Bloxham, S. J.

English

University of Oklahoma College of Law

American Indian Law ReviewVolume 8 | Number 11-1-1980Tribal Sovereignty: An Analysis of Montana v.United StatesS. J. BloxhamFollow this and additional works at: https://digitalcommons.law.ou.edu/ailrPart of the Indian and Aboriginal Law Commons, and the Supreme Court of the United StatesCommonsThis Recent Developments is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has beenaccepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For moreinformation, please contact darinfox@ou.edu.Recommended CitationS. J. Bloxham, Tribal Sovereignty: An Analysis of Montana v. United States, 8 Am. Indian L. Rev. 175 (1980),https://digitalcommons.law.ou.edu/ailr/vol8/iss1/10TRIBAL SOVEREIGNTY: AN ANALYSIS OFMONTA V. UNITED STATESS.J. BloxhamIn Montana v. United States, 101 S.Ct. 1245 (1981), the Su-preme Court has taken another major step in its evolving quest torestructure the doctrine of tribal sovereignty. At the same time, itapparently has disregarded a body of law more than four centu-ries old, which delineates the existing proprietary rights of tribesto their aboriginal lands, and which at the same time is the his-torical basis of federal claims to land ownership in the UnitedStates.By tribal resolution, the Crow Tribe of Montana prohibitedhunting and fishing within their reservation by nonmembers ofthe tribe. The state of Montana, however, also asserted the auth-ority to regulate hunting and fishing by non-Indians within thereservation. Proceeding in its own right and as fiduciary for thetribe, the United States filed suit against the state seeking adeclaration that the tribe and the United States have sole authori-ty to regulate on-reservation hunting and fishing. In-addition tothe tribe's inherent sovereignty and a claim of federal preemp-tion, the federal government relied upon its purported ownershipin trust for the tribe of the bed of the Big Horn River to justifytribal jurisdiction.Rejecting these claims, the Supreme Court held that neither the1851 nor the 1868 Fort Laramie treaties with the Crow Tribe hadconveyed beneficial ownership of the riverbed to the tribe. Invok-ing the "strong presumption" against the conveyance by the Uni-ted States of the beds of navigable rivers that it holds in trust forfuture states, the Court declared that the state of Montana holdstitle to the bed of the Big Horn River. Further, the Court said,the state has regulatory jurisdiction over non-Indians on landswithin the reservation owned by non-Indians, and the Crow Tribemay regulate such nonmembers only where they "enter con-sensual relationships with the tribe or its members," or whennonmembers' conduct "threatens or has some direct effect on thepolitical integrity, the economic security, or the health or welfareof the tribe."'In the Treaty of Fort Laramie of 1851,2 the United States andvarious signatory tribes, including the Crow Tribe, acknowledged© 1981 S.J. Bloxham1. 101 S.Ct. 1245, 1257 (1981).2. 11 Stat. 749 (1851).Published by University of Oklahoma College of Law Digital Commons, 1980AMERICAN INDIAN LA W REVIEW [Vol. 8designated lands as the territories of the respective tribes. Thetreaty identified approximately 38.5 million acres as the territoryof the Crows. In the treaty with the Crows at Fort Laramie in1868, 3 the Crow Tribe ceded to the United States all but 8 millionacres of their territory, which both parties to the treaty agreedwere to be set apart for the "absolute and undisturbed use andoccupation" of the Crow Tribe. Subsequent cession agreementsand an act of Congress reduced the reservation to slightly lessthan 2.3 million acres.' As a result of the allotment program, ap-proximately 28 percent of the reservation is held in fee by non-Indians.It is difficult to see how any question could arise about wheth-er the United States had conveyed to the tribe lands which thetribe had withheld from its cession to the United States. After all,who was ceding its territory to whom? The Court consciously avoidsthe issue by characterizing the 1868 Treaty as having "reduced"the size of Crow territory, without ever indicating that the UnitedStates acquired rights at the same time.6 Instead, we are told thatthe "ownership of land under navigable waters is an incident ofsovereignty."' The United States owning the land in the first in-3. 15 Stat. 649 (1868).4. Act of Apr. 11, 1882, ch. 74, 22 Stat. 42; Act of Mar. 3, 1891, ch. 543, § 31, 26Stat. 989; Act of Apr. 27, 1904, ch. 1624, 33 Stat. 352; Act of Aug. 31, 1937, ch. 890, 50Stat. 884. The Acts of 1882, 1891, and 1904 ratify agreements between the Crow Tribeand the United States; the Act of 1937 appears to be unilateral.5. 