The U.S. Supreme Court's recent decision in City of Sherrill v. Oneida
Indian Nation of N.Y. is remarkable not so much for its result (Indian
country has come to expect negative decisions from the Rehnquist Court),
but for its use of language.
"Language is the skin of an idea," wrote Justice Oliver Wendell Holmes Jr.
nearly a century ago. Peeling away the skin of the court's language exposes
the justices' troubling ideas and assumptions, ones potentially more
dangerous than the holding of the case itself.
The most striking use of language is the appearance of the word "ancient"
eight times in the opinion (three times in the first two paragraphs):
"ancient sovereignty" (three times), "ancient wrongdoing," "ancient
reservation land," "ancient prerogatives," "ancient wrongs" and "ancient
dispossession." Why this word and why so many times? The repetition is a
subtle nudge to the reader: Think about Indian rights like the crumbling
ancient Parthenon or Roman coliseum: interesting, but not important today.
The "ancient" talk pushes the tribe's sovereignty to the past and denies
its connection to the present. The implication is that ancient things are
not worthy of legal standing today simply because they are ancient.
However, would the court ever deny a claim because it rested on that
ancient document, the U.S. Constitution?
Moving to the present, the court states that it doesn't want to upset the
"justifiable expectations" of the non-Indians in the Oneida's land claim
area. The court does not share its opinion of what non-Indians' justifiable
expectations are or why they are justifiable or even reasonable. The root
of the word "justifiable" is just, as in fair, moral and lawful. It seems
at least an open question whether non-Indians have a fair, moral and lawful
expectation about preventing the tribe's presence as a government in its
Furthermore, what about the justifiable expectations of the tribe and its
members? For the court, they are not a factor worthy of discussion in the
Upsetting the non-Indians' expectations, the court tells us, would be
"disruptive." However, the tribe is not evicting landowners. It is
purchasing real property in lawful, open-market transactions. The word
"disruptive" is really a gloss on the court's arbitrary allocation of power
in favor of non-Indian landowners. The court doesn't think it is fair that
non-Indians may have to live next to land controlled by a tribal government
without prior notice.
The underlying assumption that lack of notice should shield non-Indians
from even being near a tribal government taps into the long-standing U.S.
legal themes of consent, notice and due process.
While these principles form the bedrock of American jurisprudence, it is
heartbreakingly ironic when they are used against Indian tribes today,
given the long, terrible history of suffering of Indian people that
occurred when those principles were ignored.
The court fears that as the tribe gains control over the land, the
regulatory controls that "protect all landowners" will be undermined. This
statement makes an unsupported assumption, borne of ignorance: Indian
tribes and their members want to engage in unreasonable regulatory
practices with which non-Indians will disagree.
The final chilling linguistic betrayal occurs when the court harkens back
to the 19th century, describing the land in question as "wilderness" before
it was a city. Specifically, the court states it wasn't until recently that
the tribe sought to "regain ancient sovereignty over land converted from
wilderness to become part of cities like Sherrill." Translation: Now that
we (the whites) have civilized this land, there's no way we're giving
control back to the wild Indians. There's only one way to describe this
kind of thinking: ancient.
Paul Stenzel has practiced federal Indian law for 10 years and currently
operates his own firm, Stenzel Law Office LLC, in Shorewood, Wis.