American Indian Sovereignty and the U.S. Supreme Court

by David E. Wilkins

  Second, Blackmun was unconvinced that it was “strange,” as Scalia had put it, for allotted land to be alienable and yet not taxable. He observed, “To impute to Congress an intent to tax Indian land, because the Court thinks it ‘strange’ not to do so” ignores the more recognized and accepted presumption that “States have no power to regulate the affairs of Indians on a reservation.”260 Pushing Scalia’s notion of “strangeness,” Blackmun observed, “I find it stranger still to presume that Congress intends States to tax—and, as in this case, foreclose upon—Indian-owned reservation lands.”261 Here is where reliance on Choate would have proven beneficial for Blackmun’s argument. Scalia’s presumption conflicts with Congress’s disavowal of the assimilation policies in 1934, which had prompted the General Allotment Act in the first place.262

  Third, Blackmun attacked the majority for misapprehending federal preemption of the taxation field. He said that the majority’s refusal to consider intervening statutes (e.g., the 1934 IRA, and the 1975 Indian Self-Determination Act) because they did not explicitly “repeal” the Dawes and Burke Act, was astounding. These policies and much of the case law effected a dramatic reversal in federal Indian policy and should have factored heavily against the Court’s ruling that Congress intended state taxation of Indian-owned land.263 Besides, said Blackmun, “a repeal—whether express or implied—need not be shown to preclude the States from taxing Indian lands.”264 The more pertinent question was whether Congress had already preempted state law, “not whether it has repealed its own law.”265 Under this principle, and drawing upon a number of Supreme Court opinions, Blackmun found that federal Indian policy and interests, in conjunction with the sovereignty of the Yakima Nation, precluded state laws.

  Blackmun seemed bewildered, almost disheartened, by the callous attitude of the majority toward the tribe’s efforts to become more self-reliant. Such a long-pursued goal, he believed, would become more difficult, if not impossible, to achieve with state intrusion now being allowed on such an intimate level. What Blackmun was most concerned about was the attitude exemplified by Scalia’s statement that the tribe’s arguments for continued tax exemptions, which would enable the tribe and its people to continue their development towards self-determination, were merely “a great exaggeration.” Blackmun was keenly aware of what was at stake and remained unconvinced by Scalia’s statement that “mere” property taxes would be less disruptive of tribal integrity than cigarette sales taxes or personal property taxes. “I cannot,” said Blackmun, “agree that paying a few more pennies for cigarettes . . . is more a threat to tribal integrity and self-determination than foreclosing upon and seizing tribal lands.”266

  In closing, Blackmun targeted Scalia’s contention that if the Yakima were dissatisfied, all they had to do was lobby Congress. Blackmun poignantly observed that “I am less confident than my colleagues that the 31 Yakima Indian families likely to be rendered landless and homeless by today’s decision are well-positioned to lobby for change in the vast corridors of Congress.”267

  CHAPTER 7

  Removing the Masks

  In this punctuated ride through judicial history, I have, as carefully and methodically as possible, studied the literal language of what I have come to consider the most important and byzantine Supreme Court decisions over a period of nearly two hundred years. In this, I have critically appraised each case as to its internal logic, its applicability to the actual historical situation, and to those larger historical/political/legal facts which distinguish the indigenous/federal/state relationship. What has emerged in my final analysis is the realization that justices of the Supreme Court, both individually and collectively, have engaged in the manufacturing, redefining, and burying of “principles,” “doctrines,” and legal “tests” to excuse and legitimize constitutional, treaty, and civil rights violations of tribal nations and, in some cases, of individual Indians.