101 S.Ct. 1245, 1251 (1981).6. Id. Admittedly, the 1868 Treaty does not expressly declare that land is being ced-ed. In article 2 of the Treaty, "The United States agrees that" designated lands be "setapart for the absolute and undisturbed use and occupation" of the Crow Tribe. The tribeagrees to "relinquish all title, claims, or rights in and to any portion of the territory of theUnited States, except" within the designated reservation. Nevertheless it is clear that allterritory within the present Crow Reservation is territory that was withheld from cessionto the United States. Article eleven of the 1868 Treaty provides that "No treaty for thecession of any portion of the reservation herein described . . . shall be of any force orvalidity as against the said Indians" unless signed by at least a majority of adult males ofthe tribe. In the agreement ratified by the Act of 1882, supra note 4, the Crow Tribeagrees to "dispose of and sell to the Government of the United States" a portion of thereservation. This is referred to later in the agreement as "the session [sic] of territory tobe made by us." In the agreement ratified by the Act of 1891, supra note 4, the tribeagain agrees to "dispose of and sell to the Government" designated lands. This also islater termed a "cession of territory" by the tribe. Finally, in the agreement ratified by theAct of 1904, supra note 4, the tribe agrees to "cede, grant, and relinquish to the UnitedStates" another portion of Crow territory. The Court in Montana describes these as"subsequent Acts of Congress [which] reduced the reservation. " Id. at 1250 (emphasissupplied).7. Id. at 1251, citing Martin v. Waddell, 41 U.S. 367, 409-11 (1842).https://digitalcommons.law.ou.edu/ailr/vol8/iss1/10SPECIAL RECENT DEVELOPMENTSstance, the question was whether it had conveyed the land to thetribe, or instead had retained the land in trust to pass to the stateof Montana upon its admission to the Union, under the "equalfooting" doctrine.Although the Court fails to tell us, the United States in fact didassert a claim to Crow territory prior to its cession and continuesto assert that claim to the unceded portion. Based upon thediscovery doctrine, the United States claimed an entitlement toCrow territory through the cession of that entitlement to theUnited States by France in 1803.8 This entitlement through "dis-covery" was variously termed a right of preemption, or morecommonly, the fee simple subject to Indian right of occupancy,or the "naked fee." 9 This fee title was a legal fiction used toreconcile the granting of patents by the holder of the preemptionright to lands still subject to the recognized rights of tribes tosovereign possession. The fee was "naked" because it was devoidof any right to possession, which was in the Indian tribes. A feesimple absolute did not result until the Indian right to possessionwas united with the naked fee."0 As recently as 1941, in UnitedStates v. Santa Fe Pacific Ry. ," the Supreme Court unanimouslydenied that any right to possession attaches to a grant in fee sim-ple by the United States of lands that are subject to the tribalaboriginal right to possession. Even if the United States had con-veyed the fee to Crow lands to Montana upon its admission in1889, therefore, this does not mean that any right to possessionwas conveyed. If the state owns the fee to the bed of the BigHorn River, that fee is still only an entitlement to the river,without possessory rights until the United States might obtainthem from the Crow Tribe.The Court places great emphasis on its opinion in UnitedStates v. Holt State Bank," which it reads as having "reject[ed]an Indian tribe's claim of title to the bed of a navigable lake,"which lay "wholly within the boundaries of the Red Lake Indianreservation, which had been created by treaties entered into be-fore Minnesota joined the Union."' 3 According to the Court,"[t]he Crow treaties in this case, like the Chippewa treaties in8. The Louisiana Cession, Treaty of Apr. 30, 1803, 8 Stat. 200.9. Beecher v. Wetherby, 95 U.S. 517, 525 (1877); Worcester v. Georgia, 31 U.S. (6Pet.) 515, 543-45 (1832). See R. BARSH & J. HENDERSON, THE ROAD 31-49 (1980).10. Beecher v. Wetherby, 95 U.S. 517, 526 (1877).11. 314 U.S. 339 (1941).12. 270 U.S. 49 (1926).13. 101 S.Ct. 1245, 1251 (1981).1980]Published by University of Oklahoma College of Law Digital Commons, 1980AMERICAN INDIAN LA W REVIEWHolt State Bank, fail to overcome the established presumptionthat the beds of navigable waters remain in trust for future Statesand pass to the new States when they assume sovereignty.'' 