Tag Archives: Supreme Court

The Trump Administration and American Indian Policy: A Post-Mortem

Barack Obama’s presidency had been one of great consequence to the nation’s five and a half million Native Americans, and he left large shoes for the angry ogre with little hands to fill. Trump’s presidency, I wrote a couple of days after his inauguration, left me feeling depressed “because I am not sure what will happen next.” I said at the time that I was not optimistic, “and that I am not optimistic really bums me out, because there are a hell of a lot of problems out there that sane political leaders from our two major parties might be able to solve.”

Impeached twice, the considerable damage he has done limited by incompetence, laziness, and Covid 19, it is time to assess the consequences of the Trump Administration for Indigenous/Native American peoples.

After four demoralizing years, it appears that the Trump Administration will slink off into history as it began, with an assault on lands deemed sacred to Indigenous peoples. A couple of days ago, Apache Stronghold filed suit against the Trump Administration to stop the transfer of Oak Flat, or Chi’chil Bildagoteel, to a multinational mining operation. This transfer of lands sacred to the San Carlos and White Mountain Apache tribes, and many others, is being rushed through before the Trump Presidency comes to a close. The mine will create a crater two miles across and one thousand feet deep. And it is certainly not the only instance of the Trump Administration threatening lands sacred to Native American peoples. When Tohono O’Odham people peacefully protested last fall “the ongoing desecration of sacred and burial sites by the U. S. Customs and Border Protection’s construction of a border wall in their homelands,” federal agents attacked them with tear gas and violent removal.

None of this is surprising. One of Donald Trump’s first acts as President, after all, was to sign an executive order authorizing the completion of the Dakota Access Pipeline, cutting underneath burial grounds and lands sacred to the Oceti Sakowim at the Standing Rock Reservation . President Trump ignored the legitimate arguments raised in the stunning protest movement mounted by Water Protectors against DAPL, and did nothing to stop corporate thugs and state and local law enforcement officials from targeting them with extraordinary violence. (In all fairness, the Obama Administration did too little, too late, to stop DAPL, and Hillary Clinton was hardly an outspoken opponent).

Trump also showed at the outset of his administration that he had no interest in consultation with Native American communities as required under the entirely uncontroversial Executive Order 13175 issued by President Bill Clinton in early 2000. You can complain all you want, Trump suggested, because he was not listening.

Trump’s interest in Indian Affairs picked up when it intersected with the concerns of his corporate allies. But there was as well the President’s strange fetish for Andrew Jackson, in whom some of Trump’s most servile advisers suggested he might see parallels. Trump’s affection for Jackson is clear–a portrait of Jackson hung in his Oval Office and, in a tweet, he thanked #POTUS7 for his service to the country.

What service was that? The Battle of New Orleans? The slaughter of Creeks at Horseshoe Bend? Perhaps. Or was it Jackson’s distaste for the 1st Amendment in the form of his support for the congressional “Gag Rule,” or restricting abolitionist materials from the US Mail? Did Trump like Jackson’s desire to go medieval on the Nullifiers in South Carolina?

Native Americans Outraged Over Trump 'Pocahontas' Comments | Voice of  America - English

Maybe it was because Trump embraced the myth that Jackson was an outsider, the people’s candidate, a kindred spirit of sorts, even if based on a flawed historical analogy. Perhaps the ruinous Bank War inspired him, where Jackson’s personal spite and lack of knowledge about how banking worked led him to destroy the economy. Or Jackson’s brutal embrace of majority rule whatever the consequences?

The sheer number of biographies he has inspired is evidence enough that for many people Jackson is a compelling figure, but Trump took his Hickory Crush a couple of steps farther. On the Ides of March, 2017, Trump visited Jackson’s plantation and stood silently in salute at Jackson’s grave. That same day, a federal court in Hawaii struck down the president’s second attempt to ban Muslim immigrants from a handful of countries. Mike Huckabee, the dad joke-telling Wormtongue of GOP politics, said that like Jackson when confronted by a Court that challenged a fundamental assumption of his Indian policy, Trump should resist the judicial branch of the federal government. Huckabee became, in effect, the first person in the 21st century to see Jackson’s dismissal of the Court’s authority as admirable, and created the impression that this is a presidency run by men who have little knowledge of this nation’s past and less regard for the historic sufferings of its people of color. Trump embraced the image of a president inextricably tied to the suffering he caused Native Americans.

