Updated:
Original:

Congress Should Override Supreme Court on Tribal Border Security

Author:

Border security is the new mantra for modern-day bigotry. It provides the talking point for the excesses of the senseless Sensenbrenner ñ King Immigration Bill, which calls for a 700-mile fence between the United States and Mexico (but not Canada).

It gives enemies of the tribes a respectable label for dishonest attacks on reservation self-government. So letís throw down a challenge to all the Lou Dobbs-style talking heads on television. If you are really concerned about effective policing of the nationís frontiers, restore to the Indian tribes on the border the authority to make their contribution.

Some 50 tribal sovereignties lie within 100 miles of the northern or southern borders. They are ready and willing to back up national security with skills that the U.S. Border Patrol acknowledges are indispensable.

The Tohono Oíodham Nation fields the Grey Wolves, an internationally famous corps of trackers, which has served on the Mexican border and in the Balkans. The St. Regis Mohawk Tribal Police force of 15 officers devotes 50 percent of its time to border enforcement in northern New York ñ 80 percent in the winter when the St. Lawrence River is frozen over. But the U.S. Supreme Court has tied the hands of tribal law enforcement with an irrational and completely unjustified legal principle.

Tribes are not allowed to enforce criminal law against non-Indians. This is what the Supreme Court has held since the 1978 case of Oliphant v. Suquamish Indian Tribe (435 U.S. 191).

This notorious case has contributed enormously to the difficulties of law enforcement on the reservation. It has been a major factor in the spread of methamphetamine marketing, not to mention sexual abuse and domestic violence. Now it is hindering the tribal contribution to border enforcement. If U.S. Reps. James Sensenbrenner, R-Wis., and Peter King, R-N.Y., the chairs of the crucial law enforcement committees in the House of Representatives, are really serious about border security, they should be leading a congressional drive to override the Oliphant holding.

We can provide them with a boatload of arguments. Oliphant could well be one of the most harshly criticized, not to say ridiculed, of modern Supreme Court decisions, and not just in the thoroughly hashed-up field of Indian law. It is a prime example of the intellectual dishonesty of the late Chief Justice William Rehnquist, which has provided enough material to give full-time work to an entire school of debunking legal scholars, the so-called Critical Legal Theory movement. Historians of the court are already concluding that Rehnquist was a slow-moving disaster. But when it came to Indian cases, he was the Hindenburg crash, the Titanic tragedy and the Wreck of the Old 97 rolled into one.

In the Oliphant decision, Rehnquist basically argued that the courts, Congress and executive branch through U.S. history had never intended that Indian tribes have jurisdiction over white men on their territory because he, Rehnquist, could not imagine that they could have allowed such a thing. We do not exaggerate. His historical citations are extraordinarily weak, filled with assumptions, speculations and tap dancing past contrary evidence.

Rather than repeat the numerous refutations, we refer the reader to some thorough chapters in ìThe Masking of Justice: American Indian Sovereignty and the U.S. Supreme Court,î by David E. Wilkins (1997) and ìLike a Loaded Weapon: The Rehnquist Court, Indian Rights and the Legal History of Racism in America,î by Robert A. Williams Jr. (2005).

From this tenuous ground, Rehnquist made the theoretical leap that a tribeís power to maintain law and order on its territory, a universally recognized and indispensable attribute of political sovereignty, had somehow been eviscerated when it was incorporated within the boundaries of the United States.

He could point to no explicit statement to that effect because there was none. (The congressional limitations came much later, at the end of the 19th century, and those are a separate story.) In fact, the understanding of the Supreme Court when these basic definitions were laid down seems to have been exactly the opposite of Rehnquistís.

The classic description of Indian tribes is former Chief Justice John Marshallís statement in The Cherokee Nation v. The State of Georgia (1831), ìThey may, more correctly, perhaps, be denominated domestic dependent nations.î A learned colleague of ours makes a point about this analogy that is worth repeating at length because it gives some insight into Marshallís thinking that we have not seen elsewhere. It shows, to our continued amazement, that the case for tribal sovereignty is even stronger than we had imagined when one actually returns to the original sources.

