Indians As Other: Sovereignty Issues and the Law

It is a pity that so many Americans today think of the Indian as a romantic or comic figure in American history without contemporary significance. In fact, the Indian plays much the same role in our American society that the Jews played in Germany. Like the miner’s canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere: and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith (Felix Cohen 1953: 390).

The story of Indian sovereignty, property rights, the ‘removal’ of Indians from the U.S., and the establishment of the reservations provides insight into the development of rules that ‘we’ use to constrain behavior and the masking rationalizations that justify the injustices of the status quo. Such insight helps us to understand the tension between what is so and what should be.

The first thoughts of the American Indians regarding their contact with the Europeans recorded by the Europeans were set down less that 20 years after Columbus’ arrival. Hatuay, a leader of a group of Indians on Spanish-named island of Hispañola asserted of the Spanish:

I will go no place where I may meet with one of that accursed race (Rosenstiel, 1984: 14).

Initially, Indians were treated as subject peoples by the Europeans. Columbus’ diary entry on the Arawak, the first people he encountered in the western hemisphere, is informative:

They invite you to share anything they possess, and show as much love as if their hearts went with it … How easy it would be to convert these people—and to make them work for us (Columbus 1492 cited in Morrison, 1974: 66-67).

Insofar as Columbus’ sentiments embodied the European world view, it was prophetic that they involved intolerance for another culture’s religion, and that the Arawak’s world­view of community of affection was to be replaced by one based on enslavement and work.

American Indians were regarded as independent nations by the British. Indian sovereignty was acknowledged in the Proclamation of 1763 in which King George III stripped individual colonies of all treaty making powers with the tribes, established boundaries to separate Indian land from that of non-Indian and appointed commissioners to control relations between the colonies and the Indians. Colonial officials were ordered to prohibit “white” incursions into the newly created “Indian country.” This began the debate concerning centralized versus local government control over Indian relations which has continued to the present day (Burton 1984: 22).

Under the Articles of Confederation, the United States Congress continued the policy of George III. Article IX of the Articles of Confederation acknowledges the sovereignty of Indian tribes and claims Congress has exclusive authority to coordinate U.S.—Indian re­lations. After 1778 several treaties with Indians defined Indian lands as inviolable—to be acquired by the United States only by purchase and not by right of conquest. The law proved insufficient to hold back settlers. Returning from a tour of the western territories in 1784, George Washington observed

In defiance of the proclamations of Congress they [white settlers] roam over the coun­try on the Indian side of the Ohio, mark out Lands, Survey, and even settle them. This gives great discontent to the Indians, and will unless measures are taken in time to prevent it, inevitably produce a war with the western tribes (Washburn 1971: 52).

Friction accompanying illegal settlement by European-Americans northwest of the Ohio incited the Indians to attack settlers in the late 1780’s and brought about a punitive expedition into Indian lands west of the Ohio. In 1791 the Shawnees fought General St. Clair, killing 600 soldiers. The federal government regained control in 1794 with General ("Mad") Anthony Wayne’s victory at Fallen Timbers.

Under the Articles of Confederation the central government was too weak to stop settler’s movement into Indian country. The U.S. constitution tried to improve upon the sit­uation. It incorporated the previous Indian policy in three ways:

1) Article VI, cl. 2.—existing and future treaties with the Indians and with foreign nations were given the status of supreme law of the land, preempting state law wherever conflicts arose,

2) Article II, section 2, cl. 2.—the President was directed to negotiate such treaties in the future, subject to the ratification by the Senate, and

3) Article I, section 8, cl. 2.—Congress was assigned responsibility for the general regulation of “commerce with foreign nations, and among the several states, and with Indian tribes.”

However in 1802, Georgia refused to ratify the Constitution or cede its western territories until the federal government removed all Indians from the state. This amounted to over 60,000 Cherokees, Chickasaws, Choctaws, and Creeks. By agreement in the Georgia Cession (Georgia Cession April 26, 1802, in American State Papers, Public Lands 125, 1832), the U.S. would,

“at their own expense extinguish for the use of Georgia as early as can be peaceably obtained on reasonable terms title to all Indian lands within state boundaries.” However, the Indians were not in a mood to sell out and move west and the federal government was unwilling to force them (Burton 1984: 27).

In 1812, Tecumseh’s “Prophet’s Town” in Ohio was destroyed by settlers precipitating a conflict between a pan-Indian coalition and the United States. Tecumseh had allied with the British in the War of 1812. Though most tribes had not participated in the conflict, all were regarded as traitorous after the War. European-American settlers demanded that the Indians be removed to west of the Mississippi. By 1820, almost 200 million acres of Indian held land were taken by settlers at treaty negotiated prices from one cent to one dollar per acre (Gates 1960: 52-53).

