WASHINGTON - The United States Supreme Court has the awesome responsibility of protecting the rights and liberties of all Americans. If you compare the freedoms generally enjoyed by American citizens with the political and social environments in many other nations, you might conclude that the Court is doing a good job. In cases involving Indian country however, some observers feel that the nation's highest court has lost touch with both historic and contemporary Indian reality.
This lack of touch results from several factors: A body of justices extremely unfamiliar with reservation life and Indian country in general; the fact that no single coherent body of Indian case law exists; and a lack of Indian participation in research or litigation at the Supreme Court. The latter factor is particularly significant because it affects how the Justices get their information.
The prevailing political climate existing in the nation's capital and throughout the country as a whole exerts a huge influence on Court decisions. The political climate in Washington, as it relates to Indian country, has to have swung toward a "states' rights" in both the Court and Congress, whose 1988 passage of the Indian Gaming Regulatory Act gave states considerable leverage in casino compact negotiations.
The shift in attitude towards states' rights by the Rehnquist Court has generally had an inverse affect on tribal rights, and seems to conflict with Constitutional provisions giving the federal government sole authority in dealing with tribes. The Court's focus on individual rights also affects tribal rights since tribal courts are perceived by some as not affording the same type of due process and individual protections as off-reservation courts.
Sources of information for the justices are critical. Research at the Court is performed by law clerks, none of whom are or ever have been Indian. The majority of said clerks, while certainly capable in many legal specialties, tend to come from schools without Indian law on the curriculum thus leaving them with little basis for understanding the subject.
To Carey N. Vicenti, former judge in the tribal court system, the lack of Indian participation at the Supreme Court level is a significant problem.
"Structurally Indians have been pushed out of the whole business of litigating Supreme Court cases - occasionally making it into the court but not with great frequency," Vicenti said, noting that non-Indian lawyers who usually have little or no knowledge of reservation life, litigate most Indian cases.
Another problem is years upon years of contradictory decisions and precedents, coupled with the failure to so far develop a coherent compendium of Indian case law.
"Federal Indian Law is not rooted in any Constitutional principles or in anything doctrinal," said Vicenti. "In fact it's what people call 'federal common law,' which means compiled decisions of judges as opposed to statutes on the books or actual constitutional provisions. ? [Thus] Federal common law, because it's not bound by any doctrine, really shifts very dramatically with the political sensibilities of the court and right now what you have is a supreme court that is truly an eastern institution."
Because much of Indian country and a majority of Indian people are located in the western part of the United States, the Court's eastern orientation bothers many Indian legal scholars.
"The court has given an immense amount of deference to Sandra Day O'Connor," Vicenti said. "She, of course, came out of the Arizona court system and ? [the Court has] always deferred to her and not questioned her expertise in the field of Indian law. She really doesn't have any expertise; she just comes from a western state. So when you get a difficult case that's split 4-4, she's the deciding vote. In essence, she's the queen of Indian law."
In the 1940s, Felix Cohen, a solicitor of Indian affairs, began to compile a manual of federal Indian law. Unfortunately, Vicenti explained, the Department of Justice got wind of the project and "corrupted" it into a litigation handbook for federal attorneys to defend against land claims. The Cohen book did manage to resurrect the virtually forgotten Marshall decisions of the 1830s, which characterized tribes as "domestic dependent nations" but also included what Vicenti called the "bad cases" of the late 1800s.
"During the land claims of the '50s, tribes hired non-Indian lawyers who used the same corrupted book to prosecute the Indians' cases," Vicenti explained. "The Cohen book had meanwhile found its way into law schools, so that now everyone was learning federal Indian law from the same corrupted book."
Vicenti summed it up as follows: "In essence, you have this free-floating federal Indian common law that has its own narrative but it's all really a very fictitious narrative. When you take all the facts and all the cases and begin to look to the reality behind them, you see that there's an immense detachment - that the reality of Indian reservations is nothing like what is depicted in the facts of the various cases. In a large part that's because Indians are really not participants in the process."
"I had the good fortune to speak with Justice [Stephen] Breyer about this," Vicenti continued. "He said 'We're not a hostile institution, we're not trying to do bad things to you. We're just connecting the dots.' But the dots that he's connecting are all of those cases that go all the way back to Marshall and include those really ugly cases of the late 1800s. So you have an institution that doesn't necessarily hate Indians, but doesn't have the capacity to appreciate Indians."
While previous projects to revise the Cohen handbook have failed, a concerted effort by a number of Indian law scholars to do so is currently in progress. The "Supreme Court Project" will also pay dividends.
Supreme Court Project
"I think the phrase "out of touch" is probably the most accurate," said Tracy Labin, staff attorney at the Native American Rights Fund, in describing the Court. But she hopes to turn that around.
Labin is also NARF's director for the Supreme Court Project, a joint effort with the National Congress of American Indians, whose goal is to educate the Court. "In some ways they're being receptive," she said.
After the Nevada v. Hicks and Atkinson v. Shirley decisions in 2001, which dealt considerable blows to tribal court jurisdiction over non-tribal members, Justices O'Connor and Breyer visited three tribal courts.
"To our knowledge, no Supreme Court justice had ever seen a tribal court," Labin explained. "Most of them had probably never been to an Indian reservation and really don't know much about modern Indian reality. ? [the visits] were valuable for showing them that these are truly highly functioning legal institutions, that they really are reflective of the needs of the community. I think they saw that."
Labin said that immediately following the Hicks and Atkinson decisions, many Indian law scholars advocated keeping cases out of the Supreme Court "at all costs" for fear of the further erosion of tribal court jurisdiction.
After the damaging 2001 decisions, NARF and NCAI formed the Supreme Court Project, as Labin explained it, "To stave off the imminent destruction of Indian Law. I think we've been really successful."
One important measure undertaken by the Project is coordinating the writing of amicus or "friend of the court" briefs for Indian cases. Judges are not required to read such briefs, but if well researched and written they can be influential and invaluable in educating the court - an amicus brief was used successfully in Inyo County v. Paiute-Shoshone Indian Community, decided by the Supreme Court on May 19.
"What the amicus briefs try to do is to put forth the facts," Labin explained. "In the Inyo County case, the amicus brief said, 'You may not know this but Indian tribes and states have all sorts of cooperative agreements when it comes to law enforcement.' There isn't just a vacuum where there are 'enclaves of lawlessness' as the state said. It just doesn't exist ? [but] I have no question that court did not know that and probably thought that Indian reservations could possibly be 'enclaves of lawlessness.'"
A working group of 200 attorneys has coalesced under its auspices and more lawyers, both Indian and non-Indian, are sought to contribute to the cause by writing and reading amicus briefs and keeping an eye on both judicial appointments as well as Indian cases moving through the court system.
For tribes to continue to strengthen themselves and assert their rights, a stronger and more vigilant legal outlook is need. The Supreme Court Project, through its efforts as both an educator and a watchdog, is poised to make a difference and build on the success it has already enjoyed.