Professor JeDon Emenhiser, Ph.D.
Department of Government & Politics, Humboldt State University, Arcata, California
It is indeed a pleasure for me to be with you this morning but it is also a humbling experience, especially in the presence of such knowledgeable and distinguished guests, since I am by no means an expert on American Indian history or law. I am a student of American government and politics and teach an introductory course, which is a requirement for graduation from the California State University, plus other courses in public opinion, elections, the legislative process, democratic theory, and constitutional law.
Our assignment at this Institute, as I understand it, is to try to summarize the most important lessons we have learned over the past two years from participating in the Kellogg American Indian Civics Project and pass them on to you who can then use them in your teaching grades K through 12. It is a tall order, since many of us, having started from scratch, have learned so much.
The most important thing I have learned these past two years is contained in the title of my remarks this morning, "A Peculiar Relationship: American Indian Peoples and the U.S. Constitution." I chose this title carefully because it conveys the essence of the message I want to leave with you.
Not only is the relationship between American Indian peoples and the U.S. Constitution unusually complex, frequently confusing, and rarely unemotional, it is a peculiar one. It is peculiar in a covenant sense, like the Torah speaking of Israel as Gods people (Exodus 19:3-8) and the New Testament extending the covenant to followers of Jesus (I Peter 2:9). Peculiar is an adjective of pride used today by Mormons and others as a badge of honor (Hinckley, 1998; Schow 1993). In this connotation, I believe, Indian peoples, also proud of their differences from other Americans, enjoy a peculiar relationship with the U.S. Constitution and continue to endure persecution for their beliefs and values. They often take pride in retaining what is precious to them, striving to defend their rights and ways of life.
My using the term peculiar rather than, say, different, special, or unique, conveys a significant meaning for us to explore. After briefly questioning the term "Indian people," we shall examine the U.S. Constitution and discuss a method for teaching the peculiar relationship.
American Indian Peoples
First of all, I have learned that it is almost impossible to generalize about an Indian people. This is true, of course, not only legally and politically but historically and culturally as well. This should not surprise us, however, if we just remember that the very concept of a single Indian people rather than separate nations, separate language groups, and so forth, is after all an imposition by European explorers. Thus, one of our problems in failing to teach our students about American Indian civics is largely our own making. We may be searching for generalizations that do not exist. Therefore, I believe we may be better off teaching our students small, concrete cases rather than trying to paint a big abstract canvass that distorts more than it explains, but more on that later.
The U. S. Constitution
Let us turn now to the text of the Constitution, then, examine the doctrines of trust responsibility, tribal sovereignty, plenary power, and state- Indian federalism.
The word "Indian" appears in the U.S. Constitution three times, twice in Article I, dealing with enumeration and commerce, and once in the 14th Amendment, modifying the Enumeration Clause. But only one of these provisions, the Indian Commerce Clause, is still operative, and it has evolved extensively in practice. In addition to the specific mention of Indian tribes in the Constitution, the powers to make treaties and, some might say, to declare war are relevant to understanding the peculiar relationship to Indian peoples.
The Enumeration Clause. The 14th Amendment, section 2, abolished the so-called Three-fifths Clause of Article I, section 2, clause 3, which dealt with the apportionment of representatives to slave states. It now reads:
"Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed."
But according to the definitive analysis of the U.S. Constitution by the Congressional Research Service of the Library of Congress, an Attorney General ruling (39 Op. Atty. Gen. 518) in 1940 "that all Indians are subject to taxation" apparently makes this provision obsolete (Killian 1987, 1810).
The Commerce Clause. In listing the powers delegated to Congress, Article I, section 8, clause 3, says:
"The Congress shall have power . . . to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."
The Congressional Research Service document claims that this clause "once almost rendered superfluous by Court decision, has now been resurrected and made largely the basis for informing judicial judgment with respect to controversies concerning the rights and obligations of . . . [Indian peoples]." (Killian 1987, 292).
Its evolution began in 1883 when the U.S. Supreme Court ruled in Ex parte Crow Dog, 109 U.S. 556, that a U.S. District Court in South Dakota did not have criminal jurisdiction in the alleged murder of Chief Spotted Tail by another Sioux leader. But two years later Congress explicitly made it a federal crime to commit murder and six other serious offenses by any Indian person, even on Indian land. Where did Congress get the authority to pass this Major Crimes Act (22 Stat. 362, 385)?