In Johnson v. William McIntosh(21 U.S. [8 Wheat] 543, 5 L. Ed. 681 1823) the Supreme Court ruled that while the rights of the Indians to their lands were good against all third parties, those rights were maintained only at the behest of the federal government, which held ultimate title and “exclusive power to extinguish the Indian right.” Tribes retained a “right of occupancy.”

Never comfortable with federal domination, starting in 1827 the Georgia legislature passed the first of a series of acts annulling all tribal laws and extending state jurisdiction over all Indian-occupied lands within their boundaries (Getches et al. 1979: 158). Several states continued lobbying and, in 1830, the Indian Removal Act was passed. It mandated negotiation with all remaining Eastern tribes for the cession of their lands in return for holdings in Indian Country west of the Mississippi River (Prucha 1962: 238-44). The ‘Southern civilized tribes’ remained neutral during the war and would not relinquish their lands. Their failure to move out of the U.S. presented Southern political leaders with,

a practical and moral dilemma. For if they [White Southern statesmen] were avaricious, they were also ‘honorable men.’ They recognized … that the Indians had some claim on the land they occupied. … Yet the lands must be obtained. It is not easy to reconcile avarice with honor or force with voluntarism, but the Jacksonians tried it. Jackson established Indian removal as official federal policy mandating negotiations with all remaining eastern tribes for the cession of their lands in return for holdings in “Indian Country” west of the Mississippi River (M. Young 1961: 5)

In 1831, the Cherokees sought, in Cherokee Nation V. Georgia (30 U.S. (5 Pet.) 1, 8 L. Ed. 25 1831), to enjoin the Georgia state legislation in an original action before the Supreme Court, maintaining that the tribe was a sovereign nation and therefore, under article III, section 2 of the Constitution, was not subject to state regulation. Justice Marshall rejected this argument, holding that the Indian tribes were “domestic dependent Nations”, and that their relationship to the United States “resembles that of a ward to his guardian.”

As in McIntosh, the Marshall court unequivocally subjugated Indian rights to the federal will. Burke (1969: 519) suggests the Court did so in part to avoid having to assert jurisdiction over the case. Georgia had refused to acknowledge federal authority to hear the dispute by neither filing a written response to the suit nor appearing for oral arguments before the court. Since the Indians were not foreign nations, there was no Article III jurisdiction. However a year later, Justice Marshall found the Court did have jurisdiction under the same article in Worcester v. Georgia (31 U.S. 515 8 L. Ed. 483 1832) defining Indian Reservations as federal protectorates.

Georgia had passed a statute requiring all “white persons” living on Indian lands to obtain state permission to do so. Two missionaries violated the law and were imprisoned by the state and appealed their convictions on the grounds that Georgia had no jurisdiction over Indian lands (Burke 1969: 519-24). Marshall held that “the Cherokee nation was a federal protectorate in which the laws of Georgia could have no force, and which the citizens of Georgia have no right to enter” without Cherokee assent or an act of Congress. The decision declared that the Indians,

[are] a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institution of their own, and governing themselves by their own laws. … a distinct community occupying its own territory, with boundaries accurately described, in which the laws of [the state] can have no force ... The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States (Marshall in Worcester v. Georgia 561).

The U.S. Constitution called the tribes sovereign and independent nations, but changes in European-American perspectives and the political and military realities of the early 1800s substantially changed the government's position toward the Indians. However, having diminished the status of the tribes, the federal courts came to protect Indian interests against incursions from the states and the federal legislative and executive bodies.

The land grab by settlers was relentless. Southeastern tribes were removed to Indian Country and placed on reservations of federal land. These were created in large contiguous areas where few European-Americans were settled. After the Mexican War, the U.S. seized territory in the far West. In the newly acquired territories many Southwestern tribes were living on ‘islands’ of reserved lands surrounded by Mexican settlements. This concentrated land use pattern made more land and water available for development. After the war, the federal government rapidly negotiated treaties with the Indians whereby the tribes relinquished dominion over most of their land in return for much smaller ‘reserved’ areas, where Indian rule would be exclusive and which the U.S. promised to keep free of European-American incursion. From 1853 to 1856, the U.S. negotiated fifty-two of these treaties. In this manner, the government obtained approximately 174 million acres from the western tribes (Tyler 1973: 74).

