Category Archives: Treaty Rights

Brett Kavanaugh’s Jacksonian Persuasion

            Justice Brett Kavanaugh wrote a destructive opinion in the case of Oklahoma v. Castro-Huerta that, simply put, threatens the entire field of American Indian law as it has developed and devolved in this country over the course of two hundred and forty-six years. The Supreme Court’s recent term has been nothing short of revolutionary, in all the worst ways. And it is going to get worse.

            “Indian country is part of the State, not separate from the State” Kavanaugh wrote, and “as a matter of state sovereignty, a State has jurisdiction over all of its territory, including Indian country.” Keep these words in mind, for they have explosive implications. 

Kavanaugh’s words in the  Castro-Huerta case are nearly identical to the position Andrew Jackson took shortly after his inauguration in March of 1829.  The United States, his secretary of war John Eaton told the Cherokees, would never halt a state in the exercise of its powers over Native Americans residing within its borders because “that is not within the range of powers granted by the states to the general government.”  Indians must submit to the laws of the state they lived in or leave. Chief Justice John Marshall slapped that idea down three years later in his monumental opinion in Worcester v. Georgia, still the single most important decision in the field of American Indian law.

There is a concept with which all students of American Indian law are familiar: Congressional plenary power.  It is based on Article I, Section 8 of the United States Constitution, in which the American people gave to Congress the right to regulate “commerce with the Indian tribes.”  Basing his decision in Worcester on that constitutional clause, Marshall said that the Cherokee Nation is a “distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which 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.  The whole intercourse between the United States and this nation, is, by our Constitution and laws, vested in the government of the United States.” The conduct of Indian affairs, then, belonged strictly to the United States, and sovereign Indigenous nations stood between the national and the state governments in the constitutional framework of the United States.  Native American sovereignty was real, it was constitutional, and it mattered.

            There were good reasons for this. During the Confederation era and thereafter, the individual states pushed the Indigenous nations that lived within their borders to the brink of wars the United States could hardly afford to fight.  The worst military defeat suffered by the United States at the hands of Native American opponents came not along the Little Bighorn in 1876 but along the Maumee, in 1791.  Powerful Indian nations posed an existential threat to the United States. George Washington and all his successors except for Andrew Jackson, looked for ways to rein in the states, which they believed posed the gravest threat to frontier order.

            If you jump forward a few years and read the Annual Reports of the Commissioners of Indian Affairs, you will see the same sentiments expressed.  Federal control over Indian affairs was necessary because locals consistently stirred up trouble with Indigenous peoples.  They stole lands and committed unspeakably cruel acts of violence.

Over the years, the idea that states can not intrude into Indian affairs has eroded considerably.  For instance, tribes have no right to prosecute non-Indians who commit crimes on their lands, the Court held in 1978. Only in certain specific circumstances do tribes possess regulatory authority over the activities of non-Indians who do business on their lands.  And we should be clear—federal plenary authority is hardly a good thing.  Sure, it restrains the states, which historically have always been worse, but plenty of evil has been done by the United States.

            American Indian law is not always a complicated subject.  There are a few simple principles that, once mastered, can help you make your way through the morass. For much of this nation’s history, Indian tribes could essentially exercise any power they wanted unless they were specifically prohibited from doing so by a treaty or an act of Congress.  That is Marshall’s logic in Worcester, and it held up for many years.  Some lawyers call this principle explicit divestiture.  In 1978 Justice William Rehnquist added the idea called implicit divestiture: Indian nations can exercise any power they want, unless explicitly prohibited from doing so by a treaty or act of Congress, or if the power in question is somehow inconsistent with their status as “domestic dependent nations.” A starkly drawn line between federal and state authority has been blurred.

            As Stephen Pevar put it in his useful ACLU Handbook The Rights of Indians and Tribes, there are five basic principles about criminal law in Native American territory:

  1.  Because of the plenary power doctrine, Congress can decide which governments exercise criminal jurisdiction in Indian Country, and Congress can increase or decrease the amount of power tribes, states, and federal governments might possess.
  2. Tribes have the inherent sovereign right to exercise criminal jurisdiction over its own members, with the exception of certain “major crimes” which Congress made federal crimes.
  3. Neither the state, according to Marshall’s Worcester decision, nor the federal government, according to the case of Ex Parte Crow Dog can exercise any criminal jurisdiction over tribal members for crimes committed in Indian Country unless Congress has explicitly given them that power.
  4. Indian tribes have no criminal jurisdiction over non-Indians unless Congress has specifically allowed for the exercise of that power, as it did in a limited manner in the Violence Against Women Act.
  5. Finally, owing to the 1881 McBratney decision, a state may exercise jurisdiction over crimes committed on reservations by non-Indians against non-Indian victims.

            Kavanaugh’s opinion would have made Andrew Jackson proud.  States are sovereign. They are free to conduct their elections in any manner they choose, to draw electoral districts however they like, to choose on their own whether or not to recognize the fundamental rights of women, and to conduct business with the Native American nations that live within their boundaries (and predate the existence of the state) however they choose. Victor Manuel Castro-Huerta, a non-Indian residing in Indian Country, is an awful person, an abuser of a Native American child and a man who injured his daughter in ways that are horrifying to read.  Because of last year’s McGirt decision, much of the eastern half of Oklahoma remained “Indian Country” because Congress had never disestablished the Creek Reservation.  The state wanted to prosecute Castro-Huerta, did so, and sentenced him to thirty years in prison.  When McGirt forced his conviction to be overturned, federal authorities tried him and sentenced him to seven years in prison.  The state appealed to the Supreme Court, and Kavanaugh said that states have concurrent jurisdiction with the United States over crimes committed by non-Indians in Indian territory. States had never relinquished that power, so with them it remained. That tribes predate the states did not matter one bit to the Court majority.  That tribes had their own governing institutions, their own legal systems, and their own very real need to maintain law and order on their lands did not matter at all.  That most tribes had never relinquished the right to prosecute outsiders who commit crimes on their land? Nope. Did not matter to Kavanaugh. No justification was needed to dismiss Indigenous nationhood. The Court’s Radical Right made might make right.

            Kavanaugh increased state authority on reservations over crimes committed by non-Indians with Indian victims, a field that previously could be prosecuted by the United States. It is important to realize this.  The Castro-Huerta decision is as much an assault on the plenary power doctrine as it is an assault on the rights of Native American nations.  And you should expect things to get considerably worse in the next year or two. 

            The Brackeen case, a legal battle in which the fate of the Indian Child Welfare Act of 1978 hangs in the balance, I fear is precisely the sort of Indian law case for which Justice Clarence Thomas has been waiting. Thomas is the most anti-Indian of the Court’s nine justices. The case that I worry about most is Brackeen v. Haaland. The Court will hear the Brackeen case in October.

            The Supreme Court’s conservative majority has done an immense amount of damage to its own legitimacy owing to its recent decisions. Brackeen focuses on an important 1978 statute known as the Indian Child Welfare act, or ICWA, for short. I worry that the Court will, with Brackeen, deliver a fatal blow not only to ICWA, but the entire foundations of American Indian Law. That will hurt the Court, but it will hurt Indigenous peoples even more.

              By nearly every objective measure, ICWA has been a great success.  Congress enacted the ICWA in 1978, an important piece of legislation designed to halt the traumatic removal of native children from their homes through fostering and adoption.  The problem was severe. 

