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Russell: An Indian Brown v. Board of Education?

It's hard to overstate the significance of Brown v. Board of Education to the mainstream (African-American) civil rights movement. Here's why. Congress passed the 14th Amendment as part of Reconstruction after the Civil War. However, the Supreme Court was the one branch of government still controlled by Democrats, who in those days represented the status quo against the interests of the former slaves. The court gutted the ''privileges and immunities'' clause of the 14th Amendment in the Slaughter-House Cases (1873). Then the court gutted the Equal Protection Clause in Plessy v. Ferguson (1896), holding that facilities lawfully could be ''separate but equal.'' There the process of freeing the slaves stalled until Plessy was reversed in Brown v. Board of Education of Topeka (1954). This history undergirds the symbolic value of Brown in the struggle for African-American rights and leads to the question of what would have the same impact for Indians?

Other Indian lawyers might disagree on what follows, because immoral federal Indian law cases provide such a target-rich environment, but I will offer the following in chronological order. ''Immoral'' is the key. I am looking for cases that require no more than common sense and instinct for right and wrong. Low-hanging fruit. Cherokee Nation v. Georgia (1831) fits much of the bill in that it decided that an Indian nation is not a foreign nation for purposes of invoking the original jurisdiction of the U.S. Supreme Court when it sues a state. The moral aspect is that an Indian nation can plainly cede land and get into a dispute with a state over the nature of the cession. Why, then, should that dispute be litigated any differently than the border dispute between Texas and Oklahoma? However, this case cannot be fixed by Congress. It would require a constitutional amendment, so it does not make the cut.

Lone Wolf v. Hitchcock (1903) would probably be the choice of most Indians because it is about treaty abrogation and disregard of treaties is a major sore spot for us in our relations with the colonists. Adding insult to injury, the case not only allows Congress to abrogate Indian treaties outside the reasons recognized in international law but the claim in Lone Wolf is that the treaty abrogation was for our own good!

Lone Wolf was principal chief of the Kiowa and he was objecting to the allotment of the Kiowa Reservation. With the benefit of historical hindsight, we can say without any doubt that Lone Wolf had a better sense of the best interests of the Kiowa than Ethan Hitchcock, secretary of the Interior. For the Kiowa, and for most tribes, placing commonly held tribal lands in individual hands was an economic disaster from which we have never recovered. Congress could easily bind itself to follow international law in the matter of treaty abrogation.

Tee-Hit-Ton Indians v. United States (1955) was the case in which the United States refused to recognize aboriginal title - title based on use of the land from time immemorial. Therefore, the Tee-Hit-Tons had no right to compensation under the Fifth Amendment for the taking of timber from their tribal lands. If there is no aboriginal title, then I suppose that all land titles in the United States rest not on land cession treaties by Indian nations but on the Doctrine of (European, Christian) Discovery. The moral bankruptcy of that position is self-evident. Congress could recognize aboriginal title by law.

Oliphant v. Squamish Indian Tribe (1978) is a horribly racist decision that takes away authority of tribal courts to hear criminal misdemeanors involving white people who have come to Indian land. The reservation involved in Oliphant was severely ''checkerboarded'' with parcels that passed into non-Indian hands in the allotment years over strenuous Indian objections accounting for 63 percent of the land area. Racist? Well, there's the nonsensical assertion that Indians had no law before Europeans came here, the description of peoples who never had a war with the United States as ''conquered,'' and the assumption that the inferior justice of the tribal courts is good enough for Indians but not good enough for white people. As to the assertion that non-Indians on reservations do not get to vote on the laws there, the same thing applies to citizens of Indiana who visit Kentucky and find themselves bound by Kentucky laws. Congress could fix this by simply conferring jurisdiction on tribal courts to try anybody present on the reservation, and Congress could attach whatever procedural safeguards it felt necessary to restrain the savages - no burning at the stake need be allowed, for example.

Cotton Petroleum Corp. v. New Mexico (1989) was a truly nasty decision for reservation economies. This case allowed a state to stack a severance tax on minerals removed from tribal land on top of a tribal severance tax. The result is either nonrenewable resources extracted from Indian lands become more expensive than the same resources extracted elsewhere, or the tribe must forego taxation. The moral aspect, of course, is that it was originally all Indian land, surface and minerals, and if reservations contained any exploitable mineral resources that was, as a matter of history, largely a lucky accident. Now that the Supreme Court has granted states the power to tax what little the tribes have left, Congress cannot take that power away short of constitutional amendment. Congress could, however, enact severe disincentives for states contemplating the use of that power.

City of Sherrill v. Oneida Indian Nation of New York (2005) is one of those cases that leaves you wondering whether history books are allowed in the Supreme Court library. The bottom line is a holding that Indian tribes cannot regain sovereignty over their land by purchase on the free market! The reasoning is that the land fell out of tribal hands, lawfully or unlawfully, so long ago that the tribe lost any sovereignty it might otherwise have had by failure to assert it. The court does not want to inconvenience the state by diminishing its tax base with regained tribal lands. The immorality, of course, is the absurd proposition that the tribe in this case (and most tribes) would have any means to assert their rights before they got rich from the colonists' greed by entering the casino business.

As I said at the beginning of this exercise, other Indian lawyers might disagree with my nominations for the Hall of Shame. A look at the dates on these cases, however, makes a strong case for even non-lawyers that the Indian wars are not over.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and an associate professor of criminal justice at Indiana University - Bloomington. He is a columnist for Indian Country Today.