For example, one such treaty was negotiated in Montana territory. The Fort Belknap Indians and other tribes entered into a treaty between the Blackfoot Tribes and the United States in 1855 which was modified in 1888 (Treaty with the Blackfoot Indians, 11 Stat. 657 (1855) (ratified April 15, 1856, proclaimed April 25, 1856) and an Act of May 1, 1888 Ch. 213, 25 Stat. 113, 114). The tribes included in the Blackfoot Nation consisted of the Piegan, Blood, Blackfoot and Gros Ventre tribes east of the Rockies. The Indians were ceding to the U.S. government a large area of land while retaining a more restricted area which constituted the Fort Belknap Reservation. This treaty was important because it was on the basis of its language that the influential Winters doctrine of Indian water rights was predicated in 1908.

Another such treaty was that which was signed by the Ute Indians of Colorado. The Utes were traditional enemies of the tribes of the Colorado Plains. They had been allied with the U.S. in its wars against the Plains tribes (Emmitt 1954: 22). As a result, the Utes were not murdered as were the Cheyenne at Sand Creek in 1864 or removed to Indian Territory with the remaining Cheyenne and Arapahoe in 1867. A treaty between the U.S. and the Utes was signed in 1863 and it gave much of the Colorado territory west of the Continental divide to the Utes. Settlement pressure and a strong desire for access to the gold in the mountains prompted a new treaty to be negotiated in 1868 which consolidated several Ute bands and precisely defined the boundaries of the reservation, reducing it somewhat, but still including almost one-third of the territory. In exchange for giving part of their land and moving to the reservation, the Utes were promised that their land would remain inviolate:

[the reservation is] set apart for the absolute and undisturbed use and occupation of the Indians herein named, and for such other friendly tribes or individual Indians as from time to time they may be willing, with the consent of the United States, to admit among them; and the United States now solemnly agrees that no persons, except those herein authorized so to do, and except such officers, agents and employees of the government as may be authorized to enter upon Indian reservations in discharge of duties by law shall ever be permitted to pass over, settle upon, or reside in the terri­tory described in this article, except as herein otherwise provided (Treaty with the Ute Indians March 2, 1868 Article II, page 619-20).

The language of the act implies a belief that the reservations should be used as a tool to change Indian culture to that of the European-Americans through agriculture:

In order to insure the civilization of the bands entering into this treaty, the necessity of education is admitted, especially by each of them as are or may be engaged in either pastoral, agricultural, or other peaceful pursuits of civilized life on said reserva­tion, and they therefore pledge themselves to induce their children, male and female, between the age[s] of seven and eighteen years, to attend school; and it is thereby made the duty of the agent for said Indians to see that this stipulation is complied with to the greatest possible extent; and the United States agrees that for every thirty children between said ages who can be induced to attend school a house shall be provided, and a teacher competent to teach the elementary branches of an English education shall be furnished, who will reside among said Indians, and faithfully discharge his or her duties as a teacher,— the provisions of this article to continue for not less than twenty years (Article VIII, page 621).

Furthermore, individual land ownership, in the Jeffersonian yeoman tradition was encouraged:

If any individual belonging to said tribe of Indians or legally incorporated with them, being the head of a family, shall desire to commence farming, he shall have the privilege to select, in the presence and with the assistance of the agent then in charge, by metes and bounds, a tract of land within said reservation not exceeding one hundred and sixty acres in extent, which tract, when so selected, certified, and recorded in the land book as herein directed, shall cease to be held in common, but the same may be occupied and held in exclusive possession of the person selecting it and his family so long as he or they may continue to cultivate it (Article VII, page 620).

However the U.S. government was careful to be explicit about its authority:

The President may at any time order a survey of the reservation; and when so sur­veyed Congress shall provide for protecting the rights of such Indian settlers in their improvements, and may fix the character of the title held by each.

The United States may pass such laws on the subject of alienation and descent of property, and on all subjects connected with the government of the Indians on said reservation and the internal police thereof as may be thought proper (Treaty with the Ute Indians March 2, 1868 page 621).

Removal to the reservation and the separation implicit in the creation of the reservation homelands often embodied explicitly racist premises. In 1870, the Colorado Territorial governor said,

God gave us the earth, and the fullness thereof… I do not believe in donating to these indolent savages the best portion of my territory, and I do not believe in placing the Indians on an equality with the white man as landholder (quoted in Hagwood 1967: 281).

