State ex rel. Adams v. Superior Court for Okanogan County

Hill, J.

(concurring in part; dissenting in part) — Inasmuch as our federal government is a government of granted powers, it is necessary to find somewhere within the constitution the basis and the extent of its jurisdiction over the affairs of enrolled Indians on Indian reservations.

The constitution made two references to Indians: once with reference to the basis of apportionment of representatives and direct taxes (in Art. I, § 2),

“. . . which shall be determined by adding to the whole number of free persons, . . . and excluding Indians not taxed, three-fifths of all other persons. ...”

(By § 2 of the fourteenth amendment this was modified by omitting “three-fifths of all other persons,” and representation was apportioned

“ . . . among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. . . . ”);
again, by Art. I, § 8, the Congress is granted power “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

Chief Justice Marshall, in Worcester v. Georgia (1832), 31 U. S. 515, 8 L. Ed. 483, recognized that the power of *190regulation and control by the federal government of the Indian tribes must be found within the constitution. He puts his conclusion on that matter in two sentences (p. 559):

“That instrument [the constitution] confers on congress the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several states, and with the Indian tribes. These powers comprehend all that is required for the regulation of our intercourse with the Indians. . . . ”

This is the basic authority for all that has followed. The opinion of the great Chief Justice quotes at length from the treaties with the Cherokees and emphasizes their exclusive physical control over the territory occupied by them. By the fifth article of one of the treaties, the Cherokees allow the United States a road through their country; the ninth article forbids (p. 556) “any citizen of the United States to hunt on their lands, or to enter their country without a' passport.” The opinion states (p. 556):

“This treaty, thus explicitly recognising the national character of the Cherokees, and their right of self-government; thus guarantying their lands; assuming the duty of protection, and, of course, pledging the faith of the United States for that protection; has been frequently renewed, and is now in full force. ...”

The decision is based upon the treaty-making power and says that a citizen of Vermont (a missionary residing in the Cherokee country with the consent of the Cherokee nation) is not amenable to a Georgia statute which required a license or permit from the Governor of that state to reside in their territory, for the reason that the Cherokees had, under the treaties, the exclusive right to determine who should live in the territory occupied by them.

Mr. Justice McLean filed a separate opinion which took a much longer look into the future than did that of the Chief Justice. In it he says (p. 592):

“It will scarcely be doubted by any one, that, so far as the Indians, as distinct communities, have formed a connection with the federal government, by treaties; that such connection is political, and is equally binding on both *191parties. This cannot be questioned, except upon the ground, that in making these treaties, the federal government has transcended the treaty-making power. Such an objection, it is true, has been stated, but it is one of modern invention, which arises out of local circumstances; and is not only opposed to the uniform practice of the government, but also to the letter and spirit of the constitution.
“But the inquiry may be made, is there no end to the exercise of this power over Indians, within the limits of a state, by the general government? The answer is, that, in its nature, it must be limited by circumstances. If a tribe of Indians shall become so degraded or reduced in numbers, as to lose the power of self-government, the protection of the local law, of necessity, must be extended over them. The point at which this exercise of power by a state would be proper, need not now be considered; if, indeed, it be a judicial question. Such a question does not seem to arise in this case. So long as treaties and laws remain in full force, and apply to Indian nations, exercising the right of self-government, within the limits of a state, the judicial power can exercise no discretion in refusing to give effect to those laws, when questions arise under them, unless they shall be deemed unconstitutional. The exercise of the power of self-government by the Indians, within a state, is undoubtedly contemplated to be temporary. This is shown by the settled policy of the government, in the extinguishment of their title, and especially, by the compact with the state of Georgia. It is a question, not of abstract right, but of public policy. I do not mean to say, that the same moral rule which should regulate the affairs of private life, should not be regarded by communities or nations. But a sound national policy does require, that the Indian tribes within our states should exchange their territories, upon equitable principles, or eventually consent to become amalgamated in our political communities. At best, they can enjoy a very limited independence within the boundaries of a state, and such a residence must always subject them to encroachments from the settlements around them; and their existence within a state, as a separate and independent community, may seriously embarrass or obstruct the operation of the state laws. If, therefore, it would be inconsistent with the political welfare of the states, and the social advance of their citizens, that an independent and permanent power should exist within their limits, this power must give way to the greater power which surrounds it, or seek its *192exercise beyond the sphere of state authority.
“This state of things can only be produced by a co-operation of the state and federal governments. The latter has the exclusive regulation of intercourse with the Indians; and so long as this power shall be exercised, it cannot be obstructed by the state. It is a power given by the constitution, and sanctioned by the most solemn acts of both the federal and state governments; consequently, it cannot be abrogated at the will of a state. It is one of the powers parted with by the states, and vested in the federal government. But if a contingency shall occur, which shall render the Indians who reside in a state, incapable of self-government, either by moral degradation, or a reduction of their numbers, it would undoubtedly be in the power of a state government, to extend to them the aegis of its laws. Under such circumstances, the agency of the general government, of necessity, must cease. But if it shall be the policy of the government, to withdraw its protection from the Indians who reside within the limits of the respective states, and who not only claim the right of self-government, but have uniformly exercised it; the laws and treaties which impose duties and obligations on the general government should be abrogated by the powers competent to do so. So long as those laws and treaties exist, having been formed within the sphere of the federal powers, they must be respected and enforced by the appropriate organs of the federal government.”