  As the previous chapters have demonstrated, the Supreme Court, from its earliest years to its most recent rulings, has utilized the rule of law in a unique manner—sometimes as legitimator, sometimes as initiator, sometimes as imperial instigator, sometimes as all three—when it has addressed the issues of tribal national sovereignty and individual Indian rights. The Supreme Court has performed its assorted and sundry tasks in a manner that can be characterized as “lawful” but one, as the fifteen cases have shown, that has had little or nothing to do with “justice.” As Colton once said, “in civil jurisprudence it too often happens that there is so much law that there is no room for justice; and the claimant expires of wrong in the midst of right, as mariners die of thirst in the midst of water.”1

  This quotation is even more apt when used as a description of federal Indian law cases. Where the Supreme Court is found exercising the “rule of law,” the question that must immediately be raised is “whose rule is it?” Tribal nations, existing as separate and originally independent sovereigns, maintain and govern themselves by their own bodies of laws, regulations, and moral principles. However, in the fifteen cases studied, it was the United States Supreme Court, not a tribal or international court, that was the center for dispute resolution when conflicts arose between the tribal nations and the federal government. In a few cases tribes exercised their right to file suit on their own behalf in an effort to compel the federal government to fulfill its obligations for treaty or statutorily created arrangements (e.g., Shoshone, Sioux Nation), with mixed results. However, in cases like Johnson, Rogers, and Nice, where no tribes or individual Indians were seeking redress, and in cases like Cherokee Tobacco, Kagama, Race Horse, and Smith, where individual Indians, not tribal nations, were involved, rulings were problematic when tribes also became directly affected by the Court’s decisions.

  Although the question of why there is so little “justice” in the presence of so much “law” is a difficult one to answer definitively, the explanation rests at least partially in the fact that indigenous values, laws, and morals are given little consideration by the Supreme Court. Thurman Arnold asserts that “the Supreme Court is the greatest unifying symbol in American government—a place where the ideal of a government of fundamental principles is best exemplified.” The Supreme Court has a power that is supposed to prevent governmental action which is prejudicial, arbitrary, or capricious; however the experience of tribal nations too often has been that the Supreme Court has only sustained and legitimated the political and policy directives of the federal government. Over time, these directives have become focused in favor of the expropriation of tribal land, the utter denial or gross diminution of tribal sovereignty, the disavowal of treaty rights, the rejection of aboriginal property title, and the forced assimilation of Indians. These negating actions have come despite federal recognition of tribal nationhood via hundreds of treaties, agreements, and statutes; the existence of the trust relationship; the enactment of numerous policy directives which have unmistakably acknowledged tribal sovereignty; and the enfranchisement of individual Indians through various treaties and laws.

  EXPOSING THE JUDICIAL MASKS

  David Kairys, an eminent critical legal theorist, identified in his powerful critique of the Rehnquist Court, With Liberty and Justice for Some (1993), a number of techniques used in various opinions issued by the conservative Rehnquist court to further the “conservative revolution” with its commitment to “judicial restraint, strict construction of constitutional and statutory language, a return to democracy, and the rule of law, and legal rather than political decision making.”2 These opinions have covered such issues as freedom of expression, participation in the political process, religion, equality, privacy, and due process.

  After his analysis of over thirty Supreme Court opinions, Kairys concluded his study by identifying and discussing the distinctive set of “techniques,” “doctrines,” and other judicial “mechanisms” used by the conservative Court which have caused considerable problems for individuals and groups seeking redress in the areas listed above. I introduce them because
they are significant and relevant to the body of law that the Supreme Court has created and continues to emulate with regard to tribes and Indian issues.

  First, the conservatives of the High Court, according to Kairys, have developed, without any constitutional basis, a number of new doctrines which effectively infringe on civil rights and liberties. These doctrines have been presented by the justices as if they were essential or eternal verities. For example, the “public forum” doctrine restricts free speech rights. The “harmless error” doctrine has been expanded in the criminal trial process by the classification of constitutional violations as “structural” or “trial” errors. The most substantial of these doctrines, in Kairys’s opinion, is the so-called purpose doctrine. This doctrine “excuses and legitimates all manner of constitutional violations unless a victim can prove that the government has acted maliciously and the government cannot suggest an alternative, plausibly benevolent purpose.”3 The purpose doctrine is closely related to the “incidental effects” doctrine which was one of the principle arguments used in both Lyng and Smith.

