some control and regulation, but this was merely a restatement of old procedures. The vital sections of the laws were in answer to the crisis of the day on the frontier, and the provisions pertained to the tribes of Indians with whom the nation dealt as independent bodies. Neither President Washington nor the Congress was concerned with the remnants of tribes that had been absorbed by the states and had come under their direction and control. The laws sought to provide an answer to the charge that the treaties made with the tribes on the frontiers, which guaranteed their rights to the territory behind the boundary lines, were not respected by the United States. The laws were not primarily “Indian” laws, for they touched the Indians only indirectly. The legislation, rather, was directed against lawless whites and sought to restrain them from violating the sacred treaties. Prucha, The Great Father 92 (1984). See also id. at 42–51, 89–93, 102–14, 143, 1661, 165–67. Johnson's opinion argued for absolute tribal property rights. His reference to the United States' right to govern non-Indians on tribal lands could only have meant in 1810 the right to enforce and respect the treaties that acknowledged the Indian nations' independence. The limitation on their sovereignty was the right of the United States to govern those non-Indians whose frontier lawlessness was a threat to tribal sovereignty. For Johnson as for Marshall, there was no general conquest of Indians, no incorporation, and no implied divestment of tribal sovereignty. Johnson, like Marshall, can only be said to represent an attitude and position very different from that for which Rehnquist invoked his aid.Google Scholar

172 45 U.S. (4 How.) 567 (1846).Google Scholar

173 Id. at 567.Google Scholar

174 Id. at 573.Google Scholar

175 Id. at 570.Google Scholar

176 Id. at 572.Google Scholar

177 See text at notes 76–77 supra. Google Scholar

178 45 U.S. at 573.Google Scholar

179 Id. Google Scholar

180 Id. at 572. If treatment of the tribes is a question, then “it is a question for the law-making and political department of the government, and not for the judicial.”Id. Google Scholar

181 Id. Google Scholar

182 Id. Google Scholar

183 Treaty with the Western Cherokee, 1828, Kappler, 2 Indian Affairs: Law and Treaties 288, 288–89; Treaty with the Western Cherokee 1833, id. at 385, 386–87; Treaty with the Cherokee, 1835, id., at 439, 404–41.Google Scholar

184 435 U.S. 210.Google Scholar

185 Id. at 212.Google Scholar

186 See C. Wilkinson, American Indians, Time and the Law (1986); Barsh & Henderson, The Road 112–13 (1980).Google Scholar

187 F. Cohen, Handbook of Federal Indian Law 123 (1942) (Cohen I).Google Scholar

188 The Road 59–60 n.36, 112–13. 278–79 (1980). As Barsh and Henderson note, “that the fiction of conquest is a part of the law of tribal status is itself an historical fiction.”Id. at 60.Google Scholar

189 348 U.S. 272 (1954).Google Scholar

190 Id. at 279. It should be added that Justice Reed's reading of case law is equal to his reading of history. On the same page that he conquered the Indians, he overwhelmed John Marshall. He said: “The great case of Johnson v. McIntosh denied the power of an Indian tribe to pass their right of occupancy to another.”Id. Johnson v. McIntosh, it will be remembered, did no such thing. In fact it depended upon the opposite proposition. Marshall's first ground for denying plaintiff's claim in that case was that the tribe had extinguished the Indian title conveyed to the non-Indians. The tribe could do this because a non-Indian making an unlicensed purchase of property from Indians incorporated himself into the tribe and became subject to its law in consequence of the power of the tribe to pass their right of occupancy.Google Scholar

191 Strickland et al., Felix S. Cohen's Handbook of Federal Indian Law 241–42 (1982) (Cohen III).Google Scholar

192 Id. at 245.Google Scholar

193 Id. at 244.Google Scholar

194 30 U.S. at 17.Google Scholar

195 31 U.S. at 553–54.Google Scholar

196 Id. at 554.Google Scholar

197 Strickland et al., (Cohen III) at 242 n.2 (cited in note 191).Google Scholar

198 Id. at 65 n.37.Google Scholar

199 Getches, Wilkinson, & Rosenfelt, Federal Indian Law (1979), presents very little on the subject. It quotes Cohen's statement on conquest, id. at 253–54, and makes a few equivocal remarks as an introduction to a section on “The Federal-Tribal Relationship.”Id. at 143. It asks a rueful question after Oliphant and Wheeler. Id. at 277–78. Price & Clinton, Law and the American Indian (1983), after opening with excerpts from Johnson v. McIntosh, gives an excerpt from Jennings, The Invasion of America: Indians, Colonialism and the Cant of Conquest (1975). Id. at 132. The excerpt exposes the mythology of conquest and its related ideology. See also Collins, Implied Limitations on the Jurisdiction of Indian Tribes, 54 Wash. L. Rev. 479 (1979), which is basically accepting of the status quo but is also mildly critical. 199. On the issue of hermeneutical violence, see F. Kermode, The Genesis of Secrecy 1–2 (1979).Google Scholar

200 105 S. Ct. 2451 (1985).Google Scholar

201 19 U.S. (6 Wheat.) 1 (1824).Google Scholar

202 On various meanings of “plenary,” see Engdahl, State and Federal Power over Federal Property, 18 Ariz. L. Rev. 283, 363–66 (1976). The finest study of federal plenary power over Indians is Nell Jessup Newton's Federal Power over Indians: Its Sources, Scope, and Limitations, 132 Pa. L. Rev. 195 (1984) (“Newton, Federal Power”). Congress could fully regulate interstate commerce within states to the extent that interstate commerce could be identified. However, Marshall did not conceive of the power extending to matters internal to states. The present Court seems prepared to let Congress do as it will with the states under the covers of the Commerce Clause. The power to regulate commerce with foreign nations certainly does not include the power to intrude upon the internal affairs of foreign nations. The Worcester Marshall would say that, in this respect, Indian Nations are more like Foreign Nations than states. One of the arguments employed by the present Court in explaining the lack of legal limitation upon federal exercises of commerce power over the state is that states have the protection of the political process. Tribes lack this protection. See further below.Google Scholar

203 30 U.S. at 19.Google Scholar

204 Articles of Confederation, art 9. Madison found this article “obscure and contradictory.” The Federalist No. 42, at 279, 284 (J. Cooke ed. 1961). For further comment on the frustration of the Continental Congress in dealing with the tribes, see Clinton, Review, 47 U. Chi. L. Rev. 846, 851–57 (1980).Google Scholar

205 31 US. at 553.Google Scholar

206 Id. at 554.Google Scholar

207 30 U.S. at 40.Google Scholar

208 Art. 4, sec. 3, provides: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”Google Scholar

209 30 U.S. at 39.Google Scholar

210 Id. at 40.Google Scholar

211 Id. at 44.Google Scholar

212 Indian Nations delegated nothing, and if states had no power over tribes, they also did not delegate it.Google Scholar

213 53 U.S.L.W. 4650 n.10, citing Escondido Mutual Water Co. v. La Jolla, Rincon, San Pasqual, Pauma and Pala Bands of Mission Indians, 466 U.S. 765 (1984). The cited passage is the last sentence of the last footnote in Escondido, id. at 788 11.30, which, in turn, cites United States v. Wheeler, 435 US. 314, 323 (1978).Google Scholar

214 Ball, Nuclear War: The End of Law, in Nuclear Weapons and Law 287 (A. Miller & M. Feinrider eds. 1984).Google Scholar

215 411 U.S. 164(1973).Google Scholar

216 Id at 172 n.7.Google Scholar

217 118 U.S. 375 (1886).Google Scholar

218 Id. at 378.Google Scholar

219 See Garcia v. San Antonio Metropolitan Transit, 105 S. Ct. 1005 (1985). The Indian commerce power, assimilated to the foreign commerce power, would render it closer to the treaty power with which it was originally aligned.Google Scholar

220 See text infra at notes 222, 230, 23638, 257, 265, 280, passim. Google Scholar

221 435 U.S. 130, 155 (1980).Google Scholar

222 118 U.S. 375 (1886).Google Scholar

223 109 U.S. 556 (1883).Google Scholar

224 23 Stat. 385 § 9, 18 U.S. § 1153.Google Scholar

225 Worcester v. Georgia, 31 U.S. (6 Pet.) at 560–61.Google Scholar

226 118 U.S. 378.Google Scholar

227 Id. at 378–79.Google Scholar

228 Id. at 379.Google Scholar

229 Id. at 380–81.Google Scholar

230 Id. at 384–85.Google Scholar

231 187 U.S. 553, 566–67 (1903).Google Scholar

232 See, e.g., Prucha, The Great Father 501–33 (1984).Google Scholar

233 16 Stat. 556.Google Scholar

234 Act of March 3, 1871, ch. 120, § 1, 16 Stat. 566, 25 U.S.C. § 71.Google Scholar

235 78 U.S. 616 (1870).Google Scholar

236 Chinese Exclusion Case, 130 U.S. 581 (1889).Google Scholar

237 118 U.S. at 282.Google Scholar

238 Act of March 3, 1871, ch. 120, § 1, 16 Stat. 566.CrossRefGoogle Scholar

239 187 U.S. 554.Google Scholar

240 Id. at 554–60.Google Scholar

241 Id. at 561.Google Scholar

242 Id. at 558.Google Scholar

243 Id. at 564.Google Scholar

244 Id. at 565.Google Scholar

245 Id. at 565, 568.Google Scholar

246 Id. at 566.Google Scholar

247 Id. at 568.Google Scholar

248 See text infra at notes 263–64.Google Scholar

249 455 U.S. 130, 155 n.21.Google Scholar

250 Solem v. Bartlett, 465 U.S. 463, 470 n.11 (1984).CrossRefGoogle Scholar

251 455 U.S. at 159, 169 & n.18 (Stevens, J., dissenting).Google Scholar

252 See id. at 172 n.23.Google Scholar

253 435 U.S. 313 (1978).Google Scholar

254 Id. at 319. Stevens's formulation later commanded the vote of a unanimous Court in National Farmers Union where it was expressed as a sentiment taken not from Lone Wolf but from Wheeler's section on incorporation. Congress's acquisition and exercise of power as well as Indian loss of power is thus explained by incorporation. The statement that Congress has power to end tribal sovereignty is repeated in the last footnote to Justice White's opinion for the Court in Escondido Mutual Water Co. v. La Jolla, Rincon, San Pasqual, Pauma, and Pala Bands of Mission Indians, 466 U.S. 765, 787–88 n.30 (1984). As a Wheeler-incorporation sentiment, the statement then reappears in Justice O'Connor's majority opinion in Rice v. Rehner, 463 U.S. 713, 719: tribal sovereignty” exists only at the sufferance of Congress and is subject to complete defeasance” (emphasis added). Stevens then employs it as a Wheeler-incorporation-based notion in his opinion for a unanimous Court in National Farmers Union, 53 U.S.L.W. 4650 n. 10.Google Scholar

