American Indian Heritage Month: Commemoration vs. Exploitation
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United States v. Kagama

In United States v. Kagama [118 U.S. 375 (1886)], the U.S. Supreme Court enunciated a "superior position" of the federal government vis-à-vis Native nations (a doctrine that came to be known as plenary power) when it upheld the Major Crimes Act (1885). The court was upholding the federal trust responsibility against erosion by the states. The court said that "the people of the states . . . are often [the Indians'] deadliest enemies." This case was the first Supreme Court decision to directly address the legality of federal jurisdiction over both Indians and non-Indians in Indian Country.

A year after the Major Crimes Act was passed, attorneys for Kagama argued that it was unconstitutional. The Supreme Court ruled that the commerce clause of the Constitution did not authorize the Congress to regulate the internal affairs of Indian nations and their members. However, the court held that, since the states had no legal authority over Indians living on reservations, the role of sovereign must be played by the United States. Native American conceptions of sovereignty were omitted from this legal formulation.

The facts of the case concerned two Indians, Kagama and Mahawaha, who killed another Indian on the Hupa Reservation in California. They were arrested, tried, and convicted in federal court on grounds that the commerce clause of the Constitution gave the government jurisdiction on the Hupa reservation. The U.S. Supreme Court, following John Marshall's opinions in Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832), held that Indian lands did not comprise foreign nations. "These Indian tribes are the wards of the nation," ruled the court. "They are communities dependent on the United States . . . From their very weaknesses and helplessness, so largely due to the course of dealing of the federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power." The court also held that "The Indians owe no allegiance to a state within which their reservation may be established, and the state gives them no protection."

Justice Samuel Miller, writing for the court majority, said that the government had always regarded Native nations as semisovereign entities, "not as states, not as nations, but as separate people, with power of regulating their internal relations and thus not brought into the laws of the Union or the States within whose limits they resided."

Kiowa attorney Kirke Kickingbird provided the following evaluation of Kagama's legal legacy:

The decision in Kagama and the line of cases which flowed from it led to an overly broad and often destructive exercise of federal power in Indian affairs. In these decisions, the courts have placed no legally enforceable standards or criteria on the trustee. Instead, they have designated Congressional power in Indian affairs as "plenary," or almost absolute (Kickingbird, 1983, 20).

Bruce E. Johansen


Further Reading
Kickingbird, Kirke. 1983. Indian Jurisdiction. Washington, DC: Institute for the Development of Indian Law. United States v. Kagama 118 U.S. 375 (1886).
 

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