After all, the nation as opposed to the states is a government of delegated power; it may exercise only those powers granted to it by the people in the U.S. Constitution. Mainly, these are the powers to tax and spend and regulate commerce. Unlike the states, the national government does not possess a broad police power to regulate the health, safety, morals, and welfare of its people. Under the new Constitution, which went into effect in 1789, and then was explicitly stated in the 10th Amendment, ratified in 1791, states retained those "powers not delegated to the national government . . . nor prohibited to . . . [them]...." How does the murder of one Indian person by another on a reservation come under federal regulation? Does it affect commerce?
Not exactly, according to the Supreme Court. In U.S. v. Kagama, 118 U.S. 375 (1896), a case from the Hoopa Reservation, the Court sustained Congress's power not on the authority of the Commerce Clause as the government argued, but "on the ground that the Federal Government had the obligation and thus the power to protect a weak and dependent people" (Killian 1987, 292). This notion of a special trust relationship was first pronounced in 1831 as we shall see shortly.
Treaties. Europeans made treaties with Indian nations prior to American Independence and the United States continued to do so under the Articles of Confederation and then pursuant to the Constitution, Article II, section 2, clause I:
"The President shall have power, with the advice and consent of the Senate, provided two-thirds of the Senators present concur, to make treaties."
Further, Article III, section 2, clause 1, stipulates that
"The judicial power shall extend to all cases arising under the Constitution, laws, and treaties."
Moreover, Article VI, clause 2, declares:
"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding."
And finally as far as treaties are concerned Article I, section 10, clause 1, firmly proclaims:
"No state shall enter into any treaty, alliance, or confederation."
While numerous treaties were negotiated and most of them ratified, Congress called a halt to treaty-making with Indian tribes in 1871 (16 Stat. 544, 566, 25 U.S.C. § 71). Since then, Indian people are still bound by those treaties that are in effect and, additionally, are subject to numerous statutes passed by Congress and approved by the President.
Moreover, it is important to realize that, treaties and statutes are coequal under the Constitution. Therefore, just as a statute passed this year may amend or abolish one passed last year, a more recent statute may modify or even replace an older treaty. In 1903 the Court explicitly proclaimed that a statute may abrogate a treaty with an Indian tribe, Lone Wolf v. Hitchcock, 187 U.S. 553.
A Trust Relationship and Tribal Sovereignty. It was Chief Justice John Marshall, who served on the Court from 1801 until 1834, that articulated the twin doctrines of a trust relationship on the one hand and tribal sovereignty on the other, which to some ears sounds like having ones cake and eating it, too, a significant part of the peculiar relationship. In other words, while a trust relationship means the national government has an obligation to act as a trustee to protect a beneficiary, sovereignty implies that Indian tribes are domestic nations with a substantial degree of independence.
The idea that the national government has a duty to protect Indian people may become paternalistic and degenerate into a ward-guardian relationship, as Marshalls 1831 opinion ominously suggests: "They [,i.e., Indian Tribes,] occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage," Cherokee Nation v. Georgia, 30 U.S. 1, 17.
The next year Marshall again spoke for the Court when he articulated the classic statement of Indian tribal sovereignty: "From the commencement of our government, Congress has passed acts to regulate trade and intercourse with the Indians; which treat them as nations, respect their rights, and a firm purpose to afford that protection which treaties stipulate. All these acts . . . consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied by the United States," Worsceter v. Georgia, 31 U.S. 515, 557-558 (1832).
Although there is a strong emotional attachment to the term Indian sovereignty and there is a growing political movement to assert it, tribal authority and independence of Indian peoples are, in fact, at the mercy of Congress.
Speaking for a unanimous Court in 1978 Associate Justice Potter Stewart said: "The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status," U.S. v. Wheeler, 435 U.S. 313, 324..
Plenary Power. Since much of Congresss power over Indian affairs comes from the Commerce Clause, the first instance of the Courts interpretation of that provision is instructive. In his opinion Chief Justice Marshall ruled that Congress's power over commerce among the states was "supreme, unlimited, and plenary," Gibbons v. Ogden, 22 U.S. 1 (1824), meaning it was full and complete. In other words, Congress can do whatever it wants to regulate interstate, foreign, and Indian commerce, so long as it does not violate any prohibitions against government action in the U.S. Constitution.
In 1972 the Court ruled that Congress even has the power unilaterally to severe the trust relationship if it desires, Affiliated Ute Citizens v. U.S., 406 U.S. 128.
State-Indian Federalism. Although the Constitution did not create the states, since they were already in existence, it did diminish their power from a supreme position under the Articles of Confederation and increased the strength of the national government, reducing state influence over Indian tribes and peoples.