Obviously, President Obama’s decision to replace Andrew Jackson on the Twenty-Dollar Bill with Harriet Tubman could not be allowed to stand. One obvious reason was that for Trump, anything favored by Obama was automatically worth opposing. Second, Jackson was white, and Tubman black. Trump opposed Obama’s decision, and Jackson will stay on the bill until after Trump leaves office. A more astute politician, not to mention a more sensitive human being, might have acknowledged the costs of Jackson’s policies–policies that were popular at the time, and from which millions of non-Indian Americans continue to reap the benefits. A more historically aware President might have talked about the complexities of the past. But that was not Donald Trump’s style. He showed over this term that he was not a deep thinker. Shortly before visiting Jackson’s “Hermitage,” after all, Trump had congratulated the long-dead Frederick Douglass for the good work he is doing, Trump showed no signs that he has any interest in or knowledge of America’s troubled past. And that was especially the case when it comes to the victims of American history.

Indeed, in his annual Columbus Day proclamations, Trump went out of his way to ignore the suffering caused by the arrival of Europeans in America. Columbus was a hero to Trump, and any criticism was to the President the despicable ranting of elites who hated America. In his final proclamation this past October, Trump broadened his defense of Columbus to embrace all historical figures subjected to the “Cancel culture” of people who “hate America.” The President said that

These extremists seek to replace discussion of his vast contributions with talk of failings, his discoveries with atrocities, and his achievements with transgressions. Rather than learn from our history, this radical ideology and its adherents seek to revise it, deprive it of any splendor, and mark it as inherently sinister. They seek to squash any dissent from their orthodoxy. We must not give in to these tactics or consent to such a bleak view of our history.

Therefore, the President said, we will squash the activists. We will punish you if you suggest that our history is something other than goodness and light. And Donald Trump emphasized that he will save the western heritage from the scholarly barbarians at the gates. He mentioned that earlier in 2020, for example, he signed Executive Orders punishing acts of vandalism against monuments on federal property, calling for the creation of a “National Garden of American Heroes,” and establishing the “1776 Commission,” which, he wrote, “will encourage our educators to teach our children about the miracle of American history and honor the founding.” What’s more, President Trump pointed out that in September of that year he signed an Executive Order intended “to root out the teaching of racially divisive concepts from the Federal workplace, many of which are grounded in the same type of revisionist history that is trying to erase Christopher Columbus from our national heritage.” Much was at stake, the President said. “Together, we must safeguard our history and stop this new wave of iconoclasm by standing against those who spread hate and division.” While states and municipalities around the country began taking steps to celebrate Indigenous Peoples’ Day in place of Columbus Day, the President said that “as long as I’m president,” the United States will never honor the heritage and contributions of Indigenous peoples.

Trump himself did all he could to stoke hatred and division through his treatment of one of his most articulate and powerful critics, Senator Elizabeth Warren of Massachusetts. Warren played right into Trump’s hands by claiming to possess a small fraction of Native American DNA, but she was right to call out the President for his racism. Trump, undeterred, mockingly called Warren “Pocahontas.” So what? I put it this way in February of 2017, when the slur first arose:

For President Trump, it seems, Native American identity can be determined by a quick glance.  He looked for certain characteristics and did not see them in the Pequots, or in Senator Warren. Centuries of intermarriage, enslavement, and the complex, messy, and tangled history of native peoples mattered in his determination not a bit.  For him, native peoples were individuals with certain easily distinguished racial features, and not members of political entities that possessed an inherent but limited sovereignty that predated the creation of the United States.

            But here’s the thing. Too many Americans share Trump’s views about who Indians are and what they ought to be.  Too many Americans view Indians as part of the past.  Think about the most commonly held stereotypes about Native Americans:  What images enter your mind? Ask your friends what they think. Chances are a lot of those images come from the past.

            And when we speak of Native Americans as being part of the past, we are aiding in an ongoing colonial project which erases native peoples in the present.  And if they are viewed as part of the past, or inauthentic, it becomes easier to dismiss the legitimacy of Native Americans, as individuals and as members of semi-sovereign nations, as being out of time and place and, as a consequence, irrelevant.  It becomes easier to ignore the very real problems of inequality and injustice in Indian Country; it becomes permissible to cheer for a football team with a racist name; or to silently assent to a President’s decision to authorize a pipeline through lands that a Native American community deems sacred. It also makes it possible to call into question the sovereign right of native nations to develop their economies, protect their lands, and against immense odds preserve their cultures.   When the President casts Indians as part of the past, he makes it more difficult for many Americans to recognize the importance of native peoples’ calls for justice today.

