October 14, 2024
The Supreme
Court has made headlines in recent years for a variety of controversial rulings
— for gutting affirmative action, granting the president broad immunity and
overturning the constitutional right to an abortion. As the Supreme Court has
moved further to the right (and struggles with a legitimacy crisis thanks to
compounding ethics scandals), a growing portion of the U.S. population is
concerned by how much power the court has. But long before Dobbs, Citizens
United or even Bush v Gore, the Supreme Court was wreaking havoc in an area of
the law that doesn’t often make mainstream news headlines: the sovereignty of
Indigenous nations.
Chief
Arvol Looking Horse, of the Sioux Tribe, delivers a prayer during the
rally in front of the United States Supreme Court on the East Front of
the U.S. Capitol, on December 7, 2015. Bill Clark / CQ Roll Call
The legislative
and executive branches of the U.S. government have of course done immeasurable
harm to Indigenous nations for centuries, but that started to shift in the
1970s as Indigenous advocates and nations gained more power. At the time,
tribes were pulling themselves out of the termination era (during which
Congress “terminated” over 100 tribes by writing them out of legal existence).
In response, grassroots activists started the Red Power and American Indian
Movements, and tribal leaders lobbied hard in D.C. Together, they brought about
the self-determination era, during which Congress finally recognized that
tribal governments know what is best for their citizens and land. In the
decades following, Congress passed laws protecting religious freedom, Native
families, sacred sites and tribal self-governance. While far from perfect, the
laws coming from Congress after this period started to do more good than harm.
At the same time, large setbacks for tribal sovereignty started to come from
the Supreme Court. From the 1950s to 1990, tribes or tribal interests lost the
majority of cases brought before the high Court, but by a small margin.
Starting in the ‘90s, that margin grew. In the past 30 years, tribal interests
have lost two-thirds of all Supreme Court cases. Rather than counting on the
Supreme Court to advance or even uphold the sovereignty of Indigenous nations,
tribal leaders have watched the high Court roll those rights back.
In 1978 — the
same year Congress passed laws protecting Native families and restoring
religious freedom — the Supreme Court decided Oliphant v. Suquamish Indian
Tribe. On the Suquamish reservation, a white man named Mark Oliphant got in a
drunken fight with another person. When tribal police tried to place Oliphant
under arrest, he fought back. In tribal court, he was charged with disorderly
conduct and resisting arrest. Before Mark Oliphant was brought to trial, he
filed a federal habeas petition arguing that the Suquamish Indian Tribe
couldn’t prosecute him because he wasn’t Native American. He lost twice in
federal court but appealed his case all the way to the Supreme Court. The
Supreme Court ruled in his favor, concluding that “while Congress never expressly
forbade Indian tribes” from imposing “criminal penalties on non-Indians” it was
“the commonly shared presumption” that tribes could not.
Today, other
than exceptions carved out by the Violence Against Women Act, tribes are
prohibited from prosecuting non-Natives who commit crimes on tribal land. What
followed Oliphant was an explosion of violent crime in Indian country,
especially against Native women, children and Two Spirit people (Two Spirit is
an umbrella term for Native LGBTQ folks). According to the Department of
Justice, four out of five Native women will experience violence in their
lifetime. Ninety-seven percent of these women have been the victims of crimes
perpetrated by someone who is not Native.
On the heels of
Oliphant, the Supreme Court ruled in Montana v. United States that tribes
didn’t have civil jurisdiction over non-Natives either. Criminal jurisdiction
is simply the authority to prosecute crimes, but civil jurisdiction is much
broader. It includes the ability to bring forth lawsuits, enact family law,
regulate pollution, or grant business licenses. The case began when James
Junior Finch posed for a photograph while casting his lure into the Bighorn
River on the Crow reservation. According to the laws of the Crow Tribe, Finch
couldn’t fish there, but Finch didn’t think the tribe could tell him what to
do. The litigation took place against a background of racial hostility; local
white residents, in defiance of tribal law, fished anyway, leaving their beer
cans, threatening tribal police and even calling them racial slurs.
In Montana
v. United States the Supreme Court said tribes do not have civil
jurisdiction over non-Natives on what’s called “fee land” (land within
reservation boundaries, but which broadly speaking is privately owned) except
for two special circumstances: when a non-Native person or business has entered
into a consensual relationship with the tribe — like a contract — or if their
conduct threatens “the political integrity, the economic security, or the
health or welfare of the tribe.”
Illegal fishing
did not meet the elusive “Montana exceptions” — a bar that has since proven
difficult for all tribes to meet. That means if a non-Native business pollutes
a reservation, a pharmacy floods tribal communities with opioids, or a domestic
violence survivor needs a protective order, there is little the tribe can do.
Harmful Supreme
Court decisions continued into the 21st century. In 2005, one came from a
Justice you might not expect: the late Ruth Bader Ginsberg. In City of
Sherrill v. Oneida Indian Nation of New York the Supreme Court ruled
that land illegally taken from the Oneida Nation, which the nation later
repurchased, could not be placed back under tribal jurisdiction because the
original theft happened so long ago and correcting the wrong now would cause
too much of a disruption. Writing for the majority, Justice Ruth Bader Ginsberg
told a distorted history, claiming “it was not until lately that the Oneidas
sought to regain ancient sovereignty over land converted from wilderness to
become part of cities like Sherrill.” Now, it was too late, she opined, for the
tribe to rekindle “embers of sovereignty that long ago grew cold.”
