I was intrigued by Steven Paul McSloy's piece entitled "A Bird's Eye View of American Indian Law" that appeared in Indian Country Today (Vol. 23, Iss. 15). He presented a thought-provoking version of an idea that has been gaining currency of late, namely that Indian tribes should avoid the U.S. Supreme Court whenever possible and instead "do deals." However, I was also troubled by McSloy's closing where he writes that "Indian nations should get out of the sovereignty talk, get out of the rights talk, and get out of the constitution talk, because it is not going to work before the current Supreme Court." The language itself seems paradoxical: if nations get out of sovereignty talk, they're undermining their own status as nations.
I agree with many of McSloy's other points; however, there are many sides to the issue of whether to choose litigation or a negotiated agreement. While it is true that Indian tribes have historically suffered from being caught in the separation-of-powers crossfire at the Supreme Court level, it's also true that a continued vigorous assertion of tribal rights in federal court is essential for the continued integrity of tribal governments as nations. It is valuable and right to assess the chances of litigation success by evaluating Supreme Court justices' tendencies. I harbor no illusions: litigation before the current Supreme Court can be very dangerous to Indian rights. The Court is willing to take a narrow case and use it to chip (or in some cases, gouge) at Indian sovereignty. Indian law scholars and commentators have shown how the Court has no qualms about enforcing what appears to be a political agenda to strip tribes of their status as governments. However, carefully evaluating potential litigation is different from adopting a philosophy of forgoing litigation altogether in favor of negotiated agreements. A more nuanced approach that takes into account all of the factors at play (political, financial, identity of parties, etc.) is likely to be more useful.
When entering negotiated agreements, tribes should be just as cautious as they are when entering litigation. Negotiated agreements carry hazards as well. There are at least three that come to mind: 1) Depending on the strength of the tribal position, making an agreement to avoid litigation can be like destroying the village to save it. If the deal terms take away too many elements of a tribe's sovereignty, then the short-term gain will be negated by long term damage to the tribe's sovereignty. 2) The difficulty of foreseeing the future can make deals risky. Deal terms or concessions may seem harmless or even positive at the time of the deal. However, down the road as circumstances change, certain terms can come back to have unintended consequences. 3) Agreements don't always settle the issues. The agreements themselves can be a source of disagreement over meaning and even litigation.
The subsequent history of the Maine and Rhode Island settlement acts illustrate some of the points above. No matter how good or well intended a deal may seem at the time, difficulties can ensue. I am not criticizing the tribes in Maine and Rhode Island that assented to agreements that they believed to be in their best interest at the time. Rather, the point is that just like litigation, deals don't offer a haven from after-the-fact hindsight and second-guessing.
Preferring deals to litigation is based on the premise that the Supreme Court is more likely to rule against tribal interests. Though the trend of late has been unfavorable for tribes, predicting Supreme Court results is still more art than science. Over the last five years there have been some favorable results that don't fit the trend: in 1998 the Court upheld tribal immunity in Kiowa Tribe v. Manufacturing Tech, Inc.; in 1999 the Court upheld the Mille Lacs Tribe's usufructuary hunting and fishing rights despite some difficult facts; in 2002 the White Mountain Apache Tribe litigated and successfully established important standards relating to the U.S. trust responsibility over Indian property. I acknowledge that favorable results have been few and that one must be realistic about litigating Indian rights in the current Supreme Court. These few examples are not intended to underestimate the trend.
However a trend is not a rule. The trend's importance is diminished further when one considers the point of view not from Indian country in general but from the Indian tribe or individual litigant. Issues going to the Supreme Court likely stir strong feelings and emotions, particularly for tribal litigants. No matter how sophisticated a party is or how good the legal advice is, there is still an element of emotion that tells a litigant: "My case is different. I am on the side of right. To heck with the trends, we're going to win."
Floyd Hicks may have had such an attitude. With the benefit of hindsight, the Hicks case was a good candidate for settlement. (My understanding is that there were meaningful efforts by Indian law attorneys to persuade Mr. Hicks to settle or withdraw the case - to no avail.) But think about the case from the more local point of view of Mr. Hicks or the Fallon Paiute-Shoshone Tribes. Nevada state game wardens get a search warrant, confiscate Mr. Hicks' property and return it damaged after determining that Mr. Hicks has done nothing wrong. Mr. Hicks then sues in tribal court. Mr. Hicks was minding his own law-abiding business in his home on the reservation when he became the subject of (arguably) illegal non-Indian state action; why should he compromise by making an agreement? That would seem to be an invitation to state law enforcement to be aggressive and then "settle" for increased state jurisdiction that no one really thought previously existed.
Is it reasonable for "all the rest of us" to expect a single tribe or individual to sacrifice their cause for the greater good? Understandably all the rest of us want to avoid incurring the negative effect of an unfavorable court decision. If a tribe or individual makes concessions to keep something out of court, we're pleased. However, the rest of us don't have to live with the local consequences of withdrawal or settlement. Most of the time the tribe or tribal member wouldn't be in court if they hadn't already tried to reach some agreement. In some cases, a state or unfriendly non-Indian institutes litigation, loses in district or circuit court then appeals, fully aware of the Supreme Court's tendencies. Tribal litigants have no choice but to defend lower court victories. The national effect of a court decision brought about by a local dispute is perhaps a flaw in our system. Considering all of the factors at play, it is not clear to me that the correct choice in every case is for a party to forgo court and make a deal to spare the rest of us the chance of a negative ruling.
Litigation and agreements are both important options for Indian tribes that should be undertaken carefully and cautiously. Regardless of the path chosen, Indian tribes need to keep talking about tribal sovereignty and tribal rights to the Supreme Court. The current justices won't be here forever and the conversation about tribal rights must carry forward to future Supreme Courts. Tribes also need to continue to expect and demand court decisions that are constitutionally sound. To do otherwise hastens tribes' involuntary incorporation into the dominant society.
Paul Stenzel is an attorney practicing Indian law with the firm of von Briesen & Roper, s.c. in Milwaukee, Wis. He served for eight years as in-house counsel at the Stockbridge-Munsee Community Indian Tribe in Shawano County, Wis.