The Cherokee Nation was seeking a Supreme Court injunction against Georgiaís legal assault on its sovereign existence. It invoked the courtís jurisdiction over suits between states and foreign governments on the grounds that the Cherokee Nation was a foreign government. Marshall turned down the case, arguing that although the tribe was a ìdistinct political society,î it was not a foreign state. He said the relation of the Indians to the United States ìis marked by peculiar and cardinal distinctions, which exist no where else.î

But Marshall didnít write this out of ignorance. An extensive literature at the time described the legal relations of ìunequal alliances.î Legal thinkers in the early United States were intensely interested in the models of confederate republics, both Iroquois and classical European, and one of their basic texts was the seminal work on international law by the Swiss citizen Emmerich de Vattel, ìThe Law of Nationsî (1787). This book contains the statement, frequently cited in antebellum debates on the federal government, that ìa weak state that, in order to provide for its safety, places itself under the protection of a more powerful one ... without in the least stripping itself of the right of government and sovereignty.î

But Vattel also gave an example that Marshall could have cited as a model for the Indian tribes. The Roman Empire started out as an alliance between Rome and its neighboring Latin city-states. But as these passed under the dominion of Rome, said Vattel, they no longer formed states, even though they retained their own laws and magistrates. Marshall could have compared the tribes to the Roman allies, the Socii, but he didnít. By insisting on the uniqueness of the American Indian tribesí ìdomestic sovereignty,î he emphasized that they had not sacrificed their natural rights as distinct societies.

Even the limits that Marshall enumerated underlined his point. He said that foreign nations that might attempt an alliance with the tribes would commit an act of hostility against the United States. This situation appears in another seminal work of international law, Samuel Pufendorfís ìThe Whole Duty of Man, According to the Law of Natureî (1691). Pufendorf specified that in an unequal alliance, the inferior party could be required ìto have the same friends and enemies with anotherî without having his sovereignty diminished.

Although John Marshall didnít directly refer to Vattel in Cherokee v. Georgia, there is no question he knew its relevance. His fellow justice, Smith Thompson, opened his dissenting opinion in the case with a lengthy summary of Vattelís chapter on alliances. This language continued to pop up in Supreme Court opinions as late as 1982, in Justice Thurgood Marshallís majority opinion in Merrion v. Jicarilla Apache Tribe (455 U.S. 130).

Merrion was one of the rare Indian cases in which Rehnquist was in the minority, and when he was in the majority, in Oliphant and its mischievous successors ñ such as the 1990 Duro v. Reina ñ he was clearly, spectacularly, wrong.

The question is not simply one of scholarship. It has had enormous practical consequences. Congress recognized the disaster of Duro v. Reina, which denied tribes jurisdiction over nonmember Indians even though they constituted a large portion of reservation residents. It acted quickly to override that ruling. If congressional leaders like Sensenbrenner and King are truly concerned about border security, they should throw Oliphant on the same trash heap.

