Of the “Eight Fascinating Court Decisions Affecting Indians and Tribes,” presented in New London, Connecticut on May 22, some of the resulting laws seem surprisingly fair while others reek of racism.
Stephen L. Pevar, American Civil Liberties attorney since 1976, presented cases that reflect the origins of laws that affect Natives today.
Pevar said the Supreme Court accepts fewer than 70 cases out of 6,000 a year. So far, the Supreme Court has taken 200 cases regarding Indians. “What I have done is select eight cases. Indians have won some and lost others,” Pevar said.
Here are six of the eight, some of which seem surprisingly fair and others that reek of racism.
Johnson v. McIntosh (1823)
Facts: Johnson bought land from the Illinois tribe in 1773, before the United States became an independent nation. Decades later and after the U.S. had become independent, another man, McIntosh, bought the exact same land from the U.S. government.
Who owned the land? McIntosh according to the Supreme Court, which based its decision on the principal of International Law, “to the victor belongs the spoils.”
Pevar explained that the Europeans had established the doctrine of discovery, which gave title to those who “discovered” it. The only concession the court made for the tribes was to be certain they had been adequately compensated. (Hold your breath, folks, here it comes.)
The Supreme Court then said that the rulers of the old world “made ample compensation to the inhabitant of the new, by bestowing upon them civilization and Christianity.”
Pevar called the decision heartbreaking, racist, immoral, and “One of the most reviled decisions in all of Indian Law.” Pevar cited that the ruling was included in the book, In the Courts of the Conqueror, the Ten Worst Indian Law Cases by Walter Echo Hawk.
Worcester v. Georgia (1832)
Facts: Georgia felt state law should override federal, and set out to prove it by establishing a series of laws including that no one could enter the Cherokee Reservation without a permit from the state. A minister, Sam Worcester, had been invited to the reservation by a number of Cherokees, went without a permit and was arrested, charged, and imprisoned for four and a half years.
Worcester won the U.S. Supreme Court case, which ruled, “The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties and with the acts of Congress.”
Ex Parte Crow Dog (1883)
Facts: Crow Dog, Rosebud Lakota, murdered Brule Chief Spotted Tail. Following tradition, the family and tribes came together to decide on some means of restorative justice, meaning “they would try to work out something for the best of the victim and family as well as the perpetrator,” Pevar said. “They worked out something that was acceptable to both, and had Crow Dog support Spotted Tail’s family and offer provisions such as horses and blankets.”
The federal government was not happy with the resolution. Pevar said, “There was a lot of pressure to do something about this. They didn’t like that Crow Dog wasn’t punished.
“U.S. Marshals went into Rosebud and arrested Crow Dog, prosecuting him in a territorial court. He was found guilty of murder and sentenced to hang, but Crow Dog appealed his conviction in the U.S. Supreme Court,” Pevar explained.
The Supreme Court said, “Congress doesn’t have the power to limit what Indian tribes can do, and unless Congress exercises that power, Indian tribes are permitted to govern however they wish.”
Soon after, Congress passed the Major Crimes Act. Beginning in 1885, federal officials could arrest Indians who committed certain crimes, Pevar said.
Talton v. Mayes (1896)
Facts: After the Cherokees were relocated to Oklahoma, Bob Talton, Cherokee, was arrested for murdering another Cherokee man on the reservation. Talton was charged with murder in the Cherokee Tribal Court and sentenced to death. Talton appealed in federal court saying he had been denied his constitutional rights.
“The question was did he or any Indians have constitutional rights under tribal laws,” Pevar said.
Consistent with Worcester v. Georgia, tribal law was upheld and Talton was found guilty under tribal law.
Lone Wolf v. Hitchcock (1903)
Facts: By 1867, many tribes had already been relocated to reservations, and it was clear that treaties were repeatedly violated. When the Kiowa and Comanche were forced to sign a treaty, they agreed to the conditions, but wisely asked that they never have to relinquish any more land unless three-quarters of the adult male tribal members agreed in a vote, taken by the federal government. The government agreed, and they signed the treaty.
In 1871, Congress passed a law ending treaty making but said existing treaties were not devalued or abrogated. When Congress moved to take more of the Kiowa and Comanche’s land without an election, the tribes took the case to the Supreme Court.
The Supreme Court ruled that just as a federal statute can amend and repeal an earlier statute, a federal statute can amend or repeal a treaty. Since the U.S. had always acted with authority over Indians, “The power exists [in Congress] to abrogate the provisions of an Indian treaty.’”
Pevar said, “The last sentence of the decision read, ‘We must presume that Congress acted in perfectly good faith.’”
Making it clear he was speaking for himself and not the ACLU, Pevar said, “It is really disgraceful, indefensible, how the United States so frequently criticizes third world countries about how they disregard International Treaties.”
Oliphant v. Suquamish Indian Tribe (1978)
Facts: On a small reservation in Washington State, there were 3,000 non-Indian residents and only 50 Indian residents. This is where Oliphant, a white man, got drunk at a pow wow. The tribal police told him to leave and Oliphant punched the tribal officer, then got in his car and recklessly drove away, nearly running people over. Only by ramming his car off the road were the tribal police able to stop him.
Oliphant was prosecuted and imprisoned for violating tribal laws. Oliphant appealed to the Supreme Court, arguing that he was white and the tribe did not have jurisdiction over him, that they can only exercise their authority over tribal members.
The tribe argued that congress had never limited tribal jurisdiction to Indians, and that Worcester v. Georgia applied. However, the tribe lost.
Had previous principles been upheld, the tribe should have won. Pevar said, “They wanted the tribe to lose, so the Supreme Court had to come up with a new principle.”
The court came up with a new doctrine that kept Indian tribes from exercising powers terminated by Congress as well as “those inconsistent with their status.”
“Now courts can just say, Indians shouldn’t have that power. It’s inconsistent to us,” Pevar said. “This is a perfect example of racism. There is no way to explain this case except for racism, if the court had followed the 175-year-old principles of law.”
Pevar also spoke about Winters v. United States (1908) and California v. Cabazon Band of Mission Indians (1987). These and more can be found in greater detail in Pevar’s book, The Rights of Indians and Tribes