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Oswaldism on the Bench

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In Living Color,î the television comedy show from the 1980s, came to mind while reading the latest judicial outrage on Indian law. The Wayans brothersí program launched the careers of Jim Carrey and Jennifer Lopez, but it also featured a regular character named Oswald Bates (played by Damon Wayans), a prison inmate given to pompous pronouncements in big words that never quite meant what he seemed to think they meant. This writing style marks the latest judicial assault on tribal sovereignty: the May 24 en banc ruling from the 1st Circuit Court of Appeals upholding Rhode Islandís violent raid on the Narragansett Indian Tribeís smoke shop back on July 14, 2003.

The majority opinion of the full Circuit Court bench, written by notorious word-hound Judge Bruce Marshall Selya, reversed a three-judge panel of the same court, which earlier held, properly, that the state police raid was an illegal violation of Narragansett sovereign immunity. (The two judges on the majority of the earlier panel filed strong dissents.) Selyaís new ruling claimed to be based on a narrow, ìidiosyncraticî set of facts, the wording of the Narragansettís land claims settlement with Rhode Island. By some verbal contortion and willful disregard of precedent, Selya argued that the tribe had waived its sovereign immunity even before it was federally recognized and was subject, as a government, to the legal processes of the state of Rhode Island.

The subject might seem parochial, but the thicket of Selyaís recherche vocabulary just barely concealed a hostility to tribal self-determination that seems to be gaining the ascendancy in the higher reaches of the federal judiciary. In a strong dissent, Judge Juan Torruella warned that if Selyaís views ìultimately prevail, the concept of tribal sovereignty developed by the Supreme Court Ö will be radically altered, and Native tribal governments throughout the United States may very well become irrelevant facades.î

Like Oswald, Selya relied on multisyllabic obfuscation, bordering on persiflage, to justify the courtís tergiversation. (Our favorites in his vocabulary exercise were ìtamisageî and ìrepastinate,î not to be found in our thickest single-volume dictionary.)

But for all the display, he rejected the use of clear and precise definitions. A key to the three-judge panel decision (written by Torruella) was the distinction between the related terms ìsovereignty,î the autonomy of the tribe as a political unit, and ìsovereign immunity,î the right of a government to refuse to be subjected to legal proceedings over the legitimate exercise of its functions.

Torruella had argued, following an impressive array of Supreme Court cases, that the tribe retained its inherent sovereign immunity because neither the tribe nor Congress had anywhere explicitly given it up. Selya, retorting that this distinction ìis not apparent to us,î relegated immunity to a ìsubsetî of his already constricted definition of sovereignty, which left the tribe with little more status than a private club. Along the way, he overruled another recent decision protecting the Aroostook Band of Micmacs from the intrusion of the Maine state government.

Selyaís Oswaldism wasnít limited to big words. He cited a number of Supreme Court cases which didnít quite say what he said they said and, in one case, as the dissent noted, said exactly the opposite. But this seems to be a growing habit when appeals courts get Indian law cases. Legal scholars are concluding that Supreme Court Justice Ruth Bader Ginsburg took the legal term ìlachesî and turned it into something quite different when she decided the infamous City of Sherrill v. Oneida Indian Nation of New York case last March. Then 2nd Circuit Judge Jose Cabranes turned Ginsburgís invention into something even more sweeping when he threw out the Cayuga land claims case shortly after. This Oswaldism is now being thrown against all sorts of Indian suits across the country, for instance in the Klamath water rights case on the West Coast.

To put it plainly, the Supreme Court has been showing for years that it wonít let principle or precedent get in the way when it wants to reach a desired result in Indian law. This result invariably is to keep Indians from exerting government authority over non-Indians. The arbitrary spirit of the court caused the National Congress of American Indians and the Native American Rights Fund to set up its Supreme Court Project in 2001. (The organizing meeting, held on Sept. 11, took place literally in the shadow of the terrorist attack on the Pentagon.) The project has had notable success in mobilizing talent and coordinating ìfriend of the courtî briefs, but one of its most important unseen functions is to advise tribes when not to appeal to the Supreme Court. As a sign of how far things have deteriorated, NARF lawyers are worrying that, bad as Selyaís decision was, it could cause even wider damage if the Supreme Court got hold of it.

A debate will go on for the next few months over whether to appeal, and weíre not sure what we would advise. The Narragansetts have been deeply frustrated, not to say cheated, in their economic development ever since a midnight maneuver on Capitol Hill in the late í90s barred their use of the Indian Gaming Regulatory Act. Emotions still run high over the state policeís smoke shop raid, which was still foolish and unnecessary, no matter how legal Selya says it was. Any decision will ultimately be theirs. No matter how one weighs prudence versus principle, they deserve the sympathy and support of Indian country.

But it should be a warning for the country as a whole that the judiciary has become so unprincipled that an entire group of people is seriously afraid to ask for redress of a wrong decision because the end result might be much worse. The one consolation is that a Supreme Court decision in 2005 is not the last word, any more than it was in Plessy v. Ferguson in 1896, which upheld segregation, or the Dred Scott decision in 1854, which upheld slavery.

The court can be brought to change its mind, under withering, cogent criticism from legal scholars, historians and even public opinion. The resources of Indian country have already been brought to bear through the NCAI/NARF Supreme Court Project, and these efforts should intensify and spread through every available intellectual avenue.

This is a serious, urgent matter. Oswald was a very funny character, but Oswaldism on the court isnít.