255 448 U.S. 371, 411 n.27 (1980).CrossRefGoogle Scholar

256 430 U.S. 584, 594 (1977).Google Scholar

257 In the Sioux Nation case, Justice Blackmun pointed out that “[t]he Sioux do not claim that Congress was without power to take the Black Hills from them in contravention of the Fort Laramie Treaty of 1868.” 448 U.S. at 411 n.27. Does this mean that the tribes have acquiesced in assertions of superiority? Actually, the Sioux have consistently denied federal power to seize the Black Hills and have opposed United States violation of its treaty promises. It was counsel for the Sioux who failed to deny the federal power. See also Newton, Federal Power 233–35 (cited in note 202).Google Scholar

258 Newton, Federal Power 232–35 (cited in note 202).Google Scholar

259 See text infra at notes 281–314.Google Scholar

260 Newton, Federal Power 233 (cited in note 202).Google Scholar

261 466 U.S. 787–89 n.30 (1984).CrossRefGoogle Scholar

262 53 U.S.L.W. 4650 & n. 10.Google Scholar

263 430 U.S. 73, 84 (1977).Google Scholar

264 United States v. Sioux Nation, 448 U.S. 371, 413 (1980).Google Scholar

265 Newton, Federal Power (cited in note 202), is an example. This seems to me to urge the fox into the hen house.Google Scholar

266 435 U.S. 191 (1978).Google Scholar

267 450 U.S. 544 (1981).Google Scholar

268 Id. at 563.Google Scholar

269 Id. at 564 (citing Mescalero Apache Tribe v. Jones, 411 U.S. 145; Williams v. Lee, 358 U.S. 217; and United States v. Kagama, 118 U.S. 375).Google Scholar

270 463 U.S. 713 (1983).Google Scholar

271 Id. at 722.Google Scholar

272 Id. Google Scholar

273 Letter from Story to George Ticknor, Mar. 8, 1832, in 2 The Life and Letters of Joseph Story 83 (W. Story ed. 1851), cited in Burke, The Cherokee Cases: A Study in Law, Politics, and Morality, 21 Stan. L. Rev. 500, 527 (1969) (“Burke, The Cherokee Cases”).Google Scholar

274 Id. at 87, cited in Barsh & Henderson, The Road 60 (1980).Google Scholar

275 Burke, The Cherokee Cases at 531 (cited in note 273).Google Scholar

276 Id. at 524 If. See also 1 C. Warren, The Supreme Court in United States History 216–29 (1924).Google Scholar

277 Burke, The Cherokee Cases 526–27 (cited in note 273).Google Scholar

278 Id. at 531.Google Scholar

279 Jeremiah Evarts, the leading non-Indian advocate of the tribes, died in 1831. His legal research had been influential and had worked its way into the opinions of Justices supporting the Indian cause, Thompson in Cherokee and Marshall in Worcester. See id at 502, 505, 509, 51617, 522. See also Prucha, The Great Father 201–7 (1984).Google Scholar

280 A review of the commentators discloses the following coverage of the constitutional base for plenary power (or the absence of such a base): 1. Cohen I. The original Handbook included an extensive discussion of the bearing of the Constitution upon the federal relation to Indian nations. F. Cohen, Handbook of Federal Indian Law 80–100 (1942) (Cohen I). Cohen opened his consideration of the Constitution with a quotation outlining “the creation of a new power, a power to regulate Indians.”Id. at 89, 89 quoting Rice, The Position of the American Indian in the Law of the United States, 16 J. Comp. Leg. 78 (1934). He added that references to this new power had become so frequent that it might seem “captious to point out that there is excellent authority for the view that Congress has no constitutional power over Indians except what is conferred by the commerce clause and other clauses of Constitution.”Id. at 90. Indian cases had been influenced, he recorded, by “the peculiar relationship between Indians and the Federal Government,”id., a relationship that he identified as that between guardian and ward. Id. at 169ff. I shall discuss this relationship in the next section. The point to be made here is that Cohen was candid about the absence of a constitutional basis for much beyond regulation of trade with the tribes. Since the United States had come to exert wide power over Indians, he could only be “practically justified in characterizing such federal power as ‘plenary.’”Id. at 91. 2. Cohen III. In place of Cohen's circumspect and thorough discussion of the possible constitutional bases of federal power over Indians, the 1982 Cohen offers an abreviated summary with this singular explanation: “it is somewhat artificial to analyze the constitutional provisions separately. For most purposes it is sufficient to conclude that there is a single ‘power over Indian affairs,’ an amalgam of the several specific constitutional provisions.” Strickland et al., Cohen's Handbook of Federal Indian Law 211 (1982) (Cohen III). Cohen III emphasizes the “relationship” between the United States and Indians and says this relationship is “premised upon broad but not unlimited federal constitutional power.”Id. at 207. Nothing is said about implied Indian losses of power or implied federal gains of power. Nor is anything said about extraconstitutional or nonconstitutional bases for federal plenary power over Indians except the surprising, plainly erroneous statement that, although the Court may have relied upon the Kuguma theory at one time, “this reasoning has not been followed.”Id. at 220. The text thus repeats an earlier footnote statement: Kaguma“has not been applied in modem decisions.”Id. at 210–11 n.22. This version of Cohen was published in 1982. Leaving aside other cases that were available to the authors before publication and not taking into account subsequent developments, the two 1978 cases of Oliphant and Wheeler placed specific reliance upon Kaguma. Oliphant v. Suquamish Indian Tribe, 435 U.S. at 212; United States v. Wheeler at 323. Footnote 22 adds: “The trust responsibility has not been cited as an independent source of congressional power since United States v. Candelaria, 271 U.S. 432 (1926).” In my discussion of the trust doctrine, I shall show the several ways in which this is a false statement. Suffice it for now to note that Oliphant and Wheeler also relied upon the tribes' alleged dependent status as a ground for extending power over them and diminishing what remained to them. United States v. Wheeler, 435 US. at 326; Oliphant v. Suquamish Indian Tribe, 435 U.S. at 207–9. See also William v. Lee, 358 U.S. 217, 219 n.4 (1959). Cohen III leaves the reader believing that the federal government-Indian nation relationship is based upon the Constitution insofar as federal power is concerned and that a trust obligation limits that power. Supposedly, if there exists any nonconstitutional ground, it is the trust responsibility to tribes which is a ground not for federal power but only for federal obligation. (As I shall show in the next section, this is not how the trust doctrine functions.) The 1982 Handbook's rosy picture of the basis of federal power over Indians is misleading both generally and in its particulars. It creates the illusion that Congress is acting within constitutional parameters and within conscionable limits established by a Court safeguarding tribes and their rights. Like Pippa, Cohen III would have us think the Congress and the Court are in their heaven; all's right with the tribes. 3. Getches, Rosenfeld, & Wilkinson, Federal Indian Law (1979). This book is a generally accepting, unanalytic presentation of cases. A brief introduction to its section on federal-tribal relations concludes: “A relationship of dependence and trust not only gives the federal government broad plenary powers over Indian affairs, but also imposes a trustee's duties of protection and fair dealings upon the government.”Id. at 143. It subsequently includes, uncritically, a law review note declaiming that “[t]he plenary power of the United States Government over the Indian and his tribe emanates from three sources,” the Constitution, the guardian-ward relation, and federal ownership: “First, the Constitution grants to the president and to Congress powers over Indian affairs which have been construed as giving broad authority to the federal government. Second, the courts have applied the theory of guardian and ward to the federal government's relationship to the tribe. Third, federal authority is inherent in the federal government's ownership of the land which the tribal units occupy.”Id. at 182, quoting Comment, The Indian Battle for Self-Determination, 58 Calif. L. Rev. 445 (1970). The excerpt concludes that the potential scope of the power is unlimited. Id. at 185. A 1983 supplement to the casebook raises some questions about federal power and the Court's direction. Getches, Rosenfelt, & Wilkinson, 1983 Supplement to Federal Indian Law 34, 42. They are standard-form, noncommittal casebook questions. 4. Price & Clinton, Law and the American Indian (1983). Price and Clinton, the only other casebook in the field of Indian law generally, includes but brief reference to the constitutional underpinnings. It adopts a somewhat critical, questioning attitude toward the claimed constitutionality of broad federal power and toward the offered nonconstitutional arguments. See id. at 131–33, 3635, 168–69 (1983). It also makes note of the contribution of ethnocentrism to the idea of a federal trusteeship over Indians. Id. at 169. Professor Clinton addressed the subject of limits in an article, Isolated in Their Own Country (cited in note 13). He noted that constitutional limits had been drawn from the Commerce and Treaty Clauses. But he also observed that the Court has been unwilling to enforce “any effective check on the exercise of congressional authority in the area of Indian affairs.”Id. at 996–97 n.97. He added that the Court has “frequently and uncritically accepted that the Indian commerce clause enables” Congress to regulate internal tribal matters. Id. at 996. However, Clinton goes on to state that the “notion that congressional authority over Indian affairs as ‘plenary’ developed historically as a product of the federal trusteeship power, not as a characteristic of congressional power under the Indian commerce clause. It appears that the Supreme Court has abandoned the position that the federal trusteeship power forms a separate and independent source of congressional authority.”Id. at 999. He cites the reader to a later footnote, which gives Justice Thurgood Marshall's statement: “The source of federal authority over Indian matters has been the subject of some confusion, but it is now generally recognized that the power derives from federal responsibility for regulating commerce with Indian tribes” and for treaty making. McLanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172 n.7 (1973). Marshall's statement could not be relied upon. Subsequently in Merrion he spoke about the federal government's superior position over the tribes—force, not the Constitution, as a source of congressional power. 5. Newton, Federal Power (cited in note 202), is the most complete recent assessment of plenary power over Indians. Newton detects a narrowing of the Plenary power doctrine and a move toward enumerated constitutional powers. Id. at 229–33. However, she notes, as Cohen III fails to do, the continuing viability of the older approaches—the broad scope of claimed power and its “might-makes-right” basis. Id. at 234. See also id. at 235–36. In her view, the plenary power's older, blatantly ethnocentric basis in Indian inferiority has been repudiated, but a continuing failure to define the power's limits encourages its further assertion and expansion. Id. at 236. 281. Strickland et al., Felix S. Cohen's Handbook of Federal Indian Law 22 (1982) (Cohen III).Google Scholar

281 Chambers, Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 Stan. L. Rev. 1213 (1975).Google Scholar

282 116 Cong. Rec. 23,131, 23,132 (1970). See also Note, Rethinking the Trust Doctrine in Federal Indian Law, 98 Ham. L. Rev. 422 (1984).Google Scholar