Dakota Sioux at Spirit Lake, about whom I write in Native America, asked the Association of American Indian Affairs to investigate, and the AAIA reported that of the 1100 Dakotas under the age of 21 who lived at Spirit Lake in 1968, 275 had been removed from their families.  In states with large Native American populations, the AAIA found that “child welfare” agencies had removed between 25 and 35 percent of children from their homes. Native peoples organized to halt this highly destructive practice, and the battle for the passage of the ICWA, according to its best historian, “represented one of the most fierce and successful battles for Indian self-determination of the 1970s.” The legislation committed the United States “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.”  Native American children, under the legislation, must be placed with family members, with members of their tribe, or with members of another native nation, before they are placed in the care of non-Native American foster parents.      

Texas Attorney General Ken Paxton, and a growing number of conservatives, argue that the law has gone too far. “In practice, the ICWA compels states to disregard the ordinary approach of determining a child’s best interest and to treat Native American foster children differently based on nothing more than their race,” Paxton wrote in an editorial that appeared in the Washington Post early in 2019. “The law gives Indian tribes a trump card to play in any state child-welfare proceeding, allowing them to dictate outcomes whenever a child is or even could be a member of a tribe.” For Paxton, it’s a states rights issue. “If no biological family members can be found, the law requires state courts and agencies to make a priority of adoption by other ethnically Native American families.”

“Native American children, strictly because of their race, thus can be kept apart from foster families eager to adopt them. If federal law treated any other class of people this way, it would be roundly condemned, and rightly so. According to the Department of Health and Human Services, 10,529 American Indian/Alaska Native children were in foster care in fiscal 2017.

Some claim that the ICWA relies on a political designation, rather than a racial one, because a tribe is a political entity. But no political or cultural link to a tribe must exist for the Indian Child Welfare Act to apply to a given child. Tribal eligibility — determined in virtually every case by genetic ancestry — is sufficient. The idea that the ICWA relies on a political designation rather than a racial one is further undermined by the fact that if no family from the child’s tribe volunteers to adopt, any Native American from any tribe, anywhere, takes automatic precedence over a non-Native American couple. This requirement relies on racist and reductionist assumptions about the supposed interchangeability of drastically different tribal cultures.

You would not know it from Paxton’s piece, but his opinions are those of a distinct minority. Twenty-one state attorneys-general, along with thirty child welfare organizations, 325 tribal governments and fifty-seven tribal organizations have expressed their support for the Indian Child Welfare Act. The law, they write, “was designed to reverse decades of cultural insensitivity and political bias that had resulted in one-third of all Indian children being forcibly removed by the government from their families, their tribes and their cultural heritage.” The law was a signal achievement, and it has done its job. The ICWA ensures the “stability and cohesion of Tribal families, Tribal communities and Tribal cultures,” in the face or organizations and entities that have sought their destruction.

Beginning in the second half of the twentieth century, the Court opened the door to increasing state power over native peoples and their lands. Conservatives on the Court have worked consistently to reduce the power of tribal governments. Justice Thomas, it seems to me, has led the way, making the case in a number of decisions over his long tenure on the Court that the plenary power doctrine is unconstitutional.

Why do I feel that way? First, Thomas believes that much of the Court’s jurisprudence on Native American questions lacks constitutional grounding. Indeed, Thomas on more than one occasion has questioned the constitutionality of the “Plenary Power” doctrine.

In the 2004 case of US v. Lara, for instance, Thomas said that he was troubled by the “premises and logic of our tribal sovereignty cases.” Thomas felt that the court had not attempted to remove the important tensions between two assumptions that struck him as contradictory.  “First, Congress (rather than some other part of the Federal Government) can regulate virtually every aspect of the tribes without rendering tribal sovereignty a nullity.” It did so, however, while it maintained that “the Indian tribes retain inherent sovereignty to enforce their criminal laws against their own members.”

Thomas could not accept the Court’s assertion “that the Constitution grants Congress plenary power to calibrate the ‘metes and bounds of tribal sovereignty.’” He had read the Constitution and in it, he wrote, “I cannot locate such congressional authority in the Treaty Clause. . . or the Indian Commerce Clause.” The phrase– “commerce”–had been defined too broadly.

Furthermore, Thomas questioned the constitutionality of the 1871 enactment through which Congress put an end to treaty-making, because “the making of treaties, after all, is the one mechanism that the Constitution clearly provides for the Federal Government to interact with sovereigns other than the States.”

Thomas reviewed the Lara reasoning, and that used by the Court in its antecedents: Oliphant, US v. Wheeler (1978), and Duro.  He was skeptical.  In his conclusion, Thomas wrote,

The Court should admit that it has failed in its quest to find a source of congressional power to adjust tribal sovereignty. Such an acknowledgment might allow the Court to argue the logically antecedent question whether Congress (as opposed to the President) has that power.  A cogent answer would serve as the foundation for the analysis of sovereignty issues posed by this case. We might find that the Federal Government cannot regulate the tribes through ordinary domestic legislation and simultaneously maintain that the tribes are sovereigns in any meaningful sense.

In Adoptive Couple v. Baby Girl (2013), Thomas again considered the constitutional basis for plenary power, in another case involving the 1978 Indian Child Welfare Act.  “Although the Court has said,” he wrote, “that the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs,” neither the text nor the original understandings of the Clause “supports Congress’ claim to ‘plenary’ power.”  The contested adoption proceedings at the heart of the Baby Girl case involved neither commerce nor tribes, and Thomas believed that “there is simply no basis for Congress’ assertion of authority over such proceedings.”

Three years later, in the case of US v. Bryant, Thomas once again returned to these questions. Thomas’s Bryant opinion is heavily cited in the Texas petition. Congress’s “purported plenary power over Indian tribes,” Thomas wrote, rests on shaky foundations.  “No enumerated power–not Congress’ power to ‘regulate commerce…with Indian tribes,’ not the Senate’s role in approving treaties, nor anything else, gives Congress such sweeping authority.”  Thomas found the origins of this claim to power in the 1886 Kagama decision, which upheld the constitutionality of the previous year’s Major Crimes Act.  Native American weakness, in that case, justified the extension of federal power.  The government’s power, the Kagama court wrote, “over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection… It must exist in that government, because it has never existed anywhere else.” That seemed like a claim to power that was not supported by the Constitution and it was time, in Thomas’s view, to review these decisions.

And in an 2017 dissent in a case involving the Secretary of the Interior’s decision to take 13,000 acres of Oneida land in New York into trust, Thomas again criticized the Court’s Indian Commerce Clause rulings.  Allowing the federal government to take land within a state into trust on behalf of an Indian tribe, Thomas argued, could not be supported by any language in the Constitution, and it would have shocked the “Founding Fathers” to “find such a power lurking in a clause they understood to give Congress the limited authority to ‘regulate trade with Indian tribes living beyond state boundaries.”

So in his petition to the Supreme Court, the Texas Attorney General has built upon a foundation ready-made by Justice Thomas. “Relying on the Indian Commerce Clause,” the petition reads, “the Indian Child Welfare Act of 1978 creates a race-based federal child-custody system and requires the states to implement it for all Indian children who appear before their courts.” Relying on a district court ruling that found ICWA unconstitutional, Texas argued that “no provision of the Constitution gives Congress `plenary power’ over Indian affairs.”

Texas wants clarity, it says. It wants to do what’s best for the “most vulnerable among us—children residing in dangerous circumstances.” Rebecca Nagel in her excellent “This Land” podcast, argues that this case is about far more than children. It’s about an assault on the entire apparatus of federal control over Indian affairs. I think she is right.

