It seems that the effects of the confusing judicial and congressional precedent we have read up until now is manifest in the wildly variant interpretations and rulings in more recent years. “Over the last two decades, under the activating hand of the Supreme Court, the [allotment] policy has sprung back to life” (Royster, 8). It seems to me that given Royster’s argument, the Court essentially chooses which precedent it wants to follow – such as the County of Yakima v. Yakima Indian Nation, when the Court chose to apply assimilationist precedent from the allotment years, even though the existing approach was stated to be tribal self-determination and sovereignty. Royster made a strong argument against the Court: “Despite disingenuous statements that the Court does not make policy, the Court certainly furthers or impedes policy in the course of its decisions” (Royster, 7). I wonder, though, if it is more of a trade-off between the court and congress.
Unfortunately, it is much more difficult to reverse a policy or ruling that has been made in error, especially one that rests upon the dictated policy (assimilation v. self-determination). “The political tenor of our times is no longer much amenable to arguments that the present effects of past policies must be corrected in the legal system” (Royster, 25). Why should the Court determine today’s cases in light of the GAA instead of the IRA, which came afterwards?
Further, as Shoemaker illustrated, the Court and Congress rely on previous policy to justify their precedent, while the original policy was simply subject to their whims.
How does the “trust” concept or trustee relationship ensure tribal territorial sovereignty, if sovereignty over the territory is so important for tribal self-determination? (Royster, 3). Since sovereignty is defined by territory, loss of territory means loss of rights to assert over land – including over the people who live on that land. As territory was removed from Indian control, so were their bodies. “With the acquisition of a fee patent, the allottee would also be subject to the civil and criminal laws of the state” (Royster, 4).
Land fractionation and individualization of the justice/penal system go hand in hand. They both stem from a Euro-American conception of the rational individual, who is singly responsible for his own “bad” actions and for being an upstanding citizen, including improving his private property. “Indian Tribes should not own title to property. Why not? Because individuals own title to property; sovereigns hold dominion over territory” (in Shoemaker, 11). The individual is a discrete entity separate from community members and from the land. In my view, the Dawes Act cannot be separated from Crow Dog and the Major Crimes Act. The rationale behind the Major Crimes Acct was that the federal government had jurisdiction to prosecute in parts of Indian Country, which undermines tribal sovereignty as does fractionation. Similarly, parallel questions of self-determination vs. feasibility arise: it would be to tribes’ sovereign interests to rebuke federal power, but the lack of resources to do so and the government’s fiduciary responsibility towards tribes are some of the costs, as Shoemaker points out.
This website has some succinct definitions related to land tenure: https://www.iltf.org/glossary