The boundary lines for multiple land treaties cross the state of Michigan. The boundary lines for multiple land treaties with native tribes cross the state of Michigan.
It was 1823. The land of Michigan wasn’t yet a state. The indigenous people far outnumbered the white settlers. The Erie Canal hadn’t opened. The flood of European immigrants was yet to arrive.
But the groundwork for their arrival was set in 1823 by the U.S. Supreme Court in a case about property rights. The case: Johnson v. M’Intosh.
On the fourth floor of the Michigan State University law school building, on a windowsill that overlooks the campus, Wenona Singel (top photo) keeps her family photos. Singel is a law professor here, and associate director of MSU’s Indigenous Law & Policy Center.
Family is the reason she went to law school, she says.
When she was young, she was separated from her sister in what she says was a coerced adoption. It’s a familiar story in many native families.
“And, in my mind, understanding the operation of our legal system and the development of federal Indian law and policy was absolutely critical,” she says.
So when she got older, she went to law school — at Harvard.
All first-year Harvard law students had to take a class on property law. That is where Singel first heard of the landmark case known as Johnson v M’Intosh.
“The original Johnson of the case was actually a former Supreme Court justice, and a wealthy shareholder in the Illinois and Wabash Land Company,” Singel says. “And this land company had speculated in the purchase of Indian lands.”
It purchased those lands directly from the tribes. At that same time, the U.S. federal government was out trying to get land from tribes. It negotiated treaties with the tribes. Once the government got the land, it would parcel it out to sell to settlers.
So along comes this settler named M’Intosh. He buys from the government. But the land he buys, well it’s already been bought, by the Illinois and Wabash Land Company.
Remember, that’s the group of wealthy investors that buys directly from the tribes. And Johnson is a part of that group. So Johnson bought from the tribe.
M’Intosh bought from the U.S. government.
The question before the Supreme Court: Who really owned the land now — Johnson or M’Intosh?
It’s an easy question if you think the tribe owned its land in the first place. Because if the tribe owned it, it could sell it to the Illinois and Wabash Land Company, Johnson’s group. Johnson wins.
But the real question was whether the tribe owned the land in the first place. Did they even have the power to sell it?
“And, to the surprise of the lawyers and shareholders in the Illinois and Wabash Land Company, Justice Marshall in the Johnson v. M’Intosh case declared that the tribes did not have this power.” Singel says. “And that they only had the power to transfer their property to the federal government.”
That was the official legal ruling for the United States government: that native people did not actually own the land they’d lived on for thousands of years.
M’Intosh won because he had bought from the federal government. Justice Marshall argued the federal government was the true owner of the land all along.
The indigenous people of the U.S. had some rights on their land. They had the right to use and occupy it. But they couldn’t sell it on the open market because they didn’t really own it. That was the official legal ruling for the United States government: that native people did not actually own the land they’d lived on for thousands of years.
And yes, this decision had a huge impact.
If and when native people ever did want to sell their land rights, there was only one buyer they could turn to. That meant the buyer had the upper hand in the negotiations over price.
It was a rigged deal.
Singel learned all of this as a busy, stressed, first-year law student.”In many ways, it’s almost like gaslighting,” Wenona Singel says of the Johnson v. M’Intosh case. “You’re learning about … certain rights that are associated with property rights … knowing all along that these rights have not been respected, and were not enforced for your own ancestors.”
“And then you move on to the next case,” she says. “And there’s no further discussion of the wrong that this perpetuates. And also the flawed reasoning. And also fundamentally misinformed and racist presumptions that our property legal system is based upon.”
And this isn’t some obscure case. It’s foundational in the U.S. legal system. Most law schools teach it to all their students in the first year.
“The tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness.”
This language, and the precedent it established, has never been overturned in America’s legal system. It is valid law today.
“Imagine if Plessy v Ferguson was never overturned,” Singel says. “Imagine if Dred Scott was never overturned … We’ve never had any kind of accounting and justice that has restored those original property rights.”
After Johnson v. M’Intosh, the early white leaders of Michigan drafted a series of treaties with the native people of the area. These documents would have the tribes sign their land over to the federal government.
Lewis Cass was Michigan’s second governor. He negotiated a number of the treaties. In the late 1820s, he advocated the forced removal of the land’s native people. In his argument, he echoed the words of Justice Marshall. He claimed if white people didn’t rule the land, Michigan would be doomed:
“A tribe of wandering hunters, depending upon the chase for support, and deriving it from the forests, and rivers, and lakes, of an immense continent, have a very imperfect possession of the country over which they roam ,” Cass argued. “That they are entitled to such supplies as may be necessary for their subsistence, and as they can procure, no one can justly question. But this right cannot be exclusive, unless the forests which shelter them are doomed to perpetual unproductiveness.”