A viewpoint that conforms, in part, to government policy and may have been typical for the late 1860s, a time when many Western tribes were treating with the U.S. government and moving to reservations, was expressed by Samuel Bowles, Eastern newspaper editor and advisor to Schuyler Colfax, future Vice-President under Ulysses S. Grant:

…we should stop making treaties with tribes, cease putting them on a par with ourselves. We know they are not our equals; we know that our right to the soil, as a race capable of its superior improvement, is above theirs; and let us act openly and directly on our faith. The earth is the Lord’s; it is given by Him to the Saints for its improve­ment and development; and we are the Saints. This old puritan premise and conclu­sion are the faith and practice of our people; let us hesitate no longer to avow it and act it to the Indian. Let us say to him, you are our ward, our child, the victim of our destiny, ours to displace, ours also to protect. We want your hunting-grounds to dig gold from, to raise grain on, and you must ‘move on.’ Here is a home for you, more limited than you had; hither you must go, here you must stay; in place of your game, we will give you horses, cattle and sheep and grain; do what you can to multiply them and support yourselves; for the rest, it is our business to keep you from starving. You must not leave this home we have assigned you; the white man must not come hither; we will keep you in and him out; when the march of our empire demands this reservation of yours, we will assign you another; but so long as we choose, this is your home, your prison, your playground …

This is the best and all we can do. His game flies before the white man; we cannot re­store it to him if we would; we would not if we could; it is his destiny to die; we cannot continue to him his original, pure barbaric life; he cannot mount to that of civilization; the mongrel marriage of the two that he embraces and must submit to is killing him,—and all we can do is to smooth and make decent the pathway to his grave (Bowles 1868: 123-27).

Historian Frederick Hoxie argues that in the latter nineteenth century the move to separate or annihilate the Indians was replaced by a move to assimilate them. Committees of prominent U.S. citizens started to call for “civilization, Christianization and enfranchisement” of the tribes.

The goal … was not a blending of Indian and white societies but Anglo conformity: ... the alteration of native culture to fit a “civilized” model. Reformers insisted that Indians should follow the “white man’s road” (Hoxie 1984: 33).

Massachusetts Senator Henry Dawes, chairman of the Senate Indian Affairs Committee, was an outspoken advocate of assimilation.  After his retirement he wrote:

It is true that we have not yet assimilated the Indians, but it is also true that we have already absorbed the Indian. The State can only bring the Indian into the environment of civilization, and he is ‘absorbed’ wherever and whenever that occurs. The rest is the work of time and contact, of individual effort and social force, or education and religion. The Bohemians in Chicago, the Polish Jews in New York, are absorbed into our civilization, though they speak no English or live in squalor. Assimilation is another and a better thing, but it is the step that follows absorption (Dawes 1895).

Scientific legitimacy was added to the reformer’s position by neo-Aristotelian notions of natural tendency advocated by influential American anthropologists of the social evolution school such as Edward Tylor and John Wesley Powell. According to their theories the differences between people were not considered to be a matter of race:

Look at the modern European peasant using his hatchet and his hoe, see his food boiling or roasting over the log fire, observe the exact place which beer holds in his calculation of happiness, hear his tale of the ghost in the nearest haunted house, and of the farmer’s niece who was bewitched with knots in her inside till she fell into fits and died. If we choose out in this way things which have altered little in a long course of centuries, we may draw a picture where there shall be scarce a hand’s breadth difference between an English ploughman and a negro of Central Africa… it appears both possible and desirable to eliminate consideration of hereditary varieties or races of man, and to treat mankind as homogeneous in nature, though placed in different grades of civilization. The details of the enquiry will, I think, prove that stages of culture may be compared without taking into account how far tribes who use the same implement, follow the same custom, or believe the same myth, may differ in their bodily configuration and the colour of their skin and hair (Tylor 1873: 7).

Though flexible with regard to heredity, this theory assumed a rigid hierarchy in the grades of civilization. In some manifestations it did have racial foundations as in the work of Herbert Spencer, John Lubbock and Lewis Henry Morgan whose theories had a strong impact on European and American audiences, notably Karl Marx and Friedrich Engels. Morgan believed that there was a direct relation between brain size and level of civilization and that people had to evolve physically as well as socially to move from one grade to another (Morgan 1876: 256-308). Observing the Iroquois society in New York where he grew up, Morgan asserted,

that savagery preceded barbarism in all the tribes of mankind, as barbarism is known to have preceded civilization. The history of the human race is one in source, one in experience, one in progress (Morgan 1877: 5-7).

This uniformitarian view held that, by virtue of their common humanity, all people were on a single progressive path—a uni-dimensional continuum of technological and social development from animalism to European-Americanism. People, as they discovered the facts of a Comptean positive science, had a natural tendency to rise to civilization. It admitted of no pluralism of values, no syncretism of cultures, no eclecticism of life-worlds. ‘Primitive’ cultures were merely backward grades of advanced culture. All individuals from these cultures lacked was a proper education, private property and Christian religion in order to dispel myth and confusion and progress to the higher state. Furthermore, such progress could be rapid:

Human progress, from first to last, has been in a ratio not rigorously but essentially geometrical. This is plain on the face of the facts; and it could not, theoretically, have occurred in any other way. Every item of absolute knowledge gained became a factor in further acquisitions, until the present complexity of knowledge was attained (Morgan 1877: 39).