Read colonial laws.  Read the writings of the royal commissioners who visited Virginia in the wake of Bacon’s race war against all Indians, or the writings of Henry Knox, or the annual reports of the commissioners of Indian Affairs during the second half of the nineteenth century.  In all you see an effort by authorities representing the state to control the activities of frontier residents, both Native and newcomer. They blamed frontier whites for frontier violence. The goal of imperial control and then federal control over the conduct of Indian policy always was contested by provincials, by the inhabitants of the territories, and the citizens of the sovereign states. If the Supreme Court chooses to hear the Brackeen case, it could strike down the important Indian Child Welfare Act. It also could, in the process, decide that the plenary power doctrine is unconstitutional.  In terms of Indian law, the consequences of this would be earth-shattering.

Think about it this way:  what if the Constitution does not give Congress plenary power over Indian affairs?  Article I, Section 8 of the Constitution says that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes.”  According to constitutional scholar Gregory Ablavsky, the Founding Fathers used the word “intercourse” far more often than they did the word “commerce,” and that this word has a wider range of meanings.  There is a lot of truth to that.  The first federal Congress, in order to flesh out the sparse language of the Constitution, enacted in the summer of 1790 the first of a series of “Indian Trade and Intercourse Acts.”  But look at the legislation. Seriously. Read it. The Indian Trade and Intercourse Act regulated those instances where native peoples and newcomers came into contact by limiting the actions of non-Indians: Americans could not trade with Indians without a license, for instance, and purchases of Indian land could be made only by the national government.  In the Indian Trade and Intercourse Act, one could argue that Congress asserted no power to regulate the internal affairs of any native nation.

Maybe plenary power is a lie, a fiction, or a fraud.  Maybe Thomas is right, in that the Court, over many years, has just sort of made stuff up to suit its purposes.

I have many friends who spend a great deal of time decrying the so-called “Doctrine of Discovery,” the notion that somehow the Europeans’ discovery of America gave them title to land on this continent.  Many of them are calling for a repeal of the doctrine, and for its repudiation by the churches who originally espoused it.   Is the notion of “plenary power” any less a fiction?  Can it be justified in any way from the sparse language in the Constitution which, Justice Thomas has asserted consistently throughout his career (whatever you think of him), truly matters?  Justice Thomas has asserted that the Court’s Indian Commerce Clause rulings are built on a fiction, that they stand without justification in the Constitution’s language. 

Perhaps, rather than placing that power in the hands of state governments, as Justice Thomas seems to suggest, it more accurately could be asserted that the Constitution recognized native nations as separate polities, over which it exercised no control and no authority, save for an authority superior to the states to regulate interactions between these native nations and the American people.  Congress, rather than the states, could regulate commerce and intercourse by regulating the activities of American citizens, but it could claim no power to do anything within and over native nations themselves, because no such power is stated in the Constitution.  If the Doctrine of Discovery is a racist sham, as its critics assert, then perhaps the Congressional plenary power doctrine is a falsehood, too, a misinterpretation of framers’ intent and a complete fiction that the United States ought to address if it wants honor its endorsement several years ago of the UNDRIP.  And if it is a fiction, we are left with one conclusion about the federal government’s claim to exercise absolute authority in the realm of Indian affairs:  that its claim to plenary power rests on nothing more, at the end of the day, than brute force.  Colonialism is alive and well.

These questions will not be addressed in the way I would like when the Court rules on the Brackeen’s appeal.  And we must keep in mind why Texas is devoting so much energy to combating ICWA.  What is in it for Texas? If the court hears the case, and Thomas persuades his colleagues on the Court to follow the logic of his rulings over the years, the Supreme Court  could hold that the entire plenary power doctrine is unconstitutional, that under the 10th Amendment, ” powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” and throw the regulation of Native nations over to the states.  Their lands, and the mineral wealth that lies beneath, would be subject to state legislatures who seek to skim the cream off of any prosperity that could conceivably come to Indian country.  These states could rush to place Native peoples on the same plane as the rest of their citizens, not as members of Indigenous Nations whose existence predates the establishment of the United States, but as individuals untethered and unprotected from tribal governments.  And that could be catastrophic for native nations. I hope I am wrong, but nothing in Kavanaugh’s most recent ruling makes me hopeful for the future.

The One Where I Worry About the Supreme Court and the McGirt case.

            The Supreme Court has set an April date for hearing arguments in the case of McGirt v. Oklahoma. The Court’s decision in this important case could significantly revise the entire field of American Indian law, and that should worry us all. 

            Jimcy McGirt committed a horrible crime.  His responsibility for the crime is not in doubt. A jury in Wagoner County, Oklahoma, found him guilty of one count of first degree rape by instrumentation, one count of lewd molestation, and one count of forcible sodomy, all committed on a four-year-old girl.  The judge sentenced him to life in prison without the possibility of parole. The Oklahoma Court of Criminal Appeals declined to review his conviction, so McGirt’s lawyers appealed to the Supreme Court. They argued that because McGirt was a member of the Muscogee (Creek) Nation, and because the crime took place in “Indian Country,” that Oklahoma courts lacked jurisdiction over this “Major Crime,” and that his conviction ought to be overturned.  In December of last year, the Supreme Court agreed to hear McGirt’s appeal.

            This is a big deal, for McGirt follows in the footsteps of last year’s Patrick Murphy case. Other than the specific crimes for which McGirt and Murphy were convicted, the two cases raise identical issues.  The Supreme Court heard arguments in the Murphy case but decided last summer not to issue a decision.  They knew that McGirt was coming. Patrick Murphy’s story is told in Rebecca Nagle’s This Land podcast.  If you are interested in Native Americans, sovereignty, and the law, you ought to give it a listen. An Oklahoma jury convicted Murphy of the murder of George Jacobs back in 1999 and sentenced him to death.

Both Murphy and his victim were members of the Muscogee Creek Nation. In a last ditch appeal designed to save his life, Murphy’s talented lawyer argued, among other things, that Congress had never explicitly disestablished the Muscogee Creek reservation and, as a result, that the murder took place in “Indian Country,” on Indian land. Because of the precise nature of this crime–one Native American taking the life of another Native American from the same community on that community’s land–and where it took place, the crime falls under the provisions of the federal Major Crimes Act. Oklahoma’s prosecution, conviction, and sentencing of Murphy was invalid because he can only be tried under law in a federal court.

This was the basis of Murphy’s final appeal, and the federal circuit court agreed. The Supreme Court issued a writ of certiorari and heard arguments in the case in November of 2019. Nagle listened to the arguments before the Court. Like many who watch and listen to the Supremes, Nagle attempted to discern from the justices’ questions how they might rule. Justice Neal Gorsuch recused himself: he had heard the case when he served on the federal circuit. Only four votes were needed to overturn Murphy’s conviction, and many speculated that the Court might decide the case a vote of four against four.

The McGirt case can be considered by the full court.  Gorsuch did not participate in any of the earlier proceedings.  Like Patrick Murphy, Jimcy McGirt committed a brutal crime. Nobody disputes that. If McGirt’s conviction is overturned, likely so will Murphy’s.  Still, the federal government surely will prosecute them both and surely both will spend the rest of their lives behind bars. But the case is far larger than Murphy or McGirt, because overturning these convictions will have enormous consequences for the state of Oklahoma and the Indian nations whose lands lie within its boundaries. If the Court agrees that Congress never explicitly disestablished the reservation, then nearly 40% of present-day Oklahoma remains Indian Country, with the state powerless to prosecute major crimes committed by one Indian on another. There is much at stake indeed.