  A summary review of additional legal doctrines which have served to mask justice for tribal nations and individual Indians in the cases I have discussed would include the “discovery” and “conquest” doctrines (Johnson, Rogers, Kagama, Tee-Hit-Ton); the rule of “plenary power” (Rogers, Kagama, Lone Wolf, Sioux Nation); and the “political question doctrine” (Rogers, Cherokee Tobacco, Lone Wolf). Others include the doctrine of “geographical incorporation” (Rogers, Kagama, Cherokee Tobacco, Oliphant); the principle of tribal and individual Indian “dependency-wardship” (Kagama, Lone Wolf, Nice, Oliphant); the doctrine of “good faith” (Lone Wolf, Sioux Nation); the doctrine of “affirmative delegation” (Nice, Oliphant); and the doctrine of “implicit divestiture” (Oliphant).

  Second, Kairys noted that conservatives “selectively use and abuse precedent and history” as they strive to justify the changes they are making. The fifteen cases examined in this study fully corroborate his statement. In total, this is probably the most damning conclusion we can draw from the Court’s decisions in these opinions. We can see that the Court’s abuse of history begins in the 1823 Johnson ruling, which held that tribes had been both “discovered” and “conquered,” is reaffirmed in the 1845 Rogers decision which declared that the Cherokee were living on “allotted” lands, and continues in Oliphant’s very selective use of precedent and reactionary history to deny tribes the right to try non-Indians.

  Third, the conservatives, according to Kairys, often take a selected term or phrase, “deprive it of meaning and context, and claim that it supports the opposite of what it clearly meant originally.”4 As an example, Kairys discussed the phrase “from time immemorial,” which was first used by the Court in the 1939 Hague v. Congress of Industrial Organizations.5 The labor unions’ right to distribute literature on the streets and in parks was challenged by a Jersey City politician, Frank Hague, who had banned the unions from distributing their leaflets. The CIO sued Hague, and the case wound its way to the Supreme Court, which held that the title of streets and parks had been held immemorially in trust for the public’s use. Chief Justice William Rehnquist, however, in a 1992 case, International Society of Krishna Consciousness v. Lee,6 appropriated the phrase “time immemorial” and redefined it in such a way as to uphold an airport’s ban of leafleting that had been contested by a Hare Krishna group who wished to distribute literature and solicit funds for their religious work. Rehnquist maintained that the government had not allowed speech in (since there had not been) airports “from time immemorial,” therefore public air terminals could not be considered “public forums” for purposes of religious expression. The Chief Justice had dramatically redefined the phrases “time immemorial” and “public forum” to constrict what had originally been expansive notions of free speech in public places.

  In our fifteen cases, evidence of this type of semantic exercise can be found in Rogers where, for instance, Chief Justice Roger Taney defined “geographical incorporation” to deprive the Cherokee Nation of sovereignty over its own territory and citizens by asserting that the crime had been committed in the territory of the United States. In Kagama the Court lifted John Marshall’s “wardship” analogy likening the relationship between tribes and the United States to that of ward to guardian and redefined it (“Indians are the wards of the nation . . .”) to virtually deprive Indian tribes of an important sovereign right. Finally, in Race Horse, the Court methodically defined such treaty phrases as “unoccupied lands” to negate the hunting rights of the tribes.

  Fourth, Kairys stated that conservative justices have adopted, with virtually no explanation, “selectively narrow and broad interpretations of constitutional language, statutes, and decisions.”7 The Court did this on several occasions in Race Horse (treaty interpretation), Nice (statutory construction and prior decision), Shoshone (treaty construction), Tee-Hit-Ton (statutory construction), Oliphant (treaty and statutory interpretation), and finally in Lyng (statute) and Smith (statute and prior decision). Indian cases should be recognized as unique because of the pre- and extraconstitutional standing of tribes; however, in Kagama, the Court intentionally avoided a reliance on past statutes or the U.S. Constitution and simply manufactured a new power—plenary power based on the federal government’s ownership of land.

