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Introduction to Federal Indian lawModule 8: The Marshall Trilogy and United States v. WinansThe Marshall TrilogyIn this segment of our lecture series we’re going to talk about the development of Nineteenth Century Indian policy andthe Supreme Court’s major precedents of the late Nineteenth Century era. We’ve discussed the Marshall trilogy of cases,Johnson v. McIntosh decided in 1823 and then the two Cherokee Nation cases; Cherokee Nation v. Georgia of 1831 andWorcester v. Georgia of 1832. These three cases set out several foundational principles of the federal/tribal relationship,which Congress and the Supreme Court in the latter half of the Nineteenth Century build upon in developing United StatesIndian law and policy. So, coming out of the Marshall trilogy, what are the foundational principles? We have first the idea,affirmed in the Cherokee cases, of Congressional Plenary Power. The idea that Congress has ultimate authority overIndian tribes of course derives from the Doctrine of Discovery, which we discussed in Johnson v. McIntosh. And assuccessor to Great Britain’s discovery rights, the United States assumes the powers of sovereignty and dominion overIndian nations within the borders of the United States. And it’s upon that discovery doctrine basis that Marshall articulatesthe foundations of congressional powers in Indian affairs in the Cherokee cases. Also, coming out of the Marshall trilogyis a second important principle, the principle of inherent tribal sovereignty. Marshall says expressly in the cases involvingthe Cherokee Nation that the tribe’s powers are inherent powers of self-government, and only those that are expresslydenied by the Doctrine of Discovery are taken away. What he says in fact is that the doctrine denies the tribes the abilityto sell their land to whomsoever they please; they could only sell their land to their discovering nation. And it also deniesto them the ability to make treaties with foreign nations. They are in an exclusive relationship with the United States.Marshall calls this the Domestic Dependent Nation relationship or the guardian/ward relationship. And that brings us tothe third principle of the Marshall trilogy and in fact, that is the trust doctrine, which grows out of this notion, whichMarshall announces as the guardian/ward relationship. The trust doctrine imposes certain types of fiduciary duties uponthe United States.Canons of ConstructionOne aspect of the trust doctrine which is intimated in the Cherokee cases is the idea that our courts, the United StatesSupreme Court in cases involving Indian tribes apply what are called Canons of Construction in so that if a treaty hasbeen negotiated between the United Sates and an Indian tribe we get the method from the Cherokee cases that Marshalllays out as to how that treaty should be interpreted. You’ll remember in the Treaty of Hopewell of 1785, which is really thecentral document of the Cherokee Nation cases because that’s the document that the Court is interpreting to understandGeorgia’s rights, if any, within the Cherokee Nation, and one of the clauses of that treaty said that the United States shall 1
have the right to control all commerce and relations with the tribes. And the issue is did that really mean everything? Didthat mean that all aspects of Indian rights are to be defined by the United States? And Marshall says that you have to lookat that clause as the Indians would have understood it and against the broad backdrop and history of treaty relationshipsgoing all the way back to the colonial era. And so, from this idea, later courts in the Nineteenth Century developed thesenotions that in interpreting Indian treaties, ambiguities are to be resolved in favor of the tribes. Secondly, according tothese Canons of Construction, a canon means a rule, a guide, so if the language isn’t plain, courts turn to these canons.The second canon is to interpret the treaties as Indians themselves would have understood them, and we see that clearlyapplied by Marshall in the Cherokee cases. Then the third canon is that courts are to construe treaties liberally in favor oftribes. In time, we in fact see federal courts apply these Canons of Construction not only to Indian treaties but to otherIndian legislation as well passed by Congress.SummarySo, that in summarizing the legacy of the Marshall cases as we move into the latter Nineteenth Century, we can actuallyidentify four core principles that emerge from the Marshall trilogy that define the federal/tribal relationship. Congressionalplenary power and that power is so great that it keeps the states out of Indian affairs. As Marshall says in Worcester v.Georgia, the laws of Georgia have no force, have no power within the Cherokee Nation, only federal authority applies andit’s an exclusive tribal/federal relationship. The second principle is the inherent tribal sovereignty doctrine. Today,oftentimes Indian rights lawyers will paraphrase the inherent tribal sovereignty doctrine by saying that whatever hasn’tbeen taken away by Congress, by treaty, or statute remains. So, whatever