Adamson: Nuances of color at the High Court

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The federal establishment doesn't want Indians in court anymore because we're right.

That is one way to read the current rash of poorly considered Supreme Court decisions and political developments.

On the political front, a congressional effort is taking shape to settle trust funds litigation. The evidence is so overwhelmingly against the government that the lead culprit in the case, the Interior Department, will simply dissolve into bankruptcy and receivership if the court process runs its course all the way to real justice for Indian trust accountholders. So Congress can be expected to intervene. After a century and more of horrific injustice to Indian people, the cost of justice on the trust funds is too high now.

Yet in the end, Individual Indian Monies accountholders will find some measure of justice simply because the case is being taken out of the courts and entering a political process. Certainly, if left to the courts the trust class action case would end up at the Supreme Court ultimately. That would not be a good thing at present or for the foreseeable future.

The Supreme Court regularly demonstrates as much in its Native cases. Of course, no one who needs to hear it would accept the accusation coming from us, from Indians. The high court is supposed to be the citadel of impartiality; stacked up against that imposing fa?ade, we are just inconvenient commentators.

But David H. Getches, a law professor at the University of Colorado Law School, issued an article in Fall 2001 that proves it to all too well. "Beyond Indian Law: The Rehnquist Court's Pursuit of States' Rights, Color-Blind Justice, and Mainstream Values" analyzes the court's Indian-specific caseload and its decisions and concludes that the court has essentially shelved the precedents based on the so-called "Marshall Trilogy," the famed Indian decisions of Justice John Marshall that laid the foundations for Indian law in the early 18th century. In addition, the longstanding court canons of construction that favor finding for tribes in ambiguous legal conditions has also been shucked by the current high court's "infidelity to doctrine," Getches finds.

These precedents and canons were established at a time when a young Congress was still dealing with the new nation's pre-constitutional relationship with tribes. The political process, then as now, was slow and inefficient, but then as now too it could look at a context beyond the narrow gage of case law and react with all of its "merciful inefficiencies" intact. Fast forward two centuries and we have a high court whose guiding philosophy is that "unsound precedent" should be overturned.

So far so good - segregation once had court precedents, let's not forget.

African Americans, however, have an advantage over Indians when it comes to courts ignoring historical precedent. A great many of them want to join the American mainstream, to be a minority presence within it. Supreme Court justices seem to understand that position, Getches writes:

"An open-minded judge, conscious of latent prejudices, can sometimes empathize with a person disadvantaged by society's exclusion or disenfranchisement, but a new dimension is added when the 'different' claimant or class asserts the right to be 'different.' Thus, it may be easier for a panel of elite, predominately white male lawyers, to understand the problem of employment discrimination against an African-American single mother whose goal is to come closer to the mainstream, than it is for the panel to appreciate the importance of tribal traditions and autonomy to cultural survival in a context of killing eagles for ceremonial purposes."

Indians on the other hand are not a minority; they are citizens within sovereign governments. We have never been altogether severed from our own culture and traditions, and keeping these is the summit of our desire. Whether we as individuals reject the materialist mainstream and its measures of well-being or not, our decisions are taken within the context of tribal cultures, not the advertised "lifestyles" of the mainstream. Getches again:

"Indian law has always been based on the assumption that separate societies could exist exempt from the American melting pot, preserving customs, values and governance of the vestiges of their traditional territory. Judges who are not steeped in the culture and values of Indian tribalism are ill-equipped to re-work these complex and anomalous traditions case by case."

Yet the Rehnquist court keeps trying. And the result of all this is that Supreme Court rulings in Indian cases nowadays serve mainly to protect non-Indians from tribal authorities.

New generations of Native attorneys and their mainstream colleagues, educated we must hope with an exposure to Indian culture, will have many "unsound precedents" to overturn once this court's work is through.

Rebecca Adamson is the president of First Nations Development Institute and a columnist for Indian Country Today.