American Indian Law Review American Indian Law Review
Volume 41 Number 2
2017
States and Their American Indian Citizens States and Their American Indian Citizens
Matthew L.M. Fletcher
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States and Their American Indian Citizens
, 41 AM. INDIAN L. REV. 319 (2017),
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319
STATES AND THEIR AMERICAN INDIAN CITIZENS
Matthew L.M. Fletcher
Introduction
For the past four decades, Republican control of the White House and
Congress has not augured well for Indian country. Conservative
administrations are unlikely to support trust land acquisitions, for example.
1
The current administration’s informal spokesmen talk openly of privatizing
Indian trust and reservation lands, a twenty-first century form of
termination.
2
The Obama administration’s cooperation with Indian tribes in
Indian child welfare litigation and trust land acquisition matters, to name
two examples, is threatened, as are national monuments and the
environment. There is much for tribal leaders and advocates to be
concerned about from the federal government under the current
administration.
But Indian nations are timeless entities, and when the federal government
is not receptive or is even hostile to tribal interests, modern Indian nations
turn elsewhere for potential solutions. Right now, those potential solutions
may lie with state legislatures and governments. This article is intended to
provide a theoretical framework for tribal advocates seeking to approach
state and local governments to discuss cooperation with Indian nations,
with a special emphasis on Indian child welfare. While the federal
government has a special trust relationship with Indians and Indian nations,
Indian people are also citizens and residents of the states in which they live.
Thus, states have obligations to Indians as well.
After all, the Fourteenth Amendment obligates states and state actors to
guarantee the equal protection of the law to similarly situated persons.
3
But
that guarantee too often stops at reservation borders because of deeply
Professor of Law and Director of the Indigenous Law and Policy Center, Michigan
State University College of Law. Thanks to Kate Fort and Wenona Singel.
1
. Land Acquisition Policy: Lookback and Update 7, BUREAU OF INDIAN AFFAIRS, W.
REG’L OFFICE (Nov. 2016), https://nau.edu/uploadedFiles/Offices_and_Committees/Folder_
Templates/_Forms/Webb%20NAU%20-%20Land%20Acquisition%20Policy%20-%20Novem
ber%202016.pdf (asserting that under the second Bush administration, there was “a de facto
moratorium for almost five years” barring trust land acquisitions).
2
. See generally Matthew Fletcher, A Look at the Next 4 Years in Indian Affairs,
LAW360.COM (Jan. 19, 2017), https://www.law360.com/articles/882778.
3
. U.S. CONST. amend. XIV.
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320 AMERICAN INDIAN LAW REVIEW [Vol. 41
misunderstood principles of federal Indian law, such as the notion that
states have no responsibility to American Indians due to the federal
government’s trust responsibility to Indians and tribes. Worse, even where
states take action to guarantee equal protection to reservation residents, they
are often attacked for creating “special rights” in violation of the
Constitution.
4
This article posits the fairly controversial and novel position that states
have obligations to guarantee equal protection to all citizens, including
American Indians (and non-Indians) residing in Indian country. In other
words, states have an affirmative obligation to ensure that reservation
residents, Indian and non-Indian, receive the same services from states that
off-reservation residents receive.
States and local governments typically point to the special status of
Indian tribes, tribal members, and even nonmember reservation residents as
justification for differential treatment. Felix Cohen once brought suit to
remedy inaction by Arizona and New Mexico officials, who refused to
provide services to Havasupai Indians, denying them the equal protection of
the law and leading to eighty-two deaths, on the grounds that Indians were
the federal government’s sole responsibility.
5
Modern examples abound.
The Village of Hobart attempted to impose a restrictive covenant on lands
within its jurisdiction in an attempt to prevent the Oneida Indian Tribe of
Wisconsin from acquiring trust lands, claiming an injury to the village tax
base should Indians acquire the lands.
6
That same village also
4
. Cf. Gloria Valencia-Weber, Racial Equality: Old and New Strains and American
Indians, 80 NOTRE DAME L. REV. 333, 346-47 (2004) (“The tribal governance power and
immunity from some state laws (e.g., some taxes) results in the American Indians being
charged with unjustifiably demanding ‘special rights.’ However, in the historical law dialog
involving American Indians this term has legal content arising from the unique political
relationship with the national government. Despite the terms in treaties that bind the United
States to tribes in critical matters like land, water, and natural resources, unhappy non-
Indians demand that tribal rights be terminated to theoretically equalize everyone.”); Jo
Carrillo, Identity as Idiom: Mashpee Reconsidered, 28 IND. L. REV. 511, 512-13 (1995)
(describing anti-Indian groups that organize under the theory that Indian rights are invalid
“special rights” that should be eliminated).
5
. Karen M. Tani, States’ Rights, Welfare Rights, and the “Indian Problem”:
Negotiating Citizenship and Sovereignty, 1935-1954, 33 LAW & HIST. REV. 1, 3-4 (2015);
see also Felix S. Cohen, The Erosion of Indian Rights, 1950-1953: A Case Study in
Bureaucracy, 62 YALE L.J. 348, 351 & n. 20 (1953) (describing the Mapatis v. Ewing
(D.D.C. 1948) suit and how it was withdrawn when Arizona agreed to provide services).
6
. Matthew L.M. Fletcher, Baylake Bank v. TCGC & Village of Hobart — Covenant
Against Tribal Ownership of Land, TURTLE TALK (Oct. 6, 2008), https://turtletalk.
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No. 2] STATES AND THEIR AMERICAN INDIAN CITIZENS 321
unsuccessfully demanded that reservation Indians pay taxes in order to
receive services from the county.
7
The County of Manistee’s sheriff’s office
cancelled a cross-deputization agreement with the Little River Band of
Ottawa Indians in Michigan.
8
In Fremont County, Wyoming, police refused
to respond to calls for assistance by Wind River Indian Reservation police
involving non-Indian suspects, claiming lack of jurisdiction.
9
Elsewhere,
Indian country communities routinely complain that state and local
governments collect taxes on reservation activities without sharing revenues
with tribal governments or providing equivalent services to reservation
residents.
10
Even tribal advocates often privately agree that such disparate
treatment is just a consequence of the preservation of tribal sovereignty. But
while these circumstances are common in Indian country, they should be
considered Fourteenth Amendment violations.
Additionally, state and local governments that take seriously their
obligations to American Indians, are challenged and even attacked for
doing too much for Indian people, creating “special rights” for Indians. The
State of Minnesota, which enacted a statute implementing and
domesticating the federal Indian Child Welfare Act,
11
faces a federal
constitutional challenge.
12
The State of Washington, which entered into tax
agreements with various tribes, narrowly prevailed against a state
constitutional challenge.
13
These “special rights” arguments are the same
arguments the Supreme Court has robustly rejected in the treaty rights
wordpress.com/2008/10/06/baylake-bank-v-tcgc-village-of-hobart-covenant-against-tribal-
owner ship-of-land/.
7
. Oneida Tribe of Indians of Wis. v. Village of Hobart, 732 F.3d 837 (7th Cir. 2013).
8
. Glenn Zaring, Cross-deputization Concerns in Manistee, LUDINGTON DAILY NEWS
(Mar. 21, 2008), http://www.shorelinemedia.net/ludington_daily_news/archives/cross-deputi
zation-concerns-in-manistee/article_3d3e5391-e421-52a0-ab32-3a5c197ef699.html.
9
. Tristan Ahtone, A Broken System: Why Law and Order Is Faltering on the Rez, AL
JAZEERA (Dec. 19, 2013), http://america.aljazeera.com/articles/2013/12/19/commission-
federalgovtisreasonforlittlejusticeinindiancountry.html.
