American Indian treaties and the lower federal courts: A guide to treaty citations from opinions of the lower United States federal court system

In a previous study, it was found that 209 of 375 recognized American Indian treaties have been cited in opinions of the United States Supreme Court (Bernholz, 2004). This guide now identifies – through 246 citations from 142 cases between the years 1863 and 2005 – 85 treaties found only in opinions of the lower Federal Court system. In addition, this investigation uncovered another treaty referenced by the Supreme Court. The remaining 80 instruments have not appeared in opinions of the federal courts (Bernholz, 2001, 2002; Bernholz and Weiner, 2005). © 2006 Elsevier Inc. All rights reserved. The United States Supreme Court has concluded that “[w]ith the adoption of the Constitution, Indian relations became the exclusive providence of federal law” (County of Oneida v. Oneida Indian Nation, 1985, p. 234). A particularly unique relationship exists as a result of the treaty process between the tribes and the federal government. In three previous guides, 290 of the 375 Indian treaties created between these signatories were partitioned into two categories: those 210 instruments that were cited in the opinions of the United States Government Information Quarterly 24 (2007) 443–469 ⁎ Fax: +1 402 472 5131. E-mail address: [email protected]. 1 In 1942, Cohen brought together existing federal Indian law, and his chapter on “Indian Treaties” (1942, pp. 33–67) provides insight into these instruments. 0740-624X/$ see front matter © 2006 Elsevier Inc. All rights reserved. doi:10.1016/j.giq.2006.06.007 Supreme Court, and those 80 treaties that never were referenced in the opinions of any federal court. The remaining 85 documents are the basis of this guide, and are those recognized treaties that have appeared before only a lower level of the federal court system, i.e., below the Supreme Court. Pursuant to the obligations associated with the parameters of negotiated treaties, the federal government has a trust responsibility to the tribes. This accountability is tied to the tribes’ unique status as “domestic dependent nations” (Cherokee Nation v. Georgia, 1831, p. 17). Under these trust obligations, the federal government has fiduciary duties that ultimately may require it to bring suit for the tribe, or for an individual tribe member. This task is expressed in the plaintiff case title in United States v. Montana (1978) that states in part: “The United States of America, in its own right and as fiduciary on behalf of the Crow Tribe of Indians....” In these proceedings, the court was asked to determine “whether the bed of the Big Horn River, within the exterior boundaries of the Crow Indian Reservation, is land held by the United States in trust for the use and benefit of the Crow Tribe, or whether it is land to which the title passed to the State of Montana upon its admission to the Union” (p. 605; emphasis added). In a similar manner, United States v. Nez Perce County (1936) sued for several individual “Indian wards of the government” (p. 268; emphasis added). The subsequent case, United States v. Nez Perce County (1938), appealed for one of them, an “Indian ward enrolled as a member of the Nez Perce Tribe” (p. 233; emphasis added). Each of these three cases is an example of action brought to the federal court system by the federal government as part of its trust obligations to the tribes. However, difficulty – termed a “political anomaly” by Francis Paul Prucha (1994, p. 19) – arises from the intersection of tribal sovereignty and of the reliance upon the federal government for basic services, especially when both this autonomy and these forms of assistance have been assured by treaty parameters. Consequently, in numerous cases brought before the courts that relied upon these documents, the inconsistency of federal government trust relationship performance has been an issue.Wilkinson (1987, pp. 75–86) andGold (2000) used the decision in Nevada v. United States (1983) to illustrate one scenario of a federal conflict of interest flowing from this predicament. The use of the lower federal courts to address many Indian-federal government questions stems from the role of the “District Courts and, to some degree, the Courts of Appeal, [to] bring down to a local level the authority of the national law” (Early, 1977, p. 5). Specifically, the District Courts “may hear and decide, or otherwise dispose of, cases and controversies arising under the whole array of federal law stemming from the Constitution, 2 Bernholz (2004) found 209 such instruments before the United States Supreme Court. As part of the Westlaw Campus subanalysis of Statutes at Large citations for this article, it was found that one other treaty was cited before the Court: ratified treaty number 336 – the Treaty with the Ponca, 1865 (Kappler, 1904, pp. 875–876) – appeared in the opinion for Rice v. Olson (1945). 3 In a similar manner to the investigation of treaties in the opinions of the United States Supreme Court, the number of treaties that have never appeared in federal court has diminished from 84 to the present 80 documents. See Bernholz (2001, 2002) and Bernholz and Weiner (2006) for this sequence. 4 See Pevar (2002, pp. 32–45) and Canby (2004, pp. 34–61) for a summary of the government's trust relationship with the tribes. 444 C.D. Bernholz / Government Information Quarterly 24 (2007) 443–469