In her discussion of the Murphy case, Nagle was most worried about Justice Ruth Bader Ginsburg. Nagle is absolutely correct to point out that Ginsburg, despite her celebrity and her liberal bona fides on a host of issues, is no friend to native peoples. It is a point I made on this blog some time ago in response to all the lionizing of the “Notorious RBG.” Nagle mentions Ginsburg’s devastating ruling in the Sherrill decision.

Nagle said nothing about Justice Clarence Thomas, who rarely speaks from the bench. But the McGirt case seems like the sort of case Thomas has been waiting for, and that worries me greatly. Thomas could produce an opinion that lays waste to the entire foundation of American Indian law.

First, Thomas believes that much of the Court’s jurisprudence on Native American questions lacks constitutional grounding. Indeed, Thomas on more than one occasion has questioned the constitutionality of the “Plenary Power” doctrine. That doctrine, which emerged in a series of cases over the course of the nineteenth century, holds that Congress derives from the “Indian Commerce Clause” (Article 1, Section 8) the power to act unilaterally in all areas of American Indian policy and diplomacy. Congress can basically do what it wants.

Thomas was uncomfortable with this. In the 2004 case of US v. Lara, Thomas said that he was troubled by the “premises and logic of our tribal sovereignty cases.”

Thomas felt that the court had not attempted to remove the important tensions between two assumptions that struck him as contradictory.  “First, Congress (rather than some other part of the Federal Government) can regulate virtually every aspect of the tribes without rendering tribal sovereignty a nullity.” It did so, however, at the same time that it maintained that “the Indian tribes retain inherent sovereignty to enforce their criminal laws against their own members.”

Thomas could not accept the Court’s assertion “that the Constitution grants Congress plenary power to calibrate the ‘metes and bounds of tribal sovereignty.’” He had read the Constitution, of course, and in it, he wrote, “I cannot locate such congressional authority in the Treaty Clause . . . or the Indian Commerce Clause,” which gave to Congress in Article I, Section 8, the right to regulate “commerce” with the Indian tribes. The phrase–“commerce”–had been defined too broadly.

Furthermore, Thomas questioned the constitutionality of the 1871 enactment through which Congress put an end to treaty-making, because “the making of treaties, after all, is the one mechanism that the Constitution clearly provides for the Federal Government to interact with sovereigns other than the States.”

Thomas reviewed the Lara reasoning, and that used by the Court in its antecedents: Oiliphant, US v. Wheeler (1978), and Duro.  He was skeptical.  In his conclusion, Thomas wrote,

“the Court should admit that it has failed in its quest to find a source of congressional power to adjust tribal sovereignty. Such an acknowledgment might allow the Court to argue the logically antecedent question whether Congress (as opposed to the President) has that power.  A cogent answer would serve as the foundation for the analysis of sovereignty issues posed by this case. We might find that the Federal Government cannot regulate the tribes through ordinary domestic legislation and simultaneously maintain that the tribes are sovereigns in any meaningful sense.”

In Adoptive Couple v. Baby Girl (2013), Thomas again considered the constitutional basis for plenary power, this time in a case involving the 1978 Indian Child Welfare Act.  “Although the Court has said,” he wrote, “that the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs,” neither the text nor the original understandings of the Clause “supports Congress’ claim to ‘plenary’ power.”  The contested adoption proceedings at the heart of the Baby Girl case involved neither commerce nor tribes, and Thomas believed that “there is simply no basis for Congress’ assertion of authority over such proceedings.”

Three years later, in the case of US v. Bryant, Thomas once again returned to these questions. Congress’s “purported plenary power over Indian tribes,” he wrote, rests on shaky foundations.  “No enumerated power–not Congress’ power to ‘regulate commerce…with Indian tribes,’ not the Senate’s role in approving treaties, nor anything else, gives Congress such sweeping authority.”  Thomas found the origins of this claim to power in the 1886 Kagama decision, which upheld the constitutionality of the previous year’s Major Crimes Act.  Native American weakness, in that case, justified the extension of federal power.  The government’s power, the Kagama court wrote, “over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection… It must exist in that government, because it has never existed anywhere else.” That seemed like a claim to power that was not supported by the Constitution and it was time, in Thomas’s view, to review these decisions.

And in a 2017 dissent in a case involving the Secretary of the Interior’s decision to take 13,000 acres of Oneida land in New York into trust, Thomas again criticized the Court’s Indian Commerce Clause rulings.  Allowing the federal government to take land within a state into trust on behalf of an Indian tribe, Thomas argued, could not be supported by any language in the Constitution, and it would have shocked the “Founding Fathers” to “find such a power lurking in a clause they understood to give Congress the limited authority to ‘regulate trade with Indian tribes living beyond state boundaries.”

If Congress had no legitimate constitutional authority to legislate for Indians (in this case, the legislation in question was the 1934 Indian Reorganization Act), and no acceptable justification for its claim to plenary power, Thomas believed that power must exist in some other entity.  For Thomas, it seemed to be with the states, a power reserved to them by the Constitution.   And that logic, if acted upon, would be toxic and destructive.  Leaving Indian tribes at the mercy of state governments would eliminate the nation-to-nation relationship between the United States and native nations, and produce a full negation of American Indian tribal sovereignty.

Thomas, in a manner entirely consistent with his earlier rulings, could rule against McGirt. He could argue that the Major Crimes Act is unconstitutional, because there is no justification for this extension of federal control over native nations in the sparse language of the Constitution. There is a lot of legal scholarship out there on the Supreme Court’s rulings on the scope or limits of the Indian Commerce Clause, and I have by no means read it all.  Matthew L. M. Fletcher, who Nagle interviews at length in This Land, and Gregory Ablavsky, have both written about the Indian Commerce clause, and they both flatly reject Thomas’s conclusions.  They believe that his interpretation of the Indian Commerce Clause is too narrow, too literal, and that Congress did have the power to enact protective pieces of legislation like the Indian Reorganization Act, or the Indian Child Welfare Act, or to take Indian lands within a state into trust.  There is a long thread of decisions they argue, where Congress protected Native nations from the encroaching power of the several states.  They have a point, I suppose.

I have only sampled some this scholarship, and I have a lot more to read.  But I am not sure Ablavsky, for instance, is absolutely right.  And what if Thomas is right?  At least in part?  A little bit? Thomas could spell out his beliefs fully in the McGirt case. It will provide him a perfect opportunity to do so.

In other words, what if the Constitution does not give Congress plenary power over Indian affairs?  Article I, Section 8 of the Constitution says that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes.”  Ablavsky notes that the Founding Fathers used the word “intercourse” far more often than they did the word “commerce,” and that this word has a wider range of meanings.  There is a lot of truth to that.  The first federal Congress, in order to flesh out the sparse language of the Constitution, enacted in the summer of 1790 the first of a series of “Indian Trade and Intercourse Acts.”  But look at the legislation.  The Indian Trade and Intercourse Act regulated those instances where native peoples and newcomers came into contact by limiting the actions of non-Indians: Americans could not trade with Indians without a license, for instance, and purchases of Indian land could be effected only by the national government.  In the Indian Trade and Intercourse Act, one could argue that Congress asserted no power to regulate the internal affairs of any native nation.