10
. Kelly S. Croman & Jonathan B. Taylor, Why Beggar Thy Indian Neighbor? The
Case for Tribal Primacy in Taxation in Indian Country, JOINT OCCASIONAL PAPERS ON
NATIVE AFFS. (May 4, 2016), http://nni.arizona.edu/application/files/8914/6254/9090/2016_
Croman_why_beggar_thy_Indian_neighbor.pdf.
11
. Minnesota Indian Family Preservation Act (MIFPA), MINN. STAT. §§ 260.751 to
260.835 (1985).
12
. Doe v. Piper, No. 15-cv-02639, 2017 WL 3381820, at *1 (D. Minn., Aug. 4, 2017)
(dismissing claim for mootness, but asserting there were “interesting and unclear questions
of constitutional law”).
13
. Auto. United Trades Org. v. State, 357 P.3d 615 (Wash. 2015).
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322 AMERICAN INDIAN LAW REVIEW [Vol. 41
context,
14
but they recur again and again. As we will see, these so-called
“special rights” are not only allowable under the Fourteenth Amendment,
states are required to guarantee them in order to ensure all state citizens are
equally protected by the law.
Part I of this article surveys the legal history of American Indian
citizenship. American Indians began as noncitizens of the United States,
excluded by the Constitution from citizenship as “Indians not taxed.”
Part II details the principal argument of this article, that the Fourteenth
Amendment further requires states to guarantee equal protection to persons
both on—and off—reservation, Indians and non-Indians alike. American
Indians, as the Supreme Court recognizes, are American citizens. As
citizens, they are entitled to the same protections of law offered by states to
off-reservation citizens. States and state actors that decline to guarantee that
protection are in violation of the Fourteenth Amendment.
There are two ways that adopting this theory would have an immediate
impact on Indian country. First, states that have enacted statutes to
implement the federal trust obligations to Indian education and child
welfare would be fully authorized to do so under the Constitution. Second,
states and localities that enter into intergovernmental cooperative
agreements with Indian tribes would no longer be concerned with claims
that those agreements are void without congressional approval. Instead, this
article argues that states and localities are obligated to do so in order to
guarantee equal protection to similarly situated citizens on and off
reservation.
I. From Deadly Enemies to Citizens: A Brief Legal History
of American Indian Citizenship
Before Congress extended citizenship to all American Indians by statute
in 1924, and for decades later in some jurisdictions, American Indian
citizenship and accompanying voting rights usually were governed by a
hodgepodge of common law doctrines. States assessed whether potential
14
. E.g., Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443
U.S. 658, 673 at n.20 (1979) (“The Washington Supreme Court held that the treaties would
violate equal protection principles if they provided fishing rights to Indians that were not
also available to non-Indians. The simplest answer to this argument is that this Court has
already held that these treaties confer enforceable special benefits on signatory Indian
tribes . . . and has repeatedly held that the peculiar semi-sovereign and constitutionally
recognized status of Indians justifies special treatment on their behalf when rationally related
to the Government’s ‘unique obligation toward the Indians.’”) (citations omitted).
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No. 2] STATES AND THEIR AMERICAN INDIAN CITIZENS 323
Indian citizens and voters were civilized, loyal, and competent using a
variety of factors. Indians claiming citizenship might have to show they
abandoned tribal relations, or abandoned treaty rights claims, or prove
loyalty to a given state or to the United States. Indians might have to show
they were competent under state law. Indians who were still considered
under the guardianship of the federal government might be barred. Even
after 1924, some states continued to assess whether Indians could vote in
state elections under these rubrics. This practice continued as late as 1962.
A. “Indians Not Taxed” and the Constitution
As this subpart will show, the broad duty of protection to American
Indians and Indian tribes assumed by the federal government initially did
not extend to state governments. The duty of protection arose from the
treaty-based relationship between the federal government and Indian tribes.
In addition, the Constitution reflected the federal government’s plenary and
exclusive authority. And Congress vigorously asserted its Indian affairs
powers derived from the Indian Commerce Clause, the Treaty Power, the
Supremacy Clause, and other constitutional provisions. States, which as
colonies and then under the Articles of Confederation, were left out of the
matrix with the ratification of the Constitution.
It is well established that the Constitution vested the federal government
with plenary and exclusive authority over Indian affairs.
15
The stark failures
of the Articles of Confederation laid the groundwork for federal supremacy
in this area, as Madison detailed in Federalist No. 42.
16
The Indian
Commerce Clause broadly authorized Congress to take the lead on
legislative authority over all aspects of federal, state, and tribal affairs.
17
The Treaty Power, and the Indian treaties that arose from the invocation of
15
. E.g., United States v. Lara, 541 U.S. 193, 200 (2004) (“[T]he Constitution grants
Congress broad general powers to legislate in respect to Indian tribes, powers that we have
consistently described as ‘plenary and exclusive.’”) (quoting Washington v. Confederated
Bands & Tribes of Yakima Nation, 439 U.S. 463, 470-71 (1979); Negonsott v. Samuels, 507
U.S. 99, 103 (1993)).
16
. THE FEDERALIST NO. 42 (James Madison) (“The regulation of commerce with the
Indian tribes is very properly unfettered from two limitations in the articles of
Confederation, which render the provision obscure and contradictory. The power is there
restrained to Indians, not members of any of the States, and is not to violate or infringe the
legislative right of any State within its own limits.”).
17
. Cotton Petroleum v. New Mexico, 490 U.S. 163, 192 (1989) (“[T]he central
function of the Indian Commerce Clause is to provide Congress with plenary power to
legislate in the field of Indian affairs . . . .”) (citations omitted).
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324 AMERICAN INDIAN LAW REVIEW [Vol. 41
this power, further vested powers in the United States, as well as cemented
tribal sovereignty in the new American constitutional system.
18
Other
constitutional provisions—the Supremacy Clause, the Necessary and Proper
Clause, and the Property and Territory Clause—rounded out federal
authority.
19
In the fabled Marshall Trilogy, the Supreme Court confirmed
the federal government’s plenary and exclusive powers.
20
The Court has
repeatedly reaffirmed federal plenary power since those foundational
cases.
21
At times, the Court has even stated that federal power over Indian
affairs is a preconstitutional power that survived the ratification of the
Constitution.
22
The Marshall Trilogy was the Supreme Court’s articulation of the
substance of what is now known as the federal trust relationship. In
Worcester v. Georgia,
23
the Court held that the United States had
undertaken a duty of protection through the treaty making process, and was
enabled to so do by the Constitution.
24
The duty of protection derives from
Indian tribes agreeing to come under the authority of the superior sovereign,
18
. United States v. Lara, 541 U.S. 193, 201 (2004) (“The treaty power does not
literally authorize Congress to act legislatively, for it is an Article II power authorizing the
President, not Congress, ‘to make Treaties.’ . . . But, as Justice Holmes pointed out, treaties
made pursuant to that power can authorize Congress to deal with “matters” with which
otherwise ‘Congress could not deal.’ Missouri v. Holland, 252 U.S. 416, 433 . . . (1920) . . . .
And for much of the Nation’s history, treaties, and legislation made pursuant to those
treaties, governed relations between the Federal Government and the Indian tribes.”).
19
. Nell Jessup Newton, Federal Power Over Indians: Its Sources, Scope, and
Limitations, 132 U. PENN. L. REV. 195, 199 (1984).
20
. Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823); Cherokee Nation v. Georgia,
30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). See generally
Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the
Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 TEX. L. REV. 1, 30-
42 (2002).
21
. CONFERENCE OF W. ATTORNEYS GEN., AMERICAN INDIAN LAW DESKBOOK § 1.4
(May 2016 update) [hereinafter AMERICAN INDIAN LAW DESKBOOK].
22
. United States v. Lara, 541 U.S. 193, 201 (2004) (“Congress’ legislative authority
would rest in part, not upon ‘affirmative grants of the Constitution,’ but upon the
Constitution's adoption of preconstitutional powers necessarily inherent in any Federal
Government, namely, powers that this Court has described as ‘necessary concomitants of
nationality.’”) (quoting United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315-322
(1936)).
