BOSTON - Under the shadow of a U.S. Supreme Court that "doesn't get it," the field of American Indian law is turning an ear to critics of the U.S. constitutional system who seek deeper roots for tribal self-rule.
Native scholars have long argued that the U.S. legal tradition that defines tribal sovereignty is dangerously flawed by its origin in European theories of conquest. They challenge Supreme Court doctrines like the "plenary power" of Congress over Indian affairs and look both within and beyond the U.S. Constitution for a basis for tribal rights. Now, after a seeming acceleration of decades of court rulings limiting tribal powers, this criticism is gaining a respectful hearing even at the most elite mainstream law schools.
The respect is tempered, however, by a desire to win cases in the current legal system, no matter how flawed. Even the most thoroughgoing critics of federal Indian law still argue cases before the U.S. Supreme Court, using its vocabulary. But even a smattering of interviews with law professors and a scan of law review articles and symposia topics shows a surprising acceptance of ideas that were once called "radical" yet now appear profoundly conservative.
"There is a group of 'foundationalists,'" says Lorrie Graham, a professor at the Suffolk University Law School in downtown Boston, "who challenge the idea that the 'Marshall trilogy' should be the basis of Indian law because of the racist, cultural bias that pervades these opinions."
The 'Marshall trilogy' refers to three Supreme Court decisions by Chief Justice John Marshall from 1823 - 1832 which define Indian tribes as "domestic dependent nations" or, in his words in Worcester v. Georgia, "as distinct, independent, political communities retaining their original natural rights as the undisputed possessors of the soil, from time immemorial." The U.S. inherited control of these nations, and the right to buy their lands, from the claims of European nations, which based their rights on the discovery of lands "not possessed by other Christian monarchs or peoples."
As leading critics of a system based on the "right of Christian discovery," Graham cites Robert A. Williams and S. James Anaya, both professors at the James E. Rogers College of Law at the University of Arizona.
Williams and Anaya, she said, try to go beyond the limits of the United States constitution and find a foundation for tribal sovereignty in international law. They have brought cases before international human rights bodies, especially the Inter-American Court on Human Rights, to protect indigenous rights. This approach places great importance on international treaties defining the rights of indigenous peoples. One of its drawbacks is these treaties are still in flux. The most important of these, the United Nations Declaration on the Rights of Indigenous Peoples is still being drafted and could well be delayed beyond its target date of next year by intense resistance of nation-states, including the U.S., to a broad recognition of indigenous control of territory and natural resources.
Some tribal leaders rely on the fact of their existence to reject the Supreme Court framework. "It's an illegal foundation," said Harry Wallace, who is a lawyer and chief of the state-recognized Poosepatuck Indian Tribe on Long Island, N.Y. "No sovereign can abrogate the sovereignty of another."
Wallace has refused to seek federal recognition for his tribe to avoid acknowledging U.S. government control but he recounts a successful attempt to use a New York State court to enforce tribal law. He advocates "a unified strategy for the 21st century" to resist attempts to abrogate tribal sovereignty.
Other groups are turning to the American political process to reverse Supreme Court rulings such as the 2001 Nevada v. Hicks case. The National Congress of American Indians is supporting a Tribal Sovereignty Initiative that would establish tribal powers through an act of Congress or constitutional amendment. But this process would take years, say others, and the results could be unpredictable.
These ideas are gaining a hearing in part from the vigor and high quality of argument of the people propounding them. Law professors from Harvard to the University of Washington speak respectfully of Williams' scholarship; his 1990 book "The American Indian in Western Legal Thought" delves into medieval theology and the 16th century Spanish theory that gave rise to modern international law.
But these same professors also reply that these ideas don't translate into a winning courtroom strategy. "We all agree with that," said Robert Anderson of the University of Washington Law School about Williams' critique of the racist European doctrine of conquest. "But do you think the Supreme Court is going to abandon the Marshall trilogy because of its racial origin and make its decision based on some independent standard?"
"You can be so interested in being pure that you don't get anything done," said Joseph W. Singer, professor at Harvard Law School. "The question is whether ignoring the Supreme Court is likely to be successful for a tribe as a practical matter. It probably won't be."
Singer advocated an alternate strategy of "creating facts on the ground" to bolster tribal sovereignty. One example, perhaps, is the current effort of some 35 Indian law scholars to produce a new version of the Handbook of Federal Indian Law, the classic text by Felix S. Cohen first published in 1941.
Although it might be tempting to divide Indian lawyers today into two or three camps, with the Williams critique on one side, federal supremacy on the other and a broad middle ground, including the Cohen Handbook, in between, Suffolk Law School Professor Graham cautions that the reality is much more "multi-layered." She noted that she considers Williams and Anaya her mentors, yet she is also contributing a chapter to the Cohen Handbook on economic development.