As we saw earlier in discussing treaties, the Supremacy Clause in Article VI provides a hierarchy of law with the Constitution at the top, national laws and treaties next, then state constitutions and state statutes below. So, the national government, acting within its legitimate sphere, may preempt state law dealing with Indian matters.
Chief Justice Marshall recognized the separation of Indian nations from the states in 1832, when he wrote the following: "The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress. The whole intercourse between the United States and this [Cherokee] nation, is, by our Constitution and laws, vested in the government of the United States," Worcester v. Georgia, 31 U.S. 515, 562.
Today, this means, for example, that unless Congress gives its permission states may not tax reservation lands or income generated by Indian peoples on a reservation, McLanahan v. Arizona Tax Comm., 411 U.S. 164 (1973). Congress may, if it chooses, prohibit states from taxing anyone doing business with Indian peoples on a reservation, White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980). But states may tax Indian-owned businesses off a reservation unless Congress acts to prevent it, Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973); and tribes may not try non-Indians for criminal offenses, Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).
In summary, the Court has ruled that despite some confusion about the source of national power over Indian matters, "it is now generally recognized . . . that it derives from federal responsibility for regulating commerce with Indian tribes and for treaty making," McLanahan v. Arizona Tax Comm., 411 U.S. 164, 172 n. 7 (1973).
After sitting through this brief survey of constitutional interpretation, I hope it is clear why the relationship between Indian people and the U.S. Constitution deserves the adjective peculiar and, moreover, why such a complex relationship may be difficult to teach.
Therefore, I recommend that instead of assigning texts on Indian issues or lecturing on broad topics, such as the treaty power, that you employ the case method.
Teaching with Case Studies
Using cases to teach Indian civics, in my opinion, provides an effective method to engage the minds of students that cannot be achieved so well with didactic instruction.
Of course, the case simplifies reality, but that is what makes it manageable to teach. So long as it includes all the relevant variables and does not distort the real situation, a case may be a valuable teaching tool.
There are a number of ways case studies can augment traditional classroom methods, including providing a common ground, urging balanced judgment, encouraging independent thought, practicing reasoned evaluation, and stimulating empathy for political decision­makers.
Common Ground. The essential feature of teaching with cases is that they offer a narration of events that all members of the class are able to grasp in common. It reduces disputes over what happened. That is given. Students and teachers have the same information and can concentrate on the facts and values embedded in the material. It teaches the student how to settle factual disputes, to separate facts from values, and to appreciate the resolution of value conflicts.
Balanced Judgment. One of the most important lessons civic education strives to teach, the development of realistic, positive attitudes toward dispassionate analysis and critical judgment of public issues, can not be readily taught by readings or lectures alone. Consideration of a real case may be the most effective way for students to discover that there are no easy answers to serious public problems. Or, if there are, they often create unanticipated, negative consequences. By putting themselves in the role of various persons in the case, students acquire a vicarious experience that leads to clarification of their own values, a tolerance for others, and an empathy for those who have to make public choices.
Independent Thought. When students become engaged with a description of the behavior of persons in civic activity, they may begin to generalize about such behavior. They may ask themselves or each other questions and search for answers, form tentative conclusions, and organize a framework in their minds for future learning.
Reasonable Evaluation. Case studies beg for an answer to the question of whether the events that occurred were desirable or undesirable. Teachers should not expect students to agree. But cases give students an opportunity to practice evaluating and to learn they may be asked to justify their position with reason not mere assertion or emotion.
Empathy for Politicians. Putting themselves in the position of those who have to make difficult public decisions may tend to keep students from reacting hastily to the news of public affairs. It may make them realize that public officials are often not divided between doing what is right or wrong but are striving to find solutions to problems that meet the needs of different people.
An Example. Next, in order for me to illustrate what I have in mind, let me refer you to an item in your packet titled, "The GO Road Case." I have used that material in connection with my web site, "The GO Road Controversy: American Indian Religion and Public Land," to teach students at three levels, an Advanced Placement high school course, a lower division college course, and an upper division course for political science majors.
I shall demonstrate a portion of the site now and, then, for those of you who would like to know more about it and manipulate it yourself in a workshop session, please join me in Founders Hall, Room 177, immediately after the break at 10:30 a.m.
In conclusion, please let me encourage you to apply what you learn from this institute to your own classroom. Digest it and adapt it to your specific requirements. Ask yourself what can I do as a teacher to meet the needs of my particular students. What should they know about Indian peoples and their civic relationships? What skills should they have to continue to learn new concepts and transfer them to fresh contexts they may encounter in the future. And finally, what attitudes should they develop in order to process new knowledge, acquire advanced skills, and evaluate potential public policies related to Indian peoples?
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