“That had to be our case,” says Raymond. “Kennerly was a per curiam decision, meaning that there was no opinion attached. That meant that I was going to have to be very careful on just how much I pressed that issue. They were going to pressure me to give them a good reason to reverse Erickstad.”
Yet as he packed his bags to return to Washington, he knew that the outcome of this battle would have as much to do with the particulars of the case as it would with the personalities and political agendas of the nine justices who would weigh its merits. For the past 150 years, the U.S. Supreme Court had been the tribes’ last line of defense. Having heard more than twelve hundred Indian cases during that time, a long line of justices on the high bench had consistently reaffirmed the legal boundaries that protected tribes from the incessant encroachment of states that were jealous of their land, natural resources, and sovereign immunity. Whether the court’s decisions were later enforced by Congress comprised a different set of questions with altogether different answers. The Termination Era, for example, was nothing less than a frontal assault on the court’s historic and faithful defense of tribes as “domestically dependent sovereign nations.”
By the mid-1980s, tribal governments were aware that in a few short years, a sea of change had taken place on the high court. Justice William Rehnquist and his ideological allies were exhibiting open hostility to tribal sovereignty and the “trust doctrine” of federal Indian law. A hundred and fifty years earlier, Rehnquist’s ideological predecessors had argued that Indians were subhuman savages. In Marshall’s court, Justice Baldwin had insisted that granting legal status to roving bands of forest gypsies was a calamitous mistake. Thirty years later, the ideological track pioneered by Justice Baldwin would be used to uphold the legality of slavery in the famous Dred Scott Decision. Here, a majority of justices ruled that a slave was property and therefore had no claim to legal rights guaranteed by the U.S. Constitution. Rehnquist’s early Indian-law dissents telegraphed the message to Indian Country that an ideological descendant of Justice Baldwin had taken a seat on the nation’s highest court.
“By the time of Wold II, it was pretty obvious what was going on in the court,” says Raymond. “Nixon had started a long-awaited avalanche of reform for federal Indian policy. What he and Congress had restored to the tribes in the way of rights, Rehnquist, and later Scalia, would do their level best to take away. In many respects, they’ve been an ideological tag team and a throwback to another century.”
As an associate justice, Rehnquist wrote the lone dissent in the 1980 case Sioux Tribes v. United States. After a fifty-year battle in federal courts, the court agreed with the Sioux tribe’s claim that the federal government had violated its treaty-protected ownership of the Black Hills in South Dakota. Justice Blackmun found Rehnquist’s dissent so illogical that he refused to mention it in his opinion for the majority. With a caustic disdain seldom seen in a majority opinion, Blackmun dismissed Rehnquist’s dissent in a single, terse footnote: “The dissenting opinion does not identify a single author, nonrevisionist, neo-revisionist, or otherwise, who takes the view of the history of the cession of the Black Hills that the dissent prefers to adopt.” At the time of Wold II, Rehnquist was still an associate justice. Raymond knew from his first trip to the court that Rehnquist and Brennan would be watching for the right moment to spring their ambush.
“The question so often asked of the court by tribes today is simply this,” says Cross. “Which of us gets to pass through the gates into the civilized world? A hundred and fifty years ago, the court had to answer a similar question with regard to slaves. At the heart of Dred Scott lay a very simple question: ‘Am I, or am I not, a human being?’ The court said you can’t be a human being because you’re property. As property, we cannot offer you protection under the Bill of Rights. Essentially, Rehnquist and Brennan were saying the same thing to the tribes. Instead of denying Indians their humanity, they accomplish the same thing by denying the tribes equal footing in the eyes of the law. This way, they get to achieve their goals by slipping under the political radar. In recent years, the message to tribes from the Rehnquist court has been pretty clear. Even if you work hard and spend lots of money and do all the right things, we’re still not going to let you through the gate as an equal member of American society, not if there’s any way we can stop it.”
