Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers

Abstract

When the Supreme Court decides whether a tribe has jurisdiction over non-members on its reservation or addresses the related issue of reservation diminishment, it often refers implicitly or explicitly to non-Indians’ justifiable expectations. These presumed non-Indian expectations arise from the fact that, when Congress opened up reservations to non-Indians during the allotment era, it assumed that the opened reservations would soon disappear due to the federal government’s assimilationist policies and that the tribes who governed them would similarly dissolve. Thus, the Court imputes justifiable expectations as to the lack of any possibility of tribal jurisdiction to non-Indian allotment-era purchasers and then bases decisions to deny tribes jurisdiction in part on these presumed expectations. To refute the idea that such non-Indian expectations were justifiable, I examine historical newspaper articles and other historical sources regarding the opening up of reservations to non-Indian purchasers, specifically focusing on cessions by the Sioux Nation and especially the Cheyenne River Sioux Tribe. Such sources suggest that non-Indian purchasers were on notice, in at least some cases, of a potential violation of tribal rights in the allotment and the opening of portions of reservations to non-Indian settlement. Based on my argument that “justifiability” encompasses both reasonableness and justice, this information is used to show that the non-Indian purchasers’ presumed expectations about the disappearance of reservations were not justifiable because the purchasers had notice in many cases that lands were unjustly being taken from the Sioux Nation and other tribes. Because non-Indian expectations of tribal disappearance were, in many cases, not justifiable, such expectations should not be given weight in determinations of tribal jurisdiction or reservation boundaries today.