hasn’t been taken away remains is a veryfamiliar phrase that Indian rights lawyers’ use and it’s a way to summarize exactly what that inherent sovereignty doctrinemeans. It means that other than the Doctrine of Discovery, other than congressional exercises of plenary power that canbe found in a treaty, for example many treaties may restrict tribal jurisdiction over non-Indians. The “bad men” clauses insome of the treaties that you see so often that required the tribes to turn “bad men” amongst the whites over to the UnitedStates for prosecution. That’s an example of a restriction by Congress of tribal sovereignty. Or statute, such as the MajorCrimes Act by which Congress imposes federal criminal jurisdiction over the reservation. So, those are all examples ofaspects of inherent tribal sovereignty that have been diminished by the federal government under congressional plenarypower. But basically whatever hasn’t been taken away remains is an abiding principle of federal Indian law, which we’llsee the court apply again and again. And then this third idea of the trust doctrine, that Congress has a fiduciaryrelationship that it exercises certain powers over Indian property and Indian rights, but in doing so it must act as a trustee,it must act for the benefit of the Indians. And as a fourth principle very closely connected to all of these other principlesand emanating from the trust doctrine, are the Canons of Construction and that defines the role of the courts. Whencourts interpret Indian treaties or important statutes passed by Congress they apply these Canons, which all of them 2
combined essentially say give the tribes a break. If there is any confusion, if there’s any ambiguities, if we’re not clearhow a treaty should be interpreted, interpret them in favor of the Indians, interpret them liberally, and interpret them as theIndians themselves would have understood them.United States v. WinansA good example of a case, which applies the Marshall model in all its different elements, is an early Twentieth Centurycase, United States versus Winans. It’s a 1905 case, its an important case because much of the litigation that developslater in the Twentieth Century around treaty rights and that involves water rights throughout the Southwest for example, inthe great plains, fishing rights in the Pacific Northwest is all based upon the analysis that the Supreme Court engages inUnited States v. Winans. And that case is a really classic application of the Marshall model. In this case involving an1859 treaty between the Yakama Nation and the United States, Article I of the treaty provides that the tribe, “cedes,relinquishes, and conveys all their right, title, and interest” in specified land. And this is a good opportunity to sort ofreview the history of treaty negotiations that take place in the Nineteenth Century. What would normally happen, whathappens in the Pacific Northwest for example, is that the United States decides the time has come to settle this area ofthe country with white settlers. And the first thing that has to be done is so called clearing Indian title, the aboriginal titlerights of tribes derived from the Doctrine of Discovery. And that also of course means clearing tribal sovereignty, inherentsovereignty, diminishing that sovereignty, extinguishing it over lands that are granted to the United States. So, whatwould happen is the United States in this case would send Governor Stevens up to negotiate individual treaties with thetribes in the Northwest. He would ask these tribes at various treaty conferences to describe their traditional aboriginalterritory and that might be a very vast and expansive territory from one mountain range to a river for example. AndStevens would then say the government is willing to negotiate over a much smaller reserved parcel of land from youraboriginal title territory. So, you’d have the whole aboriginal title territory that would be identified by the tribes and thenthe tribes and the United States government would negotiate over a smaller reserved portion of that territory and thatbecomes the tribe’s reservation. And the aboriginal title and aboriginal rights that had existed in those reserved territoriesnow become recognized by the federal government. And we begin to understand how this idea of federal recognition oftribes can arise from a treaty. That treaty, establishing those boundaries, establishing the area within which tribes canexercise their sovereignty, their inherent sovereignty and jurisdictional rights, the area in which the trust relationshipapplies to tribes, all derive from that treaty. So, in 1859 the Yakamas and the United States sign a treaty. The tribe cedesand relinquishes a vast area of aboriginal title and reserves for its use and occupancy a smaller title.United States v. Winans 3