Cass didn’t get his wish for removal. But he did eventually get treaties.
And the white people did make the land productive, in their way.
The same as they had done in all of the Americas, says Willie Jennings of Yale Divinity School. They did what they believed their God wanted them to do.
“The way they looked at the land, from the very beginning, from Michigan to Maine, from Virginia to Florida, they looked at the land as the world-in-potential that needed development,” Jennings says. “And that development was always tied to what can be taken from the land.”
In Michigan, a land of dense, ancient forests, they could take a lot.
How the Supreme Court and a divided Congress have stymied efforts by poor tribes to recover long-lost lands.
Custer’s long gone, but a hostile Supreme Court and divided Congress are still playing havoc these days with Indian tribes trying to get some of their lands back.
“With all due respect, there’s not anybody on the court who knows very much about Indians or Indian law,” says Rep. Tom Cole, an Oklahoma Republican who hails from the Chickasaw tribe. It’s little better in the House and Senate where the growth in Indian gaming has so poisoned the well that getting any relief for the tribes is harder and harder.
The immediate issue is how Congress should respond to a 2009 ruling in which the justices narrowed the mandate of the Indian Reorganization Act that has guided federal policy since the New Deal. In the process, the court effectively created two new classes of tribes under the 1934 law and cast doubt on decades of land conveyances approved by the Interior Department.
“They literally overturned what both parties and successive secretaries of the Interior thought was the law for 80 years,” says Cole.
But getting a simple legislative fix is anything but simple in Congress, as major stakeholders have seized the chance to demand larger changes — not just in IRA but also the direction of Indian gaming.
Indeed, the whole Indian lands debate in Washington has turned 180 degrees. The fight is less about the justice of returning historic territory and more simply cash — whether measured in the revenues gained from casinos or property taxes lost for local counties. From Oklahoma to California, rich tribes play the political system to protect their share of the gaming markets. Lost is any perspective on the hundreds of poorer tribes just trying to establish some economic foothold and homeland for themselves.
“You’ve hit the nail on the head,” says Sen. John Barrasso (R-Wyo.) with a rueful laugh. But defying the odds, this Yale-trained orthopedist and rodeo physician has set out to mend these old bones and try to end the impasse this year.
The early spadework has been done in the form of hearings and discussion groups held since Barrasso took over the Senate Committee on Indian Affairs last winter. A first draft of his bill was filed in July. A manager’s amendment is now in the works. And the Wyoming Republican brings two important assets: his Western GOP credentials and the learning experience of having watched past efforts fail.
“Anybody who thinks they can solve this on their own has to be kidding themselves. What we’re trying to do is put a whole group together,” he says. “We have draft legislation. We’ve asked for input … Nobody’s saying `stop the process.’”
Nonetheless, the political obstacles remain huge. And no debate in Congress goes more to heart of the American experience.
“We didn’t invade Europe. Europe invaded the tribes. And just because that invasion was successful doesn’t mean we no longer want the tribes,” said William Rice, a tribal member himself and co-director of the Native American Law Center at the University of Tulsa. “We never gave up our rights to self-government, we never gave up our rights to territory. We’ve been recognized as nations since the days of the Founding Fathers.”
Land is inextricably part of this calculus, not just for the property itself but the opportunity to establish a tribe’s identity and sovereignty. That’s why IRA was such a watershed event, and Franklin Roosevelt’s administration billed it then as a “New Deal” for Native Americans after the destructive policies enacted by Congress in the late 19th century.
Prior to IRA, the federal goal had been more one of forced assimilation, imposing new blood rules on the tribes as to who qualified as a member and breaking up community lands. Between passage of the General Allotment Act in 1887 and 1934, total Indian land holdings had fallen by almost two-thirds, from 138 million acres to 48 million. Nearly half of what remained was better described as desert or semi-desert.
The new IRA law sought to go in the opposite direction by promoting self-governance and tribal sovereignty. Stop-loss provisions were put in place to protect the remaining lands. Most important to the current debate in Congress, Interior was charged with supervising a new lands-to-trust process by which tribes could bring lands under their control.
In the decades since, about 8 million acres have been added to Indian land holdings. But to the surprise of many, the 2009 court ruling said IRA only narrowly applied to those tribes that can prove they were both recognized and “under federal jurisdiction” in 1934.
