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History, Power, and Federal Indian Law

This drawing by J. Howland, originally printed in Harper's Weekly, depicts the council between representatives of the U.S. government and the Kiowa and Comanche tribes at Medicine Creek Lodge, Kansas, in 1867.

Council at Medicine Lodge Creek. J. Howland, Harper’s Weekly. Source: Wikimedia

Working in both law and history, I often encounter historians who express anxiety about treading too far into the legal domain. Lawyers have done a remarkable job of selling an image of the law as a technical discipline requiring a specialized vocabulary and training. I find that the largest gap between law and history in fact concerns goals: judges and lawyers need to craft binding rules for the present, while historians seek to capture the nuances of the past on its own terms. The actual process of making law—assessing the validity of arguments based on multiple sources—can sometimes border closely on the work of historians.

This is particularly true in one of my areas of expertise, federal Indian law, the term of art for the body of federal law governing the relationship between the United States and Native nations. Indian law is unusual in that it often lacks authoritative recent statutes, instead leaving judges to distill principles of law from tangled and ambiguous narratives about the past. The resulting decisions sometimes read as though the judges actually were trying to be historians. Arguably the most significant U.S. Supreme Court Indian law decision of the last half-century—the 1978 case of Oliphant v. Suquamish Indian Tribe, which stripped tribal authority to exercise criminal jurisdiction over non-Indians—rested almost solely on Justice Rehnquist’s tendentious interpretation of two centuries of federal Indian policy. In its recent 2015–2016 term, the Supreme Court, remarkably, heard four Indian law cases: one required interpreting the congressional intent behind an 1882 law allotting the Omaha reservation and another involved a deep dive by the parties into the history of tribal civil jurisdiction, including an extensive survey of nineteenth-century treaties and case law.

Indian law is not unique in involving judicial uses of history. But not only is Indian law exceptionally historically focused, it is also different from, for instance, the more familiar fights over originalism. While struggles over constitutional history often concern grand and abstract principles and attract significant attention, Indian law cases are often viewed as minor—Justice Brennan reportedly once referred to them as “chickenshit”—and their outcome likely turns on the very local and specific pasts of a particular reservation, treaty, or centuries-old statute. The indeterminacy of these histories gives judges remarkably wide rein to craft the law as they see fit: “[W]hen it comes to Indian law,” the late Justice Scalia once quipped, “most of the time we’re just making it up.”

Law, in other words, is not determinate, and Indian law is especially malleable. Historians, particularly those working on indigenous pasts, would do well to keep this interpretive uncertainty in mind. More than in most areas of law, their accounts can carry considerable legal weight, not only when historians are explicitly serving as expert witnesses, but also when their monographs and articles are repurposed for unanticipated ends.

But the law’s ambiguity is just as significant when historians rely on law to construct their own arguments. In two recent articles in the Journal of American History, for instance, historians have invoked contemporary Indian law principles to help illuminate the early United States. Both raise important questions about how historians should think about and interpret present-day law, especially its indeterminacy, in their arguments.

Robert Lee’s article “Accounting for Conquest: The Price of the Louisiana Purchase of Indian Country” uses the records of the Native land claims before the Indian Claims Commission and other settlement procedures to revise previous estimates about the cost of purchasing Native title within the Louisiana Purchase, ultimately reaching a figure of $2.6 billion. Lee’s thorough tabulation suggests one reason that historians have long been loath to wade into difficult legal source material: the sheer amount of work it often requires.

Yet law’s allure in seeming to offer concrete answers can at times efface the more nakedly political decisions underlying it. Prices are usually set by markets that determine value, but federal law ensured that no such market in Indian title ever really appeared. On the contrary, Indian ownership always existed, in the words of one scholar, “at the whim of the sovereign,” which often boiled down to the judgments of individual policymakers or judges. This has two important consequences. First, substituting law for the market presents the challenge of parsing more than two centuries of complex legal negotiations resulting from U.S. colonialism to discern which acts of compensation deserve to be imputed as part of the “price” of the Louisiana Purchase. Second, the “price” that Lee traces so thoroughly and carefully rests primarily on the value that non-Native legal actors assigned to Indian title after the fact.

How did the law value Indian land? One way to answer that question is to look at how much the courts would have mandated that an unwilling federal government pay for Indian title. The Fifth Amendment requires “just compensation” for land “taken” by the government. What compensation was “just” for Native peoples? For most of the history of the United States, the answer was nothing. In the 1903 case of Lone Wolf v. Hitchcock, for instance, the Supreme Court swept aside a challenge against a federal taking of two million acres of treaty-guaranteed Native lands, determining that Congress had simply enacted a “mere change in the form of investment of Indian tribal property.” In the 1955 case of Tee-Hit-Ton, the Court rebuffed another Native takings claim, observing, “Indian occupation of land without government recognition of ownership creates no rights against taking or extinction by the United States protected by the Fifth Amendment or any other principle of law.” The Court continued: “Generous provision has been willingly made to allow tribes to cover for wrongs”—through the Indian Claims Commission, whose records Lee mines—“as a matter of grace, not because of legal liability.” Not until the 1980 case of United States v. Sioux Nation did the Supreme Court, over vigorous dissent, find that the federal government’s taking of Native land—in this case, the seizure of the Black Hills in flagrant violation of a federal treaty—required compensation. Even then, this money was not “paid” to Natives, because the Sioux people have to this day refused to accept the funds.