Biological evolution was understood to be Darwinian but social evolution was Lamarkian—traits acquired through experience could be passed on to offspring. For Morgan, the engine of progress through each stage of social development was political economics. Private property promoted ‘prosperity, monogamy and social development.’ ‘Savages’ practiced disorganized foraging and owned only tools and weapons. ‘Barbarians’ discovered agriculture and owned farms in common and had no commercial activity. ‘Civilized’ people had individual ownership of land, machines and domestic an­imals, and nuclear families. They could also pass on accumulated wealth through inheri­tance. If introduced to higher forms of private land ownership, people practicing lower forms of social organization could be induced to progress toward civilization. Morgan believed that ‘uncivilized’ natives could be ‘improved’ and incorporated into the (white) nation. He accepted racial determinism but he advocated improvements in society by social change because he believed these would quickly result in physical evolution. Societies were not fixed, they could advance up his uni-dimensional evolutionary scale in response to human effort.

John Wesley Powell, Director of the Bureau of Ethnology, was strongly influenced by Morgan’s Ancient Society. Embracing it as positive social science he declared,

When society shall have passed to complete integration in the unification of all nations, and differentiation is perfected in universal liberty, then the sole philosophy will be science (Powell 1879: 2788).

Powell worked directly with Numic language speakers in the Great Basin , recording their languages. Reporting to the House Indian Affairs Committee in 1874 he claimed the “Numic peoples” were nomads and should be forced to a higher level of culture:

The sooner this country is entered by white people and the game destroyed so that the Indians will be compelled to gain a subsistence by some other means than hunting, the better it will be for them. … Let the influx of population and the slow progress of civilization … settle the question (Powell 1874: 7-8).

That ‘civilization’ hinged on mode of production was a widely held belief. A campaign was mounted to change how Indians ‘made their living.’ Following the altercation at the White River Agency in which the former Ohio Fourierest Trumbull Phalanx mem­ber and subsequent Ute Indian Agent, Nathan Meeker, was killed by the Utes, General Charles Adams, former Ute agent at both Los Piños and White River, commented:

I don’t think Mr. Meeker understood these Indians; I think he tried to do his best to civilize them. He was a great agriculturalist, and he thought he could succeed in forcing the Indians to work and accept the situation as farmers, but he did not take into consideration that it is impossible to force Indians into that sort of labor all at once. At the Southern Agency a few of them had farmed, and by gaining something from it they had come to look favorably upon it.

For example, some of them raised a large quantity of potatoes there and got some money for the crop, and the result was that probably three-fourths of them asked me why I could not do something to get a large ditch cut for them in the Uncompahgre Valley, so that they all could go to work in that way ... There are only two or three little springs there to furnish water, and all the water that the Indians could get has been utilized. Ouray himself farms thirty or forty acres. If there was a large ditch cut for irrigation purposes a great many of them would farm because the Uncompahgre Valley is very good agricultural region, but the White River Valley is unfit for cultivation.

The Indians say they told Mr. Meeker that ... Agent Adams, Agent Danforth, and Agent Littlefield had tried it and had failed to raise anything, and why should he attempt it? and his answer, they said, was that he was a farmer, and we were not (Emmitt 1954: 248-49).

Thinkers such as Tylor, Powell, and later Franz Boas and Alfred Kroeber brought about a revolution in thinking in the human sciences (Degler 1990). They instituted a change from biological to socio-cultural explanations of human difference. The assimilationist movement was predicated on the social perfectibility of Indians through work. They would be civilized in boarding schools designed to take the "Indianess" out of the stu­dents and educated to the civilizing influence of agricultural modes of production and private property.

For many, however, the Indians represented not only an arrested state of progress along the single uni-dimensional Enlightenment continuum, but a barrier to European-American progress as well. The presence of Indians was bad for business. They prevented the complete and rapid exploitation of the environment in the West. W. B. Vickers, private secretary to Governor Pitkin, the first elected governor of Colorado, expressed this opinion in an article entitled “Lo, The Poor Indian”:

Western Colorado, though undoubtedly the finest part of the state, is practically unproductive, owing to Indian occupation (Vickers 1880 cited in Rome 1979).

