On April 25, 2017, the U.S. Supreme Court decided Lewis v. Clarke, a case involving the scope of Mohegan sovereign immunity. The substance of the decision—an employee of Mohegan Sun Casino was acting on his own and not protected by Mohegan's immunity—focused on general immunity rules. The court did not distinguish between state, federal, and "tribal" entities. Nonetheless, the decision attracted comments about its significance for "tribal" immunity law.
One commentator, Todd Henderson, stated, "The decision in this case stands for the proposition that tribal immunity is no greater than state immunity. That seems right, both as a matter of history and logic." While the logic of immunity may seem identical, the history of Native nations suggests the opposite: States are creations of colonial invasion of Native Nations. As the court acknowledged, "The Mohegan Tribe of Indians of Connecticut traces its lineage back centuries. Originally part of the Lenni Lenape, the Tribe formed the independent Mohegan Tribe under the leadership of Sachem Uncas in the early 1600s." The Mohegan's prior existence raises the question whether the U.S. Supreme Court has any legitimate basis to determine the scope of immunity. Henderson's comment presumes the authority of the court over Native nations, without demonstrating its legitimacy.
Henderson pointed to an ominous sign—which should be a wakeup call to Native Nations' lawyers: "The court declined to reconsider … core issues of the scope of tribal sovereignty (such as whether there should be any separate tribal sovereignty). Although recent opinions have teed up these questions, it is possible that the court viewed a simple car accident between two non-tribal members occurring off the reservation as a poor vehicle (pun intended) for making such a sweeping change to tribal law" [emphasis added].
Anyone familiar with federal Indian law knows jurisdictional issues stretch back to the earliest cases—the trilogy of decisions under U.S. Chief Justice John Marshall that claimed U.S. jurisdiction over Native Peoples under the doctrine of Christian Discovery, based on 15th century papal decrees. Despite mounting international criticism of Christian Discovery, no court has yet to discard—or even question—the doctrine. But courts can only rule on arguments and facts presented to them. And Native litigants often still promote Christian Discovery in their legal arguments, using it to challenge anti-Indian actions by states. In doing so, they leave the door wide open to anti-Indian federal actions.
I am aware of only one direct courtroom challenge to Christian Discovery and its baggage—"trust doctrine" and "plenary power": the pro-se effort of the Western Shoshone National Council, under Chief Raymond Yowell, in the 1990s. In February 2017, the Confederated Tribes and Bands of the Yakama Nation raised an indirect challenge in an appendix to the National Congress of American Indians amici curiae brief in litigation against the Dakota Access Pipeline, criticizing "the Papal Bull and so-called 'Doctrine of Discovery' that has dehumanized Original Nations." But the brief itself did not raise that challenge.
Challenging established precedents makes lawyers nervous. Rule 11(b)(2) of the federal rules of civil procedure states, any person presenting a "paper" to a court certifies it as "warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law." In researching lawyers who challenge the law, I happened across Eastway Const. Corp. v. City of New York, a 1986 case arising from a housing corruption scandal. The court had dismissed the plaintiff's claim against the City, and the City asked for sanctions under Rule 11.
In discussing the purpose of the rule, the judge cautioned against sanctioning lawyers who bring difficult cases: "Sometimes there are reasons to sue even when one cannot win. Bad court decisions must be challenged if they are to be overruled, but the early challenges are certainly hopeless. The first attorney to challenge Plessy v. Ferguson was certainly bringing a frivolous action, but his efforts and the efforts of others eventually led to Brown v. Board of Education…. Vital changes have been wrought by those members of the bar who have dared to challenge the received wisdom."
As students of civil rights know, the U.S. Supreme Court Plessy case (1896) adopted the rule of "separate but equal" to legitimize racial segregation in the United States—calling it a law "enacted in good faith for the promotion of the public good." The rule persisted until 1954, when Brown v. Board of Education held it unconstitutional.
Most commentators on Brown give major credit for the decision to Thurgood Marshall, the lawyer who organized litigation across the country to challenge segregation. Marshall deserves high praise for mounting the daunting challenge to entrenched legalized racial discrimination. But as I researched the history of "separate but equal" doctrine, I was struck by the fact that challenges to Plessy began almost immediately after the decision.
Plaintiffs and lawyers who challenged Plessy from the start were certainly courageous, as the Eastway judge recognized, adding, "Attorneys are … placed in a dilemma because they have the right—in fact, they have an ethical obligation…to present to the court all the nonfrivolous arguments that might be made on their clients' behalf, even if only barely nonfrivolous. They are forced by their position as advocates in the legal profession to live close to the line, wherever the courts may draw it."
Rule 11 does not categorize every "argument for extending, modifying, or reversing existing law or for establishing new law" as frivolous. Attorneys brave enough, enthusiastic enough, and creative enough know how to move "close to the line." Are there such attorneys and litigants to challenge the doctrine of Christian Discovery in federal Indian law?
Are there litigants ready to step forward like Joe Smith in 1898, in a Tennessee case only two years after Plessy, who appealed his conviction (and lost) for "failing and refusing to assign certain negroes to the separate car for colored passengers"? Or like Robert and Fannie Lander, who sued a railroad in Kentucky for damages (and lost on appeal)—also in 1898—for forcing Mrs. Lander to vacate her seat in the White coach or leave the train?
Are there lawyers like John Feland & Son, who represented the Landers? Or Smith & Maddin, who represented Joe Smith? And what about judges like the one in Christian county (!) circuit court, whom the Kentucky Court of Appeals overruled for instructing the jury that Mrs. Lander "had the right to take a seat where she did"?
By 1950, Thurgood Marshall was building on the previous challenges to Plessy, mounting a frontal attack on "separate but equal," abandoning the NAACP strategy of accepting the doctrine and trying to force actual equality of separate facilities. His strategy held risks, but it had the energy and enthusiasm of millions of Black people demanding civil rights; and it had international political winds at its back, as the U.S. sought to distance itself from legalized racism in the eyes of the world. Then, too, it had increasingly clear scientific evidence of the damages wrought by segregation.
Native Peoples can show similar conditions to support a legal challenge: Water protectors at Standing Rock demonstrate enthusiasm and energy; world attention to climate change underscores the ecological significance of Indigenous relationships to land; and evidence of intergenerational trauma points to social-psychological damages caused by colonial dispossession of Native Peoples.
As Todd Henderson pointed out, the Supreme Court has "teed up" the question "whether there should be any separate tribal sovereignty." If Native Nations fail to challenge the presumption that the U.S. "owns" Native Nations' lands, they leave the field to parties who want to "terminate" indigenous sovereignty and land rights altogether. These are pre-colonial, pre-U.S. Constitution rights, equally significant as civil rights. The battle looms; where are the warriors?
Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii 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.