All three cases
began with white people or states breaking the law — Oliphant resisting arrest,
Finch fishing and New York illegally taking Oneida land. Instead of being held
accountable — or even restrained — for their illegal behavior, the parties were
rewarded. In a move repeated throughout our history, rather than uphold the law
to protect Indigenous nations, the Supreme Court remade the law to fit
settlers’ needs.
One of the
biggest barriers that Indigenous nations face in front of the Supreme Court is
the sheer ignorance of its Justices. During oral arguments in Sherrill,
then-Justice Sandra Day O’Connor asked if all white people living on Oneida
land would be evicted if the tribe’s land rights were upheld. In 2013, while
reviewing Adoptive Couple v Baby Girl, Chief Justice John Roberts asked a
series of questions betraying the fact that he did not understand how tribal
citizenship works or what, really, a federally recognized tribe is, including
if tribal membership could be open for “people who want to apply, who think
culturally they’re a Cherokee.” During the same case, about a law protecting
the rights of Native parents, then-Justice Stephen Breyer asked if the law
would allow Native men to rape non-Native women and keep the baby. “The child
would be taken and given to the father,” he worried out loud, “who has never
seen it and probably just got out of prison.” As recently as 2022, Justice
Samuel Alito argued that Indigenous nations do not share a common political
interest, because “before the arrival of Europeans, the tribes were at war with
each other.” An entire area of American law — going all the way back to the
founding — protects the sovereignty of Indigenous nations. But that law is
meaningless if the people in charge of interpreting it — and the citizenry that
puts them in power — don’t know what it is.
By decree, the
role of the Supreme Court is to interpret American law, not write it. Starting
in the 1950s, however, the court gave itself more power, shifting the balance
away from Congress and the president. Many legal scholars attribute this shift
to a backlash against civil rights legislation, large swaths of which (like
federal oversight and protections for voters of color) the Supreme Court has
declared unconstitutional. Today, in our democracy, the Supreme Court, not the
president or Congress, often has the final word.
In the arena of
federal Indian law, that shift produced two competing doctrines: the Supreme
Court sometimes deferring to Congress and other times “usurping the power of
the Congress to decide what it wants in federal Indian law,” NYU law professor
Maggie Blackhawk, from the Fond du Lac Band Ojibwe, told me. Blackhawk says in
the past 70 years these doctrines have existed side-by-side. Sometimes, the
Supreme Court constrained itself to interpreting what Congress said. But in
other cases, like Oliphant, Montana and Sherrill, it went way off track. When
the court follows the law as written, tribes usually win. When the Supreme
Court makes up or changes the rules, tribes lose.
These competing
doctrines can be seen in the modern Supreme Court. In 2020, the Supreme Court
delivered a historic victory for tribes. In McGirt v Oklahoma, the court upheld
the reservation of Muscogee Nation — which had been denied by the state for
over a century. Subsequently eight other reservations in Oklahoma were
affirmed, resulting in the largest restoration of tribal land in U.S. history.
To make history, the Supreme Court didn’t overturn anything or strike anything
down; all the court did was follow the law.
But that victory
upset the state of Oklahoma, which asked the Supreme Court to reverse its
decision — over 50 times. Instead of a complete reversal, in Oklahoma v.
Castro-Huerta the Supreme Court gave the state back some of the power it lost
on the newly recognized reservations — namely, the power to prosecute crimes if
the victim is Native but the perpetrator is not.
Many legal
experts warn this will make the crisis of violence against Native women even
worse. The decision, authored by Justice Brett Kavanaugh, was based in part on
facts and figures Oklahoma shared about criminals walking free and crimes going
unprosecuted that were later found to be grossly exaggerated and even wrong. In
his opinion, Kavanaugh contradicted several other Supreme Court decisions but
didn’t claim to overrule them. Instead, he just ignored them. Even his
colleagues on the bench were taken aback. “Truly, a more ahistorical and
mistaken statement of Indian law would be hard to fathom,” Justice Gorsuch
wrote in the dissent. Instead of following the law, the Supreme Court made it
up.
Five days before
Castro-Huerta came out, the Supreme Court overturned Roe v. Wade and the
constitutional right to an abortion. After the fall of Roe, public faith in the
Supreme Court reached its lowest point in 50 years. Three-quarters of Americans
say the Supreme Court has become “too politicized” and less than half feel
“trust and confidence” in the institution. Some research shows people’s faith
in the Supreme Court may be tied to their faith in law itself.
“Like the
miner’s Canary,” an early scholar of Federal Indian Law, Felix S. Cohen, once
wrote. “The Indian marks the shift from fresh air to poison gas in our
political atmosphere.” How our government treats Indigenous peoples, he argued
“reflects the rise and fall of our democratic faith.”
Facing harm and
capricious disregard for legal precedent from the Supreme Court is a reality
Indigenous nations have been living with for a long time. Sometimes, when the
law is on our side we win. But more often, we watch the institution depart from
law and precedent at will. Now, in the wake of Dobbs, many more Americans are
sharing in this reality.
The sovereignty
of Indigenous nations long reflected the strengths and weaknesses of the
Supreme Court, the chaos of its decision making, and the power it has given
itself outside of constitutional bounds. If only more people had been paying
attention.
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