During the allotment era, the federal government took land from tribes and parceled some of it out to individual tribal members, while, in most cases, selling off the remainder to non-Indian settlers. Those actions, which are properly understood as unconstitutional takings, have been reinforced through decades of Supreme Court precedent. Specifically, the Court has used the now repudiated federal allotment policy, which contemplated eventual abolition of tribal governments, to justify contemporary incursions on tribal jurisdictional authority as well as other limitations on tribal sovereign rights. In this way, the Court builds new injustices upon old ones. This Article responds to this Supreme Court precedent with two main points. First, it shows that non-Indians at the time had notice that the allotment policy was unfair to tribes (and that they sometimes directly advocated for its injustices). From this information, I argue that non-Indian purchasers of tribal lands—and subsequent purchasers from them—should not be understood to have had justifiable expectations that the reservations would disappear and that they therefore could not be subject to tribal jurisdiction in the future. Second, I argue that the Supreme Court should stop using the troubled history of allotment, which it construes based on incomplete information and without taking account of tribal interests and perspectives, to justify further restrictions on tribal sovereignty. My purpose in this Article is to question both the substance of these presumed expectations and their justifiability. I begin this questioning with a thorough analysis of previously unexamined historical newspaper articles concerning non-Indian settlement of Indian reservations during the allotment era. I then argue that, as reflected by the above quote from Superintendent King, most non-Indians during the allotment period cared little about whether Indians were treated justly. Furthermore, I argue that many non-Indians had notice that tribes were being unjustly deprived of their lands through the allotment process, and that some non-Indians even advocated for this very injustice to occur. Both notice of injustice and complicity in the government’s unjust actions precluded non-Indian purchasers from forming justifiable expectations. This rigorous, context- specific look at non-Indian expectations suggests that, in sharp contrast to current Supreme Court practice, tribal jurisdiction over nonmembers should generally be upheld and Indian reservations should not generally be held to have been diminished or disestablished as a result of allotment.
Ann E. Tweedy, Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers, 36 SEATTLE U. L. REV. 129 (2012).