May 2, 2002

The changing view of Indian law by the U.S. Supreme Court


KEYWORDS: Indian Law american indian law U.S. Supreme Court decisions native american laws Indian law jurisprudence Indian law conference Rehnquist Court tribal law tribal governments foundation of Indian law Marshall trilogy Johnson vs. McIntosh 1823 Cherokee Nation vs. Georgia 1831) Worcester vs. Georgia 1832 full tribal sovereignty domestic dependent nations roots of Indian law

AUTHOR: Joel Patenaude,
Messenger Staff Writer

The current U.S. Supreme Court has detoured from more than a century of Indian law jurisprudence by limiting the authority of Indian tribes over their reservations. This was the contention of the many attorneys, judges and academicians gathered at an Indian law conference held in Albuquerque, NM, early last month.

The Rehnquist Court’s departure from “settled principles” of Indian law, according to conference speaker David Getches, professor of natural resources law at the University of Colorado School of Law, “inevitably causes confusion among state, local and tribal governments, heightens tensions among Indians and their non-Indian neighbors, undermines reservation economic development efforts, and frustrates lower federal and state courts.”

Roots of Indian Law

The foundation of Indian law lies in the “Marshall trilogy” of cases that recognized the independence of tribes and the political relationship between the tribes and the United States.

The decisions, issued by Chief Justice John Marshall, insulated tribes from the authority of the states. The cases were Johnson vs. McIntosh (1823); Cherokee Nation vs. Georgia (1831); and Worcester vs. Georgia (1832).

In Cherokee Nation, Marshall recognized the inherent but limited sovereignty of tribes and their right to govern themselves as “domestic dependent nations.” In Worcestor, Marshall held that the Cherokee Nation governed a distinct territory “in which the laws of Georgia can have no force.”

In the Cherokee Nation decision, Marshall listed two limitiations on full tribal sovereignty: 1) Indian tribes, as domestic dependent nations, could not alienate their lands other than to, or with the consent of, the federal government, and 2) they could not enter treaties or other agreements with foreign nations.

What follows are summaries of other landmark Indian law cases decided by the Supreme Court.


In Ex Parte Crow Dog (1883), the Marshall Court ruled that the murder of one Indian by another within Indian country was not a criminal offense punishable by the United States. Indian tribes and their territory were free of regulation by other sovereign governments absent explicit direction from Congress, the Court concluded.

Cases such as United States vs. Kagama (1886) and Lone Wolf vs. Hitchcock (1903) cemented the central role of Congress in Indian affairs as first provided in the Commerce Clause of the U.S. Constitution.

Williams vs. Lee (1959): The Supreme Court ruled that a non-Indian must go to tribal court to sue an Indian over a debt incurred in a transaction on a reservation because allowing state court jurisdiction infringed on “the right of reservation Indians to make their own laws and be ruled by them.”

Seymour vs. Superintendent (1962): Upheld exclusive federal jurisdiction over prosecutions for offenses covered by the Major Crimes Act that are committed by an Indian on lands held in fee patent by a non-Indian within the exterior boundaries of an Indian reservation.

McClanahan vs. Arizona Tax Commission (1973): Held that Arizona could not tax an Indian’s income earned on a reservation. In the same decision, the Court concluded that state power extended into Indian country unless federal law or policy excluded it.

Oliphant vs. Suquamish Indian Tribe (1978): Struck down tribal jurisdiction over crimes committed by non-Indians on reservations.

United States vs. Wheeler (1978): For the first time, the Court made the jurisdictional distinction not between Indians and non-Indians, but between tribal members and non-members.

(According to Ninth Circuit Court of Appeals Judge William Canby Jr., this ruling started the shift from the Court seeing tribes as having power over territory to tribes having power merely over their membership, which Canby said, leaves tribes “with no more governmental power than a club or a union or a church may exercise over its members.”)

Santa Clara Pueblo vs. Martinez (1978): In a particularly controversial decision, the Supreme Court refused to allow federal courts to hear violations of the Indian Civil Rights Act except in habeas corpus actions over which Congress had expressly allowed federal court review.

Montana vs. United States (1981): The court ruled that a tribe’s regulation of non-Indian hunting on non-Indian land within a reservation was inconsistent with a tribe’s domestic dependent nation status.

The ruling did permit tribes to regulate non-Indian activity even on non-Indian fee land if 1) the non-members had entered into consensual relationships with the tribe or its members, such as to obtain leases or licenses, and 2) if the activities of the non-members on fee land “threatens or has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe.”

Brendale vs. Confederated Tribes and Bands of the Yakima Indian Nation (1989): Held that the tribe had jurisdiction to zone non-member fee lands on the reservation that were not opened to the public, but the county had jurisdiction to zone non-member lands in the open part of the reservation.

Atkinson Trading Co. Inc. vs. Shirley (2001): Held that the Navajo Nation could not collect a hotel room rental tax from a non-Indian hotel on non-Indian fee land within a reservation because there were no consensual relations between the hotel owners or guests and the tribe, and hotel operations did not affect political integrity, economic security, or health and welfare of the tribe.

Nevada vs. Hicks (2001): Held that tribal court did not have jurisdiction to adjudicate tort and civil rights claims by a tribal member against state game wardens for exceeding the scope of a state warrant to search an Indian’s home on tribal land within a reservation when the investigation concerned a crime allegedly committed off-reservation.

A Major Shift

Up until Hicks, state court judges out West generally understood that any search warrant they issued couldn’t be executed on a reservation without the approval of the tribal court. But in citing its Montana decision, the Court ruled that tribes have no inherent power to regulate non-member activity on tribal or fee lands.

Judge Canby concluded, “It is clear that between the dates of Montana and Hicks, a major shift has occurred in the Supreme Court’s view of tribal authority.”

Canby said the Atkinson and Hicks decisions of last year – which substantially changed the previously understood extent of tribal government authority – nevertheless represent “a judicial trend only; they have not been paralleled by any changes in congressional or executive policies concerning Indian affairs.”


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