The Pocahontas name-calling, in this sense, was inherently destructive, and not just to Senator Warren.

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Trump did have some legislative accomplishments. In January of 2018, he signed into law the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2017. The legislation granted federal recognition to six Virginia Indigenous nations: The Monacan, Chickahominy, Eastern Chickahominy, Nansemond, Upper Mattaponi, and the Rappahannock. This bill had widespread bipartisan support and would have become law no matter who was president. This was a long time coming. He also signed Savana’s Act and the Not Invisible Act in October 2020. This legislation was designed to counter violence against Native American women. It followed from the formation in November of 2019 by Executive Order the “Operation Lady Justice Task Force.” Trump declared that May 5th is “Missing and Murdered American Indians and Alaska Natives Awareness Day.“ During Trump’s years in office, Americans finally began to follow this issue, memorialized with the Twitter hashtags “#MMIW” and “#MMIWG.”

Little came of the effort. At a listening session last June, the Trump Administration unsurprisingly demonstrated that its real commitment to the issue of missing and murdered Indigenous women is shallow and so limited as to be effectively meaningless. As Native Americans who attended the session pointed out, the President’s approval of pipe lines and other projects brings large numbers of non-native “man camps” into areas close to Native American communities. Many observers have asserted that a relationship exists between such projects and reports of missing and murdered Native American women and girls. Indeed, Kristin Welch, a community organizer for Menikanaehkem, a Wisconsin group, asserted that cases of violence against Native American women are increased 70% by the presence of these man camps.

Task Force members repeatedly ignored these questions. When asked about the 1978 Oliphant decision, which held that non-Indians can not be held criminally liable for their actions on Indian land by tribal authorities, Task Force Member Marcia Good said that “Oliphant is currently beyond the scope of [Operation Lady Justice] at this time.” Indeed, the Trump Administration called for cuts in funding that have adversely affected policing on reservations, and limited the ability of tribal governments to combat domestic violence and substance abuse. He did nothing to reauthorize the Violence Against Women Act, which permitted tribes a sliver of protection by allowing them to prosecute non-Indians for intimate partner violence committed on reservations.

Without restoring power to Native nations to allow them to prosecute the crimes non-Indians commit against Native American women on reservation land, the Trump Administration has removed from the table what all experts assert is a vital part of any solution to this heart-wrenching problem. President Trump, in other words, supports policies that threaten to exacerbate the problem of missing and murdered Indigenous women while permitting no discussion of a critical part of the solution. The Trump Administration seemed interested only in the appearance of action, except when it chose to behave in a destructive manner.

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Trump administration officials early in his term reawakened fears that he would bring back the long-discredited federal policy called “Termination” by working to privatize Indian land holding on reservations. He informed the Mashpee Wampanoag Tribe that its reservation will be disestablished. Federally-protected lands would be removed from trust status. He stated his opposition to federal programs for Native Americans on the grounds that they were “race-based,” rather than a recognition of Native American tribal sovereignty. Trump disestablished the White House Council on Native American Affairs created by President Obama, and never held a White House Conference for Native American leaders, as his predecessor had done.

In the Courts, the news was mostly bad. Lower court justices delivered an ominous blow to the Indian Child Welfare Act. In Brackeen v. Zinke, a federal district court in Texas found the ICWA unconstitutional.  Texas Attorney General and staunch Trump loyalist Ken Paxton intervened in the case, and hoped that the Fifth Circuit would uphold the district court’s ruling. So far Paxton has been disappointed, but the case could eventually arrive at the Supreme Court, where the fortified conservative majority there may find Paxton’s arguments persuasive.  They have shown themselves, after all, ready to toss federal laws because the legislation discriminates on the basis of race when white people feel themselves to be the victims.