283 Indian Law Resource Center, United States Denial of Indian Property Rights: A Study in Lawless Power and Racial Discrimination,”in Rethinking Indian Law 15, 19 (cited in note 35). See also Coulter & Tullberg, Indian Land Rights, in The Aggressions of Civilization 185, 198–203 (Cadwalader & Deloria eds. (1984)); G. Hall, The Federal-Indian Trust Relationship 17–18 (1979).Google Scholar

284 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1835).Google Scholar

285 F. Cohen, Handbook of Federal Indian Law 169 (1942) (Cohen I).Google Scholar

286 Id. at 170 n.289.Google Scholar

287 Id. at 170.Google Scholar

288 Id. Google Scholar

289 95 U.S. (5 Otto) 517, 525 (1877).Google Scholar

290 Id. at 526. See also, e.g., United States v. Kagama, 118 U.S. 375, 384 (1886); Choctaw Nation v. United States, 119 U.S. 1, 28(1886); Lone Wolf v. Hitchcock, 187 U.S. 553, 564(1903); United States v. Sandoval, 231 U.S. 28, 46 (1913).Google Scholar

291 118 U.S. at 383–84.Google Scholar

292 187 U.S. at 564–65.Google Scholar

293 25 U.S.C. 8 348.Google Scholar

294 Seminole Nation v. United States, 316 U.S. 286, 296 (1942).Google Scholar

295 Id. at 297. For possible prior cases, see Chambers, Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 Stan. L. Rev. 1213, 1230–31 (1975).Google Scholar

296 See Newton, Enforcing the Federal-Indian Trust Relationship After Mitchell, 31 Cath. U.L. Rev. 635, 637 n. 11 (“Newton, Federal-Indian Trust Relationship”).Google Scholar

297 345 F. Supp. 252 (D.D.C. 1973).Google Scholar

298 Professor Newton compares the Pyramid Lake case with another in which the court failed to find the trust duty argued. Newton (cited in note 297) at 676–78, (comparing North Slope Borough v. Andrus, 642 F.2d 589 (D.C. Cir. 1980)).Google Scholar

299 United States v. Mitchell, 445 U.S. 535 (1980) (Mitchell I).Google Scholar

300 United States v. Mitchell, 77 L. Ed. 580, 596 (1983) (Mitchell II).Google Scholar

301 Note, Rethinking the Trust Doctrine in Federal Indian Law, 98 Harv. L. Rev. 422, 428 (1984).Google Scholar

302 463 U.S. 228, at 234 n.v8.Google Scholar

303 Id. at 235 n.9.Google Scholar

304 Id,Google Scholar

305 County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247 (1985); Montana v. Blackfeet Tribe of Indians, 53 U.S.L.W. 4625, 4627 (1985).Google Scholar

306 Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237, 255, 256–57 (Brennan, J., dissenting).Google Scholar

307 United States v. Sioux Nation of Indians, 448 U.S. 371, 408 (1980).Google Scholar

308 Id. at 409, quoting Three Tribes of Fort Berthold Reservation v. United States, 182 Ct. CI. 543, 553, 390 F.2d 686, 691 (1968).Google Scholar

309 Dep't of the Interior, BIA Profile: The Bureau of Indian Affairs and American Indians 7 (1981). (The Bureau also holds many tribal funds.)Google Scholar

310 470 U.S. 39, 42 (1985).Google Scholar

311 See Newton, Federal-Indian Trust Relationship 681–82 (cited in note 297); id. Federal Power 233 (cited in note 202).Google Scholar

312 See Menominee Tribe v. United States, 607 F.2d 1335 (Ct. C1. 1979), cert. denied, 445 U.S. 950 (1980).Google Scholar

313 The Agressions of Civilization 203 (Cadwalader & Deloria eds. 1984) (quoting J. Hobson, Imperialism, A Study 240 (1965)). See also Newton, Federal-Indian Trust Relationship 645, 681–82 (cited in note 297). The trust doctrine has drawn various responses from the commentators:a) Cohen I and Cohen IIAll that Cohen had to say about trust in his 1942 Handbook was to distinguish it from wardship. F. Cohen, Handbook of Federal Indian Law 172 (1942) (Cohen I). And wardship, he said, had as one of its functions the upholding of “legislation that would have been unconstitutional if applied to non-Indians.”Id. at 170. According to Cohen III, the trust concept “first appeared” in Cherokee Nation in 1831, Strickland et al., Felix S. Cohen's Handbook of Federal Indian Law 220 (1982) (Cohen III), and now “is one of the primary cornerstones of Indian law.”Id. at 221. The only other case mentioned as an origin for the trust doctrine is Kagama. Id. at 220. Kagama, it says, “relied on the guardianship theory as a separate and distinct basis for congressional power.”Id. at 220. Without explanation of what happened to the distinction Cohen drew between the two, guardianship and trust become interchangeable terms in the 1982 Handbook. Id. at 220, 210 n.22. As I have already noted, Cohen III says Kaguma's guardianship theory as an extraconstitutional basis for congressional power “has not been followed.”Id. at 220, 210–11 n.22. It drops a footnote to this statement, which reads: “The trust responsibility has not been cited as an independent source of congressional power since United States v. Candelaria, 271 U.S. 432 (1926).”Id. at 220 n.31. Candelaria never uses the word “trust.” It refers to Pueblo Indians as wards of the United States. Since Candelaria, the trust as well as the inferior position of Indians have been repeatedly cited as the independent source of congressional power. As pointed out above, Sioux Nation in 1980 said the trust allowed Congress to exercise “its plenary powers over the Indians and their property, as it thinks is in their best interest” without being subject to the Fifth Amendment in doing so. 448 US, 371, 408. As I also pointed out, in 1978 United States v. Wheeler cited tribes' “dependent status,” 435 U.S. 313, 326, and Oliphant v. Suquamish Indian Tribe cited their “dependence,” 435 U.S. 191, 207–9, as grounds for subordination of tribes to the federal government. A subsequent section of Cohen III continues to equate trusteeship with guardianship, Strickland, et al., Felix S. Cohen's Handbook of Federal Indian Law 650 (1982) (Cohen III). It proposes that the guardianship-trust “arises out of the constitutional plan to delegate plenary authority over Indian affairs to the federal government and the duties of protection undertaken by treaty and federal statute.”Id. at 651. The only clarification of this fanciful statement is a citation to the volume's earlier discussion. Id. at 651 n.58. Cohen III presents the trust doctrine as though it were an ancient concept that has long since ceased to serve as a basis for federal assertion of power. The Indian trust, we are to think, has become a primary limit on federal power. Indians have a phrase to describe such statements. They call it “blowing smoke.” In this case, I think the consequence is more harmful than smoke. I think it makes a major contribution to the false picture of what law does to tribes. It leads the reader to believe that limits have been observed and that, within those limits, the United States has acted with moral responsibility.b) Price and Clinton Price and Clinton give a mixed review to the trust doctrine. On the one hand, they cite it, in the form of canons of construction, as a limitation on federal power, Price & Clinton, Law and the American Indian 137 (1983), and attribute its Supreme Court origins to Cherokee Nation. Id. at 168. On the other hand, they also acknowledge that ethnocentrism “helped create the federal trusteeship over Indian affairs” and question whether the doctrine has “a continued viable role.”Id. at 169. They also note that “[i]nvocation of the federal trust relationship as a source of Indian rights is a fairly recent phenomenon,”id. at 179, and remark that it is an open question whether trust theory can serve to compel federal authorities to protect Indian rights, id. at 195. c) Getches, Rosenfelt, and Wilkinson This casebook avers that a “relationship of dependence and trust not only gives the federal government broad plenary powers over Indian affairs but also imposes a trustee's duties of protection and fair dealings upon the government.” Getches, Rosenfelt & Wilkinson, Federal Indian Law 143 (1979). It presents the trust doctrine primarily as a post-1942 application of fiduciary principles to United States management of Indian property. Id. at 206. After noting that the Supreme Court has never set aside an act of Congress as beyond its power over Indians, it includes portions of the Cox memorandum to Judge Gunter in the Maine land claim controversy. Id. at 248–52. Presumably the memo indicates how limits on congressional power might be successfully argued in future. (The index to the book lists “Congressional power” under “Trust Relation” and directs the reader to pages 175–77 where Kugama is set out. This may be the authors' way of indicating that the origins of trust and of congressional power lie in that case and its ethnocentrism.) The article by Newton, cited in note 297 is the most accurate treatment of the subject. The Chambers article cited in note 296 was descriptively accurate at the time it was written.Google Scholar

314 On the wider meaning of federalism as a statement of community, see Ball, Lying Down Together 72–76, 79–80, 9&91, 113–14 (1985).Google Scholar

315 “The state is still that government which most affects citizens in their daily lives.” Diamond, The Federalist on Federalism: “Neither a National Nor a Federal Constitution, but a Composition of Both,” 86 Yale L.J. 1273, 1283 (1977). More cases are tried in “Georgia State courts than in all the federal courts in the nation.” Bell, Some Concluding Reflections, 9 U. Tol. L. Rev. 871 (1978).CrossRefGoogle Scholar

316 New State Ice Co. v. Liebman, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). About no-fault insurance it has been said, for example, that “we may end up with a uniform federal system or minimum federal standards, but we should never have had anything save for experimentation by the states.” Friendly, Federalism: A Foreword, 86 Yale L.J. 019, 1034 (1977).Google Scholar

317 Garcia v. San Antonio Metropolitan Transit Authority, 105 S. Ct. 1005, 1015 (1985).Google Scholar

318 Id. at 1018.Google Scholar

319 Id. at 1019–20.Google Scholar

320 426 U.S. 833 (1976).Google Scholar

321 On the general background see F. Prucha, The Great Father (1984); The Federalist No. 42; Clinton, Review, 47 U. Chi. L. Rev. 846 (1980).Google Scholar

322 See Walters, Review Essay: Preemption, Tribal Sovereignty, and Worcester v. Georgia, 62 Ore. L. Rev. 127, 141–43 n.66 (1983).Google Scholar

323 For an assessment of present Court practice, see Clinton, State Power over Indian Reservations: A Critical Comment on Burger Court Doctrine, 26 S.D.L. Rev. 434 (1981).Google Scholar

324 72 U.S. (5 Wall.) 761 (1866).Google Scholar

325 72 U.S. (5 Wall) 737 (1866) (state tax).Google Scholar

326 98 U.S. 476 (1878).Google Scholar

327 102 U.S. 145 (1880) (state and territorial court civil process do not reach into Indian country excepted by treaty and enabling act).Google Scholar

328 Rice v. Olsen, 324 U.S. 786, 789 (1949) (note the reference to “policy” not “law”.)Google Scholar

329 Barsh & Henderson, The Road 60 (1980).CrossRefGoogle Scholar

330 See, e.g., A. Abel, A Proposal for an Indian State 1778–1878, Annual Report of the Am. Hist. Ass'n 1907, at 89; Prucha, The Great Father 302–9 (1984).Google Scholar

