The Law is Not So Simple For Indian Law and Rights

One would hope that a newspaper editorialist lecturing the Governor on Indian law and rights might actually want to get the law right herself. I was both bemused at the inaccuracies in Deborah Locke’s editorial “Pawlenty could use a class in Indian law and rights”, May 22, 2003, and discouraged that someone who writes regularly about tribal matters continues to equate the legal arguments of tribal government advocates with the current state of the law and with the best interests of the Indian people.

First let’s examine the inaccuracies. The article quotes Joe Day, Executive Director of the Indian Affairs Council, as claiming that the Governor rewrote history in his statement. Mr. Day claims that the hunting and fishing traditions of Minnesota tribes are not “privileges” nor are they “special.” Actually, the 1837 Treaty with the Chippewa ceded to the United States a large tract of land in Wisconsin and Minnesota. Article 5 provided: “The privilege of hunting, fishing and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied to the Indians during the pleasure of the President of the United States.” Legally this is a “privilege” so the Governor was correct. Additionally, the court enjoined the State of Minnesota from enforcing most state regulations, meaning that Band members hunt and fish under a different set of rules regarding seasons, limits, and methods. Certainly the rules for tribal members are “different” and less restrictive. Since one definition of “special” is “being other than the usual” the Governor’s statement is not wrong.

Ms. Locke quotes Professor Washburn as stating that “the tribes weren’t granted any rights – they only had rights taken away.” Technically, most treaties are interpreted as reserving rights to a tribe, not a grant of rights by the United States, but there are exceptions. Washburn’s next statement has no legal support. “If anyone has special rights, it’s the non-Indians who were given the right to hunt and fish on former Indian land.” Under the American legal system, the right to hunt and fish is an interest in land, subject to the right of the State to regulate the taking of fish and game. When there is a sale of land between private parties, or between sovereigns, included in that land sale is the right to hunt and fish, and the sovereign who ends up with control over the land regulates the taking. This is why the 1837 Treaty guaranteed the privilege of hunting and fishing to the Ojibwe bands when they ceded the land to the United States. This privilege is not permanent since it can be terminated by the President of the United States at his pleasure, as the Supreme Court ruled.

The sentence with the most errors by Deborah Locke is this one: “Treaty law is state law that governs an entity – a reservation – in the same way a city or county governs.” Actually, treaty law is federal law. Second, with the exception of Red Lake, reservations are not “an entity” in Minnesota. Rather, they are checkerboards of private land ownership and tribal lands, and the majority of residents are not tribal members. Under Public Law 280, and the Supreme Court’s recent decision in Nevada v. Hicks, state law applies on the reservations. Finally, equating “treaty law” as the “same” as “a city or county” is simply wrong. Tribal governments are not bound by the United States Constitution or its Bill of Rights, even in dealing with their own members. Cities and counties are subject to those constitutional protections, and are open to participation by all persons for voting and holding elective office, regardless of ethnic background. Tribal government obviously is limited to tribal members.

The inaccuracies do not stop here. Treaties are not “equal in stature to the U.S. Constitution”. Treaties are negotiated pursuant to the U. S. Constitution, and must be subservient to the Constitution. Otherwise, the provisions of the Constitution could be modified by a treaty, an absurd concept. Treaties do have the force of federal law just like federal statutes.

Finally, before we go too far with the lecture on tribal “sovereignty”, it is important to understand that the Supreme Court ruled 170 years ago that it is quasi-sovereignty, not full sovereignty. Chief Justice John Marshall described tribes as “domestic dependent nations that lack external powers”. This is of course an oxymoron, since a true sovereign is not dependent upon anyone. What Marshall attempted to describe were Indian tribes with internal powers of self-government only. In 1886 the U. S. Supreme Court stated that “within the geographical limits of the United States” the soil and people within these boundaries are under the political control of the government of the United States and the States of the Union. Only these two “exist within the broad domain of sovereignty”. Indian tribes have the important power of self-government, but it is not full sovereignty.

Should the Governor sit down with tribal leaders and hear their views on sovereignty? Absolutely. And he should also sit down with tribal members and others who are knowledgeable in this area who can discuss the other side of these legal and political issues. A good place to start would be a meeting with William J. Lawrence, a Red Lake Band member and the publisher of the Native American Press/Ojibwe News. For those interested in learning more about these issues, read Mr. Lawrence’s article “In Defense of Indian Rights”, Beyond the Color Line – New Perspectives on Race and Ethnicity in America, edited by Abigail and Stephan Thernstrom, Hoover Institution Press (2002). It might be best to look at both sides of the issues before you conclude that the Governor needs an education.

Randy V. Thompson
Attorney at Law