Institutional Change I: Domestic, Dependent Nations Invented in 1831

The status of domestic, dependent nations was incoherent then and still is.

Historians tell us that the modern nation-state was born in 1648, when power passed on paper from the Divine Authority represented in the West by the Pope to various European warlords in the Peace of Westphalia. I’m pretty sure that future historians will claim the nation-state changed so radically in our time that—in hindsight—it was dying in the latter part of the 20th century.

Along with the death of the nation-state, our times will stand out for the death of imperialism and the fruition of democracy as an ascendant ideology. How can such momentous changes be happening all around us without robust public debate?

The same way they always have. Some historian will pick out the date nation-states became irrelevant after the human beings who lived through the change are gone.

Historians tell us democracy understood as consent of the governed was born in 1215, when King John of England was forced to sign a document that accepted limits on his authority. Those limits bound the king to treat his vassals fairly. Magna Carta protected a few English lords, but for the vast majority of human beings nothing changed.

Similarly, historians find the English Common Law beginning in 1066, when a thug called William the Bastard changed his historical identity to William the Conqueror at the Battle of Hastings. No ordinary person in 1066 would have noticed much of anything, except for men under arms and the warlords who commanded them.

There are so many ways that these dates, read literally, are wrong, starting with Eurocentric history. It’s wrong to say democracy was born at Runnymede in that it was reborn after Christian book burners made the ancient Greeks go away temporarily. It was also wrong in that consent of the governed was very much alive in the Americas before Europeans showed up, or so our traditions tell us.

Historians did not, by and large, record our stories. When our stories got recorded at all, it was anthropologists steeped in the racial hierarchy that infected the early years of that discipline. Look for us on the folklore shelves.

When we got around to attending to our histories in European languages, we were reduced to quibbling over body counts, the definition of “massacre,” who institutionalized scalping, and whether the neologism “genocide” can be spoken over the howls of anachronism or, failing that, lack of intent. After all, weren’t the colonists innocent of germ theory?

Occupied with the deaths of so many persons, the institutions that died claim no attention. Early contact literature swings between mythical cities made of gold and the myth that there were no cities. Cities required sedentary populations producing substantial agricultural surplus and everybody knew Indians were nomadic hunters.

Germ theory would have explained that disease depopulates urban centers first because human contact is necessary. Plains Indian populations remained free not just because they were fierce, but because they shunned contact with the colonists beyond what was necessary for trade.

Even colonial history that was documented was contested between the Natives and the settlers. The settlers tend to date the end of the shooting part of the Indian wars to the defeat of the Kiowa-Comanche Alliance that dominated the Southern Plains during the Civil War (1885) or the final surrender of the Chiricahua Apaches under Geronimo and the betrayal of the rest of the Chiricahua, who were exiled to Florida as the settlers shipped a generation of Chiricahua children to boarding schools.

Indians are virtually unanimous that shooting part of the Indian wars ended in 1890 with the massacre of noncombatants at Wounded Knee Creek, resulting in medals of “honor” for the killers.

After that shameful recitation, my computer tells me I’ve digressed 360 words to explain why a discussion of sovereignty in the Americas is focused on the English Common Law and sovereignty is joined at the hip with the rule of law.

We lawyers would like to believe that the rule of law would be the beginning of the end of sovereignty understood as rule by whim of the sovereign. Maybe that’s so in some cosmic, butterfly effect sense, but all the early writs began Rex vicecomiti salutem—the King greeted the Sheriff and then ordered him to enforce the King’s will. Criminal charges were contra pacem Domini Regis, against the peace of the Lord King. Early on, this literally meant what offended the King, disturbed his peace.

The King’s peace began with the King’s physical presence, expanded to the King’s dwellings, and finally to the King’s highway and the inns along the King’s highway. A “highwayman,” a robber, was outlaw because his occupation disturbed the King’s peace by obstructing commerce.

In our time, a typical criminal indictment alleges conduct “against the peace and dignity of the state (or commonwealth),” illustrating the move from offense against the individual sovereign to offense against the collective sovereign. It took hundreds of years, but Common Law jurisdictions—most Anglophone countries—morphed from the personal to the institutional.

The rights seized by King John’s vassals at Runnymede expanded to more people. From titled nobles to men merely wealthy. It was in the apportionment of wealth upon the death of a wealthy man, incidentally, that the concept of blood quantum first crept into the Common Law.

From property owners to all free men. With the demise of legal slavery, to all Christian men. Non-Christians and women as rights-holders are quite recent ideas and still subject to controversy on the political fringes. When the Fourteenth Amendment promised equal protection of the law without significant qualifications, though, the writing was on the wall if not yet in the law books.

Formal equality would take over a century to come to fruition, and persons indigenous to the Americas were among the last to benefit, but the same Civil War that extended the dominance of the Plains Indians by keeping the settlers occupied killing each other resulted in the words that would eventually stand natural persons equal before the law.

In 1886, the very same year Geronimo surrendered his battle for freedom and rest of the Chiricahua Apaches suffered their epic betrayal, the United States Supreme Court started the legal revolution that would become the next phase of social organization beyond the Westphalian nation-state. In Santa Clara County v. Southern Pacific Railroad (1886), the Court declared without briefing or argument that corporations are “persons” within the meaning of the Fourteenth Amendment.

Corporations were born as creatures of the sovereign in the individual sense—the King. A corporate charter was a favor from the monarch to a subject that conferred powers that could only come from a sovereign, the most important of which was monopoly. Most of the earliest colonies on the East Coast of North America were corporate undertakings authorized by royal charters.