4What the Court fails to tell us is that the land in question in HoltState Bank had been ceded by the Chippewas to the United Statesmore than thirty-five years before the case was decided. In fact,no tribal claim was even at issue in the case. Instead, the UnitedStates claimed that it held the land under the terms of the cessionagreement, where it had promised to dispose of the ceded lands ata stated price and deposit the proceeds in a trust account for thetribe.'" Holt State Bank held that the terms of a cession agree-ment cannot affect the prior rights of the holder of the preemp-tion right in the ceded lands. Conveyance of the fee by the UnitedStates prior to the cession conveyed the entitlement to have com-plete title after the tribe's rights were relinquished. After cessionby the tribe, the right to possession immediately attached to thefee. Furthermore, the Holt State Bank decision does not supportthe Court's holding in Montana that the terms of the Crow treatydid not overcome a presumption against conveyance by the Uni-ted States of its title to the tribe. The Court in Holt State Bankexpressly relied upon the fact that there "was no formal settingapart of what was not ceded" in the Chippewa treaty at issue,taking care to distinguish it from another treaty reserving thelands of other Chippewa bands.' 6 Significantly, the Crow treatyin Montana v. United States expressly declared that the uncededCrow lands were set apart for their "undisturbed use and occupa-tion."7The other case chiefly relied upon, Choctaw Nation v.Oklahoma," is totally inapposite to the situation in Montana. InChoctaw Nation, the Supreme Court upheld the-tribe's claim ofrights under its treaty with the United States. In the Choctawtreaty, the federal government ceded lands outside the tribe'saboriginal domain to the tribe in return for the cession of thetribe's entire aboriginal territory to the United States. Never-theless, in his concurring opinion, Justice Stevens reads ChoctawNation for the proposition that "the strong presumption againstdispositions by the United States of land under navigable waters14. Id. at 1251.15. 270 U.S. 49, 52 (1926).16. Id. at 58 & n.1.17. 101 S.Ct. 1245, 1251 (1981).18. 397 U.S. 620 (1970).[Vol. 8https://digitalcommons.law.ou.edu/ailr/vol8/iss1/10SPECIAL RECENT DEVELOPMENTSin the territories . . . applie[s] to Indian reservations.' 9 Ofcourse, the presumption only applies to grants; while the Choc-taw Reservation in Oklahoma was created by a grant from theUnited States, the Crow Reservation was "created" by the CrowTribe having withheld lands from sale to the United States.But why should the mere non-Indian ownership of lands with-in the Crow Reservation give the state sovereign authority overthose lands? State sovereignty is not dependent upon ownershipof land within its jurisdiction, nor can a state be sovereign out-side its territorial bounds.20 The answer is that the Court con-siders both the state and the tribe to be sovereign within thebounds of the Crow Reservation. Identity of parties and owner-ship of lands involved are factors the Court balances in determin-ing whether the state, the tribe, or both has subject matterjurisdiction in a particular case.Although it was held as early as 1881 that an incoming stateobtains criminal jurisdiction over non-Indians on reservationswithin the state's external boundaries, 2' the absence of tribalcriminal and civil jurisdiction is of recent origin. It is significantthat the Court in Montana is only able to cite a single case thatdenied the right of tribes to exercise jurisdiction over non-Indianswithin tribal territory-the Court's recent decision in Oliphant v.Suquamish Indian Tribe.22 In Montana, as it did in Oliphant, theCourt places great reliance on Justice Johnson's words in his"concurrence" in Fletcher v. Peck,2" "the first Indian case toreach this Court-that the Indian tribes have lost 'any right ofgoverning every person within their limits except themselves.' ",24Of course, Justice Johnson actually was dissenting in his opinionin Fletcher.25 More importantly, the Court in Montana misquotesJohnson's remarks, and both Montana and Oliphant attribute toJohnson's words an improbable meaning. According to JusticeJohnson, "All of the restrictions upon the right of soil in the In-dians, amount only to an exclusion of all competitors from theirmarkets; and the limitation upon their sovereignty amounts to theright of governing every person within their limits except them-19. 101 S.Ct. 1245, 1265 (1981) (Stevens, J., concurring).20. See Nevada v. Hall, 440 U.S. 410 (1979).21. United States v. McBratney, 104 U.S. 621 (1881).22. 435 U.S. 191 (1978). See Barsh & Henderson, The Betrayal: Oliphant v. Su-quamish Indian Tribe and the Hunting of the Snark, 63 MINN. L. REv. 609 (1979).23. 10 U.S. (6 Cranch) 87, 143 (1810) (opinion of Johnson, J.).24. 101 S.Ct. 1245, 1257 (1981).25. 10 U.S. (6 Cranch) 87, 145-47 (1810).1980]Published by University of Oklahoma College of Law Digital Commons, 1980AMERICAN INDIAN LA W REVIEWselves." 