23
. 31 U.S. (6 Pet.) 515.
24
. Id. at 556.
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No. 2] STATES AND THEIR AMERICAN INDIAN CITIZENS 325
the United States.
25
As the Worcester Court made clear, the duty of
protection lets alone internal tribal affairs as tribes delegate much of the
external authority to the federal government.
26
Importantly, the federal government pursued a robust form of what
Charles Wilkinson would later term “measured separatism,”
27
which
loosely means keeping Indian tribes apart physically and legally from the
rest of America. This period was a robust form of measured separatism
because Congress, from its first legislative foray, barred Americans from
entering Indian country without federal authorization.
28
Some states, most
notably Georgia, sought to take control of Indian reservation lands and
resources.
29
The federal government largely opposed state interventions in
Indian country in order to secure federal control over Indian lands and
resources, but also to forestall conflicts between Indians and American
citizens.
30
Still, throughout the nineteenth century, state efforts to assert
control over Indian country, ostensibly barred by the Supremacy Clause,
went hand-in-hand with federal efforts to colonize Indian lands and
resources.
31
25
. Id. at 555 (“This relation was that of a nation claiming and receiving the protection
of one more powerful: not that of individuals abandoning their national character, and
submitting as subjects to the laws of a master.”).
26
. Id. at 556-57 (“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 manifest a firm purpose to afford that protection which treaties stipulate. All
these acts, and especially that of 1802, which is still in force, manifestly 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.”).
27
. CHARLES F. WILKINSON, AMERICAN INDIANS, TIME, AND THE LAW: NATIVE
SOCIETIES IN A MODERN CONSTITUTIONAL DEMOCRACY 14 (1987).
28
. An Act to Regulate Trade and Intercourse with the Indian Tribes, ch. 33, § 1, 1 Stat.
137, 137 (1790) (“[N]o person shall be permitted to carry on any trade or intercourse with
the Indian tribes, without a license for that purpose under the hand and seal of the
superintendent of the department, or of such other person as the President of the United
States shall appoint for that purpose . . . .”).
29
. Joseph C. Burke, The Cherokee Cases: A Study in Law, Politics, and Morality, 21
STAN L. REV. 500, 503 (1969).
30
. Letter from George Washington to James Duane (Sept. 7, 1783), excerpted in
DAVID H. GETCHES ET AL., CASES AND MATERIALS IN FEDERAL INDIAN LAW 99-100 (7th ed.
2017).
31
. Deborah A. Rosen, Colonization Through Law: The Judicial Defense of State Indian
Legislation, 1790-1880, 46 AM. J. LEGAL HIST. 26, 54 (2004) (“The [federal government’s]
expectation and the plan that, wherever Indians lived in land coveted by whites, the Indians
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326 AMERICAN INDIAN LAW REVIEW [Vol. 41
What was then clear was that Indians were not Americans. Critical to the
framing was exclusion of Indian people from the constitutional polity
through the “Indians Not Taxed” Clause,
32
which was included in the
apportionment portion of the Constitution. Indians were not “free Persons,”
nor were they slaves; that is, “all other Persons.” Indians born within the
United States were not automatically American citizens, they were
foreigners. In fact, as the first congressional definition of “Indian country”
made clear, most Indian tribes and Indians were located outside American
borders.
33
Their nations were Indian tribes, with which the United States
had a special relationship, a treaty relationship.
34
Presumably, however,
Indians could become American citizens by an act of Congress and,
possibly, transform into what one could call “Indians Taxed.” Chief Justice
Taney’s notorious Dred Scott opinion parsed out this analysis,
contradistinguishing the hated and denigrated Indians from the even more
hated and denigrated black slaves.
35
There, the Supreme Court contrasted
American Indians with African-Americans, concluding that Indians could
theoretically obtain citizenship and voting rights through an act of
Congress,
36
but that African-Americans could not.
37
Of course, Chief
would either move out of the way or assimilate into American culture and society. By
successfully asserting their authority to regulate Indians in a range of between 1790 and
1880, the states furthered that plan. They pressured Indians to leave their lands, and they
increasingly exerted various degrees of rule over the Indians in order to further the
colonization.”).
32
. U.S. CONST. art. I, § 2, ¶ 3 (“Representatives and direct Taxes shall be apportioned
among the several States which may be included within this Union, according to their
respective Numbers, which shall be determined by adding to the whole Number of free
Persons, including those bound to Service for a Term of Years, and excluding Indians not
taxed, three fifths of all other Persons.”).
33
. Act of June 30, 1834, ch. 161, § 1, 4 Stat. 729, 729 (“That all that part of the United
States west of the Mississippi, and not within the states of Missouri and Louisiana or the
territory of Arkansas, and also that part of the United States east of the Mississippi river not
within any state, to which the Indian title has not been extinguished, for the purposes of this
act, be taken and be deemed to be the Indian country.”).
34
. See generally ROBERT A. WILLIAMS, LINKING ARMS TOGETHER: AMERICAN INDIAN
TREATY VISIONS OF LAW AND PEACE, 1600-1800 (1997); FRANCIS PAUL PRUCHA, AMERICAN
INDIAN TREATIES: THE HISTORY OF A POLITICAL ANOMALY (1994).
35
. Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). See generally Frederick E. Hoxie,
What Was Taney Thinking? American Indian Citizenship in the Era of Dred Scott, 82 CHI.-
KENT L. REV. 329 (2007).
36
. Scott, 60 U.S. at 420.
37
. Id. at 417 (“And this power granted to Congress to establish an uniform rule of
naturalization is, by the well understood meaning of the word, confined to persons born in a
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No. 2] STATES AND THEIR AMERICAN INDIAN CITIZENS 327
Justice Taney stated it was not advisable in his opinion to grant American
Indians—who he believed were less than human—citizenship and voting
rights.
38
A few states granted citizenship to certain Indians under state law,
creating a distinction between federal and state citizenship for American
Indians.
39
These states usually required Indian people seeking state
citizenship to prove that they were “civilized,” or had “abandoned” their
tribal relations by declaring loyalty to the state or the United States,
relinquishing their treaty rights, paying state taxes, adopting the habits and
customs of white men, or some combination of all of these factors.
40
For
example, under Minnesota’s Constitution, Indians could become citizens
entitled to vote in state elections if they adopted the “language, customs,
and habits of civilization in order to vote.”
41
Citing Dred Scott, the
foreign country, under a foreign Government. It is not a power to raise to the rank of a
citizen anyone born in the United States who, from birth or parentage, by the laws of the
country, belongs to an inferior and subordinate class.”).
38
. Id. at 420 (“Congress might, as we before said, have authorized the naturalization of
Indians because they were aliens and foreigners. But, in their then untutored and savage
state, no one would have thought of admitting them as citizens in a civilized community.
And, moreover, the atrocities they had but recently committed, when they were the allies of
Great Britain in the Revolutionary war, were yet fresh in the recollection of the people of the
United States, and they were even then guarding themselves against the threatened renewal
of Indian hostilities. No one supposed then that any Indian would ask for, or was capable of
enjoying, the privileges of an American citizen, and the word white was not used with any
particular reference to them.”).
39
. DEBORAH A. ROSEN, AMERICAN INDIANS AND STATE LAW: SOVEREIGNTY, RACE, AND
CITIZENSHIP, 1790-1880 (2007).
40
. E.g., United States v. Elm, 25 F. Cas. 1006, 1007 (N.D. N.Y. 1877) (“If defendant’s
tribe continued to maintain its tribal integrity, and he continued to recognize his tribal
relations, his status as a citizen would not be affected by the fourteenth amendment; but such
is not his case. His tribe has ceased to maintain its tribal integrity, and he has abandoned his
tribal relations, as will hereafter appear . . . .”); Anderson v. Mathews, 163 P. 902, 906 (Cal.