After the American Revolution, corporate charters became favors bestowed by legislative acts rather than the whims of one man. A sovereign government could, of course, repossess powers granted in corporate charters under the authority of eminent domain.

The Jacksonian period is something Indians remember as the time of the removal “treaties.” There is a neologism to describe removal, “ethnic cleansing,” and the policy of separating the Five Tribes from their ancestral lands was based on ethnic prejudices sharpened by greed. The settlers who appropriated Indian property in the wake of removal were often less literate and even less wealthy than the people they dispossessed.

The early agitation for removal was the context for the three Supreme Court opinions by Chief Justice John Marshall that form the basis for federal Indian law to this day. The middle case in that trilogy, Cherokee Nation v. Georgia (1831), established that Indian nations are not foreign countries that can bring original actions in the U.S. Supreme Court but rather “domestic, dependent nations,” a description John Marshall pulled out of his nether region since the Constitution says no such thing.

While the Jackson Democrats were pursuing the idea of One Big Reservation in Indian Territory as the penultimate if not final solution to the problem that the continent was occupied before the colonists arrived, those same Democrats were wrestling with the elitist idea of corporate charters.

To maintain some disciplinary power over corporations, it became common for the charters to reserve the right of the government to amend the terms of the corporate monopoly. This elided the problem that any diminution of corporate privileges after granting of the charter would be a “taking” for Fifth Amendment purposes and require compensation.

In that Fifth Amendment sense, corporate privileges had become corporate “rights,” a discourse not found in the law until much later. After all, how could an artificial entity created by the government for limited purposes have rights enforceable against its creator? The very idea, even now, seems absurd.

The other change wrought by Jacksonian democracy was the rise of general business corporation acts, granting blanket authority to incorporate though a regular bureaucracy in the executive branch rather than seeking a special legislative charter.

Access to the corporate form for anybody who could write articles of incorporation and pay a filing fee ended the elitist aspect, and the Supreme Court ended the implied monopoly in 1837 (Charles River Bridge v. Warren Bridge).

So it was that general business corporations and domestic, dependent nations entered U.S. legal history at approximately the same time with the powers and duties of both entities to be determined later.

The status of corporations, unlike that status of Indian nations, was sought after for known purposes. Separating management and ownership, the corporate form limited liability of investors to the amount invested and greatly expanded the process of pooling capital. This advantage required legal personhood in the sense that the corporation needed the standing to sue and be sued. A “person” for the purpose of litigation has procedural rights inherent in the process, but in our time those procedural rights have morphed into substantive rights.

The status of domestic, dependent nations was incoherent in the beginning and has only become more incoherent over time. The Cherokee Nation’s attempts to seek redress against settler encroachments in the courts of the settler nation led to a status that was undefined except that an Indian nation was not a foreign state.

The problem “domestic, dependent nations” addressed was that the U.S. did not want the formal equality camel to get its nose in the tent but the Indian nations had to be more than voluntary associations to uphold the authority to cede land. If the Courts simply refused to recognize any legal standing for Indians, the legal fig leaf of treaties would no longer hide the theft and homicide.

Recognizing legal standing for Indians avoided admitting institutional evil on an epic scale in North America. Bad acts were caused by a few bad people, but the process was fair to the indigenes as well as the settlers. Once tribal governments had standing in court, of course, they tried to use it to defend themselves.

The Kiowa Nation’s attempt to enforce the Treaty of Medicine Lodge in the settler courts brought the news that a domestic, dependent nation had no rights the U.S. was bound to respect even when those rights were created by agreement of the parties. Lone Wolf represented the Kiowa Nation in opposition to the allotment of the Kiowa Reservation.

Ethan Hitchcock is made to appear a villain in modern times because his name appears on the other side of Lone Wolf’s lawsuit. In fact, Secretary of the Interior Hitchcock was in agreement with Lone Wolf that the proposed allotment of the Kiowa Reservation would be devastating to the tribal economy. It was, but the 1903 holding in Lone Wolf v. Hitchcock was just as devastating to the political status of Indian nations within the United States.

Having decided in the Cherokee case that Indian nations were not exactly nations and in the Kiowa case that the United States had no legally enforceable duty to keep its word to Indians, the arrogation of “plenary power” over Indian nations was complete in all but name. The name would come in due time.

Note that this “plenary power” was created by the Supreme Court but is said to be vested in Congress. Since Cherokee Nation v. Georgia was extraconstitutional in the first place, and since Congress has been asleep at the legislative switch much of the time, the evolving status of Indian nations plays out in continuing power struggles with state governments punctuated by Supreme Court decisions that can usually be overturned by Congress if Congress can be persuaded to act.

Because federal Indian law remains both incoherent and extraconstitutional, Indian nations have plenty of room to define their own powers if they can escape the second word in Justice Marshall’s made up label: “dependent.” Sovereignty cannot be exercised—let alone expanded—from a condition of dependence.

Notice that to speak of “expanding” sovereignty is nonsensical if you chase sovereignty back to hereditary kings ruling by divine right. Sovereign power was absolute and the only thing that could check it was collision with another sovereign. Within its geographical sphere, sovereignty could not expand or contract. Sovereignty contained all the political authority that existed.

Notice that in the United States, we allegedly have a union of “sovereign” states. The U.S. fought a Civil War over what that meant and it’s now settled that state sovereignty must yield to federal sovereignty.

Indian sovereignty must also yield to federal sovereignty, but not to state sovereignty. Yet. The Constitution is clear about only one thing regarding Indians. It is clear that relations with Indian tribes are the exclusive province of the federal government.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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