Treaties are a contract between sovereigns; the legacy of Justice John Paul Stevens

Mark Trahant

The 1979 Boldt decision -- or United States v. Washington -- was one of the many cases that Stevens helped shape

John Paul Stevens joined the Supreme Court as a conservative member appointed by President Gerard Ford.

Yet when Stevens retired as a justice he was known as a leader of the liberal bloc and the justice who often supported the rights of tribes.

Stevens’ story is about the independence of the judiciary. He was the third-longest serving justice in U.S. Supreme Court history. The Associated Press reported that he died Tuesday in Florida after suffering a stroke Monday.

“Loosely speaking, Justice Stevens is the sitting justice most likely to support tribal interests in the last decade, but his voting record in the 1980s and 1990s was overwhelmingly opposed to tribal interests. His seeming reversal in this context is fairly remarkable,” wrote Matthew L.M. Fletcher in the Turtle Talk legal blog when Stevens retired in 2010. “Justice Stevens generally speaking favored tribal interests in treaty rights cases and statutory interpretation cases (less so), but was a serious opponent in tribal immunity and taxation cases.”

The 1979 Boldt decision -- or United States v. Washington -- was one of the many cases that Stevens helped shape. The Supreme Court did not review the Boldt case, but it denied the state of Washington’s appeal from the U.S. 9th Circuit. However Washington would not give up and refused to enforce the court's orders. That brought the matter back to the Supreme Court where it mostly affirmed Judge George Boldt’s 1974 decision. The state supreme court had ruled that the fisheries department need now comply with federal law and that “the treaties did not give the Indians a right to a share of the fish runs.”

Stevens disagreed and wrote for the majority that tribes “both sides have a right, secured by treaty, to take a fair share of the available fish.”

Stevens called treaties “essentially a contract” between two sovereigns. And, “When Indians are involved … the treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.’”

The message that the Supreme Court sent to Washington was clear and unequivocal. “The District Court may assume direct supervision of the fisheries if state recalcitrance or state law barriers should be continued,” Stevens wrote for the court.

Billy Frank, Nisqually, often said that this decision saved salmon in the Pacific Northwest because it made tribes co-managers of a scarce natural resource. And tribal governments spent the decades that followed putting resources into science, habitat, and sound management of the salmon.

However Stevens also ruled against tribes on the issue of taxation. In a 1989 case, Cotton Petroleum Corp v. New Mexico, the Court held that a state and a tribe may impose a tax for oil and gas production. The court said that the state “provides substantial services” to the tribe and a state tax is justified. “The tax imposes no economic burden on the tribe; and federal and tribal regulation is not exclusive, since the state regulates the spacing and mechanical integrity of on-reservation wells,” Stevens wrote for the court.

The court also rejected the argument that states do not provide enough benefits to tribal citizens for this taxing authority. The court said: “There is no constitutional requirement that the benefits received from a taxing authority by an ordinary commercial taxpayer -- or by those living in the taxpayer's community -- must equal the amount of its tax obligations.”

Indian Country Today columnist Steve Russell called this one of the dumbest decisions ever in a 2015 essay. “Then we learn that it’s OK for Congress to take Indian property in violation of a treaty because an emergency might come up that requires taking Indian property really quickly. Even when Congress does not take Indian land, the SCOTUS says states can tax the minerals under what little land we have left and making the minerals cost more than the same minerals off the reservation is not an act of discrimination because, you know, that’s where God put the minerals.”

Stevens was often in dissent. As Fletcher wrote in Turtle Talk, “Justice Stevens wrote the dissents (often scathing dissents in a trademark style) in the following decisions that form the remainder of the bedrock of Indian law favoring tribal interests — Bracker (1980); Merrion (1983); Oneida II (1985); Iowa Mutual (1987); Cabazon Band (1987); Holyfield (1989); Citizen Potawatomi (1991); and Kiowa Tribe (1998).”

He was the lone justice to object in Carcieri v. Salazar. In that case he said the Secretary of Interior clearly had the power to take lands into trust on behalf of a tribe. “The court’s decision can be best understood as protecting one sovereign (the state) from encroachment from another (the tribe). Yet in matters of Indian law, the political branches have been entrusted to mark the proper boundaries between tribal and state jurisdiction,” Stevens wrote. “Congress drew the boundary in a manner that favors the Narragansett.”

President Donald J. Trump ordered the flag at the White House and government buildings to be flown at half-staff “as a mark of respect for the memory and long standing service of John Paul Stevens.”

“Justice Stevens was a true guardian of the Constitution," said Speaker of the House Nancy Pelosi, D-California. "He made history not only as one of the longest-serving Justices, but as one of its finest. Despite being nominated by a Republican president, he leaves behind a legacy of progressive rulings that have transformed countless lives and helped build a fairer and more just future for all Americans. His support for the Court’s decisions on habeas corpus and detainees held at Guantanamo Bay honored his lifelong belief that America must always strive to live up to its fundamental values, even in times of crisis. In his dissents, Justice Stevens wrote eloquently of American peoples’ ability, under our Constitution, to protect our democracy with commonsense campaign finance reform, as well as our communities with responsible gun safety laws."

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Mark Trahant is editor of Indian Country Today. He is a member of the Shoshone-Bannock Tribes. Follow him on Twitter - @TrahantReports