Now, the Yakamas were a fishing people, they relied on fishing and they recognized at the time that they sold this treatythat many of their traditional and customary fishing grounds were excluded from their reservation, and they insisted notonly on the exclusive right of taking fish within their own reservation but they also demanded and negotiated and receivedin the negotiations a guarantee of what are called off-reservation fishing rights. And so literally, the tribes spoke, if youread the treaty negotiations, they spoke of their traditional fishing grounds and wanted to make sure that the treaty wouldnot exclude them from those fishing grounds. And so in the treaty, Article III contains a provision which is foundthroughout what are called the Stevens Treaties, Governor Stevens negotiated a number of treaties with tribes throughoutthe Northwest, and you find this language in most of those treaties. The tribes reserve the right to fish at all usual andaccustom places “in common with the citizens of the territory.” So, if you look at that language, it reserves to the tribesimportant off-reservation rights to leave the reservation and go fish for salmon, steelhead trout at their traditional fishinggrounds, in common with the citizens of the territory. That’s [ratified] in 1859. The Winans case occurs almost fifty yearslater so you can imagine what’s happened. There’s been an influx of white settlers into the territory, in fact canning isinvented; salmon becomes a very marketable commodity, and Mr. Winans and some other non-Indians decide that they’regoing to apply for a license from the state of Washington to set up a fishing wheel on the Columbia River, literallyscooping up those fish to the point where there’s not much fish left for the Indians to exercise their off-reservation rights.Not only that, many of the fee simple landowners who had acquired these lands from the United States, so the way thetreaty works is the tribes cede, relinquish lands within their aboriginal territories, maintain title to their reservations.Outside of those reservations then, the government divides up those lands and sells them in fee simple to non-Indiansettlers and these non-Indians settlers feel that they own the land, it’s theirs, they have what the common law call soleand despotic dominion, and they don’t like Indians marching across their land to get to the Columbia River to exercisetheir treaty rights. And so, the non-Indians attempt to prevent the tribes from exercising those important treaty rights.What Would Justice Marshall Say?And so the Court is asked to apply the basic principles of federal Indian law to this question of whether or not the Indianscontinue to have a right under their 1859 treaty to exercise these off-reservations fishing rights. One of the games I playwith students in my class is what would Justice Marshall say? How would Justice Marshall analyze this case? I think thisis a good case to work with you as tribal leaders to understand how lawyers think, how lawyers apply what’s called theMarshall model. So let’s literally go through our basic principles of the Marshall model and start thinking about the Winanscase as a way to apply that model and we’ll see how the Court itself, some seventy years after Marshall, faithfully doesapply his model. We begin with congressional plenary power. The treaty itself is an action of congressional plenarypower. Congress has authority under the Constitution to negotiate treaties with tribes and by virtue of that authority, thesupremacy clause of the Constitution, which makes federal law the law of the land, which overrides state law, locks in 4
literally because of the supremacy clause the treaty supersedes any inconsistent state laws. So the fact that the state ofWashington may recognize fee simple property rights, and even a right of trespass over those lands, because federal lawis involved, because the exercise of congressional plenary power is involved, it trumps state authority. Remember thesecond principle of the Marshall model, what would Justice Marshall say about inherent tribal sovereignty? Well, the tribesprior to surrendering the lands outside their reservation in the treaty had inherent tribal sovereignty over their traditionalterritory and that tribal sovereignty included the right to fish over their lands. It was in essence a property right of theirsand in the treaty they refused to give that up. And so having refused to give that up, remember the principle, whateverhasn’t been taken away remains. In fact the treaty doesn’t take away the tribal right to fish on those off-reservation lands,it affirms it. So, here we have an affirmation of an inherent tribal sovereign power over these fishing grounds; the right toget there and to exercise that fishing right. Remember the third principle of the Marshall model, the trust doctrine. You’llnotice that this case is the United States versus Winans. It’s the United States exercising its trust responsibility to protectIndian rights, in this case the treaty rights, suing a state resident and implicitly also suing the state of Washington to makesure that it listens to federal law, and exercising that trust responsibility is bringing this case. Because you’ll remember inCherokee Nation v. Georgia the Court had held, Justice Marshall himself had held, that the tribes did not have the abilityto bring a suit against a sovereign state of the union. And so if the federal