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A justice for all

As the confirmation hearings for Judge Samuel Alito wind down, much of the
discussion has focused on his perceived "moral values." But what does this
really mean? In today's society, all too often American morality is equated
with religion. Whether a person is "moral" depends on how she prays, where
she prays and how often she prays. American morality, however, is more
fundamental than that. It goes to the core values of equality, justice and
tolerance that are rooted in our U.S. Constitution.

How we ensure that all citizens of this country are treated equally under
the law is perhaps the best gauge of our morality as a society. And this is
the morality that we need to consider as a nation when determining whether
to support Alito's nomination.

If confirmed as a Supreme Court justice, Alito will be asked to interpret
and uphold the law. To do that for Indian country, it is not enough that he
understand federal Indian law. He must also have a full understanding and
appreciation for equality and justice.

As most of us in Indian country are aware, federal Indian law has rarely
incorporated the important principles of constitutional law that were
developed out of the civil rights era. In fact, current federal Indian law
is based on the premise that Congress has practically unlimited power over
Indian tribes, their property and their affairs. This means that, with a
few small exceptions, Congress can legislate with regard to Indians without
being subject to the restrictions of the Bill of Rights. This premise is
referred to as the "plenary power doctrine."

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One of the most horrible elements of the so-called plenary power doctrine
is the power of Congress to take Indian tribal property, including land,
money and other property, without due process and without compensation.
This power was confirmed in 1955 when the Supreme Court, in Tee-Hit-Ton v.
United States, declared that the United States may freely confiscate the
land and resources of Indian tribes that are held by aboriginal right, that
is, by reason of long historical possession and use -- and this can be done
without any compensation. The Supreme Court came to this decision despite
the Constitution's guarantee in the Fifth Amendment that Congress may not
take anyone's property without due process of law and just compensation.

Everyone knows that the Supreme Court is supposed to interpret the law.
More importantly, however, the Supreme Court should ensure that justice and
equality prevail. This means that all Americans -- even Indians and Indian
tribes -- should be accorded the same constitutional protections.

Much has already been made of Alito's so-called moral values. More needs to
be made of whether he is willing to apply the law equally and thereby
uphold the moral values of America outlined in our Constitution. Alito has
already said that if confirmed, he will uphold the U.S. Constitution.
Before we decide to support or oppose his confirmation, we, as a society,
need to be sure that he will do that for all Americans -- including
Indians.

Lucy Rain Simpson is an enrolled member of the Navajo Nation and a staff
attorney with the Indian Law Resource Center, a nonprofit law firm that
represents Native peoples in the United States and internationally. Visit
www.indianlaw.org or call (406) 449-2006.