The Nadir of Native American Sovereignty

Tribal sovereignty has always been the central and most perplexing issue in federal Indian policy. Almost every problem that faced, or faces, Native Americans—property ownership, mineral and water rights, criminal and civil jurisdiction, self-government—have all hinged on the federal government’s conception of the powers maintained by Indian tribal governments and the federal courts’ interpretation of the proper relationship among the national government, the states, and the Native American nations. Rather than remaining static, the scope of tribal sovereignty expanded and contracted with epochal changes in the federal government’s vision of the place of Indians in American society. Characterized by federal judge Philip Nichols, Jr. as “one of the blackest days in the history of the American Indian” (p. 71), Lone Wolf v. Hitchcock was the nadir of tribal sovereignty and the culmination of the late-nineteenth-century attack by the federal legislature and judiciary on Native American political and legal rights.

Charles F. Wilkinson (American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy, 1987) defined sovereignty as the “power of a people to make governmental arrangements to protect and limit personal liberty by social control” and demonstrated how pervasively changes in the Supreme Court’s interpretation of this intangible influenced Native American lives (pp. 54–55). Yet, surprisingly few monographs have studied the major cases that affected the realm of Native American tribal powers and individual rights as singular objects.

Although law libraries remain sadly bereft of detailed works on the important cases of the twentieth century, legal historians have recently and quickly closed the gap in the literature on the nineteenth-century decisions. For instance, in 1994 Sidney J. Harring published Crow Dog’s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century, in which he described the transition in the federal government’s treatment of “criminal” violations on the reservation from Indian self-policing (Ex Parte Crow Dog, 1883) to federal oversight and interference (United States v. Kagama, 1886). Even more recently, Jill Norgren published the first full monograph on the Cherokee cases—Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832)—that provided the foundation for the modern and more liberal interpretation of tribal sovereignty (The Cherokee Cases: The Confrontation of Law and Politics, 1996). Now, with Blue Clark’s publication of Lone Wolf v. Hitchcock: Treaty Rights and Indian Law at the End of the Nineteenth Century, we have the first book-length study of the case that gave Congress constitutional sanction to allot and annex Indian lands without their consent, plenary power over Indian affairs beyond the supervision of the courts, and the unfettered freedom to ignore and repudiate treaty obligations.

In Worcester, John Marshall described the Indian tribes as “distinct, independent political communities” free from the control of the states, but under the security and “pupilage” of the federal government. He held that the Indian tribes retained those aspects of sovereignty that they had not surrendered to the federal government; that Congress held sole jurisdiction over Indian affairs (as opposed to concurrent power with the states); and that Native Americans remained the “undisputed possessors of [their] soil.” He likened the Indian nations to small European states that retained important aspects of national sovereignty but were forced to exist under the protection of larger, more powerful states.

The Supreme Court applied Marshall’s precedent relatively consistently in the fifty years between Worcester and Crow Dog. In that 1883 case, the Court again followed Worcester and struck down attempts by federal authorities to exert jurisdiction over an Indian on Indian murder that occurred on the Brule Sioux reservation. Crow Dog, however, became a pivotal case in the diminishment of tribal sovereignty, for in dicta, the Court hinted that Congress held the constitutional power to extend federal criminal jurisdiction over the Indian nations. Congress bit at this hook and declared federal jurisdiction over...