As the U.S. Supreme Court begins its October 2002 session, a few observations about the Court and its recent Indian law jurisprudence are in order. The Court has increasingly turned away from its commitment to its own foundational Indian law principles including the recognition of significant tribal sovereignty, a unique tribal-federal trust relationship, and the absence ? unless expressly authorized by Congress - of any state authority in Indian country. Instead of hewing to these basic principles as articulated in early 19th century decisions of the U.S. Supreme Court under the leadership of Chief Justice John Marshall, the Court has more and more frequently embraced a common-law law making regime that is eroding the basic foundations of Indian law.
Not so very long ago, many in Indian country understood the Supreme Court as committed to its historic function of protecting the rights of American Indians. Not in every case or circumstance, of course, but at least in rough accordance with the mutual promises made in treaties that formed the basic cornerstone of tribal-federal interaction. This view of the Supreme Court is now only a faint memory growing dimmer with each passing session of the Court.
Recent decisions in such cases as Atkinson Trading Post v. Shirley, 532 U.S. 645 (2001) (Navajo tribe cannot assert a hotel occupancy tax against a non-Indian staying at a motel on fee land within the reservation) and Nevada v. Hicks, 533 U.S. 353 (2001) (potential state authority even over matters involving tribal members and events occurring on tribal land) clearly evince the Supreme Court's intention to do what it wants to do regardless of doctrine or precedent. Such a jurisprudential approach appears especially pernicious since there is neither any express congressional enactment nor constitutional principle that commands these results. If one reads these cases and their mongrel antecedents such as Strate v. A-1 Contractors, 530 U.S. 438 (1997) (tribes have no civil authority over car accidents involving non-Indians that take place on state highways located on tribally granted rights of way over tribal land), one is immediately struck by the complete absence of any statutory or constitutional citation to support these rulings.
One can only hope ? however faintly ? that the court will begin to recover its doctrinal equilibrium in the Indian law cases now pending before it. These cases include United States v. White Mountain Apache Tribe and United States v. Navajo Nation, both of which involve the question of United States liability in money damages for breach of its trust responsibility to Indian tribes.
And while we wait and hope, it is worth recalling that the other major group excluded from full recognition and participation in the original U.S. Constitution, namely African-Americans, ultimately needed the 13th, 14th, and 15th Amendments to the U.S. Constitution to modestly level the playing field in their ongoing struggle for respect and equality within the United States.
With this example in mind and a Supreme Court increasingly running amok in Indian law, it is perhaps time to consider the necessity of an amendment to the U.S. Constitution to expressly recognize and vouchsafe an enduring tribal sovereignty within this republic. If the Supreme Court remains unchecked in its harmful and inventive approach to Indian law and Congress continues to be unwilling or unable to rein the Court in, where else is there to turn but to the Constitution itself as the living repository of our country's noblest intentions? It is something that given the current state of affairs merits most careful thought and consideration.
Frank Pommersheim is a professor of law at the University of South Dakota School of Law.