government doesn’t bring this case, no one will,the tribes won’t have the right in this point in time in 1905. There was no federal statute as there is today that allowstribes to bring cases in their own name against states in certain instances. And so here we see the trust doctrine lockingin as well and it will explain why the federal government has this obligation to protect this right guaranteed by treaty. Andthen, finally, the Canons of Construction. What would Justice Marshall say about this language that reserves to the tribesoff-reservation rights at all usual and accustom places in common with citizens of the territory? He would say that youwould interpret that liberally in favor of the tribes, resolve any ambiguities. So, you look at this language of “in commonwith,” well what does that mean? And as we know from cases in the later Twentieth Century this language, using theCanons of Construction, was interpreted as meaning a fifty-fifty share. That’s the most liberal favorable construction thatthe Court could come up with. The state of course was arguing that in common with meant that the tribes are regulatedalong with the rest of the citizens of the state. And the Court applying the Marshall model says you can’t take that sort ofvery narrow, negative view that diminishes tribal rights. So, you can see, what would Justice Marshall say about thiscase? He would say Congress has plenary power to negotiate a treaty. Any treaty rights that are reserved trump statesovereign rights. He would say that tribes have inherent sovereign rights, and whatever hasn’t been taken away remains.So, they never surrendered their off-reservation fishing rights; in fact the treaty expressly memorializes them. He wouldsay the federal government has a trust responsibility to protect those rights. And he would say that in interpreting thetreaty, the Court should essentially interpret the terms in favor of the tribes. And what you’ll notice that as you work yourway through Winans, the Court faithfully applies all elements of the Marshall model. 5
United States v. WinansSo Justice McKenna is delivering the opinion, one of the better known justices of the late Nineteenth and early TwentiethCentury Supreme Court. He notes that the United States had brought this action on behalf of the Yakama Nation toenjoin respondents, Winans and other non-Indians, from obstructing these off-reservation fishing rights. He then beginsto deal with the arguments against the tribes that are being asserted. He says that the Indians, the argument that’s beingmade by Winans and other non-Indians is that the Indians acquired no rights by the treaty other than what any inhabitantof the state would have had. And what McKenna says on behalf of the Court is that that’s ridiculous. You have to go tothe Canons of Construction to understand what the tribes themselves understood their rights were. “The right to resort tothe fishing places in controversy was a part of larger rights possessed by the Indians.” So, here we get this notion of theReserved Rights Doctrine. Winans clearly establishes that a treaty reserves rights to the tribes from their aboriginal title;takes those rights out and reserves them and puts them in the treaty, literally federalizes those. And upon the exercise ofthese rights, he says, upon the exercise of which there was not a shadow of impediment. In other words the treaty saysnothing about any impediment, any attempt to limit those rights. “. . .and which were not much less necessary to theexistence of the Indians than the atmosphere they breathed. New conditions came into existence. . .” In other words,many people moved into this area, many non-Indians. That’s what oftentimes happens in treaties, they’re negotiated fifty,a hundred years ago, circumstances change. But what does that mean? He says well obviously their rights have to beaccommodated but “[o]nly a limitation of them. . .was necessary and intended, not a taking away. In other words thetreaty was not a grant of rights to the Indians, but a grant of rights from them – a reservation of those not granted.” Andclearly Congress under its plenary power has the authority to do that, to recognize inherent tribal sovereignty over thoserights. And so you can see how the court working its way through the issues here, applies the Marshall model, goes tothe treaty, interprets the treaty liberally in favor of the Indians, defined, in fact, that the treaty right continues to exist andthat it cannot be interfered with by the citizens of the state. And so in conclusion Justice McKenna writing for the Court,with one dissent, says “[t]he license from the State, which respondents plead to maintain a fishing wheel, gives no powerto them to exclude the Indians, nor was it intended to give such power. It was the permission of the State to use aparticular device. What rights the Indians had were not determined or limited.” So congressional plenary power, thetreaty rights, the trust doctrine, inherent tribal sovereignty, and the Canons of Construction all come into play here todecide this important early Twentieth Century case, upholding tribal rights. 6