In 1851, U.S. Attorney General Hugh Swinton Legare made this trenchant observation on the status of Native nations and their relationship to the United States: ''There is nothing in the whole compass of our laws so anomalous, so hard to bring within any precise definition, or any logical and scientific arrangement of principles, as the relation in which the Indians stand toward this [United States] government and those of the states.''
Legare's confusion was understandable. Indigenous peoples at that time remained largely separate nations, disconnected in any political or constitutional manner from the federal or state governments. Their only real connection was through diplomatic accords - treaties - that many of them had been entering for several generations with the foreign powers, including the U.S., that who had been vying for power in North America.
Fast forward to April 14 when the U.S. Supreme Court heard oral arguments in an important case, Plains Commerce Bank v. Long Family Land and Cattle Company Inc., et al. This case originated in the Cheyenne River Sioux tribal courts. There, the court had rendered decisions in favor of the Long Family Land and Cattle Co., an Indian-owned corporation, and against the bank on the grounds that the bank had used discriminatory lending practices. Plains Commerce Bank, however, challenged the right of the tribal court to hear the suit. The Long family had won at the federal district and appellate levels. The bank then took its case to the U.S. Supreme Court.
While the facts of the case are interesting enough, and the legal questions are vitally important, do tribal courts have the jurisdictional power to render decisions against non-Indian banks? It is the banter back and forth during the oral arguments between Chief Justice John Roberts and the Long family's attorney, David Frederick, that I want to draw attention to. The questions posed by both Roberts and Justice Antonin Scalia, in particular, display both a profound ignorance of indigenous status and, more depressing, indicate a degree of rank disrespect and rudeness toward tribal businesses and governments that rival anything in American jurisprudential history.
Roberts: One of the points you mentioned earlier is that this is an Indian corporation, and that's a concept I don't understand. If justices Scalia and [Samuel] Alito form a corporation, is that an Italian corporation?
Frederick: I would like to beg the indulgence of the court in not answering that question specifically.
Frederick: My point -
Scalia: And do we get special loan guarantees?
Roberts: I understand the concept of a minority-owned or an Indian-owned corporation, but the point here is you are trying to say that the corporation is a member of the tribe. And I just don't know. And I certainly don't think the state, when it incorporated this entity, said, ''You're a different type of corporation than every other; you're an Indian corporation.''
Frederick: Well, to the contrary, Mr. Chief Justice. There is a state Supreme Court case on point called Pourier, which we cited in our brief, which says that a majority-owned corporation under South Dakota state law shall be treated as a member of that tribe for the tax purposes that were at issue in that case.
The sarcastic tone of these questions from the justices and the laughter they elicited on the bench and in the courtroom - though we do not know specifically who laughed - powerfully affirm that Native owned corporations, the tribal nations these corporations operate on, and the federal rules and regulations governing such operations, are being accorded far less respect than Legare displayed towards tribes more than a century and a half ago.
In Legare's case, he at least admitted that he was uncertain about the state of Native/non-Native relations. In the present case, Roberts and Scalia, the leading conservative on the court, are flagrantly mocking what clearly is a legitimate Native-owned business and the Native nation on which that business operates.
Predicting Supreme Court decisions is fraught with difficulty, and I will not hazard a guess as to how the court will vote in this case. But the tone of the oral arguments, combined with recent judicial history of a court that is overstocked with conservatives, suggests that the chances for a Native victory are probably slim to none.
Intergovernmental relations between the U.S. and Native nations will only improve if and when the policymakers of the more powerful federal government adopt a more respectful attitude towards Native peoples. Unfortunately, the question-and-answer component of the Plains Commerce Bank case shows that insolence and derision rather than respect and esteem are the watchwords of several of the most influential justices.
David A. Wilkins, Lumbee, is a professor of American Indian studies, political science, law and American studies at the University of Minnesota.