October 8, 1999
Contact: Robert B. Porter, KU Tribal Law and Government Center, (785) 864-9245.
LAWRENCE -- Decisions from two landmark U.S. Supreme Court cases dealing with American Indian nations recently re-argued by the American Indian Nations Supreme Court will be announced Saturday, Oct. 9, at the third annual Tribal Law and Governance Conference at the University of Kansas.
Robert B. Porter, KU associate professor of law and director of KU's Tribal Law and Government Center, will formally announce the re-argued decisions of the 1831 Cherokee Nation vs. Georgia and the 1903 Lone Wolf vs. Hitchcock cases. The Lone Wolf case involved Oklahoma Territory land belonging to the Comanche, Kiowa and Apache tribes.
In both cases, the Indian Nations Supreme Court reversed the original U.S. Supreme Court decisions. The American Indian Nations Supreme Court is a moot court comprised of sitting tribal court judges from throughout the United States.
Rearguing landmark cases involving the rights of American Indians serves several purposes, Porter noted. "These decisions bridge a gap between the present and the future of a decolonized indigenous existence. They force us to think about what we have learned from 200 years of American colonialism," Porter said.
These re-argued decisions may have applications for colonial nations struggling with the property right issues of indigenous peoples. Porter noted that both Canada and Australia are involved in issues regarding the sovereignty of indigenous peoples. Canada, for example, has recently taken a bold step by establishing the Nunavut Territory for indigenous peoples in the North, Porter added.
Finally, it remains possible for a tribal court to incorporate the reasoning of these cases in its own decisions, thus laying a foundation for tribal law challenges to the colonial jurisprudence of the U.S. Supreme Court, Porter said.
In Cherokee vs. Georgia, the Cherokees asked the U.S. Supreme Court to recognize them as a foreign nation in an effort to repel Georgia's attempt to apply state laws within their territory.
In 1831, the U.S. court said the Cherokee Nation was not a foreign but a domestic dependent nation. The Cherokees were deemed domestic because they were within the terminal boundaries of the United States and dependent because their treaties offered the protection of the United States. In 1998, tribal judges reversed the decision finding that under international and tribal law an Indian nation remained a fully sovereign nation albeit in a protected status.
In Lone Wolf vs. Hitchcock, the Comanche, Kiowa and Apaches tribes sought to have their legal rights to land recognized by the U.S. government. The case involved the Medicine Lodge Treaty of 1867 and provided legal authority for opening Oklahoma Territory to settlement by non-Indians.
In 1903, the U.S. court said that Congress has the power to unilaterally break a treaty in Indian affairs. In 1997, the Indian Nations Supreme Court ruled that Congress did not have the power to break the treaty because under international and tribal law, the authority and sovereignty of the Indian nations must be recognized.
In the 17th and 18th centuries, the nations of the world recognized the Indian nations as nations under international law. By the 19th century, with the demise of the Indian nations as a potent military threat, the U.S. Supreme Court assumed the responsibility of rationalizing the taking of Indian land and undermining Indian sovereignty, Porter noted. In the revised Lone Wolf decision, the Indian Nation Supreme Court wrote, "...this court expects the United States to promptly attempt to heal the wrong it did to the Kiowa, Comanche and Apache peoples through the 1900 legislation and to work with those tribes to restore harmony and balance to the relationship established by the Medicine Lodge Treaty...."
Complete copies of the opinions are available by contacting the KU Tribal Law and Government Center by phone (785) 864-3925, by e-mail to tribalaw@law.wpo.ukans.edu or by writing to the Center at the KU School of Law, Lawrence KS 66045.