The changing face of federalism has been reflected in federal Indian law and policy throughout the history of the United States. Because the framers did not envision the Indian tribes as part of the constitutional system, it has been up to the courts and Congress to define the powers and authority of the tribes. The single most influential factor in this determination has been the concept of federalism. Over time there have been five major eras of federalism, that is, national supremacy (1789–1865), dual federalism (1870–1937), cooperative federalism (1932–68), new federalism (1968–88) and state-centered federalism (1986–?). In each era the federal-state relationship changes, as does the federal-state-tribal relationship.
The early struggles between the national government and the states for power and supremacy led to three of the most influential cases in Indian law: Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832). U.S. Supreme Court Chief Justice John Marshall, a Federalist, used these cases to extend federal power not only over the states but also over the Indian tribes, which heretofore had been treated as separate nations. Marshall, in extending national sovereignty over the tribes, defined them as “domestic, dependent nations,” a term that itself has had various interpretations over the years.
The claim of the national government to supremacy over the states was cemented by the Civil War and the powers of each level were clearly delineated, particularly regarding the Commerce Clause. The Indian wars of that period also determined the fate of the tribes, and court cases and congressional statutes similarly divided federal and tribal jurisdictions. In 1871 Congress ended treaty making with the tribes by adding a “rider” to an appropriations bill; then in 1885, the Major Crimes Act displaced traditional tribal conduct codes and gave Congress authority over much of the criminal justice system of the tribes. Upholding the Major Crimes Act in United States v. Kagama (1886), the Supreme Court diminished the legal status of Indians to being “wards of the nation.” Finally, under the General Allotment Act, or Dawes Act, of 1887, Congress seized what little Indian land remained, subdivided it into individual tribal member plots of 40, 80, or 160 acres, and then sold off the remaining “surplus” land to non-Indians. The intent of these acts was aimed at eliminating tribal identity in favor of assimilation into American culture. Unfortunately, assimilation as a policy did not work and the reservations became victims of federal neglect for over fifty years.
The New Deal of the Franklin D. Roosevelt administration ushered in the next era of federalism for both the states and the Indian tribes. Cooperative federalism was based on a partnership between the states and the federal government to overcome the impact of the Great Depression through a series of shared programs. During this era, the government also sought to form new cooperative relations with the tribes. In 1934, Congress passed the Indian Reorganization Act (IRA), or the Wheeler-Howard Act, which encouraged tribes to organize themselves under written constitutions based on a model developed by the Department of Interior. Approximately 250 Indian tribes and communities adopted an IRA constitution during the two-year period that the BIA gave for implementation of the act. Seventy-seven tribes opted for other forms of government, including traditional forms.
The return of Republicans to power under President Dwight D. Eisenhower in 1952 meant devolution of power back to the states, and with it a reversal of federal Indian policy. House Resolution 108 and Public Law 280 passed by Congress in 1953 had the dual purposes of terminating the Indian tribes and conveying power over them to the states. While the larger tribes were able to forestall termination, many smaller tribes succumbed to it; their reservations were again subdivided among the tribal members, and tribal property was sold off. Reservations that were not terminated saw jurisdiction over most civil and criminal matters transferred to the states.
While the Civil Rights movement stemmed the momentum of “states’ rights” in favor of a strong national government that could establish and implement civil rights legislation, it was not until the New Federalism of President Richard Nixon, which emphasized local control, that tribes began to be viewed as partners in the federal system. The era of New Federalism saw the passage of the Alaska Native Claims Settlement Act (1971), the Indian Self-Determination and Education Assistance Act (1975), the Indian Child Welfare Act (1978), and ultimately the Indian Gaming and Regulatory Act (1988). Also, during this time period a number of opinions rendered by the Supreme Court substantially increased the scope of tribal sovereignty in areas such as taxing (McClanahan v. Arizona State Tax Commission 1973), criminal jurisdiction (U.S. v. Wheeler 1978), fishing (Washington v. Washington State Commercial Passenger Fishing Vessel Association 1979), and gambling (California v. Cabazon Band of Mission Indians 1987).
The fifth stage in federalism and federal Indian policy began with the appointment by President Ronald Reagan of William Rehnquist to be chief justice of the Supreme Court in 1986. As chief justice, Rehnquist pushed his agenda of state-centered federalism, favoring state power over individual rights and tribal powers. In Employment Division, Department of Human Resources of State of Oregon v. Smith (1990), a case involving the use of peyote by members of the Native American Church, the Rehnquist Court undercut the Free Exercise Clause of the First Amendment in favor of state regulation. An attempt by Congress through the Religious Freedom Restoration Act (1993) to override this decision was also struck down in City of Boerne v. Flores (1997). The Rehnquist court even resurrected a moribund Eleventh Amendment in Seminole Tribe of Florida v. Florida (1996) to overrule a provision of the Indian Gaming and Regulatory Act (IGRA) that required states to “negotiate [gaming compacts] in good faith” with the tribes.
As federalism has evolved over the years, so has the position of the Indian tribes within it. Without explicit incorporation in the U.S. Constitution, the tribes have tended to lose out whenever the power shifted heavily toward the states or the federal government. However, when the emphasis was on cooperation among governments, as during the 1930s and 1970s, then the tribes were strengthened.
Vine Deloria Jr. and David E. Wilkins, Tribes, Treaties, and Consitutional Tribulations (Austin: University of Texas Press, 1999); David Wilkins and Lomawaima K. Tsianina, American Indian Sovereignty and Federal Law (Norman: University of Oklahoma Press, 2001); and Deil S. Wright, “Understanding Intergovernmental Relations,” in Classics of Public Administration, ed. Jay M. Shafritz and Albert C. Hyde (Fort Worth, TX: Harcourt Brace, 1997).
Anne M. McCulloch
Last Updated: 2006
SEE ALSO: Civil War; Cooperative Federalism; Criminal Justice; Devolution; Eisenhower, Dwight D.; Eleventh Amendment; Roosevelt, Franklin D.; Intergovernmental Relations; Marshall, John; New Federalism (Reagan); Reagan, Ronald; Rehnquist, William; Sovereignty; Supremacy Clause: Article VI, Clause 2