1917) (“Neither the members of the group nor, so far as known, the members of the tribe,
were subject to, or owed allegiance to, any government, except that of the United States and
the state of California, and, prior to 1848, that of Mexico.”); Bd. of Comm’rs of Miami
County v. Godfrey, 60 N.E. 177, 180 (Ind. App. 1901) (“So long as he remained an Indian,
he was under the control of the United States as an Indian. But he voluntarily does what the
law says makes him a citizen. This change of his tribal condition into individual citizenship
was primarily his own voluntary act. He cannot be both an Indian, properly so called, and a
citizen.”).
41
. Willard Hughes Rollings, Citizenship and Suffrage: The Native American Struggle
for Civil Rights in the West, 1830-1965, 5 NEV. L.J. 126, 135 (2004); see also In re Liquor
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328 AMERICAN INDIAN LAW REVIEW [Vol. 41
Minnesota Supreme Court in 1917 noted that Indians “still cling to some of
the customs and habits of their race, and are governed in their relation with
each other by their peculiar tribal rules and practices, subject, in a certain
sense, to the advice and supervision of the federal authorities.”
42
Acting
Indian, living in Indian country, and federal superintendency were factors
that barred citizenship under Minnesota law.
43
These notions would merge
with the federal interpretation of the “Indians Not Taxed” Clause, and
would also permeate Indian law and policy throughout the rest of the
nineteenth century and much of the twentieth century.
B. The Fourteenth Amendment and the “Deadliest Enemies”
After the Civil War, the United States adopted the Fourteenth
Amendment granting citizenship to all persons born within the United
States. But now, many, if not most, Indian tribes and American Indians
were located within the borders of the United States. Once again, however,
the government excluded “Indians not taxed.”
44
In Elk v. Wilkins,
45
the
Court held that American Indians born in Indian country may not acquire
citizenship upon their birth under the Fourteenth Amendment. American
Indians could only acquire citizenship through an act of Congress. The
distinction between federal and state citizenship, supposedly eliminated for
all Americans after the Reconstruction Amendments, remained in place for
American Indians.
In 1870, the Senate Committee on the Judiciary issued a report that
concluded the Fourteenth Amendment did not affect the legal status of
American Indians.
46
In the opinion of the report authors, the status of
American Indians remained unchanged from the founding of the Republic
Election in Beltrami County, 163 N.W. 988, 989 (Minn. 1917) (“2. Persons of mixed white
and Indian blood, who have adopted the customs and habits of civilization. 3. Persons of
Indian blood . . . who have adopted the language, customs and habits of civilization, after an
examination before any district court of the state, in such manner as may be provided by law,
and shall have been pronounced by said court capable of enjoying the rights of citizenship
within the state.’”).
42
. Id. at 989.
43
. Rollings, supra note 41, at 135.
44
. U.S. CONST. amend. XIV § 2 (“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.”).
45
. 112 U.S. 94 (1884).
46
. S. REP. NO. 41-268 (1870).
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No. 2] STATES AND THEIR AMERICAN INDIAN CITIZENS 329
through the Reconstruction period.
47
At that time, it appears the dominant
legal theory was that the United States had no authority to interfere with the
internal relations of Indian tribes. The report concluded that because of the
treaty relationship between tribes and the federal government, “Congress
has never regarded the Indian tribes as subject to the municipal jurisdiction
of the United States.”
48
The report also assumed, in a statement that
incorrectly ignores that treaty rights are vested property interests protected
under the Fifth Amendment, that American citizenship would deprive
Indians of their treaty rights.
49
The report even asserted that if Congress
tried to assert powers over internal tribal governance, those laws would be
declared “unconstitutional and void.”
50
In short, as the Judiciary Committee
concluded, “The Indians were excluded because they were not citizens.”
51
The Supreme Court largely held fast to that theory of limited federal
jurisdiction over the internal affairs of Indian tribes in Ex parte Crow
Dog,
52
holding that then-current federal statutes and treaties did not provide
for federal criminal jurisdiction over Indian-on-Indian crimes in Indian
country.
53
However, the Court did conclude that Congress had authority to
assert jurisdiction over internal tribal affairs, so long as there existed “a
clear expression of the intention of Congress” to do so.
54
Congress
exploited that opening in enacting the Major Crimes Act in 1885.
55
The
Supreme Court confirmed the Major Crimes Act as a valid exercise of the
federal government’s duty of protection in United States v. Kagama.
56
Importantly, while Congress moved toward breaking down the barriers
between the United States and the internal affairs of Indian tribes, the
Supreme Court preserved the wall between Indian tribes and state authority.
The Court described the federal government’s authority as critical to
protecting Indians from their “deadliest enemies,” states and their citizens:
47
. Id. at 1.
48
. Id. at 9.
49
. Id. at 1.
50
. Id. at 9.
51
. Id. at 10.
52
. 109 U.S. 556 (1883).
53
. Id. at 572.
54
. Id.
55
. Act of Mar. 3, 1885, ch. 341, 23 Stat. 385 (codified as amended at 18 U.S.C. §
1153).
56
. 118 U.S. 375 (1886).
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330 AMERICAN INDIAN LAW REVIEW [Vol. 41
“Because of the local ill feeling, the people of the states where they are
found are often their deadliest enemies.”
57
As the power of Congress expanded in the 1880s, trending toward true
plenary power, effective state power declined.
58
It was during this period
that the federal government oversaw or acquiesced to the monumental
raiding of American Indian tribal resources—lands, timber, food sources,
oil, gas, minerals, coal, gold, and so on—by private and occasionally public
interests. American history usually celebrates this history as the closing of
the frontier, but American Indians see this period very differently.
The latter half of the nineteenth and first half of the twentieth centuries,
loosely speaking, were the height of the assimilation movement of
American law and policy.
59
The United States undertook a program of
mandatory education of American Indian students, forcing Indian children
to move to boarding schools operated by federal officials or religious
institutions.
60
These boarding schools commonly acted to undermine tribal
cultures by banning utterances of Indigenous languages and cultural
practices, and harshly punishing even mild infractions. Coupled with the
severe living conditions, which led to an untold number of deaths of Indian
children around the United States,
61
the schools often prevented Indian
children from seeing their families and friends ever again.
62
C. Citizenship
By the turn of the twentieth century, nearly all Indian tribes and
American Indians were located inside the borders of the United States,
57
. Id. at 383-84.
58
. Rosen, supra note 31, at 54 (“After about 1880, the federal government began
taking a more active role in extending direct rule over Indians, no longer leaving that effort
primarily to the states. Post-1880 federal policies aimed at breaking up the tribes absorbing
individual Indians into American society.”).
59
. The next Part details other aspects of assimilation, which involved the breakdown of
the legal separation of Indians and Indian tribes from American citizens and states.
60
. See generally DAVID WALLACE ADAMS, EDUCATION FOR EXTINCTION: AMERICAN
INDIANS AND THE BOARDING SCHOOL EXPERIENCE, 1875-1928 (1995); BRENDA J. CHILD,
BOARDING SCHOOL SEASONS: AMERICAN INDIAN FAMILIES, 1900-1940 (1998).
61
. ADAMS, supra note 60, at 124-35; CHILD, supra note 60, at 55-58.
62
. E.g., Matthew L.M. Fletcher, The Indian Child Welfare Act: Implications for
American Indian and Alaska Native Children, Families, and Communities, in AMERICAN
INDIAN AND ALASKA NATIVE CHILDREN AND MENTAL HEALTH 269, 275-77 (Michelle C.
Sarche et al. eds., 2011) (describing the story of Bob Kewaygoshkum, former chair of the
Grand Traverse Band, who was taken to an Indian boarding school in third grade and never
saw his family again).
