On the one hand, there is a case to be made that elliptical logic - a style
of formal discussion that relies on omitting stubbornly contrary factors -
isn't really logic at all because it doesn't follow the causal links that
characterize that discipline.
It's taken the death of a pontiff to remind most of the world that ellipses
in even the strictest of reasoning can be filled with respect for spiritual
mysteries and the substance of faith - something Indian country has never
On the other hand, it isn't always clear that elliptical logic serves
Indian country well in every case.
The logic behind the class-action lawsuit over the Individual Indian Money
trust is impeccable until one realizes that persisting in pressing
multi-billion dollar claims leaves a great deal out of account - namely,
that Congress has entrenched its power over Indian affairs during the
century or so in which the trust has been mismanaged, that a Republican
Congress under wartime budget constraints won't do what a flush Democratic
administration would not, that both tribes and the Interior Department rely
on Congress for appropriations, that Indians are very much a political
minority and that politicians who serve majority constituencies tend to
insist there is only so much "Indian money" to go around. That is, there is
no extra money for trust reform - only Indian money that must come out of
other Indian expenditures if Indian trust management is going to be
Each factor is stubbornly contrary to IIM accountholders' straightforward
case for historical and fiduciary justice, and each has been left out of
account in the legal proceedings. Taken altogether, they form an ellipsis
in the logic of this otherwise unexceptional case.
Likewise, the insistence of gaming tribes that Congress author a "Seminole
fix" in the Indian gaming compacting process relies on elliptical logic. In
a Seminole lawsuit, the Supreme Court upheld the constitutional provision
that states cannot be sued without their consent. That decision weakens
tribes' position in gaming negotiations, for it means they can't sue states
for bad-faith negotiation on gaming compacts.
Governors of states that have mismanaged their own economies have quickly
taken advantage of this. A "Seminole fix" from Congress would restore a
just balance to tribe-state gaming negotiations. Left out of account by
that reading, however, are the stubbornly contrary factors of a Supreme
Court decision that Congress (arguably at least) cannot revisit the bedrock
principle of states' rights without violating the Constitution, and the
plain fact that Republican congressional majorities are not going to fly in
the face of states for the sake of Indian gaming.
All that said, however, elliptical logic has sometimes been good for tribal
interests. Pressing claims for historical justice without poring over every
circumstantial detail has kept the focus where it belongs - on elemental
justice. Obviously, justice hasn't always been done for tribes (the Black
Hills claim comes to mind), but at least the struggle has generally been
joined on the high ground of a hope for justice. Tribes have been able to
pursue that hope. Attorneys have been able to argue for it with confidence.
Communities have invested their faith in it.
But in a pair of Indian-specific decisions rendered almost exactly two
years apart, the Supreme Court has stood down from the high ground built up
by elliptical logic and insisted that the demands of formal reasoning must
be fulfilled at every turn of history - and thereby sanctified historical
In the first instance, in March 2003, the Supreme Court seized upon an
ellipsis in Navajo logic over a complex claim to enhanced coal royalties.
The tribe had been betrayed by its trustee, an Interior Secretary. The
Navajo case left out of account the fact that no statutory law can be found
that would hold an Interior Secretary monetarily accountable for betraying
a trustee tribe. The court sidestepped any temptation toward basic moral
reasoning in order to rule, instead, that the lack of a statute justified
the contemporary betrayal of a tribe that had no choice but to rely on an
untrustworthy government-appointed Interior Secretary.
In the more recent instance, the court has ruled that the Oneida Indian
Nation of New York must suffer historical injustice because 200-plus years
of history must not be left out of account.
Oneida land had been unlawfully seized, no doubt, and the reins of
government taken from the hands of a tribe whose every hope, like so many,
was bent upon survival. But the tribe made many attempts at restoration,
and began to achieve it upon securing its own survival and the resources to
The ellipsis in the tribe's logic was that from then to now, non-Indian
communities had established themselves on tribal land and developed their
own set of expectations - expectations that didn't include a tribal
restoration (a case of elliptical logic in its own right, one might think).
But the court could justify that exercise in ellipsis as part of larger
expectations that developed over more than two centuries. That the tribe's
restoration was proof of a prior, more difficult and sustained expectation
did not occur to this court.
Judge every person according to merit, and no one escapes a whipping. By
judging Indian cases according to the full record of an infamous history,
the high court escapes the burden of justice.