Nov. 23, 2020
Many of the cases in Native American history that have made it to the nation’s high courts come down to a central tension that has existed since the first colonists set foot in the Americas: Who does the land belong to? And who gets to make and enforce the rules? In most of these cases, Native Americans retain full sovereignty and jurisdiction over their lands.
Issue: Did state laws violate a treaty the Cherokee Tribe had signed with the United States?
Decision: In 1828, the state of Georgia passed a series of measures to void all tribal laws of the Cherokee Nation, which set the stage for settlers to claim Indian land. The tribe challenged the actions in the Supreme Court, arguing that the Cherokee Nation was akin to a foreign country and Georgia had violated its treaty with the United States. The justices ruled that the tribe did not constitute a foreign nation but was instead a "domestic dependent nation." Because Article III of the Constitution grants the judiciary power to rule only on disputes between states and foreign nations, the court concluded it did not have jurisdiction. This decision helped establish the doctrine of federal Indian trust responsibility.
Issue: Could Georgia enforce state laws on tribal lands?
Decision: Two missionaries, Samuel Worcester and Elizur Butler, were arrested, convicted, and imprisoned for residing in Cherokee territory without a license, in violation of Georgia state law. They challenged their prosecutions, arguing that Georgia’s law was unconstitutional because it encroached on the tribe’s sovereign rights and undermined the treaty between the federal government and the Cherokee Nation. The court ruled in favor of the plaintiffs, holding that Georgia laws could have no force within the Cherokee Nation, because tribal lands were “distinct political communities, having territorial boundaries within which their authority is exclusive.”
Issue: Did the federal government have jurisdiction to prosecute a crime committed by one Native American against another on tribal land?
Decision: After a Native American named Crow Dog killed a man on a Sioux reservation, he agreed to pay restitution to the victim’s family, according to custom. Seeking further punishment, the federal government sent US Marshals to arrest Crow Dog for murder. He was convicted and sentenced to death. Crow Dog petitioned the Supreme Court, arguing that the Sioux were self-governing, as per a treaty signed with the United States. The Court ruled in his favor, finding that the treaty did not provide for federal jurisdiction over crimes committed by one member of the tribe against another.
Issue: Do constitutional due process rights apply in tribal courts?
Decision: A Cherokee Indian named Bob Talton was convicted of murder in tribal court and sentenced to death. He filed a petition for a writ of habeas corpus, asserting that his Fifth Amendment right was violated because the grand jury that indicted him only had five members. The court ruled against Talton, holding that he had violated tribal law, not federal law, so the protections of the Bill of Rights are not applicable. The decision bolstered tribal powers of self-government.
Issue: Does the federal government have the power to stop settlers and businesses from constructing dams and reservoirs that divert water from a river flowing into a reservation?
Decision: The United States filed suit against individuals and businesses who were using water from the Milk River, which flowed into the Fort Belknap Indian Reservation and was crucial for irrigation. The defendants asserted that the agreement establishing the reservation was ambiguous on the matter of water rights. After the circuit court granted an order enjoining the settlers from interfering with the river, they appealed. The Supreme Court ultimately ruled that the agreement creating the reservation included water for cultivation, enabling the Native Americans to build a flourishing community on arid land. According to the Court, any ambiguities in the agreement “should be resolved from the standpoint of the Indians.”
Issue: Did the federal government breach its fiduciary duty to the Seminole people by paying treaty obligations to tribal leaders who were potentially misappropriating the funds?
Decision: The Seminole Nation filed an appeal after the US Court of Claims dismissed its petitions seeking payment to support schools, fund construction of an agency building on the reservation, and establish a trust fund to be disbursed per capita. The Supreme Court held that in carrying out its treaty obligations, the government has a fiduciary responsibility to Native Americans. If the government knew it was making payments to leaders who were defrauding members of the tribe, it breached its fiduciary duty. “This Court has recognized the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people.”
Issue: Could the state of California and Riverside County enforce civil laws regulating gambling on reservations?
Decision: Two tribes conducted Bingo games open to the public on federal reservations in Riverside County, California. The state and the county sought to apply laws and ordinances governing Bingo since the games attracted predominantly non-Indians. One of the reservations also operated a card club for draw poker and other games. The court ruled that state and local governments could enforce criminal laws on reservations but not civil laws like gambling statutes. The state needed to present a compelling reason for its laws to override tribal authority, according to the court. The state and county did not provide sufficient justification for regulating Bingo games, which generated revenue for the operation of tribal governments and were major sources of employment for members of the tribe.
Issue: Does the Double Jeopardy Clause bar the federal government from prosecuting a person who pleaded guilty in tribal court to charges arising from the same incident?
Decision: Anthony Robert Wheeler, a member of the Navajo Tribe, was arrested by tribal police at a high school for disorderly conduct. He pleaded guilty to that charge as well as contributing to the delinquency of a minor and was sentenced to 60 days in jail. One year later, Wheeler was indicted on a federal charge of statutory rape for the incident at the high school. He moved to dismiss the indictment, asserting that he could not be prosecuted again, as per the Double Jeopardy Clause. The Supreme Court ruled against him, concluding that the tribal government and the federal government were distinct and separate sovereigns. “When the Navajo Tribe exercises this power, it does so as part of its retained sovereignty and not as an arm of the Federal Government,” the Court stated.
Issue: Does sovereign immunity shield tribal governments from lawsuits brought under the Indian Civil Rights Act?
Decision: Julia Martinez, a member of the Santa Clara Pueblo tribe, filed suit against the tribe alleging the equal protection provision of the ICRA was violated by an ordinance that denied membership to the children of female members who married outside the tribe while similarly situated children of men were allowed to join. The court held that the ICRA does not subject tribes to the jurisdiction of federal court in civil actions for declaratory or injunctive relief. Congress crafted the law with tribal self-determination in mind, according to the court, and tribal courts are the proper venue for matters involving rights established by the ICRA.
Issue: Is the land occupied by the Muscogee (Creek) Nation an Indian Reservation for the purposes of the Major Crimes Act?
Decision: Jimcy McGirt, a member of the Seminole tribe, was convicted of rape and other sexual offenses in Oklahoma state court in 1997. He challenged his conviction because the crimes occurred on land that historically had been designated for the Creek Nation. According to the Major Crimes Act, offenses committed by Native Americans in “Indian country” are to be prosecuted in federal or tribal court, not state court. The case centered on whether the Creek Nation is actually a reservation. The land spans across a broad swath of Eastern Oklahoma, including portions of Tulsa. In a 5-4 ruling, the Court held that the Creek Nation is “Indian country.” Although 19th century treaties did not formally establish a Creek reservation, the agreements promised the land would not be annexed and the tribe had the right to self-government with “’full jurisdiction’ over enrolled Tribe members and their property.”
Nelson Mullins celebrates Native American Heritage Month by honoring the accomplishments of the original inhabitants, explorers, and settlers of the United States as they contribute to American society.
These materials have been prepared for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.