Pitkin, who had made his fortune in silver mining in the San Juan country taken from the Utes after the Brunot Treaty was signed in 1873, became Governor in 1876. In a speech before the state legislature shortly after taking office, he advocated Indian re­moval. Vickers quoted and reworked the speech in his History of the Arkansas Valley published in 1881. Pitkin’s message to the legislature in 1879 was a glowing description of the lush country of 12 million acres occupied by the Ute reservation (in contrast to Powell who passed through the area in 1868-1869 and thought it was a barren wasteland) and the vast mineral wealth it contained. He concluded:

These Indians are fed by the Government, allowed ponies without number, and except when engaged on an occasional hunt, their most serious employment is horse racing. If this reservation could be extinguished, and the land thrown open to settlers, it will furnish homes to thousands of the people of the state who desire homes (Vickers 1881: 34-35).

Vickers said the Utes were “actual, practicing communists,” ... “lazy and in­dolent”:

But for the fact that they are arrant cowards, as well as arrant knaves, the western slope of Colorado would be untenanted by the white race … The Utes must go. Un­cle Sam can feed them as well and much cheaper elsewhere, and the income he would derive from their Colorado estate would support them in affluence. Let it not be un­derstood, however, that the Colorado Utes, useless as they are, are without their uses. They educate Eastern people who come west to a fine abhorrence of Indian character. Another of their uses is to afford entertainment to strangers from afar, to whom the sight of a lousy Indian is an interesting study … An Indian family out shopping is a disgusting picture of connubial infelicity (Vickers 1881: 35-38).

Pitkin and Vickers played key roles in whipping up anti-Ute sentiment prior to the White River Uprising that ultimately led to the removal of the Ute from western Colorado and their restriction to their current reservations in southwestern Colorado and eastern Utah (Rome in Roebuck et al. 1979: 145-153).

Whether their motivations were racist or assimilationist, whether they were enamored of Christianity or Positive Science, the frontier capitalists intended to get land and make a profit from it. For them, both Indian peoples and nature had pure instrumental value.

Taking implies power and the power to take land and water rests in notions of federal supremacy and the doctrine of the plenary power of Congress (Wilkinson 1987: 78-79). Congressional power is plenary, that is, general as opposed to delegated. When legislating on Indian affairs, Congress has exercised broad police power rather than only the authority of a limited government with specifically enumerated powers. The term plenary has tended to carry the meaning of absolute or total power. According to Wilkinson (1987), the ideas of federal supremacy and congressional plenary power have been used to rationalize several coercive rules: the doctrine of discovery that transmutes Indian fee title into a “right of occupancy” not protected by the Fifth Amendment when an explorer’s flag is planted on a newly ‘discovered’ shore (Johnson v. McIntosh 1823);the view that Indian tribes are domestic dependent governments lacking direct access to the inter­national community (Cherokee Nation v. Georgia 1831: 30 U.S. [5 Pet.] 1, 17-18); the concept that Indian tribes are wards of the federal government (Cherokee Nation v. Georgia 1831; United States v. Kagma 1886); the rule that Congress can order the di­vestiture of tribal land and then transfer it to tribal members in the form of allotments—what was called a “mere change in the form of the investment” that has cost Indians tens of millions of acres of land (Lone Wolf v. Hitchcock, 187 U.S. 553, 568 [1903]); and the canon that Indian treaties can be abrogated by Congress without agreement of, or even consultation with, the affected tribes (Lone Wolf v. Hitchcock 1903).

The rules of a multi-ethnic society are determined, to a large degree, by the shared be­liefs of the dominant group. Because of ethnocentrism and racism in American society, concepts of rights are largely determined by the European-American institutions and not by the aboriginal or other minority groups affected. In the development of U.S.—Indian relations, the taking of land and water proceeded largely without regard for Indian beliefs, law or practice.

Indian Water: Winters Doctrine

The U.S. had declared itself owner of all of the land in the West. Beginning with the Indian reservations in the mid-1800’s, the U.S. began withdrawing land from the public domain and stopping private entries. The documents that withdrew the land usually de­scribed only the land and made no mention of water. Confusion over federal, state and Indian sovereignty has complicated water policy and water law.

Initially, Congress gave itself control over the waters on public lands. The federal gov­ernment had the authority to interfere with the state water users’ developing custom of prior appropriation of water on public lands under the property clause (U.S. Constitution art. IV, § 4):

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; …

It could invoke the supremacy clause to override state systems of resource allocation if they violated federal prerogatives (U.S. Constitution art. VI):

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

It could also have invoked the commerce clause (U.S. Constitution art. I, § 8) and the powers that it gave Congress over navigable waters to control river flows. Instead, it passed legislation to allay state fears over federal intrusion into the development of state water law. In the Mining Act of July 26, 1866, the United States acquiesced to the way miners and others were appropriating water from federal lands. Congress declared that mineral lands in the public domain were open to exploration and to occupation by all citizens. Further,

whenever, by priority of possession, rights to the use of water for mining, agriculture, manufacturing or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same (14 Stat. 253).