It was a quirky little case, matching Rhode Island’s small Narragansett tribe against the Republican governor at the time, Donald Carcieri, and will have a place forever in the annals of Indian law. Just 31 acres were in dispute and it all turned on the legislative meaning of a single word: “now.”
But by ruling as it did, the Supreme Court cast a cloud over IRA and a much broader universe of land transactions covering thousands of acres more. Lawsuits have since popped up in states like Alabama. Sen. Al Franken (D-Minn.) accuses the justices of imposing a “caste” system on Native Americans. Most striking is how raw relations are between the tribes and the court, once viewed as their protector.
The central question most often is where to draw the line between state and tribal authority, two competing sovereigns. It’s here where Native American professionals and legal experts say there has been a decided shift beginning with Chief Justice William Rehnquist and now his former clerk, Chief Justice John Roberts. In fact, the 2015 edition of the casebook, American Indian Law: Cases and Commentary, found that the Roberts court had decided 11 Indian law cases thus far and ruled against tribal interests in all but two of them, an 82 percent loss record.
“Every Indian lawyer, expert, close observer cringes every time they take a case,” said Joe Valandra, an attorney who has long been active in Indian affairs and gaming. “I will say there are folks on the Supreme Court who are reflexively anti-Indian,” said Matthew Fletcher, a professor of law at Michigan State University.
Robert Anderson once served in the Interior Department and now teaches law at the University of Washington and Harvard. He opts for the gentler-sounding: “anti-tribal sovereignty.” But the bottom line is still the same.
“They are definitely hostile,” Anderson said of the current majority. “It is all federal common law and the court is basically legislating through these decisions what the powers of the tribes are in the absence of particular congressional direction.”
“They are very protective of states’ rights,” Anderson said. “When Indian governmental powers run up against the states, they give a very hard look to the Indian powers. There’s a majority that wants to trim the Indian sovereignty back in favor of the states.”
Anderson’s description of the high court as “legislating” is telling here. And it illustrates what’s become a three-arena battle in Washington over who sets Indian policy.
The Constitution assigns that power foremost to Congress. But the current paralysis has created a void in which the court has been more aggressive on behalf of the states while the executive branch under President Barack Obama has championed the tribes.
This administration has sped up approvals for restoring lands to Indian sovereignty; more than 305,000 acres have been approved since 2009. And alarm bells are going off now in Congress over new proposed rules drafted by Interior to update the process by which tribes can seek recognition from Washington.
Leading the charge is Kevin Washburn, assistant secretary for Indian Affairs, a soft-spoken former law school dean who is of Chickasaw ancestry.
“I do think there is hostility among certain segments of Congress to tribal sovereignty in general,” Washburn says. “To some degree it’s a backlash against our own success. The Obama administration has done a lot of positive things for tribes and I feel this is a backlash against all the positive steps we have done.”
He welcomes Barrasso’s efforts at compromise. “We don’t agree with everything in it, but it looks like they’ve done some difficult thinking,” Washburn says of the Senate bill. “At this point after seeing so many efforts fail, I’m really grateful that someone’s willing to take up the task. He has bravely plowed forward.”
But there are flashes of anger in Washburn: moments which show his impatience with what he sees as the core injustice of the Indian lands debate and his growing concern that time is running out on the chances for a deal.
“You’ve not hidden your prejudices and I respect that … [But] I worry that your vision returns us to what some believe were the darkest days of Indian policy,” Washburn snapped back at Rep. Don Young (R-Alaska) at a tense hearing before the House Committee on Natural Resources in May. And in an interview, Washburn mocks demands from Western Republicans that federal lands should be “returned” to the states by Washington.
“That’s just a misreading of history,” he says. “Most of it was not taken from the states. It was taken from the tribes. If they really wanted to return it, give it back, it would be given back to the tribes from whom it was taken in the first place.”
Navigating between the Supreme Court and executive branch, Barrasso wants Congress to reassert itself and address the issues at hand. He finds the court confusing but is frustrated too by Interior’s reliance on executive memoranda to map a path forward. From his experience, the tribes and local governments can work well together but clarity is needed to improve the process and avoid litigation for both sides.
“The idea is to add some certainty,” he says. “Because ever since the Supreme Court ruling, things have been pretty confusing for just about everyone … We want to allow tribes to take land into trust by statute, not by lawsuit and Interior Department memorandum.”
To give himself some running room, Barrasso broadly titled his bill, the “Interior Improvement Act.” Introduced in late July, the 15-page measure includes a retroactive provision to protect existing Indian lands from lawsuits born of the high court’s decision in Carcieri. But it would also tighten the lands-to-trust process going forward. Tribes would be required to be more specific about their development plans. Interior must give more timely notice to local towns and counties affected by the outcome.
