Frank Pommersheim - Broken landscape: Indians, Indian tribes, and the constitution

Broken Landscape

Indians, Indian Tribes, and the Constitution

FRANK POMMERSHEIM

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Copyright 2009 by Frank Pommersheim

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Library of Congress Cataloging-in-Publication Data
Pommersheim, Frank.
Broken landscape: Indians, Indian tribes, and the constitution /
Frank Pommersheim.
p. cm.
Includes index.
ISBN 978-0-19-537306-6
1. Indians of North AmericaLegal status, laws, etc.History.
2. Constitutional historyUnited States. 3. United States. Supreme Court
History. 4. Indians of North AmericaGovernment relations. 5. Indians of
North AmericaPolitics and government. 6. Indians of North America
Civil rightsHistory. 7. Tribal governmentUnited States. 8. Sovereignty. I. Title.
KF8205.P636 2009
342.730872dc22 2008046841

9 8 7 6 5 4 3 2 1

Printed in the United States of America
on acid-free paper

for Vine (19332005) and Sam Deloria
Commitment, Challenge, Humor

But Im not going to let you know how scared I sometimes get of history and its ways. Im a strong man, and I know that silence is the best way of dealing with white folks.

Sherman Alexie, What You Pawn I Will Redeem

That past is a long way off, Mamma.
Its there, though.
So is the future there. And that is ours.

William Trevor, At Olivehill

Indian people have often felt we have had no part in history
American history in general and U.S. history in particular.
Because Indians were alienated from history. Because Indians
didnt matter. That was the feeling. We felt pushed away.
Purposely. Intentionally. Deliberately.

Simon J. Ortiz, Sand Creek

ASPECIAL, SPECIAL THANKS TO MY LONG-TERM SECRETARY, TERESA CARLISLE, who typed the entire manuscript from beginning to end from my handwritten draft. Way out west, we work hard and stick to our neo-Luddite roots. And of course, abiding gratitude to my research assistants, Kaci Schroeder, Leonika Charging, Jeff Fransen, Jeff Connolly, Blair Lawhon, Melissa Bates, and Alex Hagen, for their indefatigable efforts to tame many wild and elusive footnotes. Finally, a nod to the support of a steadfast dean, Barry Vickrey, and continuing grants from the University of South Dakota Law School Foundation.

This work of scholarship is also significantly indebted, beyond conventional acknowledgment, to the generosity and friendship of many colleagues within the field of Indian law and tribal justice systems throughout Indian country for the past quarter century. It has been fifteen years since Braid of Feathers, and while there has been much advance, many challenges remain. Broken Landscape seeks to explain what has happened and to propose a potential course for the future. And also, my familyAnne Dunham and our children, Nicholas, Kate, and Hannah (all adults now!); without them, nothing is possible.

THE INDIAN NATIONS The continuing diplomatic encounter resulted in the signing of more than 350 treatiesmany of which were subsequently broken or disregarded. The wars, too, were many and varied. These experiences of diplomacy (manifested most often in matters of commerce and land acquisition) and war were the prime result of contact between these quite different societies. These encounters were transacted through governmental interaction, which itself was refracted through the lens of cultural difference.

These various and multiple encounters are best analyzed through the lenses of four primary themes, namely, commerce and land acquisition, diplomacy and war, cultural difference, and physical separation. These themes, in ways both obvious and not so obvious, possess a constitutional pedigree and resonance that provide the primary angle of vision for the ensuing exploration and analysis. In this same context, there will be a sustained inquiry into the role of history in Indian law and affairs, with a particular concern for how this checkered and uneven past might illuminate the present in a new way. This history is reconsidered to advance dignity and inclusion and a possibility for progressive change, rather than disrespect, exclusion, and indifference.

In response to these early interactions, Congress (and the Executive Branch) increasingly enacted a regime of law relative to trade and settlement. This further governed relations between the federal government and the tribes, and necessarily affected relationships between the tribes and states, as well as the relationships of all three governmentsfederal, state, and tribalto individual Indians. Presumably, the Supreme Court reviewed all of these efforts to ensure that they were constitutionally permissible and within the legitimate authority of Congress and the Executive Branch. This expectation of careful reviewespecially vaunted in our constitutional democracywas largely unattended to and unfulfilled in the field of Indian law. The Supreme Court, without sustained rigor, routinely upheld this regime and made much of its own law to deal with matters not directly taken up by Congress or the Executive Branch. It consistently approved actions that were not constitutionally authorized, with the net effect of recklessly extending federal power in Indian affairs and impairing tribal sovereignty to a considerable degree.

Despite the fact that the Constitution explicitly recognizes tribal sovereignty in the Indian Commerce Clause and implicitly in the treaty-making power, there has been almost no in-depth constitutional exegesis that elucidates how these provisions either protect tribal sovereignty or set boundaries for federal authority in Indian affairs. Instead, these constitutional provisions have proved mostly illusory and ineffective in protecting tribal sovereignty and constraining federal power in Indian affairs. This is the regime created by the extraconstitutional plenary power doctrine that was established in the 1903 case of Lone Wolf v. Hitchcock.

From one perspective, none of this is truly unexpected. Indian tribes were not key players as participating sovereigns in the deliberations that led to the adoption of the U.S. Constitution. Those deliberations focused almost solely on forming a national government, developing its relationship to the states, and apportioning its enumerated powers within the three branches of the federal government. The creation of a national government and an accompanying federal-state structure was the central enterprise of the Constitutions architecture. Yet the tribes were there, if not as genuine participants, then certainly as a constitutional shadow that could not be completely ignored. In the end, tribal sovereignty was (partially) recognized within the Constitution, but without sufficient national commitment, understanding, or adequate safeguard to vouchsafe it against the tides of national expansion and exploitation.