331 Treaty with the Cherokee, 1835, Art. 7, Kappler, 2 Indian Affairs: Laws and Treaties 439, 42–43 (1904).Google Scholar

332 Barsh & Henderson, The Road 59, 275–82 (1980).CrossRefGoogle Scholar

333 Commission on State-Tribal Relations, Handbook State-Tribal Relations 38–39 (undated).Google Scholar

334 The need for state-tribal reconciliation is discussed in Barsh & Henderson, The Road 230 (1980).Google Scholar

335 Commission on State-Tribal Relations 40 (cited in note 334).Google Scholar

336 45 U.S. (4 How.) 567 (1846).Google Scholar

337 The Cherokee Tobacco, 78 U.S. (1 1 Wall.) 616 (1871). Compare United States v. 43 Gallons of Whiskey, 108 U.S. 491 (1883).Google Scholar

338 United States v. Kagama, 118 U.S. 375, 380 (1886).Google Scholar

339 Id. at 379.Google Scholar

340 Id. at 384.Google Scholar

341 Ch. 119, 24 Stat. 388, codified as amended in various sections of 25 U.S.C.Google Scholar

342 F. Prucha, The Great Father 671 (1984) (quoting Merrill Gates' remarks to the Lake Mohonk Conference). The Five Civilized Tribes were excluded from the original Allotment Act, but their land was subsequently allotted, their governments dismantled, and their territory, opened for settlement, was later to become the State of Oklahoma. Id. at 737–57.Google Scholar

343 See Getches, Rosenfelt, & Wilkinson, Federal Indian Law 74 (1979).Google Scholar

344 It could be argued that, by accepting allotments, Indians waived their rights to object. But then the question would be whether Indians did in fact voluntarily comply, i.e., whether they had other options and chose this one.Google Scholar

345 Indian Reorganization Act, 25 U.S.C. § 461 et seq.Google Scholar

346 H.R. Con. Res. 108, 83d Cong., 1st sess., 67 Stat. B132 (1953).Google Scholar

347 See, e.g., Indian Self-Determination and Education Assistance Act of 1975, Pub. L. No. 96–638, 88 Stat. 2203 (codified at 25 U.S.C. §§ 450–450n, 455–458e).Google Scholar

348 See, e.g., Menominee Restoration Act, 25 U.S.C. §§ 903–903f.Google Scholar

349 See text infra at notes 418–35, 443, 519 passim. Google Scholar

350 358 U.S. 217 (1959).Google Scholar

351 See C. Wilkinson, American Indians, Time, and the Law (1986).Google Scholar

352 358 U.S. at 218.Google Scholar

353 Id. at 219.Google Scholar

354 Id. at 219 n.4.Google Scholar

355 Id. at 219 n.4; 220 n.5.Google Scholar

356 Id. at 218.Google Scholar

357 Id. at 221.Google Scholar

358 118 U.S. at 384.Google Scholar

359 358 U.S. at 222.Google Scholar

360 Id. at 223 n.10.Google Scholar

361 Id. at 222–23.Google Scholar

362 Id. at 223.Google Scholar

363 Id. at 220.Google Scholar

364 Id. Google Scholar

365 Id. Google Scholar

366 Id. at 223Google Scholar

367 Id. at 220.Google Scholar

368 Id. at 220–21.Google Scholar

369 Id. at 222–23.Google Scholar

370 Id. at 220. The “always” to which Black refers cannot include the time when Worcester was decided. Worcester presented neither a case of preemption nor a case of infringement on self-government. Worcester did not ask whether Georgia's action infringed the right of the Cherokee Nation to make and be ruled by their own laws. Worcester held that Georgia's action was extraterritorial as well as an infringement upon United States treaty relations. “Over the years,” Black averred,” this Court has modified [the Worcester] principles in cases where essential tribal relations were not involved.”Id. at 219. (None of the cases cited and discussed by Black as supporting the proposition does so. See id. at 220 (New York ex rel. Ray v. Martin, 326 U.S. 496 (1946); Utah & Northern Railway v. Fisher, 116 U.S. 28 (1885)). He thereby set in motion the process of dismantling tribes by judicial decree unaided by Congress.Google Scholar

371 McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 170 (1973).Google Scholar

372 Bennett & Hart, Foreword to F. Cohen, Handbook of Federal Indian Law v. (1942) (Cohen I). (This is the foreword to the University of New Mexico's 1971 reprint of the 1942 original.)Google Scholar

373 Id. at xviii (quoting P. Deloria).Google Scholar

374 See Federal Indian Law 501 (1958) (Cohen II). (Citations are to the 1958 volume; however, I have throughout employed the 1966 reprint of the 1958 volume.)Google Scholar

375 358 U.S. 217, 220 n.5 (1959) (citing ahen II at 307–26).Google Scholar

376 Federal Indian Law 307–8 (1958) (Cohen II) (citations omitted) (compare Cohen I at 358–65). Of course, if Congress terminated all the tribes, there would be nothing left for the Department of the Interior's Bureau of Indian Affairs. It is unlikely that the Bureau would have advocated the new policy in such a way as to advocate the dissolution of its empire. The Bureau posed what it saw as the only alternatives: “Self-government or rule by the Department (of the Interior) is the Indian's alternative.”Id. at 395. That is, either the states or the Bureau would have the tribes. But the tribes were not yet ready for the states. See infra note 378. There would still be necessary a long interim of pupilage under the Bureau. It has been correctly noted that “allotment worked to the states' satisfaction, but termination did not. The allotment program first liquidated most reservation land, and required the states to extend their laws later. Termination required them first to extend their laws, then to wait some indeterminate time until the Bureau was prepared to terminate its trusteeship of tribal lands.” Barsh & Henderson, The Road 223–41 (1980). The Bureau lost nothing.Google Scholar

377 The notion that the goal of tribal self-government issues in absorption by the states is Black's. (The dilemma confronting Black was first explored by Justice McLean in his concurring opinion in Worcester. Worcester v. Georgia, 31 U.S. (6 Pet.) 563, 589–94 (1832). McLean concluded that, although self-governing tribes within states might be viewed as temporary, it would be a “singular argument” to say that tribes ought to be tolerated as independent when their government was primitive but not tolerated as they became more advanced. Black makes the “singular argument.”) Cohen II does not specifically equate the strengthening of independent tribal government with qualification for emancipation from the Bureau and absorption into the states. See Federal Indian Law 395–500 (tribes), 501–14 (states) (1958) (Cohen II). Black also cites the House Report that accompanied the termination act known as Pub. L. 280. 358 U.S. at 221 (1959). The formulation attempted by that report, however, is also different from Black's. The report sought to have it both ways: tribal weakness made federal or state criminal jurisdiction necessary; tribal strength invited sate civil jurisdiction—” the Indians of the several States have reached a stage of acculturation and development that makes desirable extension of State civil jurisdiction to the Indian Country within their borders.” H.R. Rep. No. 848, July 16, 1953, accompanying H.R. 1063, 2 U.S. Code Cong. & Adm. News 2409, 2412 83d Cong., 1st sess. (1953). Black's critical formulation about state infringement of tribal self-government also appears to be his own. Black offered a “cf.” citation to Utah & Northern Railway v. Fisher, 116 U.S. 28 (1885), as authority for the infringement idea. Cohen II simply repeated the Cohen I reading of Utah, i.e., that Utah stands for the proposition that “a railroad purchasing a right-of-way through a reservation must pay taxes on that right-of-way as though the lands were entirely withdrawn from the reservation.” F. Cohen, Handbook of Federal Indian Law 257 (1942) (Cohen I); Federal Indian Law 853 (1958) (Cohen II). That is a correct representation of the case, which, in effect, held that the right-of-way was not reservation land. Cohen II also follows Cohen I's misreading of Utah in the only other citation to the case in the treatises. Both inaccurately reference Utah as holding that “[o]rdinarily an Indian reservation is considered part of the territory of the State.” F. Cohen, Handbook of Federal Indian Law 119 n.32 (1942) (Cohen I); Federal Indian Law 510 n.1 (1958) (Cohen II). This inaccurate reading of the case runs directly counter to the other, accurate reading. In later pages not cited by Black, Cohen II addresses the notion of “reserved state powers,” and explains that “the sovereignty of the State over its own territory is plenary and therefore the fact that Indians are involved in a situation, directly or indirectly, does not ipso facto terminate State power. State power is terminated only if the matter is one that falls within the constitutional scope of exclusive Federal authority.” Federal Indian Law 510 (1958) (Cohen II) (citations omitted). The. language is the same as that of Cohen I. F. Cohen, Handbook of Federal Indian Law 119 (1942) (Cohen I). The ambiguity and error in this instance therefore originates with Cohen I.Google Scholar

378 450 U.S. 544 (1981).Google Scholar

379 Id. at 551.Google Scholar

380 Id. at 550–51.Google Scholar

381 Treaty of Fort Laramie, 1851, art. 5, Kappler, 2 Indian Affairs: Laws and Treaties 594 (1904).Google Scholar

382 Treaty with the Crows, 1868, Art. 2, id. at 1008.Google Scholar

383 185 U.S. 373 (1902) (cited at 450 U.S. 552 (1981)).Google Scholar

384 185 U.S. 389–90.Google Scholar

385 160 US. 394 (1895) (cited at 185 U.S. 390).Google Scholar

386 160 U.S. at 402–3.Google Scholar

387 198 U.S. 371, 381 (1905).Google Scholar

388 450 U.S. 553.Google Scholar

389 Id. at 554.Google Scholar

390 Id. (quoting United States v. Holt State Bank, 270 U.S. 49 (1926)).Google Scholar

391 Id. at 552.Google Scholar

392 Id. at 552.Google Scholar

393 The Court cited as precedent for denying the tribe's title the case of United States v. Holt Bank, 270 U.S. 49 (1926). 450 U.S. 552-54. The land in issue in Holt Bonk had been covered by a lake and had been drained. The land surrounding the lake had been ceded to the United States by the Chippewa. Nothing was said about the lake bed. According to Montana, this ommission was significant and should have had the effect of leaving title to the bed in the Chippewa. There was supposed to be a strong presumption against implied conveyance of a riverbed by a sovereign. According to Montana, the “mere fact that the bed of a navigable water lies within the boundaries described in the treaty does not make the riverbed part of the conveyed land, especially when there is no express reference to the riverbed that might overcome the presumption against its conveyance.”Id. at 554. How was this presumption overcome in Holt except by the presumption that tribes do not count?Google Scholar

394 Id. at 551.Google Scholar

395 I omit consideration of other natural resources because the Bureau of Indian Affairs controls timber, rangeland, and mineral resource development and leasing under the supposed federal trust.Google Scholar