Maybe plenary power is a lie, a fiction, or a fraud.  Maybe Thomas is right, in that the Court, over many years, has just sort of made stuff up to suit its purposes. I have many friends who spend a great deal of time decrying the so-called “Doctrine of Discovery,” the notion that somehow the Europeans’ discovery of America gave them title to land on this continent.  Many of them are calling for a repeal of the doctrine, and for its repudiation by the churches who originally espoused it.   Is the notion of “plenary power” any less a fiction?  Can it be justified in any way from the sparse language in the Constitution which, Justice Thomas has asserted consistently throughout his career (whatever you think of him), truly matters?  Justice Thomas has pointed out that the Court’s Indian Commerce Clause rulings are built on a fiction, that they stand without justification in the Constitution’s language. 

Perhaps, rather than placing that power in the hands of state governments, as Justice Thomas seems to suggest, it more accurately could be asserted that the Constitution recognized native nations as separate polities, over which it exercised no control and no authority, save for an authority superior to the states to regulate interactions between these native nations and the American people.  Congress, rather than the states, could regulate commerce by regulating the activities of American citizens, but it could claim no power to do anything within and over native nations themselves, because no such power is stated in the Constitution.  If the Doctrine of Discovery is a racist sham, as its critics assert, then perhaps the Congressional plenary power doctrine is a falsehood, too, a misinterpretation of framers’ intent and a complete fiction that the United States ought to address if it wants honor its endorsement several years ago of the UNDRIP.  And if it is a fiction, we are left with one conclusion about the federal government’s claim to exercise absolute authority in the realm of Indian affairs:  that its claim to plenary power rests on nothing more, at the end of the day, than brute force.  Colonialism is alive and well.

We won’t get that far in McGirt. But what I do fear is that Thomas could hold that the entire plenary power doctrine is unconstitutional, that under the 10th Amendment, ” powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” And that could be catastrophic for native nations.

Why I’m Worried About What Clarence Thomas Might Be Doing Right Now in Carpenter v. Murphy.

I have listened to the first two episodes of Rebecca Nagle‘s This Land podcast. If you are interested in Native American history, you should too. Nagle tells the story of Patrick Murphy, convicted by the State of Oklahoma for the gruesome murder of George Jacobs back in August of 1999. An Oklahoma court sentenced Murphy to death.

Both the murderer and his victim were members of the Muscogee Creek Nation. In a last ditch appeal designed to save his life, Murphy’s talented lawyer argued, among other things, that Congress had never explicitly disestablished the Muscogee Creek reservation and, as a result, that the murder took place in “Indian Country,” on Indian land. Because of the precise nature of this crime–one Native American taking the life of another Native American from the same community on that community’s land–and where it took place, the crime falls under the provisions of the federal Major Crimes Act. Oklahoma’s prosecution, conviction, and sentencing of Murphy was invalid because he can only be tried under law in a federal court.

This was the basis of Murphy’s final appeal, and the federal circuit court agreed. The Supreme Court issued a writ of certiorari and heard arguments in the case late last November. Nagle listened to the arguments before the Court. Like many who watch and listen to the Supremes, Nagle attempted to discern from the justices’ questions how they might rule. Justice Gorsuch recused himself: he had heard the case when he served on the federal circuit. Only four votes are needed to overturn Murphy’s conviction.

Patrick Murphy committed a brutal murder. Nobody disputes that. If his conviction is overturned, surely the federal government will prosecute him and surely he will spend the rest of his life behind bars. But the case is far larger than Murphy, and overturning his conviction will have enormous consequences for the state of Oklahoma and the Indian nations whose lands lie within its boundaries. If the Court agrees that Congress never explicitly disestablished the reservation, then nearly 40% of present-day Oklahoma remains Indian Country, with the state powerless to prosecute major crimes committed by one Indian on another. There is much at stake.

Nagle is most worried about Justice Ruth Bader Ginsburg. Nagle is absolutely correct to point out that Ginsburg, despite her celebrity and her liberal bona fides on a host of issues, is no friend to native peoples. It is a point I made on this blog some time ago in response to all the lionizing of the “Notorious RBG.” Nagle mentions Ginsburg’s devastating ruling in the Sherrill decision.

Nagle said nothing about Justice Clarence Thomas, who rarely speaks from the bench. But the Murphy case seems like the sort of case Thomas has been waiting for, and that worries me greatly. Thomas could produce an opinion that lays waste to the entire foundation of American Indian law. Here is what I think might happen:

First, Thomas believes that much of the Court’s jurisprudence on Native American question lacks constitutional grounding. Indeed, Thomas on more than one occasion has questioned the constitutionality of the “Plenary Power” doctrine. That doctrine, which emerged in a series of cases over the course of the nineteenth century, holds that Congress derives from the “Indian Commerce Clause” (Article 1, Section 8) the power to act unilaterally in all areas of American Indian policy and diplomacy. Congress can basically do what it wants.

Thomas was uncomfortable with this. In the 2004 case of US v. Lara, Thomas said that he was troubled by the “premises and logic of our tribal sovereignty cases.”

Thomas felt that the court had not attempted to remove the important tensions between two assumptions that struck him as contradictory.  “First, Congress (rather than some other part of the Federal Government) can regulate virtually every aspect of the tribes without rendering tribal sovereignty a nullity.” It did so, however, at the same time that it maintained that “the Indian tribes retain inherent sovereignty to enforce their criminal laws against their own members.”

Thomas could not accept the Court’s assertion “that the Constitution grants Congress plenary power to calibrate the ‘metes and bounds of tribal sovereignty.’” He had read the Constitution, of course, and in it, he wrote, “I cannot locate such congressional authority in the Treaty Clause. . . or the Indian Commerce Clause,” which gave to Congress in Article I, Section 8, the right to regulate “commerce” with the Indian tribes. The phrase–“commerce”–had been defined too broadly.

Furthermore, Thomas questioned the constitutionality of the 1871 enactment through which Congress put an end to treaty-making, because “the making of treaties, after all, is the one mechanism that the Constitution clearly provides for the Federal Government to interact with sovereigns other than the States.”

Thomas reviewed the Lara reasoning, and that used by the Court in its antecedents: Oiliphant, US v. Wheeler (1978), and Duro.  He was skeptical.  In his conclusion, Thomas wrote,

The Court should admit that it has failed in its quest to find a source of congressional power to adjust tribal sovereignty. Such an acknowledgment might allow the Court to argue the logically antecedent question whether Congress (as opposed to the President) has that power.  A cogent answer would serve as the foundation for the analysis of sovereignty issues posed by this case. We might find that the Federal Government cannot regulate the tribes through ordinary domestic legislation and simultaneously maintain that the tribes are sovereigns in any meaningful sense.

In Adoptive Couple v. Baby Girl (2013), Thomas again considered the constitutional basis for plenary power, this time in a case involving the 1978 Indian Child Welfare Act.  “Although the Court has said,” he wrote, “that the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs,” neither the text nor the original understandings of the Clause “supports Congress’ claim to ‘plenary’ power.”  The contested adoption proceedings at the heart of the Baby Girl case involved neither commerce nor tribes, and Thomas believed that “there is simply no basis for Congress’ assertion of authority over such proceedings.”

Three years later, in the case of US v. Bryant, Thomas once again returned to these questions. Congress’s “purported plenary power over Indian tribes,” he wrote, rests on shaky foundations.  “No enumerated power–not Congress’ power to ‘regulate commerce…with Indian tribes,’ not the Senate’s role in approving treaties, nor anything else, gives Congress such sweeping authority.”  Thomas found the origins of this claim to power in the 1886 Kagama decision, which upheld the constitutionality of the previous year’s Major Crimes Act.  Native American weakness, in that case, justified the extension of federal power.  The government’s power, the Kagama court wrote, “over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection… It must exist in that government, because it has never existed anywhere else.” That seemed like a claim to power that was not supported by the Constitution and it was time, in Thomas’s view, to review these decisions.