Legally, then, the courts long authorized the federal government to pay nothing for Indian land if it so wished, a display of the raw power of the “courts of the conqueror,” a phrase coined by John Marshall in Johnson v. M’Intosh, a case that deemed Indian ownership a mere right of occupancy to the federal government’s underlying title. This course of non-payment was followed in much of Alaska until the 1970s, and in Australia and parts of Canada until quite recently.

In short, the compensation given to Native peoples for their land was thus rarely a straightforward application of “the law”; it was, rather, a contingent, deeply political decision that owed much to Native activism and the agonized moral pangs of a conflicted nation. Viewed in this light, the $2.6 billion figure Lee traces so carefully and thoroughly is the “price” of salving the nation’s collective conscience as much as the cost of any property right.

Gregory Evans Dowd’s article “Indigenous Peoples without the Republic” presents a related question about how much legal doctrine matters in dictating events. Dowd takes issue with a scholarly narrative that depicts the rise of Herrenvolk democracy in the early United States as producing uniquely bad outcomes for Native peoples. Part of Dowd’s argument is legal: the U.S. Constitution, particularly its embrace of an idea of divisible sovereignty, created space for indigenous sovereignty that Native peoples were able to seize on to preserve some modicum of rights under federal law up through the present. Similar protections, he traces, did not exist within other settler colonies like Canada and New Zealand.

But the relationship between legal text and ideas on the one hand and outcomes on the other is ambiguous. Ideas of divisible sovereignty and federalism, abstractly a boon for tribes, in practice empowered states, which the Supreme Court described as tribes’ “deadliest enemies.” Much of the history of Indian law, particularly of Indian Removal, is the story of a contest between state and tribal sovereignty, with Natives usually the losers. Moreover, the Constitution and ideas of tribal sovereignty did almost nothing to stop the rise in U.S. law of a concept of absolute and overarching federal authority nearly identical to the language Dowd records in other settler colonies. “The right of exclusive sovereignty . . . must exist in the national government, and can be found nowhere else,” the Court reasoned in the 1886 Kagama case, announcing the doctrine known as “plenary power.” To this day, the black-letter law holds that tribal sovereignty “exists only at the sufferance of Congress, and is subject to complete defeasance.”

In many ways, then, the history of federal Indian law looks similar to the legal history of other settler colonies, an observation borne out by comparative works like those of Lisa Ford and Margaret Jacobs. The present is a different story. Since Oliphant, the U.S. Supreme Court has dramatically retreated from ideas of inherent tribal sovereignty, to the point where some Indian law scholars wonder whether “sovereignty” means much in federal Indian law now. The current justice most committed to original understandings of the U.S. Constitution, Justice Thomas, has repeatedly questioned whether tribal sovereignty even still “endures.” By contrast, the Canadian and Australian supreme courts have adopted a tone that is more sympathetic to Native peoples—although many indigenous people are still frustrated with the cases’ outcomes—while Canada’s constitution, unlike that of the United States, contains a distinct provision affirming the rights of the aboriginal peoples of Canada. At the same time, there are ways in which indigenous sovereignty in the United States is arguably more robust than elsewhere: most notably, in the formal recognition within U.S. law of tribal constitutions and courts. Whether this difference is due to divergent legal texts—as opposed to, say, the rapid adoption of Anglo-American legal forms by the Cherokees and other Native nations—is a difficult historical question.

Historians will probably not be surprised to learn that present-day law, like the law of the past, is political. If anything, historians might be too comfortable with a contextual approach that stresses how law both reflects the time of its creation and is often heavily tilted to favor the powerful. Such questions about the interrelationship between law and society, and about law’s status as an autonomous discipline, have bedeviled legal scholarship since at least the time when the legal realists attacked the pretensions of law’s claim to science, and resurged with the Critical Legal Studies movement. Indian law is particularly susceptible to these critiques, because it can so often seem like so much window dressing around the naked exercise of authority. It is, after all, no coincidence that one of the leading legal realists, Felix Cohen, is also one of the towering figures in Indian law’s history. It is nonetheless important that acknowledging law’s indeterminacy does not extend to wholesale rejection of law professors’ valid pleas that sometimes doctrine exerts its own force and produces unexpected outcomes.

Yet, at the same time, historians should retain their skepticism about the equally reductive siren song of certainty that wafts from some judicial precincts. Law is a discipline that sometimes purports to traffic in right answers, and the field’s supposed technicality can make it seem so clean, so straightforward, especially compared to the interpretive muck through which historians must often wade. Don’t believe it. Judges reach definitive answers because they must. Deep down, they’re just as confused as you or I.

Gregory Ablavsky is assistant professor of law at Stanford Law School, where he teaches legal history, property, and federal Indian law. He is the author of several law review articles on the early history of Indian law, and is currently working on a legal history of the U.S. territories in the late eighteenth century.