396 207 U.S. 564 (1908).Google Scholar

397 Arizona v. California, 373 U.S. 546 (1963); 376 U.S. 340 (1964).Google Scholar

398 Arizona v. California, 439 U.S. 419 (1979).Google Scholar

399 Arizona v. California, 460 U.S. 605 (1983).Google Scholar

400 Id. at 616.Google Scholar

401 Id. at 625.Google Scholar

402 Id. at 626-28. Where the Court decree adjudicated boundary extensions, then tribal water rights were increased to accompany the added land. Id. at 640–41.Google Scholar

403 Id. at 648.Google Scholar

404 Id. at 648 (Brennan, J. dissenting).Google Scholar

405 463 U.S. 110 (1983).Google Scholar

406 Id. at 114 (quoting Wheeler, The Desert Lake (1967)).Google Scholar

407 Id. at 115, 119 n.7.Google Scholar

408 In a footnote to his concurring opinion Justice Brennan said that “the tribe retains a Winters right, at least in theory, to water to maintain the fishery.”Id. at 146n. Such a right is one in theory and not in water. Justice Rehnquist, for the majority, stated: “We, of course, do not pass judgment on the quality of representation that the Tribe received.”Id. at 135 n.14. In a 1951 suit brought before the ICC for receipt of less water than it should have been entitled to in earlier litigation, the tribe was awarded 8,000,000 for waiver of further claims of liability against the United States. The quality of representation provided by the United States had been at least as poor as the 8,000,000 indicated. See id. See also id. at 144 n. 16. The tribes did not receive the water they needed, nor was their loss fully compensated by money damages.Google Scholar

409 It would be reasonable to suppose that the more clearly material the subject, the more careful the Court would be about its loss to the tribes. The reverse proves to be the case. Equality of statehood and finality are thought sufficient explanations for deprivation of natural resources. Deprivations of jurisdiction elicit complex Williams-type arguments.Google Scholar

410 45 U.S. (4 How.) 567 (1846).Google Scholar

411 For good general treatment of the subject of criminal jurisdiction see G. Hall, An Introduction to Criminal Jurisdiction in Indian Country (1981); Clinton, Criminal Jurisdiction over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L. Rev. 503 (1976); id., Development of Criminal Jurisdiction over Indian Lands: The Historical Perspective, 17 Ariz. L. Rev. 951 (1975); Collins, Implied Limits on the Jurisdiction over Indian Tribes, 54 Wash. L. Rev. 479 (1979).Google Scholar

412 United States v. Kagama, 118 U.S. 375 (1886).Google Scholar

413 Also, the winds of policy were soon to shift against the tribes once more. See text beginning at note 418.Google Scholar

414 See, e.g., Solem v. Bartlett, 465 US. 463, 470 (1984) (citations omitted): Although the Congress that passed the surplus land acts anticipated the imminent demise of the reservation and, in fact, passed the acts partially to facilitate the process, we have never been willing to extrapolate from this expectation a specific congressional purpose of diminishing reservations with the passage of every surplus land act. Rather, it is settled law that some surplus land acts diminished reservations. and others did not. Our precedents in the area have established a fairly clean analytical structure for distinguishing those surplus land acts that diminished reservations from those acts that simply offered non-Indians the opportunity to purchase land within established reservation boundaries. The first and governing principle is that only Congress can divest a reservation of its land and diminish its boundaries. Once a block of land is set aside for an Indian Reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise.Google Scholar

415 18 U.S.C. § 1151.Google Scholar

416 Solem v. Bartlett, 465 U.S. at 466-68 (citations omitted).Google Scholar

417 H.R. Con. Res. 108, 83d Cong., 1st sess., 67 Stat. B132 (1953).Google Scholar

418 Act of Aug. 15, 1953, ch. 505, 67 Stat. 588, 28 U.S.C. § 1360.Google Scholar

419 California, Minnesota, Nebraska, Oregon, and Wisconsin were originally included, and Alaska was added later.Google Scholar

420 In addition to the six above, these are Arizona, Florida, Iowa, Montana, Nevada, North Dakota, South Dakota, Wyoming. See C. Goldberg, Public Law 280 State Jurisdiction over Reservation Indians 7 (1975).Google Scholar

421 Pub. L. 90-284, title 4, Apr. 11, 1968, 82 Stat. 80, 25 U.S.C., §§ 1321–26.Google Scholar

422 358 U.S. 223.Google Scholar

423 Washington v. Yakima Indian Nation, 439 U.S. 463 (1979) (citing 552 F. 2d, at 1335).Google Scholar

424 C. Goldberg, Public Law 280: State Jurisdiction Over Reservation Indians 21 (1975). (The cases are Agua Caliente Band of Mission Indians' Tribal Council v. City of Palm Springs, 347 F. Supp. 42 (C.D. Calif. 1972), and Anderson v. Britton, 212 Ore. 1, 318 P.2d 291 (1957), cert. denied, 356 U.S. 962 (1958)).Google Scholar

425 43 U.S.C. § 666.Google Scholar

426 424 U.S. 800 (1976).Google Scholar

427 Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 566 n.17 (1983).Google Scholar

428 424 U.S. at 821 (Stewart, J. dissenting), 826 (Stevens, J. dissenting).Google Scholar

429 104 U.S. 621 (1881).Google Scholar

430 Id. at 624.Google Scholar

431 164 U.S. 240 (1896).Google Scholar

432 Id. at 243.Google Scholar

433 Id. at 244.Google Scholar

434 Id. at 246–47. See the Court's explanation of McBrotney and Droper in Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 561-65 (1983).Google Scholar

435 463 U.S. 545 (1983).Google Scholar

436 Id. at 574 (Stevens, J., dissenting).Google Scholar

437 Id. Google Scholar

438 Id. at 564–65.Google Scholar

439 Id. at 570. The circumstance was somewhat similar in Escondido, where state interests were beneficiaries of the water allocation. See Escondido Mutual Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 768-70, 782-84 (1984).Google Scholar

440 467 U.S. 138 (1984).Google Scholar

441 Id. at 142 n.1.Google Scholar

442 Id. at 150.Google Scholar

443 85 N.W.2d 432 (N.D. 157).Google Scholar

444 467 U.S. at 143–44.Google Scholar

445 Id. Google Scholar

446 Id. at 160–61.Google Scholar

447 Id. at 142.Google Scholar

448 358 U.S. 217, 220.Google Scholar

449 467 U.S. at 160.Google Scholar

450 358 U.S. 220.Google Scholar

451 467 U.S. at 146 (citations omitted).Google Scholar

452 Id. at 147.Google Scholar

453 Doctrinal explanations do not carry very far. What makes the possible doctrinal explanation of inchoate stateness interesting is that it runs exactly counter to the views of state sovereignty expressed by Justice Blackmun in Garcia v. San Antonio Metropolitan Transit Authority, 105 S. Ct. 1005 (1985). It may therefore illustrate the peculiar form of inconsistency and incoherence that grips individual justices and the Court when they decide Indian cases. Justice Blackmun's voting shift from National League of Cities v. Usery, 426 U.S. 833 (1976), to Garcia resulted in the overruling of the former. He explained that states' “residuary and inviolable sovereignty,” 105 U.S. at 1017 (quoting Madison), lay in the constitutional structure rather than in notions of sovereignty Moreover, what he found impossible for the Court to do was “to identify certain underlying elements of political sovereignty that are deemed essential to the States” or to “single out particular features of a State's internal governance that are deemed to be intrinsic parts of state sovereignty.”Id. at 1016. Attempts to do so, he said, lead “to inconsistent results at the same time that [they] disserve principles of democratic self-governance.”Id. Of course singling out essential elements of self-governance is exactly what the Court does when it inquires whether state action in Indian country is barred by the essential elements of tribal self-governance.Garcia took the Court out of the business of protecting state sovereignty under the Commerce Clause and left such protection to the federal structure and the political processes. Owing to post-Worcester developments, the federal structure and the political process do not afford tribes any protection.Google Scholar

454 See Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979).Google Scholar

455 Id. at 686. See also Puyallup Tribe v. Dep't of Game, 433 US. 165 (1977) (Puyullup III). Google Scholar

456 Menominee Tribe v. United States, 391 U.S. 404 (1968).Google Scholar

457 United States v. Winans, 198 U.S. 371 (1905). Getches, Rosenfelt, & Wilkinson were misled into thinking that Winans put an end to the equal footing doctrine generally with respect to Indian country. Getches, Rosenfelt, & Wilkinson, Federal Indian Law 67 (1979). Of course, the Court may kill the doctrine permanently again and then revive it permanently again.Google Scholar

458 New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983).Google Scholar

459 Id. at 334 n.16, 336 & n.19.Google Scholar

460 Id. at 337 & n.21, 340 n.25.Google Scholar

461 369 U.S. 60 (1962).Google Scholar

462 Id. at 75.Google Scholar

463 Id. at 76.Google Scholar

464 433 U.S. 165 (1977) (Puyullup III). Google Scholar

465 As noted above, New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983), held that a state could not exercise concurrent hunting and fishing jurisdiction with a tribe. Mescalero was therefore in need of distinguishing the two cases that upheld state regulatory authority. Mescalero sought to distinguish Puyullup III on two grounds. The lands in issue did not belong to the tribe, and an applicable treaty provided that fishing rights were to be exercised by Indians “in common with all citizens of the Territory.”Id. at 332 n.15, 342.Google Scholar

466 Puyallup Tribe v. Dep't of Game, 391 U.S. 392 (1968) (Puyallup I). Google Scholar

467 Id. at 398.Google Scholar

468 Dep't of Game v. Puyallup Tribe, 414 U.S. 44 (1973) (Puyallup II). Google Scholar

469 Id. at 49.Google Scholar

470 Commission on State-Tribal Relations, Handbook: State-Tribal Relations 25 (undated). See also Johnson, The States Versus Indian Off-Reservation Fishing: A United States Supreme Court Error, 47 Wash. L. Rev. 207 (1972).Google Scholar

471 id. Google Scholar

472 See Johnson, cited in note 471.Google Scholar

473 450 U.S. 544 (1981).Google Scholar

474 Id. at 563.Google Scholar

475 Id. at 564.Google Scholar

476 Id. Google Scholar

477 Id. at 566.Google Scholar

478 Id. at 565 n.14.Google Scholar

479 Id. at 566.Google Scholar

480 443 U.S. 658 (1979).Google Scholar

481 76 L. Ed. 611 (1983).Google Scholar

482 Id. at 625.Google Scholar

483 Id. at 623.Google Scholar

484 Id. at 623–34. Protection of the tribe was not even alleged in the 1985 term's opinion in Oregon Dep't of Fish and Wildlife v. Klamath Indian Tribe (105 S. Ct. 3420 (1985)), which denied off-reservation hunting and fishing to the Klamath. In 1984 the Klamath had ceded aboriginal lands to the United States, reserving 1.9 million acres to themselves. A governmental survey had excluded a third of the reservation land. In a 1901 agreement, Congress paid the tribe for the excluded land. The agreement said nothing about hunting and fishing rights in this area, which had originally been part of the reservation but would now lie outside it. The Court held that the Klamath had surrendered these rights when they agreed to take payment for the excluded lands. This was so notwithstanding the facts that the subject area was national forest and park land, that the Klamath had never interrupted their ages-old tradition of hunting and fishing there, and that they were dependent upon the practice. In dissent, Justice Marshall noted that the “decision today represents another erroneous deprivation of the Klamath's tribal rights.”Id. at 3439 (Marshall, J., dissenting). It may also symbolize the Court's willingness to expand state control although tribal subsistence is at stake.Google Scholar