And in an 2017 dissent in a case involving the Secretary of the Interior’s decision to take 13,000 acres of Oneida land in New York into trust, Thomas again criticized the Court’s Indian Commerce Clause rulings.  Allowing the federal government to take land within a state into trust on behalf of an Indian tribe, Thomas argued, could not be supported by any language in the Constitution, and it would have shocked the “Founding Fathers” to “find such a power lurking in a clause they understood to give Congress the limited authority to ‘regulate trade with Indian tribes living beyond state boundaries.”

If Congress had no legitimate constitutional authority to legislate for Indians (in this case, the legislation in question was the 1934 Indian Reorganization Act), and no acceptable justification for its claim to plenary power, Thomas believed that power must exist in some other entity.  For Thomas, it seemed to be with the states, a power reserved to them by the Constitution.   And that logic, if acted upon, would be toxic and destructive.  Leaving Indian tribes at the mercy of state governments would eliminate the nation-to-nation relationship between the United States and native nations, and produce a full negation of American Indian tribal sovereignty.

Thomas, in a manner entirely consistent with his earlier rulings, could rule against Murphy. He could argue that the Major Crimes Act is unconstitutional, because there is no justification for this extension of federal control over native nations in the sparse language of the Constitution. There is a lot of legal scholarship out there on the Supreme Court’s rulings on the scope or limits of the Indian Commerce Clause, and I have by no means read it all.  Matthew L. M. Fletcher, who Nagle interviews at length in This Land, and Gregory Ablavsky, have both written about the Indian Commerce clause, and they both flatly reject Thomas’s conclusions.  They believe that his interpretation of the Indian Commerce Clause is too narrow, too literal, and that Congress did have the power to enact protective pieces of legislation like the Indian Reorganization Act, or the Indian Child Welfare Act, or to take Indian lands within a state into trust.  There is a long thread of decisions they argue, where Congress protected Native nations from the encroaching power of the several states.  They have a point, I suppose.

I have only sampled some this scholarship, and I have a lot more to read.  But I am not sure Ablavsky, for instance, is absolutely right.  And what if Thomas is right?  At least in part?  A little bit? Thomas could spell out his beliefs fully in the Murphy case.

In other words, what if the Constitution does not give Congress plenary power over Indian affairs?  Article I, Section 8 of the Constitution says that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes.”  Ablavsky notes that the Founding Fathers used the word “intercourse” far more often than they did the word “commerce,” and that this word has a wider range of meanings.  There is a lot of truth to that.  The first federal Congress, in order to flesh out the sparse language of the Constitution, enacted in the summer of 1790 the first of a series of “Indian Trade and Intercourse Acts.”  But look at the legislation.  The Indian Trade and Intercourse Act regulated those instances where native peoples and newcomers came into contact by limiting the actions of non-Indians: Americans could not trade with Indians without a license, for instance, and purchases of Indian land could be effected only by the national government.  In the Indian Trade and Intercourse Act, one could argue that Congress asserted no power to regulate the internal affairs of any native nation.

Maybe plenary power is a lie, a fiction, or a fraud.  Maybe Thomas is right, in that the Court, over many years, has just sort of made stuff up to suit its purposes.

I have many friends who spend a great deal of time decrying the so-called “Doctrine of Discovery,” the notion that somehow the Europeans’ discovery of America gave them title to land on this continent.  Many of them are calling for a repeal of the doctrine, and for its repudiation by the churches who originally espoused it.   Is the notion of “plenary power” any less a fiction?  Can it be justified in any way from the sparse language in the Constitution which, Justice Thomas has asserted consistently throughout his career (whatever you think of him), truly matters?  Justice Thomas has pointed out that the Court’s Indian Commerce Clause rulings are built on a fiction, that they stand without justification in the Constitution’s language. 

Perhaps, rather than placing that power in the hands of state governments, as Justice Thomas seems to suggest, it more accurately could be asserted that the Constitution recognized native nations as separate polities, over which it exercised no control and no authority, save for an authority superior to the states to regulate interactions between these native nations and the American people.  Congress, rather than the states, could regulate commerce and intercourse by regulating the activities of American citizens, but it could claim no power to do anything within and over native nations themselves, because no such power is stated in the Constitution.  If the Doctrine of Discovery is a racist sham, as its critics assert, then perhaps the Congressional plenary power doctrine is a falsehood, too, a misinterpretation of framers’ intent and a complete fiction that the United States ought to address if it wants honor its endorsement several years ago of the UNDRIP.  And if it is a fiction, we are left with one conclusion about the federal government’s claim to exercise absolute authority in the realm of Indian affairs:  that its claim to plenary power rests on nothing more, at the end of the day, than brute force.  Colonialism is alive and well.

We won’t get that far in Murphy. But what I do fear is that Thomas could hold that the entire plenary power doctrine is unconstitutional, that under the 10th Amendment, ” powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” And that could be catastrophic for native nations.

How Does a Story End?

Driving from Rochester to Washington a couple of weeks ago, I saw this historical marker on Route 15, just north of the Pennsylvania state line. It commemorated the “final episode” of the Sullivan-Clinton campaign in 1779. American forces invaded the western Iroquois homelands and burned towns throughout the “Finger Lakes” region of western New York. I tell the story of the Sullivan-Clinton campaign in Native America. I have also written about it on this blog here and here. Because I cross the paths Sullivan’s army traveled frequently, I am familiar with many of the historical markers identifying key sites in the campaign.

But his one was new to me. The people who wrote it believed that the Sullivan-Clinton campaign ended near this spot. The soldiers completed their mission. The story began, and it ended.

I find myself these days spending a lot of time talking history with what some might call “amateurs”–people who are interested in the past, who enjoy reading history, even if they do not study it systematically. One of the things that strikes me about these conversations is that we have not been as effective as we might have been in describing what it is that we do, and why we do it. We have not, among other things, explained how much choice is involved in the historical enterprise. We choose the stories that we want to tell. We determine what questions we want to answer, how we can best answer them, and how best to present the results of our research. We determine the scope of our work geographically–how much space we are going to cover, and chronologically. He have to decide where in time our stories begin and end.

According to this marker, the story of the Sullivan Campaign, ended “with the advance of Col. Van Cortland’s brigade up the Canisteo River to this area two miles beyond the Tory-Indian town of Painted Post burned by Capt. Simon Spaulding’s riflemen, September 28, 1779.” Joseph Fischer, in the most thoroughly-researched military history of the invasion, says it began in July and ended in September.

But did it?

The soldiers went home. Or they went to fight elsewhere. Some of them later returned to New York, settling on lands seized from the Iroquois. But the expedition was, as Fischer calls it, a “well-executed failure.” That apt title implies that despite the invasion, the Indians remained. They resisted. Their towns burned, the fields destroyed, the orchards cut down, they settled at the refugee haven around British-controlled Fort Niagara, or along Buffalo Creek. They suffered through a brutal winter. They fought on. And when the British abandoned them, they faced the onslaught of settlement encouraged by private land companies, the state, and the United States. They signed treaties and formal deeds of cession. New York’s rise as the “Empire State” could not have occurred without Iroquois dispossession.