Border security is the new mantra for modern-day bigotry. It provides the talking point for the excesses of the senseless Sensenbrenner ñ King Immigration Bill, which calls for a 700-mile fence between the United States and Mexico (but not Canada).It gives enemies of the tribes a respectable label for dishonest attacks on reservation self-government. So letís throw down a challenge to all the Lou Dobbs-style talking heads on television. If you are really concerned about effective policing of the nationís frontiers, restore to the Indian tribes on the border the authority to make their contribution.Some 50 tribal sovereignties lie within 100 miles of the northern or southern borders. They are ready and willing to back up national security with skills that the U.S. Border Patrol acknowledges are indispensable.The Tohono Oíodham Nation fields the Grey Wolves, an internationally famous corps of trackers, which has served on the Mexican border and in the Balkans. The St. Regis Mohawk Tribal Police force of 15 officers devotes 50 percent of its time to border enforcement in northern New York ñ 80 percent in the winter when the St. Lawrence River is frozen over. But the U.S. Supreme Court has tied the hands of tribal law enforcement with an irrational and completely unjustified legal principle. Tribes are not allowed to enforce criminal law against non-Indians. This is what the Supreme Court has held since the 1978 case of Oliphant v. Suquamish Indian Tribe (435 U.S. 191).This notorious case has contributed enormously to the difficulties of law enforcement on the reservation. It has been a major factor in the spread of methamphetamine marketing, not to mention sexual abuse and domestic violence. Now it is hindering the tribal contribution to border enforcement. If U.S. Reps. James Sensenbrenner, R-Wis., and Peter King, R-N.Y., the chairs of the crucial law enforcement committees in the House of Representatives, are really serious about border security, they should be leading a congressional drive to override the Oliphant holding.We can provide them with a boatload of arguments. Oliphant could well be one of the most harshly criticized, not to say ridiculed, of modern Supreme Court decisions, and not just in the thoroughly hashed-up field of Indian law. It is a prime example of the intellectual dishonesty of the late Chief Justice William Rehnquist, which has provided enough material to give full-time work to an entire school of debunking legal scholars, the so-called Critical Legal Theory movement. Historians of the court are already concluding that Rehnquist was a slow-moving disaster. But when it came to Indian cases, he was the Hindenburg crash, the Titanic tragedy and the Wreck of the Old 97 rolled into one.In the Oliphant decision, Rehnquist basically argued that the courts, Congress and executive branch through U.S. history had never intended that Indian tribes have jurisdiction over white men on their territory because he, Rehnquist, could not imagine that they could have allowed such a thing. We do not exaggerate. His historical citations are extraordinarily weak, filled with assumptions, speculations and tap dancing past contrary evidence.Rather than repeat the numerous refutations, we refer the reader to some thorough chapters in ìThe Masking of Justice: American Indian Sovereignty and the U.S. Supreme Court,î by David E. Wilkins (1997) and ìLike a Loaded Weapon: The Rehnquist Court, Indian Rights and the Legal History of Racism in America,î by Robert A. Williams Jr. (2005).From this tenuous ground, Rehnquist made the theoretical leap that a tribeís power to maintain law and order on its territory, a universally recognized and indispensable attribute of political sovereignty, had somehow been eviscerated when it was incorporated within the boundaries of the United States.He could point to no explicit statement to that effect because there was none. (The congressional limitations came much later, at the end of the 19th century, and those are a separate story.) In fact, the understanding of the Supreme Court when these basic definitions were laid down seems to have been exactly the opposite of Rehnquistís.The classic description of Indian tribes is former Chief Justice John Marshallís statement in The Cherokee Nation v. The State of Georgia (1831), ìThey may, more correctly, perhaps, be denominated domestic dependent nations.î A learned colleague of ours makes a point about this analogy that is worth repeating at length because it gives some insight into Marshallís thinking that we have not seen elsewhere. It shows, to our continued amazement, that the case for tribal sovereignty is even stronger than we had imagined when one actually returns to the original sources.The Cherokee Nation was seeking a Supreme Court injunction against Georgiaís legal assault on its sovereign existence. It invoked the courtís jurisdiction over suits between states and foreign governments on the grounds that the Cherokee Nation was a foreign government. Marshall turned down the case, arguing that although the tribe was a ìdistinct political society,î it was not a foreign state. He said the relation of the Indians to the United States ìis marked by peculiar and cardinal distinctions, which exist no where else.îBut Marshall didnít write this out of ignorance. An extensive literature at the time described the legal relations of ìunequal alliances.î Legal thinkers in the early United States were intensely interested in the models of confederate republics, both Iroquois and classical European, and one of their basic texts was the seminal work on international law by the Swiss citizen Emmerich de Vattel, ìThe Law of Nationsî (1787). This book contains the statement, frequently cited in antebellum debates on the federal government, that ìa weak state that, in order to provide for its safety, places itself under the protection of a more powerful one ... without in the least stripping itself of the right of government and sovereignty.îBut Vattel also gave an example that Marshall could have cited as a model for the Indian tribes. The Roman Empire started out as an alliance between Rome and its neighboring Latin city-states. But as these passed under the dominion of Rome, said Vattel, they no longer formed states, even though they retained their own laws and magistrates. Marshall could have compared the tribes to the Roman allies, the Socii, but he didnít. By insisting on the uniqueness of the American Indian tribesí ìdomestic sovereignty,î he emphasized that they had not sacrificed their natural rights as distinct societies.Even the limits that Marshall enumerated underlined his point. He said that foreign nations that might attempt an alliance with the tribes would commit an act of hostility against the United States. This situation appears in another seminal work of international law, Samuel Pufendorfís ìThe Whole Duty of Man, According to the Law of Natureî (1691). Pufendorf specified that in an unequal alliance, the inferior party could be required ìto have the same friends and enemies with anotherî without having his sovereignty diminished.Although John Marshall didnít directly refer to Vattel in Cherokee v. Georgia, there is no question he knew its relevance. His fellow justice, Smith Thompson, opened his dissenting opinion in the case with a lengthy summary of Vattelís chapter on alliances. This language continued to pop up in Supreme Court opinions as late as 1982, in Justice Thurgood Marshallís majority opinion in Merrion v. Jicarilla Apache Tribe (455 U.S. 130).Merrion was one of the rare Indian cases in which Rehnquist was in the minority, and when he was in the majority, in Oliphant and its mischievous successors ñ such as the 1990 Duro v. Reina ñ he was clearly, spectacularly, wrong.The question is not simply one of scholarship. It has had enormous practical consequences. Congress recognized the disaster of Duro v. Reina, which denied tribes jurisdiction over nonmember Indians even though they constituted a large portion of reservation residents. It acted quickly to override that ruling. If congressional leaders like Sensenbrenner and King are truly concerned about border security, they should throw Oliphant on the same trash heap.