The first one was Cristobal Colon, a name later Americanized, to suit racist tastes, to the now familiar "Christopher Columbus." We did not know, we could not have known, that this October moment in 1492 when Columbus landed was the clashing of two paradigms of thought. Our past five hundred years of experience, the drama, the horror, the loss, have been about preservation of an entire way of life, against the compulsive intrusive nature of our European brothers always wanting in.
About a year ago, the Supreme Court of the United States rendered an intellectually dishonest opinion that was also about getting in. The case was entitled Nevada v. Hicks. The Hicks case, after a full year, now creates a new fear.
On the surface, Hicks is almost comic. Wildlife officials of the state of Nevada almost ten years ago received a tip that Floyd Hicks, a member of the Fallon Paiute Tribe, had killed a bighorn sheep protected under Nevada law. They got their state search warrant. As was the custom, they went to the tribal court to get their warrant honored, if it met with tribal approval. It did. The officers produced the warrant to Hicks and then confiscated the mounted head of the bighorn sheep. In their analysis of the head, they damaged it. Then they encountered the dismal truth that this was not the species that was protected. They returned the head to Hicks. After the passage of several years, the same thing happened again. State officials tore apart yet another sheep head.
Tired of these episodes, Hicks went to his own tribal court and filed lawsuits against the Nevada officials. It made sense that since Nevada needed the same court to go after Hicks, he could go to the same court to go after them. But the state wanted to assert its sovereign immunity. The tribal court didn't recognize that immunity, and the matter went into the federal court system.
Nevada wasn't really interested in contesting the jurisdiction of the tribe over these claims, at least outside of the sovereign immunity defense, so Nevada's Assistant Attorney General Wayne Howell recently disclosed. The state of Nevada had developed a more cooperative attitude in recent years. As the matter made its way before the Supreme Court, however, it enabled the nine justices to reshape their vision of how the states and the tribes must get along. What they envisioned was the dark shadow of state authority reaching into every tribal home, into every place of safety that exists on tribal land. The American obsession with the manhunt and its terminal accounting through the imposition of punishment could not be hindered by a principle of tribal territorial integrity. A judge of the 9th Circuit Court of Appeals summed it this way "everyone [in Hicks] behaved themselves nicely except the Supreme Court."
But here is how this translates into fear.
Nevada didn't want this outcome. They do have respect for the Fallon Paiute Tribe. That's why they went to the tribal court in the first place. What the Supreme Court did in Hicks was to strip tribes of their integrity; we are being reduced to mere voluntary associations with only enough authority to regulate affairs among ourselves. State officials are free to enter upon tribal lands and to enforce their laws against all people, not just non-Indians.
Professor David Getches, a foremost scholar in federal Indian law, suggested that we were only "collateral damage" in the Court's efforts to shore up States' Rights within the federal system. At worst, he offered, though, was the possibility that the Supreme Court's decision was "racist." State officials around the country, and particularly where there has been a history of racial tension between Indians and non-Indians, consider this a breakthrough allowing them to enter reservations unchecked. What will you do now when you look out your curtains and see a state trooper at your door? That is the fear of the common person. Can we call on our lawyers to defend us against this menace?
The short answer is "No." At the Federal Bar Association's Indian Law Conference held last month in Albuquerque, top scholars, lawyers and activists in the field of federal Indian law urged each other to refrain from bringing legal challenges. Taking cases to the Supreme Court, they proclaimed, only threatens to carve away at meaningful notions of sovereignty.
At this same law conference, many people were debating the possibility of going to Congress to have it pass a law that keeps the State, at the very least, at our doorstep, outside of the boundaries of the "rez." This is the extent of their fear; they too, see no other meaningful way out. But, unlike previous successful attempts to seek a Congressional cure, we face a Republican Congress and a Republican President. The prospects there are dismal: the Republican Party, a remnant of confederate philosophy, stands for States' Rights. Some people have argued that we should be prepared in a legislative initiative to make some concessions if we are going to get anything out of Congress: non-Indians voting in tribal elections, or serving on juries, or holding some tribal public offices. A willingness to concede so quickly shows the depth of their fear.
A Congressional fix is not wrong. But it must "fix" things and not make things worse. This talk of concessions only threatens to confuse things. The law has always fallen short because there is no foundational principle governing the relations between the federal, state and tribal governments. A piece of legislation cut and pasted from entrenched concerns and political expediencies cannot lead to a principled solution. Placing non-Indians on juries in the tribal court, for instance, stands for no principle at all. A stretch of the imagination, worse, could create an imaginary principle from that concession that Congress intended tribal governments to gradually incorporate non-Indians into the tribal body politic.
But, what does a "principled solution" mean? A principled solution to Federal-State-Tribal conflicts must somehow explore whether overlapping systems of governance are even feasible. We have struggled for several decades with the meanings of "self-determination" and "sovereignty." A "principled solution" must circumscribe our domain. It must render finality in meaning to those terms "self-determination" and "sovereignty." A "principled solution," though, must yield results in the real world. It should mean that tribal members should not have to pay state taxes in any form. Tribal members should not have to pay federal taxes (we should never have to finance the federal government's trust responsibility towards us). We should not have to gain vehicle and drivers licensing from any State. We should be able to live anywhere in the United States without having to yield to a residency requirement: we always reside at home. State authorized textbooks must be altered to recognize the historical truths of the immoral acquisition of our lands, lands which now form the basis for a thriving market in real estate in this country, our unwilling contribution to a Nation claiming greatness.
In order to attain the golden objective of a principled solution, however, we must create the political will to do so. We need the help of tribal peoples. Our efforts to gain a principled solution to federal-state-tribal conflicts cannot be accomplished by tribal leaders and lawyers alone. The tribal public must be able to see the tangible outcomes of principled legislation. They have to see the possibility of jobs, loans, housing, health care, tax exemptions, education and hope.
Non-Indians, as well, must become willing supporters of Native desires for a principled solution. But that cannot happen when our educational institutions and the media continue to misrepresent the past.
Solutions, in the end, are not always clean and simple. The Hicks case has brought fear to many of us, a fear that the other paradigm of thought, the one entrusted to us by our ancestors, will become lost. We love our Native lives, but must, from time to time, defend ourselves, to preserve our ways of life, within foreign institutions. To the white man at our door now, let us emphatically say, as a unanimous group of tribal peoples, that entry shall come on our terms, as a matter of mutual respect, as this has been our home being entered since 1492.
Judge Carey N. Vicenti, a member of the Jicarilla Apache Nation of northwest New Mexico, currently serves as an Assistant Professor of Sociology at Fort Lewis College in Durango, Colorado. He sits as a judicial official for several American Indian nations and is a columnist for Indian Country Today.