485 Kerr-McGee Corp. v. Navajo Tribe of Indians, 471 U.S. 195, 201 (1985). See also Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982); Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152–54 (1980).Google Scholar

486 25 U.S.C. §§ 476, 411.Google Scholar

487 455 U.S. 130, 155.Google Scholar

488 Kerr-McGee Cop. v. Navajo Tribe of Indians, 471 U.S. at 198–99.Google Scholar

489 455 US. at 155 n.21.Google Scholar

490 78 U.S. (11 Wall.) 616 (1871).Google Scholar

491 Id. at 621.Google Scholar

492 Squire v. Capoeman, 351 U.S. 1 (1956).Google Scholar

493 I.R.C. §§ 3101–26.Google Scholar

494 I.R.C. §§ 3301–11.Google Scholar

495 I.R.C. §§ 341–3406, See Choteau v. Burnet, 283 U.S. 691 (1931).Google Scholar

496 53 U.S.L.W. 4625, 4627 (1985).Google Scholar

497 Mineral leasing was authorized in 1891. 25 U.S.C. § 397. The act was amended in 1924 to render lease income subject to state tax. 25 U.S.C. § 398. Production on additional lands was provided in 1927. 25 U.S.C. § 398c.Google Scholar

498 Montana v. Blackfeet Tribe, 53 U.S.L.W. 4625, 4628 (1985). On the General Allotment Act as not authorizing state taxation, compare Goudy v. Meath, 203 U.S. 146 (1906), with Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 477-79 (1976). On Pub. L. 280 as not authorizing state taxation, see Bryan v. Itasca County, 426 U.S. 373, 392 (1976). On the Buck Act as not authorizing state taxation, see Warren Trading Post Co. v. Arizona Tax Comm's, 380 U.S. 685, 691 (1965). But on the authorization of state taxation, see Oklahoma Tax Comm'n v. Texas Co., 336 US. 342 (1949) (Oklahoma's gross oil production tax on lessees); Oklahoma Tax Comm'n v. United States, 319 U.S. 598 (1943); West v. Oklahoma Tax Comm'n, 334 U.S. 717 (1948) (Oklahoma inheritance tax).Google Scholar

499 72 U.S. (5 Wall.) 737 (1867).Google Scholar

500 72 U.S. (5 Wall.) 761 (1867).Google Scholar

501 See Montana v. Blackfeet Tribe of Indians, 53 U.S.L.W. 4625 (1985); Ramah Navajo School Board v. Bureau of Revenue, 458 U.S. 832 (1982); Central Machinery Co. v. Arizona Tax Comm'n, 448 U.S. 160 (1980); White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980); Washington v. Confederated Tribes of Colville Indian Reservation, 447 US. 134 (1980); Bryan v. Itasca Co., 426 U.S. 373 (1976); Moe v. Salish & Kootenai Tribes, 425 U.S. 463 (1976); McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164 (1973); Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973); Warren Trading Post v. Arizona Tax Comm'n, 380 U.S. 685 (1965).Google Scholar

502 72 U.S. 756.Google Scholar

503 380 U.S. 685 (1965).Google Scholar

504 Id. at 690.Google Scholar

505 411 U.S. 145 (1973).Google Scholar

506 411 U.S. 164(1973).Google Scholar

507 411 U.S. at 148.Google Scholar

508 Id. at 155.Google Scholar

509 Id. at 157.Google Scholar

510 Id. at 156.Google Scholar

511 Id. at 148.Google Scholar

512 Id. Google Scholar

513 369 U.S. 60 (1962).Google Scholar

514 369 U.S. at 75. Frankfurter's recitation in that case of the mandatory litany runs: “The general notion drawn from Chief Justice Marshall's opinion in Worcester, The Kansas Indians, and The New York Indians, that an Indian reservation is a distinct nation within whose boundaries state law cannot penetrate, has yielded to closer analysis when confronted, in the course of subsequent developments, with diverse concrete situations.”Id. at 72.Google Scholar

515 Price & Clinton, Law and the American Indian 439 (1983). See also Barsh & Henderson, The Road 155–65 (1980).Google Scholar

516 411 U.S. 164(1973).Google Scholar

517 Id. at 171.Google Scholar

518 Id. at 171–72.Google Scholar

519 Id. at 172.Google Scholar

520 411 U.S. at 148.Google Scholar

521 411 U.S. at 170.Google Scholar

522 Federal Indian Law 846 (1958) (Cohen II).Google Scholar

523 Note also the pattern of citations to Cohen II in McClanahan, 411 U.S. at 170–72, and Mescalero, 411 U.S. at 151–53, which refers to the volume as “Felix Cohen's treatise.”Id. at 153 n.9.Google Scholar

524 425 U.S. 463 (1976).Google Scholar

525 Id. at 482. On the questionable basis for this assumption, see Barsh & Henderson, The Road 187–202 (1980); Barsh, Issues in Federal, State and Tribal Taxation of Reservation Wealth: A Survey and Economic Critique, 54 Wash. L. Rev. 531, 537–40, 566–68 (1979).Google Scholar

526 425 U.S. at 482.Google Scholar

527 Id. at 483.Google Scholar

528 Since Rehnquist allowed state taxation on a reservation, it is worthwhile noting that the Williams cite to Utah is a curiosity. It is a “cf.” cite. Indians and Indian interests were not in issue in the case. A railroad ran through an Indian reservation. The railroad argued that its right-of-way lay on an Indian reservation and that the reservation was extraterritorial to Idaho. But the Indians and the United States had entered an agreement, ratified by Congress, according to which the Indians ceded land for the railroad to the United States for a cash consideration. The United States in turn sold the land to the railroad. The land was “withdrawn from the reservation. The road and property thereupon became subject to the laws of the Territory relating to railroads, as if the reservation had never existed.” Utah & Northern Ry. v. Fisher, 116 U.S. 28, 32 (1885).Google Scholar

529 425 U.S. at 480–81 (citing McLanahnn and Mescalero). Google Scholar

530 Id. at 481 n.17.Google Scholar

531 447 U.S. 134 (1980).Google Scholar

532 “The state sales tax scheme requires smokeshop operators to keep detailed records of both taxable and non-taxable transactions. The operator must record the number and dollar volume of taxable sales to nonmembers of the Tribe. With respect to nontaxable sales, the operator must record and retain for state inspection the names of all Indian purchasers, their tribal affiliations, the Indian reservations within which sales are made, and the dollar amount and dates of sales. In addition, unless the Indian purchaser is personally known to the operator he must present a tribal identification card.”Id. at 159.Google Scholar

533 Id. at 160.Google Scholar

534 Id. Google Scholar

535 Clinton, State Power over Indian Reservations: A Critical Comment on Burger Court Doctrine, 26 S.D.L. Rev. 434 (1981). For various other Burger Court examples of the litany of citation to Worcester followed by the assertion that things have changed in the meantime, usually long ago, see Three Affiliated Tribes v. Wold Engineering, 407 U.S. 138, 147–48 (1984) (Blackmun version); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148 (White version); Rice v. Rehner, 463 U.S. 713, 718 (1983) (O'Connor version).Google Scholar

536 448 U.S. 136 (1980).Google Scholar

537 Id. at 143.Google Scholar

538 447 U.S. 134 (1980).Google Scholar

539 425 U.S. 463 (1976).Google Scholar

540 447 U.S. at 155–57.Google Scholar

541 Id. at 155.Google Scholar

542 Id. at 155.Google Scholar

543 446 F. Supp. 1339, 1360-63 (E.D. Wash. 1978) (three-judge court).Google Scholar

544 Barsh, Issues in Federal, State, and Tribal Taxation of Reservation Wealth: A Survey and Economic Critique, 54 Wash. L. Rev. 531, 572 (1979).Google Scholar

545 447 US. at 155-56.Google Scholar

546 Id. at 156.Google Scholar

547 Id. Google Scholar

548 Id. at 15657.Google Scholar

549 Id. at 157 (citing Moe v. Salish & Kootenai Tribes, 425 US. 463, 481 11.17).Google Scholar

550 As one commentator correctly noted, “the result achieved by the Burger Court leaves the dormant interstate commerce clause doctrine a far more potent limit on the exercise of state power than the negative implications of the Indian commerce clause. As a general rule, states may not impose the burdensome multiple taxation sanctioned in Colville.” Clinton, State Power over Indian Reservations: A Critical Comment on Burger Court Doctrine, 26 S.D.L. Rev. 434 (1981).Google Scholar

551 447 U.S. at 151.Google Scholar

552 Id. at 151 11.27.Google Scholar

553 Kerr-McGee Corp. v. Navajo Tribe of Indians, 471 U.S. at 201. (State taxation was not allowed in Central Machinery, 448 U.S. 160, and White Mountain Apache Tribe, 448 U.S. 136, but there was federal agency involvement, not wholly independent activity.)Google Scholar

554 463 U.S. 713 (1983).Google Scholar

555 Id. at 718–20.Google Scholar

556 The first paragraph is, for the most part, Justice O'Connor's version of the mandatory “at one time. today”Worcester litany. Id. at 718. The paragraph is composed of four sentences. The first is written by Justice O'Connor. The other three are largely or exclusively taken from three cases. The second paragraph is composed of six sentences. Id at 718–19. The third sentence is written by O'Connor. The others are sentences and pieces of sentences from Cohen III and four cases. Included is one quote within a quote. The subject of the paragraph is preemption. It seems to say that, where Indians are concerned, the normal standards of preemption do not apply, and state regulatory interests will be specially weighted. The five sentences of the third paragraph are taken from three cases. Id. at 719. In one sentence, the connective phraseology supplied fails to link it with the preceding sentence. (The “however” at the beginning of the third sentence does not fit grammatically or logically.) Tribal sovereignty is the subject of this paragraph which says that the Court has not taken it too seriously. O'Connor italicizes the saying of Wheeler that tribal sovereignty “is subject to complete defeasance.” The fourth paragraph includes a statement of one case and a quote within a quote from another. Id. at 719–20 (McClunuhun quoting Cohen II; the same quote within a quote reappears at the end of the opinion.) The paragraph links preemption and tribal sovereignty. It says that, where the Court does “not find … a tradition [of tribal sovereignty], or if we determine that the balance of state, federal, and tribal interests so requires, our preemption analysis may accord less weight to the ‘backdrop’ of tribal sovereignty.”Id. at 720 (citations omitted).Google Scholar

