History 3010

Facts of the Case

In September 1831, Samuel A. Worcester and others, all non-Native Americans, were indicted in the supreme court for the county of Gwinnett in the state of Georgia for "residing within the limits of the Cherokee nation without a license" and "without having taken the oath to support and defend the constitution and laws of the state of Georgia." They were indicted under an 1830 act of the Georgia legislature entitled "an act to prevent the exercise of assumed and arbitrary power by all persons, under pretext of authority from the Cherokee Indians." Among other things, Worcester argued that the state could not maintain the prosecution because the statute violated the Constitution, treaties between the United States and the Cherokee nation, and an act of Congress entitled "an act to regulate trade and intercourse with the Indian tribes." Worcester was convicted and sentenced to "hard labour in the penitentiary for four years." The U.S. Supreme Court received the case on a writ of error.

Question

Does the state of Georgia have the authority to regulate the intercourse between citizens of its state and members of the Cherokee Nation?

Conclusion

No. In an opinion delivered by Chief Justice John Marshall, the Court held that the Georgia act, under which Worcester was prosecuted, violated the Constitution, treaties, and laws of the United States. Noting that the "treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the union," Chief Justice Marshall argued, "The Cherokee nation, then, is a distinct community occupying its own territory in which the laws of Georgia can have no force. 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 Georgia act thus interfered with the federal government's authority and was unconstitutional. Justice Henry Baldwin dissented for procedural reasons and on the merits.

Ex Parte Crowe Dog (1883)

Facts of the Case

In August, 1881, a Native American named Kan-gi-Shun-ca (Crow Dog, in English) shot and killed another Native American on the Great Sioux Reservation in present-day South Dakota. The Sioux tribal government convicted Crow Dog and, applying traditional Sioux law, ordered him to pay restitution to the victim's family. The government of the Dakota Territory also charged Crow Dog with murder, and, after being found guilty, Crow Dog was sentenced to death. Crow Dog appealed for a writ of habeas corpus, and argued that the federal court lacked jurisdiction, pointing to an 1834 act that specifically excluded crimes committed by one Native American on another from federal jurisdiction. The government argued that an 1868 treaty with the Sioux that required the tribe surrender criminals to United States superseded the earlier statute.

Question

Did federal law grant the Dakota Territory court jurisdiction over the murder for which Crow Dog was convicted?

Conclusion

No. In a 9-0 decision authored by Justice Stanley Matthews, the Court concluded that Congress had not granted federal courts jurisdiction over the murder of one Native American by another. The Court interpreted the 1868 treaty's stipulation that criminals be surrendered to the federal government in context, and, given that the treaty was made between two parties, "the party of whites and their allies" and "tribe of Indians," concluded the provision did not conflict with or repeal the 1834 law. Justice Matthews' opinion goes on to note that, while the law is clearly conflicted on the question because the 1834 law was never expressly repealed, there was no "positive repugnancy between the provisions of the new laws and those of the old" that would entail an implied repeal.

United States v. Kagama (1886)

Facts of the Case

In response to the Court's ruling in Ex Parte Crowe Dog (1883), Congress passed the Major Crimes Act as part of the Indian Appropriations Act of 1885, which granted the federal courts jurisdiction over certain major crimes committed by one Native American against another. In June 1885, Kagama, a Native American, was tried for the murder of Iyouse, another Native American, on the Hoopa Valley reservation in California. At trial, Kagama challenged the court's jurisdiction over the matter, arguing that the relevant section of the Indian Appropriations Act was unconstitutional. On appeal, Kagama received a division of opinion from the Circuit Court of the United States for the District of California.

Question

Does any part of the Constitution grant Congress the power over the jurisdiction of crimes committed by one Native American against another?

Conclusion

Yes. In a unanimous opinion authored by Justice Samuel F. Miller, the Court acknowledged, "The Constitution of the United States is almost silent in regard to the relations of the government which was established by it to the numerous tribes of Indians within its borders." Nonetheless, the Court reasoned that, because the tribal governments "owe all their powers to the statutes of the United States conferring on them the powers which they exercise, and which are liable to be withdrawn, modified, or repealed at any time by Congress," the legislature could therefore control jurisdiction of crimes committed within reservations. Describing Native Americans as "wards of the nation," the Court concluded, "From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power."

Talton v. Mayes (1896)

Facts of the Case
An appeal by a Cherokee from a homicide conviction by a Cherokee Nation court. He contended that his trial violated the Fifth Amendment because the grand jury that indicted him consisted of only five members, as permitted by Cherokee law.
Question
Does the Constitution apply to tribal due process?
Conclusion
No. The Fifth Amendment did not apply to legislation of the Cherokee Nation. The Indian tribes have retained the sovereign power to make their own laws, which is binding on tribal members unless in conflict with some provision of federal law specifically applicable to tribal governments.
Constitutional limitations on the federal and state governments do not of their own force limit Indian tribes, which are not “states” of the union within the meaning of the Constitution. The Indian Bill of Rights of 1968 modified the Talton holding by imposing on tribes certain specified securities for personal liberty copied (sometimes in modified form) from the United States Constitution

Lone Wolf v. Hitchcock (1903)

Facts of the Case

Lone Wolf was a Kiowa Indian chief, living in the Indian Territory created by the Medicine Lodge Treaty of 1867. A provision in the treaty required that three-fourths of the adult males in each of the Kiowa, Apache, and Comanche tribes agree to subsequent changes to the terms of the treaty. In 1892, Congress attempted to alter the reservation lands granted to the tribes. In enacting the relevant legislation, Congress substantively changed the terms of the treaty and opened 2 million acres of reservation lands to settlement by non-Indians. Lone Wolf filed a complaint on behalf of the three tribes in the Supreme Court of the District of Columbia, alleging that Congress' change violated the 1867 treaty. That court dismissed the case. The United States Court of Appeals for the District of Columbia Circuit affirmed the decision. Lone Wolf and the tribes appealed to the Supreme Court.

Question

Did Congress have the authority to substantively change the terms of the 1867 treaty and open the two million acres to settlement?

Conclusion

Yes. In a unanimous decision, the Court affirmed the Court of Appeals and upheld the Congressional action. The Court rejected the Indians' argument that Congress' action was a taking under the Due Process Clause of the Fifth Amendment. Justice Edward D. White described the Indians as "the wards of the nation," and matters involving Indian lands were the sole jurisdiction of Congress. Congress therefore had the power to "abrogate the provisions of an Indian treaty," including the two million acre change. Justice John M. Harlan concurred in the judgment.

Tee-Hit-Ton Indians v. United States (1955)

Facts of the Case
The Tee-Hit-Tons wer a group of American Indians who reside in Alaska. They claimed to have a full proprietary ownership, or in the alternative, a recognized right to unrestricted possession, of land within the Tongass National Forest, located in Alaska because their tribal predecessors had continuously occupied the land. The government sold timber from the forest, and the Tee-Hit-Tons claimed a right to compensation under the Fifth Amendment. The government denied that the group had any compensable interest in the land; their right to the land was solely from the government's will.
Question
Do Native Americans have any permanent right to land they occupy by the permission of the government?
Conclusion
No. Congress has never given American Indians any permanent rights to land they occupy. The discovery and conquest of America extinguished any ownership rights of American Indians. American Indians have no constitutional right to compensation for the government's use and taking of their land because the government is the title holder. American Indians merely have permission to live on the land. The government has made provisions to allow them recovery for wrongs as a matter of grace, not because of legal liability.