This column is about oral arguments at the U.S. Supreme Court that took place on December 2, 2013 in the case Michigan v. Bay Mills Indian Community, Et Al. By way of introduction, a description of what brought the parties to the U.S. Supreme Court.
The basis of Michigan v. Bay Mills Indian Community has to do with a casino built by the Bay Mills Indian Community, more than one hundred miles from its reservation. It was built and operated for a time (it is now shut down) on land Bay Mills had purchased with “claims settlement” monies. It had received those monies in compensation for what was said to be a “taking” of its traditional territory. Bay Mills claimed that the lands it purchased constituted “Indian land” for the reason that they used their settlement monies to buy the land and the settlement agreement states that lands bought with the money shall be "held as Indian lands are held."
The State of Michigan claimed that the land purchased by Bay Mills for a casino was not “Indian land” and that Bay Mills Indian Community was operating an illegal gambling operation on the land it purchased. Using a hypothetical, the State of Michigan said that if a foreign nation, such as France, were to purchase land in Michigan and open up an illegal business—whether it be gambling or some other pursuit—Michigan could successfully go after France. Yet when it comes to an Indian nation or tribe that has refused to waive its sovereign immunity, the State of Michigan cannot proceed. The Michigan Solicitor General argued that if the Supreme Court decides the Bay Mills Indian Community has blanket sovereign immunity, this will give Bay Mills Indian Community greater sovereign immunity than a foreign nation would have in the same situation.
There is however, a key difference. The Bay Mills Indian Community is Anishinaabe (sometimes called “Ojibway”), and Bay Mills had used federal “trust” monies to purchase lands within its traditional Anishinaabe territory. This is not the same as a foreign nation purchasing land in the State of Michigan, or, for that matter, purchasing land in that part of the Anishinaabe territory now commonly called “Michigan.” The Anishinaabe are in a very different position than any other non-Anishinaabe government or people in regard to their ancestral lands.
U.S. attorney Edwin S. Kneedler, on behalf the United States government, spoke in support of Bay Mills Indian Community by talking about the “sovereignty” of “Indian tribes.” As Kneedler stated: “The Constitution refers to Indian tribes—Worcester v. Georgia announced that Indian tribes are sovereigns. We make treaties with sovereigns.”
In response to Mr. Kneedler’s claim that Worcester v. Georgia had “announced that Indian tribes are sovereigns,” Chief Justice Roberts said: “They [the tribes] are quasi sovereigns. Which means--”
Justice Ruth Bader Ginsburg quickly interjected: “Dependent sovereigns.”
Chief Justice Roberts, following Justice Ginsberg’s prompting, continued: “Dependent sovereigns which is surprising that the scope of their immunity exceeds that of States or foreign nations.”
Thus, Chief Justice Roberts made the statement, as if it were a fact, that Indian “tribes” are “quasi sovereigns.” As an adjective, the word quasi is usually interpreted as “having some resemblance to a given thing: SEEMING, VIRTUAL.”
As stated previously, Chief Justice Roberts’ definitive statement that Indian “tribes” are “quasi sovereigns” or “dependent sovereigns” was in response to Mr. Kneedler’s comment about Worcester v. Georgia. Yet in Worcester the Supreme Court never characterized Indian nations or “tribes” as being either “quasi” or “dependent sovereigns.” In fact, using the Delaware Nation treaty with the United States as a model, Chief Justice Marshall said in Worcester: “This treaty, in its language, and in its provisions, is formed, as near as may be, on the model of treaties between the crowned heads of Europe.”
And yet for purposes of reduction and diminishment, Chief Justice Roberts, Justice Ginsberg, and Mr. Kneedler, felt compelled to attach the modifier “quasi” and then “dependent” to the word “sovereign” to characterize “Indian tribes.” In fact, Mr. Kneedler invoked U.S. authority over Indian nations when his statement for the United States: “They [Indian tribes] are dependent sovereigns, but they are dependent the plenary power of Congress, not the plenary power of this Court.”
Shortly thereafter, Justice Scalia asked Deputy U.S. Solicitor Kneedler: “Who made these Indian tribe[s] sovereign?
Kneedler responded (in contradiction to Worcester v. Georgia): “The [U.S.] Constitution.”
Scalia: “…Who decided the Indian tribes are sovereign?”
Kneedler: “The Constitution -- ”
Scalia: “Who pronounced them to be sovereign?”
Kneedler: “This Court.”
Scalia: “This Court.”
Kneedler: “But -- ”
Scalia: “So I assume that this Court could also determine the scope of their sovereignty.”
Kneedler (to his credit): “But this Court didn’t do it [pronounce them to be sovereign] as a matter of common law. It did it by looking at the Constitution. We have treaties with Indian tribes, we have the -- ”
Too bad Mr. Kneedler didn’t read the Worcester ruling closely enough to realize that the original free and independent nationhood of Indian nations, typically termed ‘sovereignty,’ long predates the U.S. Constitution. It wasn’t the U.S. Constitution that “decided” Indian tribes are “sovereign.”
Justice Scalia, by the way, ought to be compelled to recuse himself from every case dealing with Indian nations or “tribes” for his lack of judicial impartiality. He disqualified himself, in my view, by a statement he is reported to have made to Congressman Tom Cole of the Chickasaw Nation: “Don’t forget you belong to a conquered race.” (When asked about the incident, Congressman Cole’s Office said representative Cole will not comment on a private conversation.)
The Supreme Court is likely to deliver its decision in the spring of 2014.
Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008).