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Russell: The return of competence

Now that the election is over and Barack Obama appears to have a mandate for more interventionist government but a disposition to govern from the middle, it’s time to ask what this means to us. First, I’m not sure the mandate is so much for intervention as it is for competence.

I am among those who disagreed with the Bush administration about policy so often that the sheer magnitude of incompetence often got under my radar. That was probably true of a lot of people before Hurricane Katrina.

Before Katrina put governmental incompetence in our face, it was easy to overlook details like persons who applied to work with the Iraqis on reconstruction being screened more carefully for their position on Roe v. Wade than on whether they spoke Arabic. Then there were the Arabic translators drummed out of the military and into higher paying jobs because they claimed they were gay. Maybe some of them were gay, but it must be awfully tempting to bail out of the military once you have high dollar training when you know that no rational company is going to inquire about your sexual orientation.

The biggest change from Bush to Obama will be a return to what Karl Rove scornfully called “fact-based reality.” It will no longer be necessary to get your mind right (as opposed to left) on abortion, guns, and gay marriage to work. It will matter more whether policies work than who is pushing them.

The liberal position is not always pro-Indian. Think Justice Ginsberg, who is brilliant and liberal and clueless about Indians.

Can Obama resist the Democratic dive into interest group politics? If he’s smart enough, and I think he is. He led in every demographic except low education white males, and he knows what he has to do for them: put them to work.

It’s been amusing watching some Indian leaders trying to buy seats on Obama’s late train with lip service, but I doubt Obama will hold it against them. Comic relief is important in our current situation.

Indian leaders with a shopping list involving increased funding of current programs may be disappointed in this economic environment. The phrase “good money after bad” comes to mind; Indian country as a money pit.

Those Indian leaders with ideas that fit the mantra of “change” can expect more. There are technical fixes to the problems with attracting private venture capital into tribal territory but when those fixes are enacted the roadblocks will be reliable, honest tribal governance and the public relations problem caused by generations of factionalism and infighting. I hasten to add that my own tribe is not immune to this criticism, as I know saying it out loud will upset some folks.

A big structural problem for Indian nations is how much their ability to govern is circumscribed by internally inconsistent rules coming not from Congress but ultimately from the Supreme Court. These rules have puzzled generations of legal scholars of Indian law as they now puzzle Indian legal scholars.

Those Indian leaders with ideas that fit the mantra of “change” can expect more.

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It’s difficult to have an impact on the Supreme Court as it toys with the very survival of Indian nations. No President since William Henry Harrison has been elected over Indian policy, and no Supreme Court nominee has been confirmed or not because of federal Indian law. I graduated from a top 20 law school that then offered no Indian law course.

Competence in Indian law is not a conservative v. liberal question, although the closest to overt racism we’ve seen on the Supreme Court in my generation was William Rehnquist, an arch-conservative. Rehnquist cut his legal teeth in the western U.S. opposing environmental regulations. His view of modern Indians seemed to be that of many politicians in the West: we are nothing but descendants of an inferior race and the inferior whites who married into it, trying to trade on historical injustices that always come in the safe passive voice, “mistakes were made.”

I published an article arguing that fundamental legal principles have been twisted beyond recognition in the service of the colonial enterprise, using as my text decisions that involved Puerto Ricans, American Indians and Native Hawaiians. While I think I was correct, ongoing colonization does not begin to explain the meddling in Indian governance by the modern Supreme Court.

Anishnabek legal scholar Matthew Fletcher has offered an analysis with much more explanatory power than my own. In the Hastings Law Journal, Fletcher essentially argues that Indian law cases are not about Indians. “The Court does not care what happens in Indian Country,” he says.

If the court had any interest in Indians beyond assimilating them, how could it have sliced and diced criminal jurisdiction into virtual free-fire zones for non-Indian drug dealers and woman beaters? How could it squeeze tribal taxing authority in ways that encourage dependency? How could it allow states to stack taxes on top of tribal taxes to destroy what limited advantages tribal enterprises enjoy?

However, Fletcher points out that the Supreme Court heard lots of Indian law cases at a time when its docket was shrinking. Going all the way back to the Cherokee cases that undergird modern Indian law, Fletcher demonstrates convincingly that each case can be understood in terms of some issue higher on the court’s agenda than Indian policy.

In early cases, the Supreme Court’s agenda was federal supremacy, which often meant slapping down states when they tried to interfere in federal Indian policy. Under Chief Justice Rehnquist, the court moved to the state side of the federalism battles - even when states interfered with tribal governments. Another part of the Rehnquist agenda that continues with the Roberts court is “anti-anti-discrimination.” That is, hostility to laws intended to remedy historical disadvantage.

Obama is unlikely to change the liberal-conservative division on the Supreme Court, because the next two or three retirees are likely to be liberals. However, the liberal position is not always pro-Indian. Think Justice Ginsberg, who is brilliant and liberal and clueless about Indians.

However, Obama is a constitutional law scholar, and he is likely to understand that the federalism pendulum has been swinging toward the states for too long. He also has no interest in the “anti-anti-discrimination” agenda. If he appoints judges and justices accordingly, the litigation fortunes of tribal governments are likely to improve over the Bush years. As usual, by sheer luck.

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