You just gotta love the so-called Chinese curse of, "May you live in interesting times. Because it seems that Indigenous nations and peoples have just entered into some “interesting times” in our relations with the U.S. Supreme Court. On March 22, 2016 SCOTUS made two pro-Indigenous rulings. The first being a unanimous ruling in favor of the Omaha Tribe in Nebraska v. Parker and the other was their refusal to hear the case of Ute Tribe v. Utah.
Both are jurisdiction cases in which the settlers have been trying to diminish Indigenous inherent rights of jurisdiction over matters within their territories. The Omaha case was an interesting threat because the settlers were arguing that their presence in the territory had diminished the territory and the presence of their demographics had erased the territory from being considered Indian Country. This argument is a 21st Century variation on the Doctrine of Discovery.
Perhaps the American Chief Justice John Marshall described the Doctrine of Discovery best in Worchester versus the state of Georgia: "This principle, suggested by the actual state of things, was 'that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession…”
The Justices rejected this position in their decision noting, “And, while compelling, the justifiable expectations of the non-Indians living on the land cannot alone diminish reservation boundaries…” Not a totally reassuring statement but enough for the moment to reject the settler argument.
The Ute Tribe case has been dragging on for about 20 years. This is a particularly frustrating case because they’ve won every round and Utah refuses to acknowledge any Indigenous victory. Not really surprising considering the Utes are dealing with the Mormons and they don’t see Indigenous folks as being fully human. To them we’re the so-called Lamanite People – the lost tribe of Israel.
I have never forgotten the hot July day two young white guys in white shirts and ties came to my house and asked to meet with me. These two punks had name tags that proclaimed that they were “Elders”.
I half listened to them until they got to the part of their spiel where they told me I was a Lamanite. Now they had my attention as they told me this totally bizarre story about our being the lost tribe of Israel and how we had wondered across the Pacific to land in North America and start this fantastic civilization. But something went awry and their god got mad at them and destroyed their civilization and darkened our skin as a sign of our punishment by this god.
They told me in all sincerity that this has happened to the Blacks as well and that was why they were so much darker because their sin had been worse than ours. And that along with the black skin they had also been cast into the role of slaves.
Then they told me all was not lost. If I became a Mormon and lived a good Mormon life when I died I would enter their heaven as a white man. The look on my face made them go quiet. I asked them if they seriously though that my becoming a white man to go to their heaven was some kind of reward? This was followed by a whole string of other words that caused them to flee from my porch.
Just to be clear, it’s not just the Mormons who believe this. But they’re the only ones to put all of this nonsense in their holy book. Which creates an interesting double bind for them. They can’t renounce this craziness because it’s considered god’s words. The Catholic Pope can at least renounce another Pope’s Bull in favor of a more modern position.
Regardless of which Western faith organization we’re talking about they do operate from a uniform premise that they are their god’s chosen people. This god at some point empowered them to transform and convert the whole world and if anyone resisted they could be wiped out. This god somehow gave them an unassailable right of occupancy of any other people’s lands except if those folks are Christians. Along with this right of occupancy they were also given the right to seize all of the properties and wealth of the non-believers.
I also find it interesting that the Supreme Court came to these two decisions after the passing of Supreme court Justice Scalia. Makes me wonder how this would’ve turned out if he was still there?
The one thing we can absolutely count on is that this battle is not over. It will continue to be waged far into the foreseeable future. In Nebraska the Justices gave the Petitioners two huge hints about what they need to do if they want a favorable decision when they wrote:
“And, while compelling, the justifiable expectations of the non-Indians living on the land cannot alone diminish reservation boundaries…”
“Because the parties have raised only the single question of diminishment, the Court expresses no view about whether equitable considerations of laches and acquiescence may curtail the Tribe’s power to tax the retailers of Pender. Cf. City of Sherrill v. Oneida Indian Nation of N.Y.”
You can hear the exasperation of the judges of the 10th Circuit when they wrote:
“But sooner or later every case must come to an end. After all, that’s why people bring their disputes to court in the first place: because the legal system promises to resolve their differences without resort to violence and supply “peace and repose” at the end of it all. S. Pac. R.R. Co. v. United States, 168 U.S. 1, 49 (1897). For a legal system to meet this promise, of course, both sides must accept — or, if need be, they must be made to respect — the judgments it generates. Most people know and readily assent to all this. So it’s pretty surprising when a State and several of its counties need a reminder. But that’s what this appeal is all about.
Nearly forty years ago the Ute Tribe filed a lawsuit alleging that Utah and several local governments were unlawfully trying to displace tribal authority on tribal lands. After a decade of wrangling in the district court and on appeal, this court agreed to hear the case en banc. In the decision that followed, what the parties refer to as Ute III, the court ruled for the Tribe rejecting Utah’s claim that congressional action had diminished three constituent parts of Ute tribal lands — the Uncompahgre Reservation, the Uintah Valley Reservation, and certain national forest areas. See Ute Indian Tribe v. Utah, 773 F.2d 1087, 1093 (10th Cir. 1985) (en banc). When the Supreme Court then denied certiorari, that “should have been the end of the matter.”
And do we think it’s going to come to an end now? No. The tenacity and relentless attacks by these folks doesn’t appear to be at an end. It does seem to be a symptom of a rising rebellion amongst the settlers against their institutions when they don’t get their way. They’ll occupy lands and buildings; they’ll thumb their nose at decisions by their courts; and they’ll vote in droves for whoever seems to champion their causes.
Ahh, we do live in interesting times.
Mike Myers is the founder and CEO of Network for Native Futures, a Native non-profit that works with Indigenous nations, communities and organizations internationally. The network's mission is to support sustainable development and nation re-building through providing of technical assistance, training and consulting.