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Clarence Thomas Again Critiques Federal Indian Law

Once again, U.S. Supreme Court Justice Clarence Thomas has authored a compelling critique of fundamental doctrines in federal Indian law. Thomas' concurring opinion in United States v. Bryant, 13 June 2016, attacks the contradictions inherent in federal Indian law views of "tribal sovereignty."

The Bryant case involved an application of the 2005 Violence Against Women (VAWA) Reauthorization Act. As described in the majority opinion by Justice Ginsburg, the defendant Michael Bryant, Jr., had a record of over 100 convictions, including several misdemeanor convictions for domestic assault. Between 1997 and 2007, Bryant pleaded guilty on at least five occasions in Northern Cheyenne Tribal Court to committing domestic abuse in violation of the Northern Cheyenne Tribal Code. "For most of Bryant’s repeated brutal acts of domestic violence, the Tribal Court sentenced him to terms of imprisonment, never exceeding one year."

Justice Ginsburg noted the less-than-one-year sentences in Northern Cheyenne Tribal Court were due in part to the fact that "Congress has curbed tribal courts’ sentencing authority," limiting sentences to a maximum of one year’s imprisonment, or up to three years if the courts provide legal counsel and meet other conditions.

A section of the 2005 VAWA Act made it a federal crime for any person to "commi[t] a domestic assault within . . . Indian country" if the person has at least two prior convictions for domestic violence rendered "in Federal, State, or Indian tribal court proceedings."

The defendant challenged the applicability of his prior Tribal Court convictions, on the ground that he was not provided legal counsel. Ginsburg pointed out that the Tribal Court was not required to provide counsel, and concluded that these convictions were properly used to convict Bryant under VAWA.

Justice Ginsburg referred to the "complex patchwork of federal, state, and tribal law" governing Indian country, which, she wrote, "has made it difficult to stem the tide of domestic violence experienced by Native American women."

Justice Thomas took the opportunity to criticize the "complex patchwork."

Thomas issued a previous major salvo against federal Indian law in 2004, in United States v. Lara, where he stated, "federal Indian law is at odds with itself. … The Federal Government cannot simultaneously claim power to regulate virtually every aspect of the tribes through ordinary domestic legislation and also maintain that the tribes possess anything resembling 'sovereignty.'"

In Bryant, Thomas wrote that the contradiction between "tribal sovereignty" and "plenary power" doctrines "exemplify a central tension within our Indian-law jurisprudence." On one hand, federal Indian law doctrine states "tribes [hold a] status as 'separate sovereigns pre-existing the Constitution.'" On the other hand, a contrary doctrine states "Congress [holds] 'plenary power' over Indian tribes."

Indian Country lawyers have steered clear of responding to Thomas or even acknowledging his critique, despite the fact that cases stretching back to the beginning of federal Indian law in the "Marshall trilogy" bear him out.

It seems to be in bad form to admit that chaos reigns in federal Indian law, although no less an authority than Vine Deloria, Jr., pointed this out long ago in "Of Utmost Good Faith" (1971): The Supreme Court, he wrote, as it creates federal Indian law, "skips along spinning off inconsistencies like a new sun exploding comets as it tips its way out of the dawn of creation."

Justice Thomas seems intent on uprooting the inconsistencies of federal Indian law, but his intent and his goal are not clear. He shows no awareness of the formative premise underlying the contradictions: Christian Discovery Doctrine (more on this in a moment).

In Lara, Thomas called for "identifying the potential sources of federal power to modify tribal sovereignty," but did not call for identifying potential limitations on such federal power. In Bryant, he described "plenary power" as a "paternalistic theory," and urged attention to "tribes’ distinct histories…. to understand the ultimate source of each tribe’s sovereignty and whether it endures."

Indian Country would do well to take up Thomas' critiques, in the spirit described by Deloria in "Custer Died for Your Sins" (1969): "Past events have shown that the Indian people have always been fooled by the intentions of the white man. Always we have discussed irrelevant issues while he has taken our land. Never have we taken the time to examine the premises upon which he operates so that we could manipulate him as he has us." (Don't be distracted by Justice Thomas' skin color. Deloria's "white man" refers to the apparatus of American government and its institutions of dominance.)

We need not fear engaging with Justice Thomas or anyone else in the American government who wants to challenge the mess in federal Indian law. In fact, every time we avoid or fail to debate federal Indian law critiques, we lose another opportunity to challenge the basic anti-Indian premises of the field.

For too long, Indian lawyers have acquiesced in what Chief Justice John Marshall called "the pretension of conquest" at the core of federal Indian law. Marshall wrote that phrase in Johnson v. McIntosh (1823), when the U.S. Supreme Court adopted the Christian Doctrine of Discovery as the basis for U.S. hegemony over the Indigenous Peoples of the continent. Marshall also crafted the "concomitant principle" that the Indians are "merely occupants" of their own homelands.

The "pretension of conquest" established as the foundation of the field finds its way into every aspect of federal Indian law, from the notion of "diminished tribal sovereignty" to the notion that the U.S. Congress has "plenary power" over Indigenous Peoples and Nations.

Again and again, Indian lawyers' and Tribal Council leaders remain bound within the framework of "overriding U.S. sovereignty" and "Indian occupancy."

The question for Indian Country—especially its lawyers and leaders—focuses on whether we are prepared to analyze federal Indian law with rigorous intellectual honesty. If we are not, we are writing the epitaph for Native Nations, because non-Native forces tearing at the contradictions in federal Indian law are aiming for the elimination of Indigenous self-determination.

The contradictions within federal Indian law are only the beginning of the analysis. The end of the analysis will show a deep coherence in federal Indian law, centering on the single, basic doctrine of domination: the Doctrine of Christian Discovery. Underneath the apparent chaos of federal Indian law lies an anti-Indian coherence that the American government has embraced and never disavowed, even into the era of the United Nations Declaration on the Rights of Indigenous Peoples.

A critique of federal Indian law as a whole—from its original premises to its contemporary array of contradictions—will provide an opportunity to move away from the apparatus of domination and toward a renewed framework for negotiation, treaty making, and international Indigenous self-determination.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.