26 This is not to say that "the limitation upon theirsovereignty amounts to the loss of the right of governing," as theCourt would have us read it. Clearly, it is the existence of, ratherthan the loss of, the right to govern within tribal territory whichlimits tribal sovereignty. But a "right" can be a "limitation" on-ly if it limits some other right. Under Johnson's view, the federalgovernment has gained the right to govern non-Indians within tri-bal territory; the limitation on tribes is the resulting loss of the ex-clusiveness of their right to govern. Johnson claimed only thatthe tribes must share concurrent jurisdiction.In Oliphant we are told that "the tribes' retained powers arenot such that they are limited only by specific restrictions intreaties or congressional enactments." 2 Rather, "Indian tribesare prohibited from exercising both those powers ... that are ex-pressly terminated by Congress and those powers 'inconsistentwith their status.' "2 In Montana we find that the powers lostbecause of the tribes' "status" are considerable: "exercise oftribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent withthe dependent status of the tribes, and so cannot survive withoutexpress Congressional delegation." 29 For such a sweeping state-ment, the Court refers us to four cases, only one of which eveninvolved tribal rights: Mescalero Apache Tribe v. Jones." In thatcase, the Supreme Court upheld the authority of the state of NewMexico to assess sales taxes on the operation of the tribe's skiresort, which was located off the reservation, outside of tribalterritory. The only question was whether either the terms of theIndian Reorganization Act3' or the federal instrumentality doc-trine prohibited taxation of the tribal enterprise. No question ofeither tribal or state authority on the reservation arose.The Court's heavy reliance upon Williams v. Lee32 is alsomisplaced. Williams, of course, was a conflict of laws case, withonly state judicial competence at issue. In that case, the SupremeCourt denied the state courts competence over causes arising onthe reservation, even though they may have jurisdiction over theparties, if exercise of such authority "infringes" upon tribal self-26. Id. at 147.27. 435 U.S. 191, 208 (1978).28. Id. (emphasis in original).29. 101 S.Ct. 1245, 1257-58 (1981).30. 411 U.S. 145, 148 (1973).31. 25 U.S.C. § 465.32. 358 U.S. 217 (1959).[Vol. 8https://digitalcommons.law.ou.edu/ailr/vol8/iss1/10SPECIAL RECENT DEVELOPMENTSgovernment. If the reservation were simply a foreign nation oranother state, on the other hand, state court competence wouldhave existed. How can such a rule support the denial of tribalauthority within the tribe's boundaries? It does not, of course; in-stead, the "governmental interest" approach in Williams is usedto justify a similar balancing of interests in determining the sub-ject matter competence of both state and tribal legislative bodies.As a final contortion of legal logic, the Court finds that "[a]nyargument" that tribal regulation of hunting and fishing "isnecessary to Crow tribal self-government is refuted by" a findingthat "the parties to this case had accommodated themselves" tothe state's exercise of " 'near exclusive' jurisdiction over huntingand fishing on fee lands within the reservation." '3 3 If merelybecoming "accommodated" to the illegitimate exercises ofgovernmental authority were to render that authority legitimate,of what use is the Constitution? Such a principle would mean thatthe entire line of Supreme Court decisions imposing the limita-tions of the Bill of Rights on the states through fourteenthamendment incorporation was mistaken, 34 and that Brown v.Board of Education,3 where the Court struck down state-imposed "separate but equal" schooling, was wrongly decided. Isthe Court ready to overrule these cases?The Court in Montana claims to base its decision upon prin-ciples, and it therefore admits the necessity of a principled ap-proach. However, cjose analysis of its opinion in Montana revealsthat the Court prefers to base its decision upon ad hoc principlesand extraneous language taken out of context from prior deci-sions. It is apparent from the Court's use of legal authority that ithas disregarded a fundamental principle of the legal method: thatthe language of a court opinion must be interpreted in light of itsholding. The propensity of the Court to base its decision on theselective use of dictum, rather than principled analysis of actualholdings, undermines the integrity of both the Court and the en-tire judicial process. Such behavior by the Court diminishes therights of all of us.33. 101 S.Ct. 1245, 1264-66 (1981).34. See, e.g., Duncan v. Louisiana, 391 U.S. 145 (1968); Mapp v. Ohio, 367 U.S.643 (1961).35. 349 U.S. 294 (1955).19801Published by University of Oklahoma College of Law Digital Commons, 1980https://digitalcommons.law.ou.edu/ailr/vol8/iss1/10

Tribal Sovereignty: An Analysis of Montana v. United States

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Tribal Sovereignty: An Analysis of Montana v. United States

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