  Fifth, a favorite technique of conservatives, Kairys points out, is to use exaggerated and invented appeals to “necessity, emergency, fear, and prejudice to justify denial of fundamental constitutional rights.”8 The Employment Division v. Smith case in 1990 can be used to support this statement. Justice Antonin Scalia determined that if Smith and Black were allowed to use peyote, it would only add tinder to the already massive “drug” problem in the United States. As some of our other cases show, the use of fear and paranoia has been a favorite judicial tactic to reduce or suppress and sometimes to eliminate tribal or individual Indian rights. For example, in Rogers, Taney asserted that if the federal government did not exercise criminal jurisdiction, white fugitives from justice would use Indian Country as a refuge. In Cherokee Tobacco, there was an emphasis on the potential threat to the tax revenue base of the federal government if whites were allowed to slip into Cherokee country to purchase nontaxed tobacco products.

  In Kagama, the bizarre notion was raised by the federal government’s attorneys, though not explicitly used by the Court, that unless the government assumed jurisdiction over major crimes in Indian Country, the Indians might eventually exterminate themselves, thus leaving the United States with no one over whom to exercise plenary power. In Lone Wolf, there was the so-called national emergency that, if tribal lands were not quickly subdivided, Indians might perish. In Tee-Hit-Ton, there was the fear that the Alaska Native claims were holding up the economic development of the United States, and that unless the State of Alaska was immediately developed, the Russians might stream into the area. In Oliphant, Rehnquist used a racist fear that whites would have no guarantee of civil rights protections if they were tried in Indian courts, notwithstanding the existence of the Indian Civil Rights Act. And finally, in Lyng, O’Connor used the extraordinary argument that tribes were trying to wrest away control over lands “owned” by the United States.

  Finally, Kairys maintains that conservative justices in a picky and inconsistent way “apply the principles of legal decision making and methodology” that were, at one time, the target of their most effective criticisms of liberals (e.g., judicial activism) in the political arena. For example, in Race Horse, the justices, who often espoused judicial restraint and deference to the political branches, openly violated the “political question” rule to read their own intent into a treaty and a law. In Kagama, when the Court could find no constitutional authorization for the extension of federal criminal jurisdiction over Indian-on-Indian crimes occurring within a reservation, the justices simply invented their own rationale. And in Lyng and Smith, the Supreme Court erected a set of justifications to deny India
n religious liberties when Congress and federal policy were staunchly in favor of Indian religious freedom.

  Several other semantic techniques can be discerned from the cases I have analyzed which have also led directly to violations of tribal/individual Indian rights. The most important isolated factor allowing for this violation is the presence or absence of congressional power (i.e., whether or not Congress has the right to enact various laws without tribal consent, or federal supremacy when challenged by states or private interests). When the Supreme Court, or a lower court, perceives that a tribe or an individual Indian is directly challenging federal sovereignty or a particular federal policy, it generally will side with the political branches, particularly when constitutional provisions such as the Commerce, Treaty, or Property clause are being tested. This should not be surprising, since the Court is an integral part of the ruling alliance of the three branches, which necessarily excludes the participation of tribal nations because of their extraconstitutional standing. The Court, in short, functions predominantly as a legitimator of congressional and executive actions (e.g., Kagama, Lone Wolf, Nice, Shoshone, Lyng).

  In some cases, the Court may generate, of its own volition, an implied congressional intent if it will serve the Court’s perception of what it believes is in the affected party’s (whether the tribe, the Indian, or the government) interest. Most often, what the Court considers to be in the tribe’s interest is not what the tribe itself desires (e.g., Cherokee Tobacco, Southern Kansas Railway, Race Horse, Nice).