In practice, this did not extend to Indian groups, especially where they were not appropriating water by turning it out of its banks and putting it on the ground for mining or industrialized agricultural purposes.

The United States Supreme Court, in looking at the Desert Land Act of 1887, stated that the law’s effect was to make water:

subject to the plenary control of the designated states, … with the rights in each [state] to determine for itself to what extent the rule of appropriation or the common-law rule in respect to riparian rights should obtain (California-Oregon Power Co. v. Beaver Portland Cement Co. 295 U.S. 142,164 1935).

Indian rights, however, are generally supported by federal law, not state law. An inter­pretation of the federal court in the twentieth century has been that Indians owned the land they occupied before encroachment by the European-Americans and that they gave up only those rights that were explicitly ceded by treaty (United States v. Winans 1905; Winters v. United States 1908). Therefore they implicitly retained ancient, aboriginal rights to the water flowing across their reservations. Indian water rights are different from other federal reserve rights in that they are based, in part, on this ancient claim. They are also considered to be federal reserved rights—rights that the federal government held back from the states. Reserved water rights, especially Indian water rights, are ex­pressed in the concepts established in the Supreme Court decision of the United States v. Winters (207 U.S. 564 1908). The Winters Doctrine recognized Indians’ rights to the use of water and resources on their reservation to meet their present and future water re­quirements (Veeder 1982: 53).

The Winters case occurred because of conflict over irrigation water. The Fort Belknap Indian Reservation abuts the Milk River. Henry Winter (the s was added spuriously in court documents because the Bureau of Indian Affairs misspelled his name) and other non-Indian settlers began irrigating their non-reservation lands after 1889 with water from the Milk. In 1898 Indians on the reservation wanted to begin irrigating their lands with Milk River water. The U.S. sued Winter to stop his use of water that inter­fered with the proposed reservation use.

Water had not been mentioned in the 1855 Treaty or the 1888 Agreement between the Blackfeet and the United States. Winter maintained that the 1889 admission of Montana to the Union abrogated any implicit Indian title to water that might run on or next to the reservation. The court found in 1908 that the reservation of land from the public domain automatically creates a water right for the purposes of the reservation even if the original reservation only mentions land,

It should be extreme to believe that within a year [after the 1888 Agreement, when Montana entered the Union] Congress destroyed the reservation and took from the Indians the consideration of their grant, leaving them a barren waste—took from them the means of continuing their old habits, yet did not leave them the power to change to new ones (207 U.S. 564 1908).

In Winters, the court declared that water rights are interests in real property of the highest dignity. The court was applying concepts relative to the conveyance of real property among sovereigns (Veeder 1982: 3). In Conrad Investment Co. v. United States (161 F. 829 9th Cir. 1908), drawing from Winters, the Court declared the rights to the use of wa­ter could not be determined with great accuracy and the criteria should be the quantity of water requisite to meet the present and future development needs of the Blackfoot Indian Reservation.

The 1908 Supreme Court decision, Winters v. United States, created the Winters doctrine that Indian water rights are federal reserved rights created when the reservations were created to fulfill the purpose of the reservations. When most Western reservations were created it was believed that agriculture was more ‘civilized’ than pastoralism, hunting-and-foraging or raiding. This was consistent with the uniformitarian thinking of the social evolutionist of the day (e.g., Tylor 1873; Powell 1874, Morgan 1877). As interpreted by the Court in 1908 and subsequently, to deprive Indians of water would take away the means to undertake agriculture and defeat the purpose of the reservation. The creation of reservations implied that enough water for Indians’ agricultural needs would be permanently set aside for their use, until such time as they chose to use it.

The actual quantity of water owned by the Indians was not well defined in Winters. In order to quantify these rights, the Supreme Court, in Arizona v. California (1963), found Indians are entitled to riparian-like rights to the streams that touch or cross their reserva­tions. They are entitled to as much water as they require to irrigate the practically irriga­ble acreage on their reservations. The size of Indian claims rests on the definition of po­tentially irrigable lands. Soil analysis and agronomic techniques are applied to determine arability and the optimum mix of crops. Technological capabilities are evaluated to de­termine the efficiency of irrigating and economic models are applied to determine the cost/benefit of bringing water to Indian lands for agricultural purposes. The resulting number of practically irrigable acres is the Indians’ entitlement.

... [T}he Court in Winters concluded that the Government, when it created the reservations, intended to deal fairly with the Indians by reserving for them the waters without which their lands would have been useless. Winters has been followed by this court as recently as 1939 in United States v. Powers, 305 U.S. 527 [holding that non-Indian successors to allotted lands may share in the reservation’s waters]. We follow it now and agree that the United States did reserve the water rights for the Indians effective as of the time the Indian Reservations were created (Arizona v. California 373 U.S. 600 {1963}).

