Reading the Supreme Court

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Beginning with Chief Justice John Marshall, the Supreme Court has changed
the lives of Indian people for better and for worse. For the last 25 years,
however, a conservative court has pried away tribal powers until, many
observers say, justice has turned its back on a long and distinguished
tradition of Indian law.

John LaVelle believes the trail of bad decisions began in 1978. LaVelle,
associate professor of law at the University of New Mexico, cited Oliphant
v. Suquamish Indian Tribe as the beginning of an ominous trend. In
Oliphant, he explained, the Supreme Court held that tribes lack criminal
jurisdiction over non-Indians arrested by tribal police, a decision
subverting sovereign tribal powers. The muddled decision, he added, failed
to clarify whether the court was relying on existing statute or rendering a
federal common law decision.

It didn't take long for Oliphant to be extended to the civil sphere.
Montana v. United States (1981) ruled that the Crow tribe lacked
sovereignty to regulate hunting and fishing by non-members on non-Indian
fee land. "Again, the court was making up a new rule that never existed,"
said LaVelle. It used the Oliphant rationale to argue the tribe couldn't
challenge U.S. sovereignty, save for limited exceptions. A graduate of
Harvard and the University of California/Berkeley School of Law, LaVelle
said the court has relied on Montana ever since, "taking the proposition
farther and depriving tribes of more and more power."

The next skirmish flared after an auto accident on a reservation highway.
Could a tribal court at Fort Berthold decide a case in which a non-Indian
was injured by another non-Indian? In Strate v. Al Contractors (1997), the
Rehnquist Court unanimously said no, ruling that tribal courts lacked
jurisdiction, not only on fee lands but on a state-maintained road under a
federally granted right of way. Strate v. Al "was shocking to all Indian
law observers," said LaVelle, a member of the executive committee of the
board of editors for the latest edition of Cohen's "Handbook of Federal
Indian Law."

The trail didn't end in Montana. In 2001, Atkinson Trading Company v.
Shirley ruled that the Navajo Nation had no power to tax overnight
non-member hotel guests on non-Indian fee land within the reservation,
shunning earlier decisions about tribal taxation. The same year, Nevada v.
Hicks found tribal courts lacked authority to settle a trespassing claim by
a tribal member against state game wardens. "[Hicks] is full of distortions
of prior Indian law doctrine and principles," said LaVelle, speaking by
telephone from Sioux City, Iowa, while on sabbatical. "It's caused a great
deal of consternation among Indian law scholars and among tribes."

Such decisions challenge the doctrine, conceptualized by Justice Marshall,
of the trust relationship between tribes and the federal government.
"States are beginning to be empowered to act as if they have the freedom to
essentially waltz into Indian country and impose their jurisdiction," said
David Wilkins, professor of American Indian Studies at the University of
Minnesota. Federalism is being redefined by states' rights activists, said
Wilkins, a political scientist, noting a trend that flies against not only
historical precedent, but the U.S., tribal and state constitutions as well.
Several western states have "disclaimer clauses," he explained, in which
they pledged before entering the union not to exercise jurisdiction over
Indians.

Wilkins, Lumbee from North Carolina, also decried recent cases involving
Native religious expression. In 1988, Lyng v. Northwest Indian Cemetery
Protective Association ruled that a road obliterating sites sacred to three
California tribes didn't impede the practice of religion. Two years later,
in Employment Division v. Smith, the court denied that peyote usage,
sanctioned in federal law for decades, could be interpreted as a First
Amendment expression of religious belief. Both cases, he said, "ratcheted
up the level and fundamental animosity of the conservatives on the Supreme
Court against Indian rights."

In this bundle of bad news, a little hope still glimmers. In 2004, U.S. v.
Lara turned back Duro v. Reina (1990), an earlier ruling which held that
tribes lack criminal jurisdiction over members of other tribes, an
extension of Oliphant. In 1991, Congress enacted a permanent override of
Duro, declaring that tribes have inherent sovereign power of criminal
jurisdiction over non-member Indians and passed it as an amendment to the
1968 Indian Civil Rights Act.

Thus, in Lara, said LaVelle, an enrolled member of the Santee Sioux tribe,
"the court yielded to Congress authority to determine the extent of
inherent sovereign power of Indian tribes under federal law. That's a sign
of hope for tribes. They can continue to work in the political arena to
protect their sovereignty, even when Supreme Court preferences are to the
contrary."

Tribes are exercising many sovereign powers that have lain dormant, LaVelle
explained. This new exercise has provoked a reaction by the Court
inconsistent with fundamental principles of Indian law. "We're going
through a period of trauma here, of dealing with a reaction by the court
that is not thoroughly grounded in these longstanding principles and
traditions of the field."

Wilkins, who cited the diminution of the trust doctrine and loss of tribal
jurisdiction over non-Indians as disturbing trends, added to them a third:
The court's investiture in states of something starting to resemble a
plenary, or virtually absolute, power in Indian country. While agreeing
that Lara was a surprisingly favorable ruling, including a concurring
decision by conservative justice Clarence Thomas, Wilkins lamented its
approbation of plenary power at the federal level.

With Chief Justice William Rehnquist in poor health and other justices
considering retirement, the future is uncertain. "The court has now
pivoted," said LaVelle, hopefully. Even if it doesn't start issuing
progressive decisions in the model of Lara, he added, "what is incumbent on
tribes is to continue working within the political arena of American
politics to garner further support for tribal sovereignty. That political
support is crucial."