But after the campaign the Senecas remained in New York. That much is obvious. They resisted their complete dispossession. They obtained security for some of their lands at Canandaigua in 1794, sold much of their homeland in 1797, and in 1802, 1815, 1826 and 1838 as well. But they are force still in western New York. Their gaming enterprises in Niagara Falls, Salamanca, and Buffalo are significant. They have survived, even though they continue to contend with the obtrusive power of the state. Perhaps the story of the Sullivan-Clinton campaign, which its planners hoped would lead to “civilization or death” to the American “savages,” has yet to end.

The Treaty of Big Tree–Let’s Follow the Money

The anniversary of the “Treaty of Big Tree,” signed on the 15th of September in 1797, is approaching. According to a New York State historical marker, the agreement was negotiated on land that now provides parking for students who attend the college where I teach.  It is a big deal in Geneseo. It is the one, big, historical event that occurred within the town’s bounds.

One thing that I think a lot of non-historians do not realize is the amount of research we do that never sees the light of day. Although we require our students quite often to come up with some meaningful sort of research project during the short fifteen weeks of a semester, we spend plenty of time following interesting questions that lead to dead ends.  It happens all the time. We are curious. We ask questions and, sometimes, despite our best efforts, we cannot find an answer.

A couple of years back I was asked to do some research for the Seneca Nation of Indians about the history of the annuities that often were attached to the agreements they entered into with New York State and the United States.  In exchange for their lands, Senecas would receive an annual payment.

I often see this bumper sticker in and around Indian Country.  The Indian Country Today Media Network, now apparently on hiatus, spoke frequently of broken treaties.  But some treaties, it must be remembered, were little more than real estate transactions in which white people obtained a title to Indian lands in return for very little at all.

I have always done research on Big Tree, but I had never bothered to look at whether the United States had fulfilled its part of the bargain. Certainly it acquired a lot of land. But did it pay to the Senecas what they were owed?  I travel with footnotes.

I tell the story of the treaty at Big Tree in Native America.  It is an important moment in the history of the Senecas.  Robert Morris had acquired from earlier land speculators a right of preemption, or first purchase, to all the Seneca lands in New York state. He sold this right to the Holland Land Company in December of 1792.[1]  A well-financed syndicate of Dutch merchants and bankers, the Holland Land Company was much better equipped than Morris to oversee the actual opening up of the Seneca homeland to white invasion and settlement—a massive undertaking that involved administering an enormous territory, and absorbing the costs associated with surveying, building roads, and laying out towns.[2]  Before they would pay, however, the Holland investors insisted that Morris extinguish the Senecas’ title to the lands in question.

What did that mean? It meant holding a treaty, and negotiating with the Senecas.  In 1797 Morris began laying plans for a council.  Because Morris was ill and because he feared prosecution for debt should he leave his home in Philadelphia, his son Thomas traveled to Big Tree on the Genesee River to conduct the treaty. (The treaty was held, according to a New York State historical marker, near one of the parking lots on my campus).  The story of this sordid council, involving the use of alcohol at the treaty ground and the bribing of important Seneca leaders, has been told many times before. My treatment in Native America is inspired by the great books written by Anthony F. C. Wallace and Laurence Hauptman, which are required reading for those who wish to understand the Iroquois.[3]

Morris obeyed the letter, if not the spirit, of the federal Indian Trade and Intercourse Law, the statute which governed relations between natives and non-natives.  The law required that for a purchase of Indian lands to be legally valid, the purchase must be overseen by the United States, and the resulting agreement must be approved by the United States Senate.  Morris requested and obtained the appointment of a federal agent, and the Senate did ratify the agreement. And at Big Tree, on the campus where I offer my courses in Iroquois history, the Senecas parted with all of their land, that huge region from the Genesee River westward to the Great Lakes and the Niagara River, save for 200,000 acres distributed across eleven reservations.  In exchange for this massive cession, Morris agreed to pay “the sum of one hundred thousand dollars, to be by the said Robert Morris vested in the stock of the bank of the United States, and held in the name of the President of the United States, for the use and behoof of the said nation of Indians.”  The Senecas would receive as a payment, each year, the interest earned on this investment.[4] 

So let’s follow that money, as far as the sources allow.  That was easier said than done.  I am no accountant.

In March of 1798 the United States used the $100,000 it had received from Robert Morris to purchase 205 shares in stock of the Bank of the United States “to be held in trust” for the Senecas “by the President of the United States.”  The dividends on this investment averaged slightly more than seven thousand dollars a year, though some of the revenues that would otherwise have been delivered to the Senecas were withheld to purchase additional stock: 9 shares in 1804 at a cost of $5328.00, an additional share in 1806 for $522.00, and five more shares in 1807 for a sum of $2580.00.  With the exception of this combined amount of 8430 dollars, the increase produced by the Big Tree investment was delivered to the Senecas by federal agents.  The dividend, paid twice a year, amounted to a minimum of sixteen dollars per share between 1798 and 1802, or $3280 every six months.[5]

The Bank of the United States, part of Alexander Hamilton’s (Stop singing, please) ambitious but controversial program for developing the new nation’s economy, had received a twenty-year charter from Congress in 1791.  When the Bank ceased its operations in 1811, the stock was liquidated, producing a sum of $95,040. (This sum was less than the $100,000 initially invested owing to shifts in the value of the stock).  The War Department credited $1980.00 of this sum to fund its Indian appropriations account, while investing the remaining $93,060.00 in 6% stocks in the name of the President of the United States, to be held in trust for the Seneca Indians.

The Senecas watched closely these funds, and saw the annual dividend as essential to their survival.  They said this, in writing, time and again.  A large group of “Seneca chiefs” told Secretary of War William Eustis in 1811, after the expiration of the Bank’s charter, that “we are told the field where our Money was planted is become barren.”  What they hell, they seemed to be saying. This concerned the Senecas, the chiefs said, because “our money has heretofore been of great service to us.  It has helpt us to support our old People, and our Women and Children.”  The Senecas sought assurance that the Big Tree fund—the result of their leaders’ difficult decision to transform their lands in western New York into an annual payment—would continue to be paid.  “Brother,” the chiefs wrote to Eustis, “we do not understand your ways of doing business,” and “this think is heavy on our minds.”  The Senecas wanted to continue “to hold our White Brethren of the United States by the hand, but this weight is heavy. We hope,” they concluded, that “you will remove it.”[6]

I am fairly certain that these Seneca chiefs understood more than they let on.  Signed by a large number of prominent Seneca leaders, the “Talk of the Seneca Chiefs” must have occasioned some alarm in the War Department.  With war with Great Britain looming, the chiefs suggested that if the United States did not uphold its part of the bargain and see to the continued payment of the dividends, they might then cease “to hold our White Brethren of the United States by the hand,” and instead embrace those other white brethren, who stood poised on the opposite side of the Niagara River and Lake Ontario, with whom they had aligned during American Revolution. Don’t mess with us. You need us to help secure the Niagara frontier.

