d'Errico: Law is argument

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Analysis of the recent Navajo coal case decided in April by the U.S. Supreme Court shows federal Indian law “trust doctrine” greatly diminished from its former glory. In 1942, the court said the “trust” involves “moral obligations of the highest responsibility” (Seminole Nation v. U.S.). In the Navajo case, the court said the overall federal “trust” is “bare,” imposing “no enforceable fiduciary obligations.”

How does this kind of change happen in legal doctrine? What can we do about it? Are there alternatives to the path down which the court is taking federal Indian law? These questions acquire greater urgency with each step the court takes toward undermining the presumed basis of Indian sovereignty.

The Navajo coal case is especially striking because it combines dissents with reversals.




When we add to these questions a historical analysis of “trust doctrine” showing it was from the beginning a path away from full sovereignty for Native nations, we arrive at a moment of great significance, when we must look to fundamental aspects of legal process to get our bearings and find a new path.

We start with exploring how the legal system makes law. In the common law adversary system, each party has an opportunity to argue and the judges decide which arguments to accept. The arguments accepted become “law.” Law is based on argument.

No matter what decision is rendered by a court, the arguments that went into that decision have lives of their own and may be resurrected in a new case, with different facts. Moreover, every case creates new possibilities for argument, even as it lays down “the law.”

The fact that law is based on argument explains how a legal doctrine can shape-shift from case to case. For example, in Cherokee Nation v. Georgia (1831), the Supreme Court said Indian nations are not foreign nations under the Constitution. But in Idaho v. Cour d’Alene Tribe (1997), the court ruled Indian nations have the “same status as foreign sovereigns.”

The difference between the two decisions – that Indian nations are “foreign” to state governments and “not foreign” to the federal government – is the famous (or infamous) “domestic, dependent nation” doctrine, which treats Indian nations differently in different jurisdictions. The court is able to combine apparently contradictory concepts because the common law process of argument provides tools to compare and distinguish cases to expand or contract their meanings.

As legal scholar Karl Llewellyn put it, “The doctrine of precedent. … is two-headed. [I]t is not one doctrine, nor one line of doctrine, but two, and two which, applied at the same time to the same precedent, are contradictory of each other. … People. … who think that precedent produces. … a certainty that [does] not involve matters of judgment and of persuasion. … simply do not know our system of precedent in which they live.”

To be as strong as possible, new arguments for full indigenous sovereignty will have roots in foundation federal Indian law cases.

In other words, law allows and requires argument. Contradictions and multiple meanings are built into laws ability to change. The most significant factor is not the law, but how we argue the law. Supreme Court decisions have used these normal processes of law to whittle away at the federal Indian “trust doctrine.”

Knowing law is based on argument gives us a basis for analyzing how the law has moved and how it may move in the future. We are not trapped in a static view of law. We learn to dissect court decisions to extract arguments that went into them. We learn to anticipate and participate in legal change.

There are some easy ways to investigate legal argument. One is briefs of opposing lawyers – each party takes the prior cases and builds an argument in the current case. Briefs show us the legal options presented to the court.

Dissenting opinions also provide access to the arguments behind decisions. A dissent is a choice of an alternative argument. For example, in Cherokee Nation v. Georgia, Justice Thompson’s dissent insisted “the Cherokees are a foreign nation” and “thereby [are] a competent party to maintain an action in this Court according to the express terms of the Constitution.” Cherokee Nation lawyers argued this affirmation of full Indian sovereignty, but the argument was not accepted by a majority of the court.

When a court decision is reversed on appeal, the argumentative structure of law is even more highlighted, because we see that one court accepts arguments that another court rejects. In the Navajo case, for example, the Court of Appeals twice ruled the U.S. was obligated to the Navajo Nation under the “trust doctrine” and was twice reversed by the Supreme Court.

The Navajo coal case is especially striking because it combines dissents with reversals. Justice Souter dissented in the first reversal (with Justice Stevens and Justice O’Connor) and then, in the second reversal, felt compelled to concur because his earlier views “did not carry the day.” This means that even with “trust doctrine” whittled down to almost nothing, there are still arguments available, though rejected by a majority of judges on the highest court.

Contradictions and multiple meanings are built into laws ability to change.




However, when we see that a doctrine – full sovereignty – and its underlying line of argument is rejected by a continuing majority of judges on the highest court, it is time to step back and start afresh, putting our effort into new arguments, perhaps for new tribunals outside the federal Indian law system.

To be as strong as possible, new arguments for full indigenous sovereignty will have roots in foundation federal Indian law cases, re-examining how and where they rejected full sovereignty. Going back to basics and re-examining where the dominant argument became dominant will help us find the path not taken, the argument that leads to our goal. Our task is to carve that argument out from where it has been buried or hidden and present it to the world.

Peter d’Errico graduated from Yale Law School in 1968. Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970. Taught Legal Studies at University of Massachusetts, Amherst, 1970-2002. Consulting attorney on indigenous issues.