557 463 U.S. at 724, 726.Google Scholar

558 Id. at 730–31.Google Scholar

559 419 U.S. 544 (1975).Google Scholar

560 The statute at issue in both Muzurie and Rice is 18 U.S.C. § 1161 (1984). Federal law had curtailed liquor sales to Indians. It was racially discriminatory. section 1161 was designed to remove the discrimination. As Justice Blackmun explained in dissent, borrowing from Muzurie, 8 1161 is a form of local option legislation, allowing tribes to regulate liquor in conformity with state law standards. If “a State is altogether ‘dry,’ Indian country within that State must be ‘dry’ as well. If a State bans liquor sales to minors or liquor sales on Sundays, sales to minors and Sunday sales also are forbidden in Indian country.” 463 US. at 741.Google Scholar

561 Id. at 731, 719-20.Google Scholar

562 Id. at 731.Google Scholar

563 Id. at 732–33.Google Scholar

564 Id. at 734–35 (citations omitted).Google Scholar

565 Id. at 132.Google Scholar

566 See Strickland et al., Felix S. Cohen's Handbook of Federal Indian Law 307–8 (1982) (Cohen III).Google Scholar

567 463 U.S. 135, 737 n.1.Google Scholar

568 419 U.S. 544 (1975).Google Scholar

569 Id. at 557.Google Scholar

570 Id. at 558.Google Scholar

571 43 Stat. 253, 8 U.S.C. 8 1401 (a) (2).Google Scholar

572 Cf. Elk v. Wilkins, 112 U.S. 94 (1884) (Indian not made a citizen by Fourteenth Amendment).Google Scholar

573 On the critique of rights, see, e.g., Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363 (1984); Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wis. L. Rev. 975.Google Scholar

574 Staughton Lynd argues for restatement of rights “in a manner congruent with a community founded upon love and mutual respect.” Lynd, Communal Rights, 62 Tex. L. Rev. 1417, 1417–18 (1984). Lynd concludes by noting that individuals can surrender individual rights but that individuals cannot alien rights of the community. He adds: “One is reminded of the United States soldiers seeking an Indian spokesperson who could be induced to give up the land belonging to the tribe. The Indians typically replied: ‘It is not ours to give.’”Id at 1441. The kinds of separate, collective existence sought by some tribes is opposed by liberal non-Indians arguing equality and assimilation. Conservative non-Indians oppose the communal nature of the tribes. See V. Deloria, Behind the Trail of Broken Treaties 25–25 (1985); Barsh & Henderson, The Road 241–43 (1980).Google Scholar

575 Strickland et al., Felix S. Cohen's Handbook of Federal Indian Law 217 (1982) (Cohen III).Google Scholar

576 Newton, Federal Power 247 (cited in note 202). Both are true.Google Scholar

577 224 U.S. 665 (1912).Google Scholar

578 304 U.S. 111 (1938).Google Scholar

579 Id. at 115–16. See also Lane v. Pueblo of Santa Rosa, 249 US. 110, 113 (1919) (“That would not be an exercise of guardianship, but an act of confiscation”). See also Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968); United States v. Creek Nation, 295 U.S. 103 (1935). But compare United States v. Jim, 409 U.S. 80 (1972), with Sioux Tribe v. United States, 316 US. 317 (1942).Google Scholar

580 348 U.S. 272 (1955). See Newton, At the Whim of the Sovereign: Aboriginal Title Reconsidered, 31 Hastings L.J. 1215 (1980).Google Scholar

581 348 U.S. at 279.Google Scholar

582 Id. at 219. See also id. at 284.Google Scholar

583 Id. at 219.Google Scholar

584 Id. at 279–80.Google Scholar

585 Id. at 284–85.Google Scholar

586 Id. at 289–90.Google Scholar

587 Newton, At the Whim of the Sovereign: Aboriginal Title Reconsidered, 31 Hastings L.J. 1215, 1244 (1980).Google Scholar

588 348 U.S. at 289.Google Scholar

589 United States v. Sioux Nation of Indians, 448 U.S. 371 (1980). See Newton, The Judicial Role in Fifth Amendment Takings of Indian Land: An Analysis of the Sioux Nation Rule, 61 Or. L. Rev. 245 (1982) (criticizing the Sioux opinion).Google Scholar

590 See, e.g., Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977). See generally Cohen, Original Indian Title, 32 Minn. L. Rev. 28 (1947).Google Scholar

591 section 9 of the Act of March 3, 1863, 12 Stat. 767. See United States v. Sioux Nation of Indians, 448 U.S. 371, 384 (1980).Google Scholar

592 470 U.S. at 255 n.1 (Stevens, J., dissenting).Google Scholar

593 25 U.S.C. 0 70 et seq.Google Scholar

594 Cited in United States v. Dann, 53 U.S.L.W. 4169, 4171 (1985) (quoting Attorney General Clark).Google Scholar

595 For accounts of the debacle, see, e.g., Pueblo of Santo Doming0 v. United States, 647 F.2d 1087 (Ct. C1. 1981) (Nichols, J., dissenting); United States Indian Claims Cornmission, Final Report (1978); V. Deloria, Behind the Trail of Broken Treaties 221–28 (1985); Coulter, The Denial of Legal Remedies to Indian Nations Under U.S. Law, in Rethinking Indian Law at 103, 106–7 (cited in note 35); Dan-forth, Repaying Historical Debts: The Indian Claims Commission, 49 N.D.L. Rev. 359 (1973)).Google Scholar

596 County of Oneida v. Oneida Indian Nation, 470 U.S. 250 n.25.Google Scholar

597 See generally F. Prucha, The Great Father 54041, 631–40 (1984); P. Matthiessen, Indian Country 201–20 (1984); R. Slotkin, The Fatal Environment 325–476 (1984).Google Scholar

598 United States v. Sioux Nation, 448 U.S. 371, 376 n.4 (1980).Google Scholar

599 Id. Google Scholar

600 Id. at 377.Google Scholar

601 Id. at 377–80.Google Scholar

602 Id. at 381.Google Scholar

603 Id. at 383–84.Google Scholar

604 Act of June 3, 1920, ch. 222, 42 Stat. 738.CrossRefGoogle Scholar

605 60 Stat. 1049, 25 U.S.C.§§ 70 et seq.Google Scholar

606 33 Ind. C1. Comm'n 151 (1974).Google Scholar

607 601 F.2d 1157 (Ct. C1. 1979).Google Scholar

608 448 U.S. 371 (1980).Google Scholar

609 Id. Google Scholar

610 See Oglala Sioux Tribe Indian Reservation v. United States, 650 F.2d 140 (8th Cir. 1981), cert. denied, 455 U.S. 907 (1982). See, eg, The Aggressions of Civilization 204–5 (Cadwalader & Deloria eds. 1984).Google Scholar

611 See United States v. Sioux Nation. 448 U.S. at 411 n.27, 413 11.28; Tullberg and Coulter, The Failure of Indian Rights Advocacy: Are Lawyers to Blame?in Rethinking Indian Law 51, 53 (cited in note 35).Google Scholar

612 Barsh & Henderson, The Road 94 n.40 (1980).CrossRefGoogle Scholar

613 Portions of the memorandum are printed in Getches, Rosenfelt, & Wilkinson, Federal Indian Law 249–52 (1979).Google Scholar

614 Id. at 250.Google Scholar

615 430 U.S. 73 (1977).Google Scholar

616 187 U.S. 294 (1902).Google Scholar

617 Id. at 299.Google Scholar

618 30 Stat. 495.Google Scholar

619 187 U.S. at 306–8.Google Scholar

620 Id. at 307–8.Google Scholar

621 Id. at 308.Google Scholar

622 187 U.S. 553 (1903).Google Scholar

623 Id. at 564.Google Scholar

624 Id. at 568.Google Scholar

625 Delaware Tibal Business Comm. v. Weeks, 430 US. 73, 84 (1977).Google Scholar

626 See Newton, Federal Power 275–78 (cited in note 202).Google Scholar

627 430 U.S. at 84. The same point was subsequently repeated in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 (1978), with a citation to Lone Wolf. Google Scholar

628 430 U.S. 584 (1977).Google Scholar

629 Id. at 616 (Marshall J dissenting).Google Scholar

630 Solem v. Bartlett, 465 U.S. 463, 470 n.11 (1984): “At one time, it was thought that Indian consent was needed to diminish a reservation, but in Lone Wolf v. Hitchcock. this Court decided that Congress could diminish reservations unilaterally.” (Marshall, J.)Google Scholar

631 430 U.S. 73, 85.Google Scholar

632 See also United States v. Sioux Nation, 448 US. 371, 413 n.28.Google Scholar

633 439 U.S. 463 (1979).Google Scholar

634 Id. at 468.Google Scholar

635 Id. at 501.Google Scholar

636 Buckley v. Valeo, 424 U.S. 1, 93 (1976); Schneider v. Rusk, 377 U.S. 163, 168 (1964); Bolling v. Sharpe, 347 U.S. 497, 499 (1954).Google Scholar

637 See Ball, Diversity in a Peaceable Kingdom: A Future for American Law and Indian Tribes, Church & Soc'y, Jan./Feb. 1985, at 33.Google Scholar

638 See generally Johnson & Crystal, Indians and Equal Protection, 54 Wash. L. Rev. 587 (1979).Google Scholar

639 Schmidt, Many Victims, No Villains in Indian Land Dispute, N.Y. Times, July 15, 1985, at 7, col 2. See also B. Lowman, 220 Million Custers (1978).Google Scholar

640 Schmidt, cited note 640. For thoughtful response to the egalitarian critique of tribalism see Barsh & Henderson, The Road 243–49. To the degree that it has been subsumed under individualism, equality is a foreign concept in tribalism. This is not because tribes deny equality to their members but because individualism is not a relevant category. In the Western tradition, perhaps the closest analogy to the tribe is the polis of Greece or the koinonia of the New Testament or the people of the Old Testament. Where the body politic is a body, concern for equality yields to concern for the collective reality and therefore to greater honor for the least parts, a kind of reverse hierarchy in which the first are last and the last first. For effective extended presentations of tribalism—its nature as an expression of humanity more integrative and protective of the person than Western models of government—see, e.g., V. Deloria & C. Lytle, The Nations Within (1984); V. Deloria, Behind the Trail of Broken Treaties (1974).Google Scholar

641 H.R. 13329, 95th Cong., 2d Sess. (1978) (introduced at 124 Cong. Rec. H6189 (daily ed. June 28, 1978)).Google Scholar