On a beautiful spring morning in March 1986, the great-great-grandson of Chief Cherry Necklace climbed the alabaster steps to the United States Supreme Court for the second time. He was prepared to challenge the nine men and women in black robes with the very questions his father had raised before members in Congress thirty years earlier. Dressed in a dark gray suit, a white button-down shirt, and a subdued blue and green tie, Raymond Cross was accompanied by Alyce Spotted Bear, all nine members of the Tribal Council, and his eighty-year-old mother, Dorothy Cross.
As he led the entourage between the soaring white columns, Raymond rehearsed his strategy one more time. He reviewed the markers he had placed in his mind. If at all possible, he hoped to force Brennan and Rehnquist into a legal box canyon where he could bog them down in tedious arguments over due process. To make his tactic work, he was counting on Brennan and Rehnquist to attack the “due process” decoys he had built into his brief. If they took the bait, he knew he could pin them into a corner. In the fleeting minutes that remained, the trick would be to identify an ally and put the answer that he was carrying in his hip pocket into his, or her, hands.
CHAPTER X
Into the Storm
“The real epic of America is the yet unwritten story of the Americanization of the white man, the transformation of the hungry, fear-ridden, intolerant, and greedy men that came to these shores with Columbus,
Pizarro, and John Smith into people of tolerance who value diversity . . .”
FELIX COHEN
Chief Justice Warren E. Burger gave the gavel a firm rap, then cast a sharp glance across the courtroom. Burger was a judge from the old school, with a Teutonic bearing that underscored the businesslike directness of his Midwestern upbringing. It was ten-thirty in the morning, March 24, 1986. Moments before, the black velvet curtains behind the high bench had suddenly parted as the nine justices filed into the courtroom and took their seats. Despite the imposing height of the ceiling, and the breadth of the bench, when Raymond stood to face the court, the walls crept in and the room suddenly seemed almost intimate.
The court will hear arguments this morning in Three Affiliated Tribes against Wold Engineering,” announced Chief Justice Burger. “Mr. Cross, you may proceed whenever you are ready.”
“Mr. Chief Justice, and may it please the court, this matter is before this court for the second time on a writ of certiorari,” began Raymond, wasting no time on unnecessary flourishes. Seconds were precious. He wanted to recapitulate the facts and draw out the questions as quickly as possible. From his opening words, Sandra Day O’Connor and Thurgood Marshall appeared attentive, while Justice William Rehnquist seemed preoccupied with something on the ceiling. Raymond sped through his opening remarks, hoping to bait his trap before the questioning began. Once the justices weighed in with challenges and traps of their own, there was no way to predict where the answers would lead.
“When the North Dakota court reviewed its position,” he reminded them, “it again found that it could only hear the case if the tribes waived their ‘sovereign immunity’—”
“As for the waiver,” broke in Chief Justice Burger, “would this then be a condition not only for this case, but for all cases?”
“That is the state’s finding,” said Cross. “If the tribes met the condition for this one case, the state is saying that the tribes’ surrender of sovereign immunity would become a permanent condition.”
Justice Sandra Day O’Connor was the first to jump in with a hypothetical question about Public Law 280. O’Connor zeroed in on the jurisdiction dilemma the law had created for the tribes and courts.
“Mr. Cross, would you have t
he same objection if the state conditioned its consent to use its courts to the waiver of any objection to proceedings in connection with that particular case; for example, a counterclaim by Wold that made the tribe subject to discovery orders and contempt sanctions and so forth, from the state court?”
“Justice O’Connor, the Three Affiliated Tribes would be subject to the counterclaim of the respondent, up to the extent of jurisdictional —”
Surprised by this answer, O’Connor broke back before he had finished. “I thought you said as a setoff, but not —”
“Yes, as a setoff,” said Cross.
“— as a counterclaim that would result in additional liability?”
“That is right, your honor.”
“What about the discovery procedures and so forth?” asked Thurgood Marshall. “How would that work?”
Marshall’s probe forced the case wide open. Suddenly, questions began to fly back and forth between the justices and the tribes’ attorney.