By such criteria, the potential Indian claims are huge. Virtually all of the water in the San Juan River could be claimed by the Navajo. A substantial amount of the same river could be claimed by the Jicarilla Apache. Much of the Mancos, Dolores, Florida, Animas and La Plata rivers could be claimed by the Ute. And, as much as five million acre feet of the Colorado River, approximately one-third of its normal flow, could be claimed by the Navajo Tribe each year (Jacobsen 1991: 6; Getches and Meyers 1983: 51; Pollack 1991; Burton 1984). All of New Mexico’s allotment of Colorado River water from the Colorado River Compact should go to fill Indian claims. Much of Colorado’s and Arizona’s allotment could be claimed by tribes as well.

For most of the twentieth century Indian rights and U.S. obligations to respect and pro­tect Indian rights have simply been ignored. The National Water Commission (1973:474-75) found

Following Winters, more than 50 years elapsed before the Supreme Court again dis­cussed significant aspects of Indian water rights. During most of this 50-year period, the United States was pursuing a policy of encouraging the settlement of the West and the creation of family-sized farms on its arid lands. In retrospect, it can be seen that this policy was pursued with little or no regard for Indian water rights and the Winters doctrine. With the encouragement, or at least the cooperation, of the Secretary of the Interior—the very office entrusted with protection of all Indian rights—many large irrigation projects were constructed on streams that flowed through or bordered In­dian Reservations. With few exceptions the projects were planned and built by the Federal Government without attempt to define, let alone protect, prior rights that In­dian tribes might have had in the waters used for the projects. ... In the history of the United States Government’s treatment of Indian Tribes, its failure to protect Indian water rights for use on the Reservations it set aside for them is one of the sorrier chapters (cited in Wilkinson 1992: 269-70).

In Arizona v. California (1963) Arizona unsuccessfully argued that the “doctrine of equitable apportionment” should hold in settling Indian water rights. Arizona claimed in the process of allocating limited waters between the competing governments, the tribes should be viewed as if they were states. When one state is fighting another state for a river supply, the Supreme Court uses the doctrine of equitable apportionment—meaning, roughly, that after considering the facts, the Court will rule on a solution it deems most fair to each of the states. Tribes, however, are not states. Their rights are sovereign, and, as such, are superior to those of the states. But this is the very point in dispute. In the West, various groups have been given preferential treatment—resources have rarely been equitably apportioned. Railroad companies were given vast tracks of land in the vicinity of their rights-of way, mining companies given metals on public lands without having to pay sev­erance and allowed to externalize the costs of pollution and environmental destruction, cattlemen given subsidies to range their stock on public lands, timber companies given national forests at below market prices and access roads built at public expense, agribusiness given subsidized water and developers given preferential tax treatment. Indian tribes should not be forced to give up their sovereign rights to water. However, often they are forced to do so in order to turn paper rights into delivered water.

A tribe may have potential, inchoate claims to enormous amounts of water, but actually use not a single drop. To get “wet” water in the American West usually requires dams, to capture variable runoff, and ditches and canals to transport the stored water when and where needed. These kinds of engineering works usually require capital investment that tribes do not have. Thus the ingredients for a political compromise are present: Indians, politically weak, with a large potential claim and without money for water works and other needed economic development; non-Indians, politically powerful, using or interested in using the water potentially claimed by the Indians; and Congress, politically beholden to non-Indians and capable of appropriat­ing money for water projects (Jacobsen 1991: 4).

Until 1960, Indian water rights were substantially ignored and violated by non-Indians. Then, as the public began to resist large pork barrel water projects and coincidentally be­gan to look more favorably on Indian claims, it became expedient to recognize Indian rights in order to get Congressional approval of the massive geographic engineering projects engendered by the last phases of the 1922 Colorado River Compact—the Central Arizona Project, the Central Utah Project and the Animas-La Plata Project.

Recognition of Indian rights has the effect of substantially increasing demand for water. More important than the clash between agriculture, industrial and municipal users; or in-stream, in-basin or trans-basin uses; or between upper Colorado basin and lower basin al­location, the provision of water to western tribes will force a change in our ecological relationships in the West.

The political context of Indian Water Settlement gives rise to another feature of quantification. Often a de facto bargain appears to exist between congress and a tribe: federal assistance for water works or economic development in general comes as a compensation to a tribe for its agreement to give up some portion of its Winters claim and limit itself to the quantified amount (Jacobsen: 1991: 7).