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No. 2] STATES AND THEIR AMERICAN INDIAN CITIZENS 331
often on reservations. In scattered pieces of legislation, most notably the
1887 General Allotment Act, Congress did extend citizenship to Indians
that became “civilized” or abandoned tribal relations.
63
By 1924,
approximately half of American Indians had acquired citizenship through
the allotment process or by another statute.
64
After thousands of non-citizen
Indians fought and died in World War I, Congress broadly extended federal
citizenship to all American Indians born in the United States.
65
It would
take several more decades, but eventually all state governments recognized
that American Indians were state citizens, too, eliminating the distinction
between federal and state citizenship.
American Indian citizenship under state law after 1924 was, perhaps,
more complicated than under federal law. For many courts, Indian
citizenship meant the extension of state criminal and regulatory jurisdiction
over Indian off-reservation activities.
66
In People v. Chosa,
67
for example,
decided six years after the citizenship act, the Michigan Supreme Court
held that Indians who had become citizens had necessarily abandoned their
off-reservation treaty rights and could be prosecuted under state law.
68
Forty years later, the Michigan Supreme Court would reverse Chosa to hold
that Indian people retained treaty rights absent congressional abrogation.
69
Other state courts, however, would hold that the United States retained
its “guardianship” over American Indian trust and reservation property.
70
The Supreme Court of Idaho, for example, rejected a Fourteenth
Amendment constitutional challenge to a ban on liquor sales to Indians,
63
. Act of Feb. 8, 1887, ch. 119, § 6, 24 Stat. 388, 390.
64
. Rollings, supra note 41, at 134.
65
. Indian Citizenship Act of 1924, ch. 232, 43 Stat. 253, (codified as amended at 8
U.S.C. § 1401 (2012)). see also GRANTING CITIZENSHIP TO CERTAIN INDIANS, S. REP. NO. 66-
122, at 1 (1919) (noting 10,000 of 33,000 eligible Indians served in the armed forces during
World War I).
66
. E.g., State v. Big Sheep, 243 P. 1067 (Mont. 1926) (criminal jurisdiction); Red
Hawk v. Joines, 278 P. 572 (Or. 1929) (action in replevin).
67
. 233 N.W. 205 (Mich. 1930).
68
. Id. at 207 (“When one becomes a citizen of the United States, he casts off both the
rights and obligations of his former nationality and takes on those which pertain to other
citizens of the country.”).
69
. People v. Jondreau, 185 N.W.2d 375, 380 (Mich. 1971) (“[T]he foundations upon
which Chosa rested have not stood the test of time.”).
70
. E.g., In re Long’s Estate, 249 P.2d 103 (Okla. 1952) (barring probate of Indian trust
property).
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332 AMERICAN INDIAN LAW REVIEW [Vol. 41
holding that Indians were a group of people “genetic[ally]” inclined to be
harmed by liquor.
71
Some states, such as Michigan, authorized Indians to vote even before
the Reconstruction but imposed vague obligations on Indians based on the
“civilized” character of an Indian, whether the Indian was a ward of the
federal government, or whether the Indian had renounced tribal status or
treaty rights. By the early twentieth century, the remaining states that
resisted allowing Indians to vote concluded that reservation Indians were
not residents of the state in which the reservation was located.
72
In 1962,
New Mexico became the last state to recognize voting rights for American
Indians when its supreme court held that Navajo Nation members are
entitled to vote in state elections,
73
rejecting the residence claim. Several
counties in areas of high American Indian population and land ownership
remain covered by the Voting Rights Act and subject to suit.
74
Ultimately, American Indians retained both the rights of American
citizenship and the trust relationship with the United States.
75
The duty of
protection, first guaranteed by treaties and later formalized through federal
acknowledgment of tribal sovereignty, survives into the modern era.
American Indian law and policy is usually considered uniquely federal.
76
71
. State v. Rovick, 277 P.2d 566, 569 (Idaho 1959) (“It is unnecessary to review the
genetics or to indulge in a scientific analysis or discussion of anthropogeny to discover the
reasons for the interdictions. Suffice to say that the historic background of laws prohibiting
sale of intoxicants to Indians is well recognized and must now be considered as firmly
established.”).
72
. E.g., Allen v. Merrell, 305 P.2d 490 (Utah 1956) (rejecting Indian voting rights
claim because he was not a resident of non-reservation lands), vacated, 353 U.S. 932 (1957);
Porter v. Hall, 271 P. 411 (Ariz. 1928) (same). Contra Harrison v. Laveen, 196 P.2d 456
(Ariz. 1948) (holding reservation Indians were residents).
73
. Montoya v. Bolack, 372 P.2d 387 (N.M. 1962).
74
. See generally LAUGHLIN MCDONALD, AMERICAN INDIANS AND THE FIGHT FOR
EQUAL VOTING RIGHTS (2010); Jeanette Wolfley, You Gotta Fight for the Right to Vote:
Enfranchising Native American Voters, 18 U. PA. J. CONST. L. 265 (2015).
75
. Tani, supra note 5, at 3 (“Under the terms of this arrangement, reservation Indians
were entitled to the benefits of state citizenship but remained outside the state's jurisdiction
in other regards, thereby retaining a key marker of sovereignty.”).
76
. See generally Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 YALE
L.J. 1012, 1023-24 (2015) (“Received wisdom in both doctrine and scholarship has long
held that the federal government enjoys exclusive power over Indian affairs, displacing state
authority. Though the argument has a textual hook in the Indian Commerce Clause, this
conventional wisdom – which I will call the nationalist account – ultimately rests on
precedent and practice.”) (footnote omitted).
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No. 2] STATES AND THEIR AMERICAN INDIAN CITIZENS 333
The United States accepted from its inception a duty of protection to
American Indians and Indian tribes, a duty now referred to in law and
politics as the trust relationship.
77
Throughout much of American history,
the federal government jealously guarded its exclusive power to deal with
Indian tribes from states and foreign nations.
78
The Supreme Court, early
on, even held that state law has “no force” in Indian country.
79
About 150 years later, though, the Supreme Court referred to that early
formulation of state and tribal relations derisively as a “platonic notion”
that no longer controlled its analysis.
80
Instead, tribal sovereignty formed a
“backdrop” in determining state powers in Indian country and over
American Indians.
81
The Court bluntly stated, “Indians today are American
citizens. They have the right to vote, to use state courts, and they receive
some state services.”
82
From that moment, if not before, the Court’s
understanding of state powers in relation to Indian country, Indian tribes,
and reservation activities changed, allowing greater state interventions in
Indian law and policy. This shift is often lamented as an unjustified move
77
. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 556 (1832) (“This treaty, thus explicitly
recognizing the national character of the Cherokees, and their right of self government; thus
guarantying their lands; assuming the duty of protection, and of course pledging the faith of
the United States for that protection; has been frequently renewed, and is now in full force.”)
(emphasis added).
78
. See generally FRANCIS PAUL PRUCHA, AMERICAN INDIAN POLICY IN THE FORMATIVE
YEARS: THE INDIAN TRADE AND INTERCOURSE ACTS, 1790-1834 (1962) (detailing the early
decades of federal Indian law and policy).
79
. Worcester, 31 U.S. at 561 (“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 Nation, is, by our
Constitution and laws, vested in the Government of the United States.”) (emphasis added).
80
. McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 172 (1973) (“The modern
cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look
instead to the applicable treaties and statutes which define the limits of state power.”)
(emphasis added).
81
. Id. (“The Indian sovereignty doctrine is relevant, then, not because it provides a
definitive resolution of the issues in this suit, but because it provides a backdrop against
which the applicable treaties and federal statutes must be read. It must always be
remembered that the various Indian tribes were once independent and sovereign nations, and
that their claim to sovereignty long predates that of our own Government.”) (emphasis
added).