“This goes beyond a fix,” Barrasso says. “This is a complete reform.”
That said, the challenges ahead are illustrated by the tangled politics of two states, California and Oklahoma, where the advent of Indian gaming has affected the landscape.
Total annual revenues for the industry nationally run near $28.5 billion, a number that dwarfs Washburn’s entire budget or tribal receipts from oil and gas revenues. But the dark side of gaming’s success has been the often poisonous tribal divisions it creates between the haves and have-nots. And this being Washington, the haves tend to be heard first.
In California’s case, public sentiment is running against further expansion of Indian casinos and some of the most successful gaming tribes are spending heavily to keep out new entrants — and perhaps block Barrasso.
This was seen just a year ago in the Proposition 48 ballot referendum fight, in which the “no” forces enjoyed a huge financial advantage and rolled up 61 percent of the vote against a new casino in the Central Valley that had been endorsed by Gov. Jerry Brown and the Democratic state Legislature.
Sen. Dianne Feinstein (D-Calif.) has tapped into this state movement and is out front demanding that Barrasso do more to rein in what she calls “reservation shopping” by tribes, who want access to urban markets far from their historic lands.
“As currently implemented, there is effectively no limit to where a tribe may propose a casino,” she wrote in an Oct. 1 letter to the committee. And Feinstein proposes to reopen the 1988 Indian Gaming Regulatory Act and insert tougher language that would require tribes to show a “substantial, direct, aboriginal connection” to any lands that are taken into trust for gaming.
A former mayor of San Francisco, Feinstein’s roots in local government make her naturally sympathetic with the added burdens on county officials imposed by the casinos. But her critics add that she and her allies are pulling up the draw bridge after they have already gained advantage on the other side.
In fact, the senator’s husband, investment banker Richard Blum, held an important stake in the Perini Corp. from November 1996 to January 2006 — a window during which Perini profited from major contracts to build some of the biggest tribal casino projects in California. And the “no” forces in the Proposition 48 fight received large contributions from some of the same tribes, enriched by their own casinos.
A Feinstein aide said she had no involvement in her husband’s business dealings and keeps all her assets in a blind trust. But there’s a significant overlap between those casino tribes that helped bankroll the Proposition 48 fight and the client list for Ietan Consulting, a prominent Washington lobbying shop on Indian issues.
Ietan’s principals share past ties to the Clinton administration, which was aggressive in promoting the spread of Indian gaming. But Ietan has since promoted what it calls the “Aboriginal Lands Coalition” — a collection of often wealthy tribes that fear gaming’s image and their own profits could suffer unless more is done to prevent new casinos far from historic lands.
The coalition has yet to endorse Feinstein’s language outright but clearly shares common interests with the senator and worries about the direction taken by Barrasso thus far.
“Allowing tribes to `leap-frog’ other tribes for better gaming markets would undermine public support for Indian gaming,” said Larry Rosenthal of Ietan. “Tribal leaders have met with Sen. Feinstein to discuss their concerns about off-reservation gaming outside a tribe’s aboriginal lands.”
Oklahoma has its own set of haves and have-nots, but the politics break very differently than in California.
That’s because the often-preferential treatment enjoyed by a handful of dominant tribes has allowed them to largely corner the gaming market at the expense of the often-poorer Plains Indians. For these haves, the top priority for any Carcieri fix is to make it as broad as possible, then to protect their gains from future legal challenges.
This is seen in Cole’s own Carcieri bill introduced in the House in July and quickly matched by a companion Senate measure put forward in August by Sen. Jerry Moran (R-Kansas).
Like Barrasso, Cole includes a retroactive section protecting against lawsuits. But he goes well beyond Carcieri and would ratify “any action” taken by the secretary on past trust deals quite apart from whether the tribe was recognized in 1934 or not. “It was drafted as broadly as possible,” an aide confirmed. “To address as many `fee-to-trust challenge scenarios’ as possible, and avoid further litigation on the issue.”
Cole’s approach has won the support of the Chickasaw tribe, which dominates the Oklahoma gaming market and has grown to be a major political contributor at the state and federal level.
“The Chickasaw Nation stands with Indian Country in urging Congress to enact a clean fix to the Supreme Court’s Carcieri decision,” said the tribe’s long-time Gov. Bill Anoatubby. “We appreciate the efforts of Tom Cole and Sen. Jerry Moran for introducing legislation to accomplish that goal.”