The interest earned on the investment after 1811 produced only $5618 per year, but owing to the importance of the Senecas as allies while the United States muddled through its conflict with England, the sum of $6000 was paid to them from the general funds of the Indian department.  This fund, in turn, was credited with the dividend produced by the stock.  This arrangement continued until 1826 when the 6% stock was liquidated, producing $93,602.67, which the War Department invested in 3% stock.  The dividends, falling well short of the $6000 to which the Senecas had grown accustomed, posed a problem for the administration of John Quincy Adams.  To pay the usual $6000 would draw down the fund and perhaps force the sale of the stock from which the dividends derived.  In any case, the government would be expending more than the interest on the investment.  President Adams determined nonetheless “that the government would continue to pay” the Senecas six thousand dollars annually, “taking upon itself the protection of the fund.”  The United States, Adams believed, “was bound in good faith to do so.”[7]

Adams was willing to spend federal funds to uphold the honor of the United States.  His successor, Andrew Jackson, clearly did not share this view.  Commissioner of Indian Affairs Thomas McKenney disliked the idea of paying the $6000.00 when “the sum remitted” was “greater than the interest received on the Stock.”  Anticipating the new president’s views, McKenney decided to offer to the Senecas in 1829 nothing more than the divided, a sum of less than three thousand dollars by 1829.[8]

This unilateral decision angered the Senecas.  An elderly Cornplanter, writing from Kinzua, appealed to President Jackson.  The Senecas, Cornplanter wrote, had been well satisfied with the annual dividend of $6000, but now the news from Washington “fills our minds with concern that we cannot get our Money nor be informed why we should not receive [it] as in former years.”[9]  Writing less than three weeks after Congress enacted the Indian Removal Bill, surely Cornplanter recognized that he had directed his appeal to an ardent expansionist who coveted Indian land and wanted all eastern Indians relocated to new lands in the west. The Big Tree payment, Cornplanter continued, “was but a little but it enabled us to purchase Salt & some Blanketts and that would be a great help to those who are active & till their land.”  The Senecas could not accept anything less than the 6% to which they were accustomed.[10]

The President did not believe that any law existed which authorized him to pay to the Senecas a sum greater than the value produced by the stock.  Sticking to his rigid and self-serving code of constitutional interpretation, Jackson punted the question to Congress, which in the 1830s did things.  The resulting bill, introduced in the House of Representatives, would provide the Senecas with a permanent annuity of $6000, while whatever proceeds emerged from the stock would be credited to the United States.

Senator John Forsyth of Georgia, a determined advocate of the ethnic cleansing his state carried out against the Cherokees and the Creeks, opposed any measure that went beyond the strict language of the Big Tree treaty.  Nothing in that agreement, he believed, obligated the United States to pay to the Senecas 6% forever.  Paying the $6000 he said,

 

had already cost the Government a very considerable amount  over and above the product of the stock, and now the question arises, are we bound to do more, after doing all we have already gratuitously performed?  But it is said the Indians have been given to understand that the full amount of six thousand dollars should be paid to them. Who gave them to understand this? Who had a right to do so? And yet it was on such loose declarations that the whole merits of this claim seemed to rest.  It is contended that the Government is bound to realize to these Indians any expectations they may have been induced to entertain.  It is true, it is said that the late President of the United States [Adams], when the subject was before him, had given them these assurances. This, however, did not establish the justice of the demand.  He could see no sort of obligation on the part of the Government to pay them more than the amount produced by their stock.[11]

Forsyth’s argument failed to persuade a critical number of his colleagues, which is surprising given how they felt about Indians, and the bill became law in February of 1831.  Thereafter, the law read,

the proceeds of the sum of one hundred thousand dollars, being the amount placed in the hands of the President of the United States, in trust, for the Seneca tribe of Indians, situated in the State of New York, be hereafter passed to the credit of the Indian appropriation fund; and that the Secretary of War be authorized to receive, and pay over to the Seneca tribe of Indians, the sum of six thousand dollars annually, in the way and manner as heretofore practiced.

A subsequent act, signed into law in December of 1831, paid to the Senecas $2914.40, “that being the balance due on the annuity payable to said Indians for the year one thousand eight hundred and twenty-nine.”[12]

Congress did on a number of subsequent occasions revisit the Big Tree annuity.  An act passed in June of 1846 provided that “certain stocks, etc. held in trust for the Senecas should be cancelled and the funds deposited in the Treasury at 5 percent interest and the interest paid to the Senecas annually.”[13]  Fifty-three years later, in March of 1909, Congress directed the Secretary of the Treasury to place on the books of the Treasury Department “to the credit of the Seneca Indians of New York, the sum of $118,050, such sum to bear interest at 5 percent until withdrawn for the Indians, being the value of stocks held in trust for the Indians and taken by the United States and cancelled under the authority of the act of June 27, 1846.”  Congress authorized the Treasury Secretary in 1909 to place on the books of the treasury department $118,050, “such sum to bear interest at 5 percent until withdrawn for the Indians, being the value of stocks held in trust for the Indians and taken by the United States and cancelled under the authority” of the 1846 act.  This sum, Congress decided, the Treasury secretary would pay  “per capita to the members of the tribe entitled thereto.”[14]

I am not sure what happened as we carry the story through the rest of the nineteenth century and into and through the twentieth. The records of congressional appropriations show that the Congress continued to appropriate the $6000 dollars each year to pay its obligations under the Big Tree treaty.  Seneca Nation records, however, suggest that these payments were not received until relatively recently. I still have work to do to be able to sort this out.

But here is the thing. Honor Indian Treaties.  But a lot of them were not honorable at all, and the terms of many of them were never written with Indians’ interests in mind. Students in my Native American Survey course has just finished reading Thomas King’s The Inconvenient Indian, which says so much in such a breezy manner.  “Treaties,” King wrote, “were not vehicles for protecting land or even sharing land.” Rather, “they were vehicles for acquiring land.  Almost without fail, throughout the history of North America, every time Indians signed at reaty with Whites, Indians lost land.”

So let’s think about what we mean when we call upon the United States to honor its treaties. Certainly the government should keep its word. Certainly in the realm of Indian affairs it has behaved despicably and irresponsibly. Certainly treaties have been broken many times, with often devastating consequences. But, in many instances, native communities would have been better off if these treaties had never been negotiated, never signed, never ratified, and never proclaimed by the president.  So many of them were coerced, or fraudulent, or exploitative.  The colonization of this continent, and the dispossession of native peoples, to a great extent was achieved through the instrument of treaties.

 

[1] Charles E. Brooks, Frontier Settlement and the Market Revolution: The Holland Land Purchase, (Ithaca: Cornell University Press, 1996), 13-14.

[2] Wallace, Death and Rebirth of the Seneca, 179-180.  The Holland Land Company Papers are located at the State University of New York, College at Fredonia.

[3] Wallace, Death and Rebirth of the Seneca, 179-183; Taylor, Divided Ground, 313-316; Laurence M. Hauptman, Conspiracy of Interests: Iroquois Dispossession and the Rise of New York State, (Syracuse: Syracuse University Press, 1997), 91-92; Norman B. Wilkinson, “Robert Morris and the Treaty of Big Tree,” Mississippi Valley Historical Review, 40 (September 1953), 257-278.

[4] Kappler, comp., Treaties, 1028.

[5] LR OSW IA, 1: 0188.

[6] Talk of the Seneca Chiefs, 9 October 1811, LR OSW IA, 1: 714.

[7] Nourse Report, 18 March 1829, LR OIA-Seneca, Roll 808.

[8] McKenney to Secretary of War John H. Eaton, 17 March 1829, Ibid.

[9] John O’Bail (Cornplanter) to Andrew Jackson, 2 August 1830, Ibid.

[10] Ibid.

[11] Gales and Seaton’s Register of Debates in Congress, 3 February 1831, p. 79.

[12] Available at the Library of Congress “Century of Lawmaking” website.

[13] “Compilation of Material Relating to the Indians of the United States, etc., by Subcommittee on Indian Affairs of the Committee of Public Lands, House of Representatives, Pursuant to H. Res. 66, 81st Congress, 2d. Sess., 13 June 1950, Serial No. 30,” in Paul G. Reilly Collection, Buffalo State College, Box 37, p. 12.

[14] Ibid., 13.