82
. Id. at 172-73 (footnotes omitted) (emphasis added).
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334 AMERICAN INDIAN LAW REVIEW [Vol. 41
from foundational principles of federal Indian law.
83
Commentators,
including myself, argue that states should have less authority over Indian
country, reasoning that Indian tribal governance is undercut by states and
their political subdivisions in a variety of ways. These critiques are not
necessarily wrong, but neither is the Supreme Court. What changed from
the “platonic” old days of total separation of American Indians from state
law to the modern era is that by the end of 1924 all American Indians born
in the United States were American citizens.
II. The Broad State Duty to Protect American Indians
and Reservation Residents
American Indians are citizens. States and their subdivisions that invoke
federal Indian law principles, such as jurisdictional limitations as
justification for refusal to provide services or to negotiate with tribes, are in
violation of their duties to their citizens under the Constitution. States and
their subdivisions that invoke the problems of regulatory disruption as
justification for their failures are also in violation of their duties. Comparing
these reticent governments to governments that have reached agreement
with Indian tribes is the proper baseline for determining whether state
actors are treating similarly situated peoples the same.
In the exercise of its trust relationship with Indians and Indian tribes, the
United States has legislated extensively in a wide variety of governance
areas, including without limitation health care, public safely, education, and
Indian child welfare. Federal legislation in the areas of education and Indian
child welfare goes a long way toward expressly authorizing similar state
laws and initiatives toward meeting America’s trust duty to Indian children.
State legislation, such as state Indian child welfare and public education
enactments, are thus fully authorized by the Constitution.
A. The Present-Day Understanding of Tribal-State Relations
In general, Congress has the power to regulate state interactions with
Indian tribes. Numerous federal laws authorize states to engage with tribes.
Among the most prominent of such laws is the Indian Gaming Regulatory
Act, which requires tribes to negotiate with states in order to conduct
casino-style gaming.
84
Additionally, state courts are obligated to grant full
83
. See generally DEWI IOAN BALL, THE EROSION OF TRIBAL POWER: THE SUPREME
COURT’S SILENT REVOLUTION (2016).
84
. 25 U.S.C. § 2710(d) (2012).
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No. 2] STATES AND THEIR AMERICAN INDIAN CITIZENS 335
faith and credit to tribal court personal protection orders.
85
Most broadly,
Congress obligated six states to assume criminal jurisdiction and a limited
form of civil jurisdiction over Indian country within those states’
boundaries.
86
In addition, the Indian Child Welfare Act authorizes states to
enter into cooperative agreements with Indian tribes.
87
The Constitution’s guarantee of equal protection for all persons under the
Fifth and Fourteenth Amendments has an anomalous application in Indian
country. First, the Constitution itself, by its own terms, is inapplicable to
tribal governments.
88
Congress responded in 1968 by enacting the Indian
Civil Rights Act to guarantee equal protection to persons under tribal
jurisdiction.
89
Second, most federal Indian affairs legislation, almost by
definition, includes a specter of racial classifications; Indian tribes are, after
all, made up of Indian people.
90
However, federal legislation enacted
consistent with the federal government’s trust relationship with Indians and
Indian tribes does not implicate the equal protection guarantee.
91
Federal classifications rationally related to the federal trust relationship
with Indians and Indian tribes are valid under the Fifth Amendment’s equal
protection component.
92
For example, the Supreme Court has upheld Indian
preference programs in employment at the Bureau of Indian Affairs under
this theory.
93
The Court has also upheld the principle of exclusive tribal
85
. 18 U.S.C. § 2265(a) (2012).
86
. Act of Aug. 15, 1953 (Public Law 280), Pub. L. No. 83–280, § 2, 67 Stat. 588, 588-
89 (codified in relevant part at 18 U.S.C. § 1162 (2012)); see also 28 U.S.C. § 1360(a)
(2012) (parallel civil provision).
87
. 25 U.S.C. § 1919(a) (2012) (“States and Indian tribes are authorized to enter into
agreements with each other respecting care and custody of Indian children and jurisdiction
over child custody proceedings, including agreements which may provide for orderly
transfer of jurisdiction on a case-by-case basis and agreements which provide for concurrent
jurisdiction between States and Indian tribes.”).
88
. Talton v. Mayes, 163 U.S. 376 (1896).
89
. Current version at 25 U.S.C. §§ 1301-1304 (2012).
90
. Morton v. Mancari, 417 U.S. 535, 552–53 (1974) (“Literally every piece of
legislation dealing with Indian tribes and reservations, and certainly all legislation dealing
with the BIA, single out for special treatment a constituency of tribal Indians living on or
near reservations.”).
91
. Morton, 417 U.S. 535.
92
. RESTATEMENT OF THE LAW OF AMERICAN INDIANS § 9 & cmt. a (AM. LAW. INST.,
Tentative Draft, Apr. 22, 2015).
93
. Morton, 417 U.S. 535.
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336 AMERICAN INDIAN LAW REVIEW [Vol. 41
jurisdiction over the domestic affairs of reservation Indians.
94
The Court
upheld the federalization of Indian country criminal jurisdiction, which
subjects American Indians to different criminal laws than non-Indian co-
defendants committing the same crimes.
95
Federal legislation “singl[ing] out” American Indians to their benefit, or
to their detriment,
96
does not implicate the equal protection component of
the Fifth Amendment in the same manner as legislation otherwise creating
racial, ethnic, or ancestry-based classifications, which is subjected to strict
scrutiny review by the judiciary. Instead, federal Indian affairs legislation is
justified by the federal trust relationship with Indians and tribes. That
relationship originally derived from the over 400 treaties legally and
constitutionally that have been formed. The federal government’s
acknowledgment of Indian tribes as entities capable of entering into treaties
binding the United States separated Indians and tribes out as a unique
political group—analogous in some ways to veterans and diplomats. Even
tribes that do not have a treaty relationship may create a political
relationship with the United States through the administrative
acknowledgment process or through an act of Congress. This political
relationship is one that Indian people negotiated for and often paid for with
their lives and their resources. Federal Indian affairs legislation is based on
that political relationship, not the racial background of Indian people.
The Fourteenth Amendment applies to states in relation to American
Indians just as it does to all other citizens. States may not discriminate
against American Indians except when such discrimination is narrowly
tailored to a compelling state interest.
97
The only wrinkle is that states may
also enact legislation that benefits American Indians where authorized to do
so by federal statute or court order, or where the state legislation is enacted
in accordance with the federal trust relationship with Indians and tribes. It is
settled that state laws that implement the federal government’s obligations
under the trust relationship do not violate the Fourteenth Amendment.
98
For
example, in Washington v. Washington State Commercial Passenger
94
. Fisher v. Dist. Court of Sixteen Judicial Dist. of Mont. in & for Rosebud Cty., 424
U.S. 382 (1976).
95
. United States v. Antelope, 430 U.S. 641 (1977).
96
. Morton, 417 U.S. at 552–53.
97
. See generally Shira Kieval, Note, Discerning Discrimination in State Treatment of
American Indians Going Beyond Reservation Boundaries, 109 COLUM. L. REV. 94 (2009).
98
. RESTATEMENT OF THE LAW OF AMERICAN INDIANS § 9 & cmt. a (AM. LAW. INST.,
Tentative Draft, Apr. 22, 2015).
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No. 2] STATES AND THEIR AMERICAN INDIAN CITIZENS 337
Fishing Vessel Ass’n,
99
the Supreme Court held that the State’s regulations
implementing its obligations under various American Indian treaties did not
violate the Fourteenth Amendment.
100
States are obligated to guarantee equal protection to all persons within
their jurisdiction, and that guarantee extends to persons in Indian country
who are, after all, citizens. First, though states do not have a direct trust
relationship with Indians and Indian tribes like the federal government,
states routinely legislate or take action consistent with the federal
government’s trust obligations. In those instances, state action does not
violate the Fourteenth Amendment. Second, states may discriminate against
Indians or tribes by, for example, privileging one Indian tribe or another.