“Mr. Cross,” asked Rehnquist, “are there any individual Indians who are plaintiffs, or is it just the Three Affiliated Tribes?”
“Just the tribes.”
“Then these tribes have refused to consent to state court jurisdiction?”
There it was, the first step by Justice Rehnquist into the box canyon of due process. With this question, Rehnquist was also fishing for an easy way to uphold the state’s high court and at the same time force the tribes to surrender their sovereign immunity.
“It was only after the state took a second look at its own statute that they declared that the intent of the statute was to completely bar tribal governments access to state courts.”
Justice John Paul Stevens wanted to investigate this quandary. “Then if Wold Engineering wanted to sue the Three Tribes in the state court, it could not have done that?”
“That is correct. Requiring the tribes to waive their sovereign immunity —”
Justices Rehnquist and William Brennan had little patience for the notion of tribal sovereignty, or its correlative condition of “sovereign immunity.” Both men were looking for a way to attack this issue directly. Justice Lewis Powell cut Raymond off and beat them to the question.
“Then in your view,” began Powell, “the state could not dismiss the action for failure to waive the counterclaim?”
“That is correct. When a state statute bars all tribes from seeking remedies in state courts, then we would argue that the statute is overly broad. It interferes with the basic rights of due process, and it interferes with the equal protection of the law.”
Cross’s legal decoys were out in the open. Justice Powell had given him the opportunity to raise the issues of due process and equal protection. Justice Rehnquist pounced.
“Mr. Cross, you used the term ‘overly broad.’ That is something we ordinarily use in the First Amendment context. Is there any reason for this court to go any further here than in the particular application of the state statute of the facts of this case where you are not dealing with any individual Indians who are trying to sue, you are dealing with a tribe which is trying to sue, and the tribe itself has withheld its consent?”
Rehnquist was hoping to downplay the significance of tribes’ potential loss of immunity in a state court.
“If this statute is allowed to stand as construed, [it] will bar all tribal Indians from access to state courts. We think that’s overly broad.”
“Then would you explain,” shot Rehnquist, “how the tribe and non-Indian citizens are similarly situated for purposes of an equal protection analysis here? It just seems to me they are not the same because the tribe is not subject to the jurisdiction at all of the state courts under your view, not even subject to the counterclaim in this case. So, how are they similarly situated for the purpose of equal protection?”
Brennan and Rehnquist had boldly walked into the “due process” trap. If they got bogged down in this line of questioning, the other justices would leave them behind as they pursued a remedy to the “jurisdictional bar” issue that had been created by Public Law 280 thirty-five years before.
“The questions here center on whether or not a state court, or a state legislature, can pass or apply a statute that allows the enforcement of affirmative relief —”
“Well,” interrupted an exasperated Justice Brennan, “if two non-Indian parties, plaintiff and defendant, were suing each other in the state court of North Dakota, the plaintiff in the case would be subject to a suit for a counterclaim in that suit by the defendant. You have told us this morning that in your view the tribes are different from everybody else. According to you, Mr. Cross, the tribes are not subject to a counterclaim . . .”
“For the purpose of equal protection, no, your honor, they are not, but I think you will encounter troublesome difficulties in comparing Indian tribes to non-Indian plaintiffs.”
Thurgood Marshall smiled at Raymond’s deft rejoinder as he slipped through Brennan’s noose unharmed. The remaining justices seemed to make a tacit agreement at that moment that the equal protection query was going nowhere. “Mr. Cross, has the tribe now altered its laws so that a suit would be possible in tribal court today against Wold Engineering?” asked Justice Marshall.
“The tribe has altered its laws and a suit would be possible in the sense that the tribal code now recognizes jurisdiction over non-Indians. . . . The problem is that North Dakota, in a case entitled Lowe v. Cloud, does not recognize the enforceability of tribal court judgments that go against non-Indians.”
“Could the tribes have sued Wold in federal court?”
