The modern era in Indian law has come to an end. The gathering rumblings of the past year have called us to abandon litigation as a means to preserve our independence and to provide protection to our Native interests. The post-modern era is upon us. Take cover, for the U.S. Supreme Court shall make use of its darkest secrets. In its efforts to conceal a shift in power from the federal government to the states, it has no concern for our place in the federal union. Native America will count only as collateral damage.
The Supreme Court has always been a secretive organ that has cautiously guarded the knowledge about itself, its members and its workings. It recedes into the background of American politics so effectively that its most prominent public image comes from the words it pronounces in the opinions it issues. The Court wants it that way. It spins narratives that often stray far from the truth, but it is in these narratives that law is born. These narratives, euphemistically called "opinions of the Court," are frequently cover for the range of odd political theories espoused by its various members. They employ "secrets" of decision-making that make the politics hide well under the camouflage of detached adjudication.
For instance, in one of its oldest decisions, Marbury v. Madison, it played down the fact that the U.S. Constitution did not give it the power to review the actions of Congress and the President. It merely concluded that it did have the power. It was sleight of hand, a Jedi-mind-trick. Since that 1803 decision, a nation has remained fooled. The religion of American law had germinated in this country.
In the early days, under the leadership of Chief Justice John Marshall, the associate justices were not allowed to render dissenting opinions. They were required to stand behind the team decision. And when this prohibition against dissent was lifted, strange results fell into place. In the Cherokee Nation v. Georgia case, two justices backed Marshall's description of Indian tribes as "domestic dependent nations," two others felt that tribes consisted of conquered peoples, but the remaining two (seven was a magic number back then for pilgrims) felt that the Cherokee people had proven well that they were entitled to be considered as part of that international club of "independent" and "foreign" nations. Less than a majority of the justices endorsed the designation of our tribes as "domestic dependent nations" - but, a majority of them were willing to concede the designation as "nations." We always forget the dissenters, and those who didn't entirely join Marshall.
In 1831 when Cherokee Nation was decided, a few small "domestic dependent nations" were appearing in political discussions; Monaco, San Marino, Andorra, Luxembourg were all on the verge of attaining that special status as recognized independent nations within the European political theater. Their day eventually came. For American Indians, though, we would become relegated to a wardship status, never to reach political maturity, perpetually the unwanted wards of an increasingly callous trustee. Our tentative status has remained intact for latent racist reasons. The Supreme Court created the fictive characteristics of the Federal-Indian relationship, yet, in the past two centuries, has withdrawn at every attempt on our part to enforce the sketchy contours of the Court's weak philosophy. It continually engages the use of its secrets.
In more recent years, with cases like A-1 Contractors, Hicks, and Atkinson Trading Post, it has engaged its secret powers to ignore those seminal cases often referred to as the "Marshall Trilogy," from which we get the now familiar concepts of trust and guardianship. In the Marshall years the Supreme Court did say in Worcester v. Georgia that the reach of State law did not enter into tribal lands, yet each one of these new decisions stands for a retreat from the principled stance of Worcester. Rather than commenting on the underlying logic of Worcester, the Court ignores the case altogether. It has ceased referring to Worcester, as it articulates its recent logic. Take care that Worcester may never be overruled but ignored into abandonment altogether.
A more troubling secret power of the Supreme Court has been in its ability to transform a case. Using this technique, the Court makes a relatively small case into something larger. It makes the case more concrete than it ever was. The case of United States v. Montana is the classic embodiment of this secret power of transformation. Originally Montana was an exception to the general rule that tribes had broad police powers over their own territories. It placed limits on those powers, however, where a non-Indian did not have a sufficient enough connection to the rez'. In A-1 Contractors, the Court began considering Montana to be "the rule." An "exception" to the real rule had miraculously become "the rule" itself. Legal voodoo was at work: as in lycanthropy (the assumption of the form and characteristics of a wolf held to be possible by witchcraft or magic), a minor case had transformed into a formidable beast of the night.
These secrets by no means measure up to the Supreme Court's greatest secret: the secret of overruling a case. As an appeals court, this is considered within the Court to be the most drastic of actions. Yet, when it is done, the Court makes a mere statement about it. It declares the overruled case no longer to be applicable. It discredits the logic of the case. No law professor in the country can describe the necessary predicates to the overruling of a case. But this secret remains guarded because it is one of the primary forces behind American litigation. Every party hopes to have the Supreme Court overrule a prior case. If the secrets to its mechanics were disclosed, cases would be settled or abandoned, and the dialectic engine of the adversarial process would grind to a halt.