States also may not take action that discriminates against Indians because of
their racial or ancestral status.
B. Ending the Refusal to Guarantee Services – Intergovernmental
Agreements
States have an affirmative obligation to ensure that reservation residents
receive the protection of the law equal to off-reservation residents.
Naturally, this will be a controversial claim. Indian tribes are jealous of
their governance authority in Indian country, and only in careful, measured
steps invite outside sovereigns into their homelands. States and local
governments are too eager to stay out of Indian country, the government of
which has traditionally been an unfunded and fraught with the potential for
federal preemption. Still, state authority has penetrated Indian country in
several dramatic ways. For example, nonmember activities are fully taxable
by state and local governments, absent federal preemption-a rare
occurrence.
101
Public Law 280-type states already have significant civil and
criminal jurisdiction over on-reservation activities. More importantly,
American Indians and other reservation residents are American citizens,
entitled to the equal protection of the laws. States, and even some tribes,
may argue that the jurisdictional boundaries and tribal sovereignty excuse
states from their equal protection obligations, but that excuse is unfounded.
American Indians, even those who reside exclusively in Indian country,
are American citizens.
102
Reservation Indians, as the Supreme Court once
99
. 443 U.S. 658 (1979).
100
. Id. at 673 n.20.
101
. E.g., Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95 (2005); Cotton
Petroleum Corp. v. New Mexico, 490 U.S. 163 (1999).
102
. McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 172-73 (1973).
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338 AMERICAN INDIAN LAW REVIEW [Vol. 41
routinely called them,
103
have numerous obligations to state governments.
They pay state income taxes for off-reservation income.
104
They pay state
sales and use taxes for off-reservation purchases. They comply with motor
vehicle registration requirements. They vote in state and local elections.
They serve on state court juries. Nonmember reservation residents and
entities also have duties to states. States may tax the on-reservation business
activities of all nonmembers.
105
States may regulate on-reservation
activities of nonmembers, so long as the state regulation is not preempted
by federal law.
106
Congress also has authorized much state action in Indian country. The
most obvious and broad authorization is Public Law 280 and similar
statutes.
107
These statutes authorize states to assert criminal jurisdiction
over Indian country, foreclosing federal criminal jurisdiction. These statutes
also authorize state courts to assert jurisdiction over civil disputes that arise
in Indian country. Because of historical land purchases and allotment by the
federal government, much original reservation land is now owned or
controlled by states, counties, or nonmember individuals and entities.
108
States have significant civil jurisdiction over those nonmember-owned
lands (criminal jurisdiction is still governed by the “Indian country”
analysis).
109
Application of state law in Indian country is often haphazard. At times,
the assertion of state power is onerous and even abusive. For example,
103
. E.g., Williams v. Lee, 358 U.S. 217, 220 (1959) (“Essentially, absent governing
Acts of Congress, the question has always been whether the state action infringed on the
right of reservation Indians to make their own laws and be ruled by them.”); see also Dep’t
of Taxation & Fin. of N.Y. v. Milhelm Attea & Bros., Inc., 512 U.S. 61, 64 (1994) (“On-
reservation cigarette sales to persons other than reservation Indians, however, are
legitimately subject to state taxation.”); Halbert v. United States, 283 U.S. 753, 761 (1931)
(“These Indians are not the usual reservation Indians.”).
104
. E.g., Fond du Lac Band of Lac Superior Band of Chippewa Indians v. Frans, 649
F.3d 849 (8th Cir. 2011).
105
. Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989).
106
. E.g., Montana v. United States, 450 U.S. 544 (1981) (authorizing state to regulate
on-reservation hunting and fishing); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324
(1983) (holding state regulation of on-reservation hunting and fishing on Indian lands was
preempted).
107
. Pub. L. No. 83–280 (Public Law 280), Aug. 15, 1953, 67 Stat. 588 (codified in
relevant part as amended at 18 U.S.C. § 1162 (2012) and 28 U.S.C. § 1360 (2012)); see also
MATTHEW L.M. FLETCHER, FEDERAL INDIAN LAW § 7.5 (2016).
108
. See generally Judith Royster, The Legacy of Allotment, 27 ARIZ. ST. L.J. 1 (1995).
109
. E.g., Montana v. United States, 450 U.S. 544 (1981).
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No. 2] STATES AND THEIR AMERICAN INDIAN CITIZENS 339
especially before the enactment of the Indian Child Welfare Act in 1978,
state agencies routinely entered Indian country to remove Indian children
from their reservation homes.
110
During the allotment era, states and local
governments vigorously asserted the power to tax Indian allotments, forcing
Indians all too frequently to forfeit their lands to tax foreclosures, even
where the state taxes were unlawful.
111
At other times, states and local
governments do not enforce criminal laws, even where authorized to do so,
in Indian country.
112
It is well established that many areas in Indian country
are dramatically underserved. Larger Indian reservations suffer from a
severe lack of law enforcement officers to patrol their vast territories. Many
reservations have limited access to clean water, electricity, and other basic
necessities of modern life.
Many of the Indian country governance problems ravaging reservation
residents could be solved quickly by acknowledging that states have an
obligation under the Fourteenth Amendment to ensure that all American
citizens, even those in Indian country, are entitled to the equal protection of
the laws. It should be well established that states and localities may not
simply deny services to reservation Indians because they have a more
difficult time collecting taxes from those citizens.
113
That same principle should apply to intergovernmental relations. For
example, the Sheriff of Manistee’s refusal to negotiate in good faith a
public safety agreement with the Little River Band of Ottawa Indians could
be an equal protection violation. Assuming the tribe also negotiated in good
faith, the Sheriff’s refusal could mean that reservation residents, Indian and
non-Indian, may be exposed to injury where no one responds to an
emergency call. The violation comes in where reservation residents face
greater exposure to injury resulting for poor emergency response than
110
. See generally FLETCHER, supra note 107, § 8.8.
111
. See generally id. § 3.6.
112
. United States v. Bryant, 136 S. Ct. 1954, 1960 (2016) (“Even when capable of
exercising jurisdiction, however, States have not devoted their limited criminal justice
resources to crimes committed in Indian country.”).
113
. E.g., Thompson v. State of New York, 487 F. Supp. 212, 227 (N.D. N.Y. 1979)
(“Generally, a policy decision affects the governmental operations of the municipality.
Plaintiffs allege that they were denied police and fire protection because they are Indians,
relatives of Indians or residents of the Oneida Indian Reservation. If true, this represents a
deliberate policy intended to deny plaintiffs the services of the city and county because of
plaintiffs' race or relationship to a race. Consequently, the Court believes that plaintiffs are
entitled to present evidence to support their claim under Section 1983 against defendants
County of Madison, and City of Oneida.”).
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340 AMERICAN INDIAN LAW REVIEW [Vol. 41
similarly situated persons near the reservation. In the case of Manistee
County, Michigan, where there is a past history of campaigning against
cooperation with the local tribe in several sheriff’s races, the obligation to
negotiate in good faith may be violated by this kind of animus toward
Indian people.
114
In recent years, these high stakes lawsuits, occasionally initiated by
tribes themselves, have reached comprehensive settlements. The Saginaw
Chippewa Indian Tribe reached settlement with the State of Michigan and
several local governments over a wide variety of issues ranging from
criminal jurisdiction, taxation, environmental regulation, concluding an
extremely high stakes lawsuit that could have eradicated portions of the
tribe’s treaty rights.
115
In short, these agreements are really quite viable. The
only bar to agreements is state and local politics, and politics is no reason to
deny and bar government services to reservation residents.