Cole insists his bill was not tailored for any Oklahoma interest. And in Congress, he is well-respected as a voice for tribal rights far beyond his home turf. But Cole also likes to tell his colleagues: “Just remember when you are involved in Indian wars, be on the side of your Indians.” And his legislative language clearly serves the Chickasaw.
That’s because legal questions still hang over the tribe’s huge gaming empire, built on a series of rapid-fire land deals approved by the Bureau of Indian Affairs in the first decade after passage of IGRA in 1988.
Because all such land-to-trust approvals constitute a “federal action,” an environmental impact analysis is typically required under the National Environmental Protection Act. Yet records show the well-connected Chickasaw often received categorical exemptions from BIA, even though the newly-acquired land was clearly being converted to a very different purpose.
A second legal question arises from how the BIA enforced the tougher standards set by IGRA for gaming on lands brought into trust after 1988. Here again the Chickasaw benefited from an expansive view of what qualified as “former reservation” lands in Oklahoma and was therefore exempt under Sect. 20 of IGRA.
An early draft rule circulated by the BIA in 2006 defined “former reservation” lands as those that are “within the jurisdiction of an Oklahoma tribe and that are within the boundaries of the last reservation for that tribe in Oklahoma.” But the jurisdiction clause was later dropped after the Apache tribe of Oklahoma quoted back BIA’s own language in challenging what grew into the Chickasaw’s Chisholm Trail casino in Stephens County.
The history of this case is telling of what still angers the poorer Plains tribes who have felt squeezed out of the gaming market. The lost revenues compound the inequities in how federal aid is distributed among the tribes.
Records indicate the land itself was acquired by the Chickasaw in 1992 and brought into trust soon after in 1993. The property fell within the old treaty boundaries, but the Apache argued that the Chickasaw had not exercised jurisdiction prior to the purchase and therefore did not meet IGRA’s standard for what constitutes Indian lands for gaming.
When BIA nonetheless signed off on the compact, the Apache brought suit. A federal judge remanded the case back to BIA in 2007, saying the administrative record is “so lacking in substance that it fails to provide a satisfactory explanation” to support the approval.
The following year the jurisdiction language was dropped from the final BIA rule without explanation. In 2010, the agency again approved the compact in a lengthy solicitor’s opinion that cited the less restrictive definition of a “former reservation.” In a final twist, the same 2010 legal opinion cited a tribal police substation on the site as evidence of the Chickasaw’s jurisdictional claims. But that station didn’t even exist at the outset of the case.
For sure, history played a big hand in how the Oklahoma gaming market took shape. The old Chickasaw treaty lands included a wide swath of southeast Oklahoma, near key highways and customers from Texas.
But the fast pace of BIA approvals also helped. In the 23 years from 1985 to 2008, an estimated 16,915 acres were brought into trust by BIA’s eastern Oklahoma regional office, according to government numbers requested by POLITICO. That’s almost three times the 5,713 acres conveyed into trust in western Oklahoma since 1980 — a much longer time period.
Today, public records of how much the state of Oklahoma collects in fees from each of the 30 tribe’s gaming operations are a good measure of who is enjoying the most revenues from gaming and who is not. The Chickasaw alone accounted for 35 percent of this in 2015. When the Cherokee and Choctaw gaming operations are factored in, the numbers show that just these three powerful tribes account for almost two-thirds of the market shared with 27 others.
“They essentially created a land rush for the preferred tribes who were given special locations to start to grab the market way ahead of everybody else and before the rules were equally applied,” said Richard Grellner, an attorney with a long history of representing the Plains Indian tribes. “Everything since then has been to move the goal posts to protect what was previously done.”
Given his own Chickasaw ties, Washburn must recuse himself from matters now involving the tribe. He remains proud of its success but admits too that fairness is not always served by the growth in Indian gaming.
“It’s not fairly distributed, that’s the heartbreak of it, “ Washburn said. But he then adds: “The fact is everybody used to be have-nots.”
US title to the land depends on legal fiction, crafted by the colonists to benefit themselves. Under the ‘Doctrine of Discovery’, which had its origins in the Crusades and underpinned the pioneering navigators of the 15th century, ultimate sovereignty over any pagan land belonged, courtesy of the Vatican, to the first Christian monarch who discovered it. Embraced by imperial powers around the world, the doctrine was adopted by the US Supreme Court in 1823. The US did not rely on Papal Bulls alone, however. It also extinguished the land title of the continent’s first peoples by treaty, executive order, and federal statute. – Claudio Saunt