642 Clinton, Indian Autonomy, 33 Stan. L. Rev. 979, 1018 (1981).Google Scholar

643 25 U.S.C. §§ 1301–1341 (1976). See generally Burnett, An Historical Analysis of the 1968 “Indian Civil Rights” Act, 9 Harv. J. Legis. 557 (1972).Google Scholar

644 163 U.S. 376 (1896).CrossRefGoogle Scholar

645 S. Rep. No. 841, 90th Cong., 1st Sess., 5 (1967).Google Scholar

646 25 U.S.C. § 1302.Google Scholar

647 436 U.S. 49 (1978).Google Scholar

648 Id. at 61–62.Google Scholar

649 Id. at 57–58.Google Scholar

650 Id. at 64.Google Scholar

651 Id. at 65.Google Scholar

652 Id. at 50n.Google Scholar

653 Id at 56.Google Scholar

654 V. Deloria & C. Lytle, The Nations Within 213 (1984).Google Scholar

655 Barsh & Henderson, The Road 254 (1980).Google Scholar

656 Id. at 254 n.26.Google Scholar

657 435 U.S. 191 (1978).CrossRefGoogle Scholar

658 Id. at 212.Google Scholar

659 Id. Google Scholar

660 Id. at 210.Google Scholar

661 R. Slotkin, The Fatal Environment 401 (1985).Google Scholar

662 25 U.S.C. § 461 et seq.Google Scholar

663 417 US. 535 (1974).Google Scholar

664 Id. at 551–53.Google Scholar

665 Id. at 555. State legislation specially directed to Indians would not receive like treatment since “States do not enjoy this same unique relationship with Indians.” Washington v. Confederated Bands, 439 U.S. 463, 467 (1979).Google Scholar

666 425 U.S. 463 (1976).Google Scholar

667 Id. at 480.Google Scholar

668 443 U.S. 658 (1979).Google Scholar

669 Id. at 673 n.20.Google Scholar

670 Newton, Federal Power 284 (cited in note 202).Google Scholar

671 417 U.S. at 553–54 & n.24.Google Scholar

672 Id. at 554.Google Scholar

673 Id. Google Scholar

674 Id. Google Scholar

675 Id. at 552.Google Scholar

676 Barsh and Henderson in The Road 242 (1980) draw the connection to Marshall's opinion in Johnson v. McIntosh. Google Scholar

677 417 U.S. at 555.Google Scholar

678 424 U.S. 382 (1976).Google Scholar

679 Id. at 390, 387.Google Scholar

680 Id. at 391.Google Scholar

681 Id. at 386.Google Scholar

682 Id. at 390.Google Scholar

683 Id. at 386.Google Scholar

684 Barsh & Henderson, The Road 184 (1980)Google Scholar

685 Id. at 186.Google Scholar

686 430 U.S. 73 (1977).Google Scholar

687 Id. at 84.Google Scholar

688 Id. at 85.Google Scholar

689 Id. at 87–89.Google Scholar

690 430 U.S. 641 (1977).Google Scholar

691 Id. at 645–47.Google Scholar

692 Id. at 648.Google Scholar

693 118 U.S. 375 (1886).Google Scholar

694 430 U.S. at 649.Google Scholar

695 430 U.S. at 646.Google Scholar

696 Newton, Federal Power 280 (cited in note 202).Google Scholar

697 439 U.S. 463 (1979).Google Scholar

698 Confederated Bands and Tribes of the Yakima Indian Nation v. Washington, 552 F.2d 1332, 1335 (9th Cir. 1978), rev'd 439 U.S. 463 (1979).Google Scholar

699 430 U.S. 501.Google Scholar

700 Id. at 502. In the process of allowing this assault upon tribal integrity and its attendant confusion of jurisdiction, the Court also allowed the abrogation of a specific treaty provision guaranteeing the tribe a right of self-government. Id at 478 n.22.Google Scholar

701 See id. at 500–501, 498. See generally Newton, Federal Power, 281–84 (cited in note 202).Google Scholar

702 467 U.S. 138 (1984).Google Scholar

703 Id. at 2279.Google Scholar

704 Id. at 2284.Google Scholar

705 See generally F. Prucha, The Great Father 9–11, 30–33, 145–48, 283–92, 394–98, 952, 1126 (1984).Google Scholar

706 See id. at 800–805, 1126.Google Scholar

707 New Rider v. Board of Education, 414 U.S. 1097 (1973).Google Scholar

708 61 Cal.2d 716, 40 Cal. Rptr. 69, 394 P.2d 813 (1964).Google Scholar

709 Compare State v. Whittingham, 19 Ariz. App. 27, 504 P.2d 950 (1973), cert. denied, 417 U.S. 946, (1974), with State v. Soto, 21 Ore. App. 794, 537 P.2d 142 (1975). See also Peyote Way Church of God v. Smith, 556 F. Supp. 632 (1983) (upholding exemption of Indians from prosecution for peyote possession).Google Scholar

710 604 P.2d 1068 (Alaska 1979).Google Scholar

711 547 F.2d 483 (9th Cir. 1976).Google Scholar

712 16 U.S.C. § 668.Google Scholar

713 16 U.S.C. § 668a. (On the issue of whether, absent religious purpose, Indians may take eagles in violation of the act, compare United States v. White, 508 F.2d 453 (8th Cir. 1974) with United States v. Fryberg, 622 F.2d 1010 (9th Cir.), cert denied, 449 U.S. 1004 (1980). See also United States v. Dion, 752 F.2d 1261, cert. granted, 54 U.S.L.W. 3252 (1985).Google Scholar

714 Gallahan v. Hollyfield, 670 F.2d 1345 (4th Cir. 1982); Teterud v. Bums, 522 F.2d 357 (8th Cir. 1975).Google Scholar

715 480 F.2d 693 (10th Cir.), cert. denied, 414 U.S. 1097 (1973).Google Scholar

716 Id. at 1099.Google Scholar

717 See, e.g., Teterud v. Bums, 522 F.2d at 360 & nn.4–6.Google Scholar

718 480 F.2d at 700 (Lewis, J., concurring).Google Scholar

719 Id. at 698.Google Scholar

720 Badoni v. Higginson, 638 F.2d 172,177 (10th Cir. 1980).Google Scholar

721 Wilson v. Block, 708 F.2d 735, 741, 740 n.2 (D.C. Cir. 1983).Google Scholar

722 84 Stat. 1437 (1970).Google Scholar

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724 Petoskey, Indians and Religious Freedom, in Church & Soc'y, Jan.-Feb. 1985, at 68, 70. The five are Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983), cert denied, 464 U.S. 1056 (1984); Fools Crow v. Gullet, 706 F.2d 856 (8th Cir.), cert. denied, 464 U.S. 977 (1983); Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980), cert. denied, 452 U.S. 954 (1981); Sequoyah v. Tennessee Valley Authority, 620 F.2d 1159 (6th Cir.), cert. denied, 449 U.S. 953 (1980); and Inupiat Community of Arctic Slope v. United States, 548 F. Supp. 182 (D. Alaska 1982). The one is Northwest Indian Cemetery Protective Ass'n v. Peterson, 15 E.L.R. 20682 (9th Cir. June 24, 1985). In New Mexico Navajo Ranchers Ass'n v. ICC, 702 F.2d 227 (D.C. Cir. 1983), the Navajo challenged the Interstate Commerce Commission's grant of authority to construct a rail line, and the court found that the agency was only required, prior to construction approval, to enforce railroad consultation with religious leaders. See generally Note, Indian Religious Freedom and Governmental Development of Public Lands, 94 Yale L.J. 1447 (1985); Note, Native American Free Exercise Rights to the Use of Public Lands, 63 B.U.L. Rev. 141 (1983).Google Scholar

725 406 U.S. 205 (1972).Google Scholar

726 374 U.S. 398 (1963).Google Scholar

727 Fools Crow v. Gullett, 706 F.2d 856 (8th Cir. 1983).Google Scholar

728 Wilson v. Block, 708 F.2d 735.Google Scholar

729 Sequoyah v. TVA, 620 F2d 1159.Google Scholar

730 Badoni v. Higginson, 638 F.2d 172.Google Scholar

731 Quoted in Northwest Indian Cemetery Protective Ass'n v. Peterson, 15 E.L.R. at 20684.Google Scholar

732 Id. Google Scholar

733 Harris, The American Indian Religious Freedom Act and Its Promise, 5 Am. Indian J. 7, 9 (1979).Google Scholar

734 708 F.2d 735 (D.C. Cir. 1983). This circumstance is remarked upon in Note, Indian Religious Freedom, 94 Yale L.J. 1447, 1458 n.50 (1985).Google Scholar

735 Introduction, Black Elk Speaks xiv (Neihardt ed. 1982).Google Scholar

736 “[A]ny argument that the existence of tribal government is protected by the first amendment is sure to fail, since western culture so clearly distinguishes between church and state.” Clinton, Indian Autonomy, 33 Stan. L. Rev. 979, 995 n.88 (1981).CrossRefGoogle Scholar

737 See Hudson, The Genesis of Georgia's Indians, in Forty Years of Diversity 25 (Jackson & Spalding eds. 1984).Google Scholar

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740 401 U.S. 402 (1971).Google Scholar

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743 Id. at 253 n.27.Google Scholar

744 Id. I should note that during Rex Lee's tenure the office of Solicitor General sometimes actively supported the cause of the tribes, as it did in Oneida. See County of Oneida v. Oneida Indian Nation, 470 U.S. at 253, 243–44 n. 15. See also Montana v. Blackfeet Tribe. 53 U.S.L.W. at 4627. But see United States v. Dann, 470 U.S. 39 (1985). Where the government attempted to play the dual role of government and trustee for Indians and where the government was the alleged wrongdoer, then the roles were in conflict, and the government came down on the side of the government.Google Scholar

745 Johnson v. McIntosh, 21 U.S. (8 Wheat) 543, 591 (1823).Google Scholar

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747 J. Dickey, Metaphor as Pure Adventure 4 (1967) (quoting Reverdy).Google Scholar

748 President's Commission on Law Enforcement and the Administration of Justice, The Challenge of Crime in a Free Society 167 (1967).Google Scholar

749 Nor will it be sufficient to develop a new legal rhetoric employing the language of the Coase theorem, as suggested by B. Ackerman, Reconstructing American Law (1984). Perhaps the first order of new business is to develop a capacity to hear the voiceless. See Soifer, Listening and the Voiceless, 4 Miss. Coll. L. Rev. 319, 322–26 (1984). In working through these matters, I have depended upon the fruitful, suggestive work of Professor Soifer and upon conversations with him. In addition, I must also happily acknowledge dependence upon the exceptional work of Professor Robert Cover in writing this essay. I have had especially in mind his creative Nomos and Narrative, 97 Ham. L. Rev. 4 (1983), and related subjects we have talked about. Federal Indian law may be grasped as an extended example of the judicial constitutional violence to which he has directed our attention.Google Scholar