Last year, as Justices O'Connor and Breyer met with Indian jurists and leaders, Justice O'Connor was asked point blank whether the Court was willing to re-examine some of the older, more troubling cases in Indian law, and, perhaps, overrule them. (The ones that confirmed the unlimited congressional plenary power in Indian affairs - without a Constitutional basis - were specifically cited.) Her answer was equally as troubling as those cases. She said that "maybe" it was time for tribes to approach Congress to seek a legislative solution. Oddly, she was somewhat laying the blame for bad law on Congress when the real culprit was an uninspired and timid Supreme Court.
O'Connor's response was indeed pregnant with dark implications. The trust relationship, that grew out of the incidental Marshall description of the relationship between tribes and the federal government as "like" a guardian and ward, is a concept coming out of English law. A trusteeship in the English courts was always monitored by a supervising court. She was signaling that the Court, consistent with its late-19th century stance, would not perform that function, even with an added century to reflect upon its lack of prudence. She was also saying that the Court would be unwilling to overrule statements it made a century ago about the unlimited powers of Congress no matter how lacking in legal support they may have been. But worse, she was unwilling to admit that the powers of Indian tribes would ever again rise to Constitutional proportions. In other words, the politics of federal-Indian relations could conceivably be settled by Congressional decree without the protection of any court. Congress could forever eradicate tribal governments in fact and leave only the hollow mention of "Indian tribes" within the Constitution as evidence of our political existence.
What Justice O'Connor also implied was yet another great secret. It is that the U.S. Supreme Court does not consider itself to bear any social responsibility for the fate of American Indian peoples. As a jurist, I know that herein lies the greatest of corruptions. The U.S. Constitution was built upon an essential theory that the weak were always protected through some Constitutional mechanism, whether it was through a bicameral Congress, residual State powers or a system of civil rights. The status of Indian tribes cannot be relegated to a state of pupilage by judicial decree with any intellectual honesty without a backstop being installed to conform to this essential democratic theory.
There could be yet one more secret that lingers somberly in the background: the Supreme Court may plainly not care about Native societies in anything more than a fondness for our quaint traditions. In a conversation I had with Justice Steven Breyer, he expressed that the Court was not "hostile" to Indian tribes, that they "were just connecting the dots." True evil is often rooted in such banality. Adolph Eichman considered his task of shipping Jews to concentration camps to be a mere matter of coordinating the train schedules: he professed no hostility toward Jewish people.
It is the function of the Supreme Court, in the exercise of its "judicial powers" to detect iniquities in the administration of the American political system and to apply the language and theory of the Constitution to correct those shortcomings. In regards to the Native peoples of this country, we have been committed to the netherworld of a wardship status. The recent decisions of the Supreme Court have deprived us of our potential for political vitality. Wardship has become an ever-shrinking ghettoized concept.
But this commentary, admittedly, is of little use. The Supreme Court does not make use of commentary no matter who is the source. It does not take note of treatises on Indian law. It sweeps aside scholarly articles on the subject. American law is a system of incremental legal reform, and, as the Supreme Court can plainly see, every commentator urges monumental change. The Court will not disturb the settled expectations of the States and an ignorant American public when it can manipulate tribal peoples who have become used to instability and loss. Those are the privileges of its position.
In part, this is a eulogy to the modern era of Indian law. In this post-modern era, we appear to have no choice but reluctantly to abide by Justice O'Connor's suggestion. But, in this new era, will we approach a war-distracted Congress as warriors, focused on attaining principled doctrinal changes in federal-Indian law? Or, will we go to Congress with a tame desire to appear reasonable and nice, hat in hand? The post-modern era portends more than legislative changes - it may require changes in posture and attitude. More importantly, it demands our vision and solidarity, and other things we presently do not have. We must go to our sacred places and pray upon these things.
Judge Carey N. Vicenti, a member of the Jicarilla Apache Nation of northwest New Mexico, currently serves as an Assistant Professor of Sociology at Fort Lewis College in Durango, Colo. He sits as a judicial official for several American Indian nations and is a columnist for Indian Country Today.