This report started out titled “Eight Dumbest,” but I have retreated from that claim. In the midst of roiling rivers of absurdity, picking a few to be treated as superlatives could be nothing more than a matter of taste. I am reminded of when I thought I would name the “worst” Supreme Court decisions and Walter Echo-Hawk did the same. There was overlap in our picks, but to call the differences right or wrong is difficult.
Therefore, the superlative is gone from my title, because there are plenty of Indian lawyers who have equally valid opinions and there is plenty of Dumb to choose from.
I’ve perhaps handicapped myself by giving Chief Justice John Marshall a pass. While much of what he wrote about Indians put the D in Dumb, we must realize that the man was pulling all of federal Indian law out of his backside. You can’t make up that much law in one career without swimming in Dumb. Besides, I have already had my swings at Chief Justice Marshall, and I do not wish to be greedy.
There are patterns to all this Dumb, and picking out the patterns requires no law degree.
Dumb legal writing relies on stereotypes about Indians without regard for the Indians in front of the Court.
Dumb legal writing disregards U.S. history, and so winds up blaming Indians for puzzles in fact constructed by the Court’s own decisions.
Dumb legal writing reaches for a result and then tries to gin up reasons. The daylight between the reasons and the result often appears Dumb.
Without further ado, and in no particular order, let’s look at how a selection of Supreme Court Justices from all ends of the political spectrum have been caught awash in Dumb.
1. Ex Parte Crow Dog, 1883, Justice Stanley Matthews
It tries them not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man's revenge by the maxims of the white man's morality.
Crow Dog might appear on the dumb list because I, a citizen of an Indian nation, resent the remarks about “savage nature.” No, that’s not it at all. After all, the case upheld tribal authority.
Leaving aside the stereotyping, the Dumb comes from the case in front of Justice Matthews, where the tribal court decided that Crow Dog should make apology to the next of kin of the man he killed and give them substantial property to show sincerity of both the apology and the promise of future behavior (not as restitution). Both Crow Dog and Spotted Tail (the victim) had many relatives and followers, and the tribal court was trying to avoid a Hatfield and McCoy style feud that could do untold harm to the peace of the reservation. That was, “the strongest prejudices of their savage nature.”
In contrast, “the white man’s morality” decreed that Crow Dog should hang by the neck until dead, without regard to whether he posed a continuing threat to the peace of the community or the effect his death would have on the community.
Tell me again which judgment reflects the “strongest prejudices of savage nature?”
2. Oliphant v. Suquamish Indian Tribe, 1978, Justice William Rehnquist
Citing some of the very words above from Crow Dog, Justice Rehnquist wrote for the Court:
Until the middle of this century, few Indian tribes maintained any semblance of a formal court system. Offenses by one Indian against another were usually handled by social and religious pressure, and not by formal judicial processes; emphasis was on restitution, rather than on punishment.
While it’s refreshing that “the white man’s morality” in this case recognized that there is more to justice than punishment, Rehnquist deployed these remarks as part of a “history” made up to justify taking away tribal court jurisdiction over non-Indians who commit crimes on Indian land.
Republicans in the last Congress gave us a replay of this battle when they held up reauthorizing the Violence Against Women Act over allowing tribal courts to try non-Indian men who come on Indian land and abuse Indian women. (That was not their only objection to VAWA, but it was the one that made the most noise.)
3. Lone Wolf v. Hitchcock, 1903, Justice Edward Douglass White
To uphold the claim would be to adjudge that the indirect operation of the treaty was to materially limit and qualify the controlling authority of Congress in respect to the care and protection of the Indians, and to deprive Congress, in a possible emergency, when the necessity might be urgent for a partition and disposal of the tribal lands, of all power to act, if the assent of the Indians could not be obtained.
The claim Justice White feared upholding was that the government had no authority to take Kiowa land without complying with the treaty that governed the relationship between the U.S. and the Kiowa Nation.
Am I missing something when I call “Dumb” a hypothetical plea that there might be an “emergency” requiring that Indians have their land taken away more quickly than could be done in compliance with treaties?
What would be the nature of such an “emergency?” Space aliens demanding land titles?
It’s the prospect if this “emergency” in the imagination of the Court that justified the allotment of the Kiowa Reservation over the objections of Chief Lone Wolf and in violation of the Medicine Lodge Treaty.
The real emergency that placed Indians in dire danger was the holding in Lone Wolf that the Congress could abrogate Indian treaties without reference to the existing international law of treaty abrogation.
4, Cotton Petroleum Corporation v. New Mexico, 1989, Justice John Paul Stevens
It is, of course, true that the total taxes paid by Cotton are higher than those paid by off-reservation producers. But neither the State nor the Tribe imposes a discriminatory tax. The burdensome consequence is entirely attributable to the fact that the leases are located in an area where two governmental entities share jurisdiction.
If ever a pretend argument was caught chasing its own tail, this would be the time. This case placed tribal mineral leases at a competitive disadvantage by allowing the state to stack a severance tax on top of a tribal severance tax. And there’s no discrimination because the minerals just happened to be located where they were, presumably by God.
Couldn’t the Court just order God to pay the state tax on minerals under tribal land? Such an order would be no dumber than the one they made.
The weight of Dumb we have picked up so far is staggering. The SCOTUS has told us that failure to kill a man without necessity is “savage” and that it would be dangerous to allow tribal courts to try white people because Indians only became civilized enough to punish people recently.
Then we learn that it’s OK for Congress to take Indian property in violation of a treaty because an emergency might come up that requires taking Indian property really quickly. Even when Congress does not take Indian land, the SCOTUS says states can tax the minerals under what little land we have left and making the minerals cost more than the same minerals off the reservation is not an act of discrimination because, you know, that’s where God put the minerals.
Whew. That��s a heavy load of Dumb. Let’s rest a bit before looking at the other four selected dumb things Supreme Court justices have written about Indians.
Coming tomorrow: Say What? Four More Dumb Things Supreme Court Justices Wrote About Indians