In Living Color,î the television comedy show from the 1980s, came to mind while reading the latest judicial outrage on Indian law. The Wayans brothersí program launched the careers of Jim Carrey and Jennifer Lopez, but it also featured a regular character named Oswald Bates (played by Damon Wayans), a prison inmate given to pompous pronouncements in big words that never quite meant what he seemed to think they meant. This writing style marks the latest judicial assault on tribal sovereignty: the May 24 en banc ruling from the 1st Circuit Court of Appeals upholding Rhode Islandís violent raid on the Narragansett Indian Tribeís smoke shop back on July 14, 2003.The majority opinion of the full Circuit Court bench, written by notorious word-hound Judge Bruce Marshall Selya, reversed a three-judge panel of the same court, which earlier held, properly, that the state police raid was an illegal violation of Narragansett sovereign immunity. (The two judges on the majority of the earlier panel filed strong dissents.) Selyaís new ruling claimed to be based on a narrow, ìidiosyncraticî set of facts, the wording of the Narragansettís land claims settlement with Rhode Island. By some verbal contortion and willful disregard of precedent, Selya argued that the tribe had waived its sovereign immunity even before it was federally recognized and was subject, as a government, to the legal processes of the state of Rhode Island.The subject might seem parochial, but the thicket of Selyaís recherche vocabulary just barely concealed a hostility to tribal self-determination that seems to be gaining the ascendancy in the higher reaches of the federal judiciary. In a strong dissent, Judge Juan Torruella warned that if Selyaís views ìultimately prevail, the concept of tribal sovereignty developed by the Supreme Court Ö will be radically altered, and Native tribal governments throughout the United States may very well become irrelevant facades.îLike Oswald, Selya relied on multisyllabic obfuscation, bordering on persiflage, to justify the courtís tergiversation. (Our favorites in his vocabulary exercise were ìtamisageî and ìrepastinate,î not to be found in our thickest single-volume dictionary.)But for all the display, he rejected the use of clear and precise definitions. A key to the three-judge panel decision (written by Torruella) was the distinction between the related terms ìsovereignty,î the autonomy of the tribe as a political unit, and ìsovereign immunity,î the right of a government to refuse to be subjected to legal proceedings over the legitimate exercise of its functions.Torruella had argued, following an impressive array of Supreme Court cases, that the tribe retained its inherent sovereign immunity because neither the tribe nor Congress had anywhere explicitly given it up. Selya, retorting that this distinction ìis not apparent to us,î relegated immunity to a ìsubsetî of his already constricted definition of sovereignty, which left the tribe with little more status than a private club. Along the way, he overruled another recent decision protecting the Aroostook Band of Micmacs from the intrusion of the Maine state government.Selyaís Oswaldism wasnít limited to big words. He cited a number of Supreme Court cases which didnít quite say what he said they said and, in one case, as the dissent noted, said exactly the opposite. But this seems to be a growing habit when appeals courts get Indian law cases. Legal scholars are concluding that Supreme Court Justice Ruth Bader Ginsburg took the legal term ìlachesî and turned it into something quite different when she decided the infamous City of Sherrill v. Oneida Indian Nation of New York case last March. Then 2nd Circuit Judge Jose Cabranes turned Ginsburgís invention into something even more sweeping when he threw out the Cayuga land claims case shortly after. This Oswaldism is now being thrown against all sorts of Indian suits across the country, for instance in the Klamath water rights case on the West Coast.To put it plainly, the Supreme Court has been showing for years that it wonít let principle or precedent get in the way when it wants to reach a desired result in Indian law. This result invariably is to keep Indians from exerting government authority over non-Indians. The arbitrary spirit of the court caused the National Congress of American Indians and the Native American Rights Fund to set up its Supreme Court Project in 2001. (The organizing meeting, held on Sept. 11, took place literally in the shadow of the terrorist attack on the Pentagon.) The project has had notable success in mobilizing talent and coordinating ìfriend of the courtî briefs, but one of its most important unseen functions is to advise tribes when not to appeal to the Supreme Court. As a sign of how far things have deteriorated, NARF lawyers are worrying that, bad as Selyaís decision was, it could cause even wider damage if the Supreme Court got hold of it.A debate will go on for the next few months over whether to appeal, and weíre not sure what we would advise. The Narragansetts have been deeply frustrated, not to say cheated, in their economic development ever since a midnight maneuver on Capitol Hill in the late í90s barred their use of the Indian Gaming Regulatory Act. Emotions still run high over the state policeís smoke shop raid, which was still foolish and unnecessary, no matter how legal Selya says it was. Any decision will ultimately be theirs. No matter how one weighs prudence versus principle, they deserve the sympathy and support of Indian country.But it should be a warning for the country as a whole that the judiciary has become so unprincipled that an entire group of people is seriously afraid to ask for redress of a wrong decision because the end result might be much worse. The one consolation is that a Supreme Court decision in 2005 is not the last word, any more than it was in Plessy v. Ferguson in 1896, which upheld segregation, or the Dred Scott decision in 1854, which upheld slavery.The court can be brought to change its mind, under withering, cogent criticism from legal scholars, historians and even public opinion. The resources of Indian country have already been brought to bear through the NCAI/NARF Supreme Court Project, and these efforts should intensify and spread through every available intellectual avenue.This is a serious, urgent matter. Oswald was a very funny character, but Oswaldism on the court isnít.