Later in his opinion Mr. Justice McLean emphasizes that the Cherokee treaties were the basis of the decision in that case (p. 594):

“It has been shown, that the treaties and laws referred to come within the due exercise of the constitutional powers of the federal government; that they remain in full force, and, consequently, must be considered as the supreme laws of the land. These laws throw a shield over the Cherokee Indians. They guarantied to them their rights of occupancy, of self-government, and the full enjoyment of those blessings which might be attained in their humble condition. But by the enactments of the state of Georgia, this shield is broken in pieces — the infant institutions of the Cherokees are abolished, and their laws annulled. ...”

It is to be noted, too, that the very recent case of Williams v. Lee (1959), 358 U. S. 217, 3 L. Ed. (2d) 251, 79 *193S. Ct. 269, involves not only the power given under the constitution to regulate commerce with the Indian tribes, but the treaty terms with the Navajos, a tribe which has long exercised an exclusive jurisdiction over its territory and people, based upon those treaties. The court said (p. 221):

“. . . Implicit in these treaty terms, as it was in the treaties with the Cherokees involved in Worcester v. Georgia, was the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed. Since then, Congress and the Bureau of Indian Affairs have assisted in strengthening the Navajo tribal government and its courts. See the Navajo-Hopi Rehabilitation Act of 1950, § 6, 64 Stat. 46, 25 U. S. C. § 636; 25 CFR §§ 11.1 through 11.87NH. The Tribe itself has in recent years greatly improved its legal system through increased expenditures and better-trained personnel. Today the Navajo Courts of Indian Offenses exercise broad criminal and civil jurisdiction which covers suits by outsiders against Indian defendants. . . .”

Justice Black’s opinion in that case must be interpreted within the framework of the factual situation before the court.

We are concerned with an entirely different treaty, an entirely different type of reservation, and an entirely different problem.

We are not here concerned with the imprisonment of Indians by state courts for offenses over which specific federal statutes say the federal courts have exclusive jurisdiction, as in In re Wesley v. Schneckloth (1959), 55 Wn. (2d) 90, 346 P. (2d) 658, and companion cases. No. one is trying to punish, collect from, or impose on an Indian.

In the present case the trial court was concerned with the extent to which, under the circumstances here existing, these four Indian children were entitled to the rights and benefits which non-Indian children, in similar circumstances, were entitled to receive.

We have here four children, abandoned by their fathers, who have been removed from the possession of a filthy, drunken and neglectful mother (as the record discloses the *194relator in this case to be), and who have been supported by the State Department of Public Assistance since January 3, 1958. Were these children not enrolled members of an Indian tribe, no one would question the jurisdiction of the Juvenile Court for Okanogan County to regard them as dependent children (ROW 13.04.010), or their right to protection as such.

Being an enrolled member of an Indian tribe carries with it certain rights, benefits, and privileges — some guaranteed by treaties, others by federal statutes — and with these I would in no wise interfere.

Being citizens of the United States and of the state of Washington, as these children are (Act of June 2, 1924, 43 Stat. 253, 8 U.S.C.A., § 3 (now included in 8 U.S.C.A., § 1401)), entitled them to certain rights, benefits, and privileges. They come under the aegis of the laws of the state designed for their protection, unless there is something in their status as enrolled members of an Indian tribe which deprives them of the protection that other children are entitled to receive. Neither their tribe nor their mother is here saying that the children are not entitled to the care which the State Department of Public Assistance is giving them.

The issue is not, as the majority says, whether the Juvenile Court for Okanogan County has jurisdiction over the said minor children and could make provision for their care as dependent children (which they clearly are), but whether that court could deprive their mother of all parental rights and make the children subject to placement for adoption without her consent; and the opinion should be limited to that issue.

Mr. Justice McLean pointed out that (Worcester v. Georgia, supra), for the benefit of the Indians there must be (p. 594),

“ . . . a co-operation of the state and federal governments. The latter has the exclusive regulation of intercourse with the Indians; and so long as this power shall be exercised, it cannot be obstructed by the state. . . . ”

*195But he further pointed out that where that power is not exercised (p. 594),

“ . . . it would undoubtedly be in the power of a state government, to extend to them [the Indians] the aegis of its laws. ...”

So far as the physical care of these children is concerned, the state obstructs neither the federal government nor the tribe. It acts in the vacuum created by their failure to act and extends to these children “the aegis of -its-laws.”.

The relationship of parent and child, within the tribe, is a different matter; and it may well be that the court acted beyond its authority in its order depriving the relator of all parental rights and depriving her of any right to be heard in the matter of their adoption.

I dissent from so much of the majority opinion as would indicate that our courts cannot take jurisdiction of Indian children, for their physical protection, where neither the parents, the tribe, nor the federal government is willing to do so.

Finley, J., concurs with Hill, J.