Supreme Court shapes American Indians' destiny


To a greater degree than any other group, American Indians' destiny is
shaped not by the ballot box but by the Supreme Court. Because of the
tremendous impact of Supreme Court jurisprudence on the daily lives of
Indian people, prospective justices' views on federal Indian law matter a
great deal.

When President Bush names his second Supreme Court nominee, the members of
the Senate Judiciary Committee and the American people who elected them
must demand a truly open conversation about the next prospective justice's

The Constitution says little about the rights or status of American Indian
nations or the power of Congress with regard to Indians. From the earliest
days of our legal system, however, the Supreme Court has recognized that
the status of American Indian tribes as political bodies pre-existing the
state and federal governments on this continent gives them unique authority
to govern their own territories and people within the larger American

The Supreme Court, to a greater extent than Congress, has written the law
governing the powers of Indian governments, the status of Indian treaties,
the establishment of Indian reservations, the protection of Indian lands
and resources, and the relationship of tribes to states and the federal
government. While this Supreme Court jurisprudence bears some grave flaws
(like the blatantly discriminatory rule that the federal government can
take property from Indians without paying the compensation guaranteed to
all other Americans), it provides the legal framework upon which Indian
nations must depend for the protection of their cultures, their lands and
their ways of life. Each term, the Supreme Court decides new cases on these
matters. And when the court fails to uphold Indian rights, the results are
devastating to Indian communities.

It is vital, therefore, that each Supreme Court justice understands and
respects this area of law. John Roberts, unlike most lawyers, actually
knows something about it. He represented Native Hawaiians in their
successful effort to establish their right as a political entity to
determine their membership and govern their people. And, as is less well
known, Roberts represented the state of Alaska in its efforts to reject
similar rights claimed by Alaska Native communities.

The conflicting sides Roberts took in these cases defy partisan labeling
because Indian rights are not a partisan issue. In order to ensure that
American Indians have the opportunity to be equal members of our society
and to control their own affairs as tribes and nations, the Supreme Court
must respect the right of self-determination, which poses challenges to
those on both sides of the political aisle.

Liberals must abandon the outmoded "melting pot" concept and embrace the
notion that American Indian tribes - not just individuals - have a distinct
place in the American polity and thus strengthen, rather than threaten, the
ideal of a multicultural America. And conservatives have to look beyond
support for the rights of states, which often pose the greatest threat to
Indian communities, to remind themselves that the cherished notion of
"local control" sometimes means "tribal control."

Where does Roberts stand on these issues? We won't know until he rules on
them as chief justice. There is still an opportunity, however, to get
answers from the president's next Supreme Court pick. And if the media and
the American people can look beyond the stories on poverty, alcoholism and
casinos so often put forward to define American Indians, they too will
press for responses on these greater and more relevant matters.

Alexandra Page is a staff attorney with the Indian Law Resource Center, a
nonprofit law firm that represents Native peoples in the United States and
internationally. Visit