This was the question that Raymond had been hoping to hear from the outset. His simple answer was the crux of his appeal for certiorari.
“No, your honor, they could not.”
“I thought there was a special section of P.L. 280 that said that an Indian tribe, as plaintiff, can sue. Am I wrong in that?”
“Yes, sir, you are wrong in that. A contract action such as this one in question does not give the tribal government access to federal courts. Unless the tribes waive their sovereign immunity and agree to subordinate their sovereignty to the state, they have no access to the American court system, and therefore, no method of resolving a contractual dispute like Wold.”
Brennan and Rehnquist suddenly sobered. Simultaneously, both justices seemed to realize that their line of questioning had left them stranded in “due process” while the rest of the court headed off in another direction. The tribes’ attorney, thus far, had skillfully argued that the real-world effect of applying P.L. 280 to civil disputes such as Wold was to bar Indian tribes from seeking redress for civil actions in the American court system. Sensing that Cross had probably already swayed his fellow justices, Justice Brennan made one more attempt to rescue the state by noting that other minorities had access to federal courts for the purpose of settling disputes over civil rights.
“Well, federal courts hear state law questions all the time in diversity cases,” said Brennan.
“There is no diversity question before us, your honor,” said Cross, blocking his path.
“Thank you, Mr. Cross,” interrupted Chief Justice Burger. “Do you have anything further?”
“Yes, Mr. Chief Justice, simply to point out that the tribal courts are open to non-Indian plaintiffs, and many non-Indian plaintiffs take full advantage of tribal courts for debt collection and other purposes. By contrast, state courts are not open to tribal governments unless they consent [to waive sovereign immunity]. To do so would fundamentally impair how the tribes operate under federal law.”
Justice O’Connor’s head suddenly lifted when she heard this insight. In her mind, this was the knot that must be cut. The way P.L. 280 played out in the court system, once a tribe gave up its sovereign immunity to gain access to state courts, it could not get it back. P.L. 280 blurred the boundaries of federalism and turned the court system on its head.
“Mr. Cross, can an individual waive Indian sovereignty?” asked O’Connor.<
br />
“In the Williams v. Lee case, Chief Justice Marshall ruled that an individual cannot waive sovereignty. Only the tribal government can waive its sovereignty. That is why we believe this statute not only interferes with the constitutional rights of tribal members but also frustrates the exercise of federal Indian policy. Thank you, Mr. Chief Justice.”
“Thank you, Mr. Cross. The case is submitted.”
Back in North Dakota, Raymond’s million-to-one gamble with the GDUC the year before was now beginning to pay off with the JTAC. The emotionally charged testimony heard in New Town had made a deep impression on the JTAC members. After hearing twenty-four hours of testimony in just two days, the committee reboarded its charter plane at the New Town airport and flew back to Bismarck to begin writing its final report. As the days went by, the work of sorting through the mountain of evidence seemed more and more overwhelming, yet Murry was more determined than ever to meet his spring deadline. Fortunately, both he and Hans Walker were old hands at this work. Their earlier partnership in writing the legislative report on Public Law 280 twenty years earlier proved immensely helpful when they sat down to put their findings on paper. In late May 1986, Murry and Walker hand delivered the JTAC’s final report to Secretary Hodel at his office in Washington, D.C. With the JTAC work completed, and the Wold case submitted to the court, tribal chairwoman Alyce Spotted Bear decided not to run for reelection.
“Four years as tribal chairwoman was enough stress for one lifetime,” says Alyce. “As we walked out of the Supreme Court that day, I was so proud of Raymond, and so proud of the Three Tribes, I can’t begin to tell you what that felt like. As chairwoman, I had seen people face their deepest fears. Somehow, we had pooled our energies and talents and determination, and in four years we achieved things beyond our craziest hopes. When I left office, the tribes were financially sound for the first time in thirty years. The future was still a huge question mark, but Ed Lone Fight was the right guy to follow me. He brought years of administrative experience to the job.”
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