C. Normalizing State Laws Implementing the Duty to Protect Indian
Children – State Indian Child Welfare and Public Education Legislation
State laws consistent with the federal duty to protect Indians and Indian
tribes are constitutionally valid. Perhaps the most historically deep and
critical trust obligation the United States recognizes is Indian child
welfare.
116
The long history of using Indian children as hostages in Indian
wars, imposing forced education in boarding schools, and taking Indian
children from their homes to be adopted into non-Indian families compelled
the United States to enact the Indian Child Welfare Act in 1978.
117
The Indian Child Welfare Act is a federal mandate to state courts and
agencies, partners in more than a century of interventions in Indian
families. State courts must transfer Indian child welfare matters to tribal
courts if the Indian child is domiciled in Indian country, and must transfer
114
. In the recent race for sheriff of Manistee County, for example, the Democratic party
candidate promised to meet with the tribe, while the Republican party candidate made no
such promise. Allison Scarbrough, Undersheriff vs. Lieutenant in Sheriff Race, MANISTEE
COUNTY PRESS (Nov. 6, 2016), http://www.manisteecountypress.com/2016/11/06/under
sheriff-vs-lieutenant-in-sheriff-race. This alone might not constitute animus, but may be
evidence of animus.
115
. Matthew L.M. Fletcher, Tribal Disruption and Federalism, 76 MONT. L. REV. 97,
103-08 (2015).
116
. See generally Matthew L.M. Fletcher & Wenona T. Singel, Indian Children and the
Federal-Tribal Trust Relationship, 94 NEB. L. REV. 885 (2017).
117
. Indian Child Welfare Act of 1978, Pub. L. No. 95–608, § 2, 92 Stat. 3069, 3069
(codified at 25 U.S.C. §§ 1901-1963 (2012)).
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No. 2] STATES AND THEIR AMERICAN INDIAN CITIZENS 341
all cases to tribal courts absent good cause to the contrary.
118
The Act also
requires state courts to guarantee due process to Indian parents, including
the right to counsel.
119
There are requirements for the burden of proof,
placement preferences, active efforts, and other protections
120
that have led
the leading child welfare organizations to label the Act the “gold standard”
in child welfare protection.
121
Eight states—five of which voted for Republicans in the last national
election—have adopted legislation to implement the Indian Child Welfare
Act.
122
These statutes codify the Act as state law, filling in gaps in the
federal legislation and providing clear guidance to state judges where the
Act is ambiguous. These statutes occasionally provide even greater
protections to families and children than offered under their federal
counterpart.
States enacting these laws are authorized to do so under the Fourteenth
Amendment. Historically, every state government participated in the
removal of Indian children from their families and homes in and near Indian
country. Congress attempted to turn over its trust obligation to educate
Indian children to the states through the Johnson-O’Malley Act.
123
The
Executive branch introduced urban relocation and the Indian Adoption
Project, which moved Indian people en masse out of Indian country to non-
Indian communities where they were strangers.
124
During this period,
Indian people living in their homelands had their lives disrupted as the
states assumed jurisdiction over Indian people who were strangers to their
new communities. State officials imposed their own education and child
welfare public policies on Indian people, often bringing about tragic and
highly discriminatory consequences.
125
118
. 25 U.S.C. § 1911.
119
. Id. § 1913.
120
. Id. §§ 1913, 1915.
121
. AMERICAN INDIAN LAW DESKBOOK, supra note 21, § 13:1; Brief of Casey Family
Programs at 2, Adoptive Couple v. Baby Girl, 133 S. Ct. 1552 (2014) (No. 12-399), 2013
WL 1279468.
122
. Kathryn E. Fort, ICWA Appellate Project, TURTLE TALK, https://turtletalk.
wordpress.com/icwa/ (last visited Sept. 24, 2017).
123
. Act of Apr. 16, 1934 (Johnson-O’Malley Act), Pub. L. No. 73-167, 48 Stat. 596.
124
. MARGARET D. JACOBS, A GENERATION REMOVED: THE FOSTERING & ADOPTION OF
INDIGENOUS CHILDREN IN THE POSTWAR WORLD 6-7, 15-16 (2014).
125
. Marian Bussey & Nancy M. Lucero, Re-examining Child Welfare’s Response to
ICWA: Collaborating with Community-Based Agencies to Reduce Disparities for American
Indian/Alaska Native Children, 35 CHILD. & YOUTH SERVS. REV. 394, 396 (2013) (“Long-
Published by University of Oklahoma College of Law Digital Commons, 2017
342 AMERICAN INDIAN LAW REVIEW [Vol. 41
Ensuring that history is not repeated cannot be considered the creation of
“special rights.” If anything, state statutes implementing the Indian Child
Welfare Act are long overdue in dealing with the aftermath of decades of
state interventions into Indian homes and families, let alone those
interventions that continue to this day, often with tragic results.
126
Conclusion
State governments and their non-Indian constituents, once considered the
“deadliest enemies” of Indians and Indian tribes, are now critically
important players in federal Indian law and policy. Most states, however,
have yet to catch up to their obligations to their American Indian citizens. It
is well established that cooperation between Indian tribes and state and
local governments benefits reservation governance, specifically Indian
children.
127
By definition, negotiation and cooperation eliminate the
inefficiency of jurisdictional conflict. The jurisdictional bars to providing
government services to Indian people have no place in modern governance.
Recent Republican administrations tend to undervalue tribal interests. As
of this writing, little is known of the current administration given the
continuous scandal-ridden confusion. However, for Indian country, it is
apparent that the primary national policy is extraction of natural
resources,
128
voter suppression,
129
and perhaps even the undoing of the
Indian Reorganization Act.
130
Issues that tribal interests bring to the current
used approaches in child welfare stressing individualism, independence, confidentiality, and
authority through formal education often are in direct conflict with traditional Native
values.”).
126
. E.g., Oglala Sioux Tribe v. Van Hunnik, 100 F. Supp. 3d 749 (D.S.D. 2015)
(detailing denials of Indian parents’ due process by state officials and state judges).
127
. ATTORNEY GENERAL’S ADVISORY COMM. ON AM. INDIAN/ALASKA NATIVE CHILDREN
EXPOSED TO VIOLENCE, ENDING VIOLENCE SO CHILDREN CAN THRIVE 63-64 (2014),
https://www.justice.gov/sites/default/files/defendingchildhood/pages/attachments/2015/03/2
3/ending_violence_so_children_can_thrive.pdf.
128
. See generally Matthew Fletcher, New Divisions in Indian Country Over Energy
Justice, LAW360.COM (May 2, 2017), https://www.law360.com/nativeamerican/articles/
918997/new-divisions-in-indian-country-over-energy-justice.
129
. Matthew L.M. Fletcher, Political Lies and the Future of Voting Rights, TURTLE
TALK (Jan. 27, 2017), https://turtletalk.wordpress.com/2017/01/27/political-lies-and-the-
future-of-voting-rights/.
130
. Hearing Memorandum from Majority Staff to All Subcommittee on Oversight and
Investigations Members, Concerning the Oversight Hearing Entitled “Examining Impacts of
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No. 2] STATES AND THEIR AMERICAN INDIAN CITIZENS 343
administration are unlikely to move forward unless they are about resources
extraction and voter suppression.
It is time for tribal advocates to continue to develop tribal-state relations.
In some states, like Michigan, there are numerous pathways to addressing
jurisdictional issues over government services, for example. In other states,
not so much. This article is designed to provide for tribal advocates a
theoretical framework for developing tribal-state agreements, and even
perhaps to force recalcitrant states and local governments to bargain.
Miigwetch.
Federal Natural Resources Laws Gone Astray” (May 22, 2017), https://naturalresources.
house.gov/uploadedfiles/hearing_memo_--_ov_hrg_on_05.24.17.pdf.
Published by University of Oklahoma College of Law Digital Commons, 2017