            Congress enacted the ICWA in 1978, an important piece of legislation designed to halt the traumatic removal of native children from their homes through fostering and adoption.  The problem was severe.  Dakota Sioux at Spirit Lake, about whom I write in Native America, asked the Association of American Indian Affairs to conduct an investigation, and the AAIA reported that of the 1100 Dakotas under the age of 21 who lived at Spirit Lake in 1968, 275 had been removed from their families.  In states with large Native American populations, the AAIA found that “child welfare” agencies had removed between 25 and 35 percent of children from their homes. Native peoples organized to halt this highly destructive practice, and the battle for the passage of the ICWA, according to its best historian, “represented one of the most fierce and successful battles for Indian self-determination of the 1970s.” The legislation committed the United States “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.”  Native American children, under the legislation, must be placed with family members, with members of their tribe, or with members of another native nation, before they are placed in the care of non-Native American foster parents.           

Paxton, and a growing number of conservatives, argue that the law has gone too far. “In practice, the ICWA compels states to disregard the ordinary approach of determining a child’s best interest and to treat Native American foster children differently based on nothing more than their race,” Paxton wrote. “The law gives Indian tribes a trump card to play in any state child-welfare proceeding, allowing them to dictate outcomes whenever a child is or even could be a member of a tribe.” For Paxton, it’s a states rights issue. “If no biological family members can be found, the law requires state courts and agencies to make a priority of adoption by other ethnically Native American families.”

Native American children, strictly because of their race, thus can be kept apart from foster families eager to adopt them. If federal law treated any other class of people this way, it would be roundly condemned, and rightly so. According to the Department of Health and Human Services, 10,529 American Indian/Alaska Native children were in foster care in fiscal 2017.

Some claim that the ICWA relies on a political designation, rather than a racial one, because a tribe is a political entity. But no political or cultural link to a tribe must exist for the Indian Child Welfare Act to apply to a given child. Tribal eligibility — determined in virtually every case by genetic ancestry — is sufficient. The idea that the ICWA relies on a political designation rather than a racial one is further undermined by the fact that if no family from the child’s tribe volunteers to adopt, any Native American from any tribe, anywhere, takes automatic precedence over a non-Native American couple. This requirement relies on racist and reductionist assumptions about the supposed interchangeability of drastically different tribal cultures.

You would not know it from Paxton’s piece, but his opinions are those of a distinct minority. Twenty-one state attorneys-general, along with thirty child welfare organizations, 325 tribal governments and fifty-seven tribal organizations have expressed their support for the Indian Child Welfare Act. The law, they write, “was designed to reverse decades of cultural insensitivity and political bias that had resulted in one-third of all Indian children being forcibly removed by the government from their families, their tribes and their cultural heritage.” The law was a signal achievement, and it has done its job. The ICWA ensures the “stability and cohesion of Tribal families, Tribal communities and Tribal cultures,” in the face or organizations and entities that have sought their destruction.

Still, this is exactly the sort of case I fear the Supremes have been waiting for. Paxton’s arguments, though they rely more on the 10th Amendment to the Constitution than a strict construction of Article I’s “Indian Commerce” clause, dovetail nicely with the reasoning deployed by Justice Thomas, about which I have written here. And that is what makes this case so ominous for native peoples, who throughout much of their history have seen their children targeted in government efforts to extinguish their identities as members of native nations.

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The solid conservative majority Trump placed on the Supreme Court will affect Native nations for decades to come. I fully expect in the coming months that court will blast tribal sovereignty in a case involving tribal police powers.

Early in 2016, tribal police officer James Saylor pulled up behind a pick-up truck parked along the side of a road on the Crow Reservation in Montana. It was 1:00AM, and Saylor stopped to see if anyone in the vehicle needed assistance. Inside the truck Saylor found Joshua James Cooley and his small child. Saylor could see that Cooley’s eyes were bloodshot and watery. He could see two weapons in the truck’s front seat. Saylor concluded that Cooley was non-Indian on the basis of his appearance but also that he could not be allowed to drive in his current condition. Saylor took Cooley into custody, placed him and his child in the backseat of his patrol car, and called in for the county sheriff to take the non-Indian suspect into custody. When Saylor went back to the truck to retrieve the keys, he saw in plain sight clear evidence of methamphetamine use and possession.

Cooley was indicted on federal drug charges, but the criminal court threw out all the evidence acquired through Officer Saylor’s search of the vehicle. The district court and the Ninth Circuit agreed that all evidence obtained by Officer Saylor when he entered the vehicle to get the keys was an illegal search and seizure and violation of the Fourth Amendment to the Constitution. Now the case is on its way to the Supreme Court, where Cooley’s attorney has argued that “the authority of a tribal officer on a state highway that passed through a reservation is limited.” A tribal officer may “initiate a traffic stop, but when doing so,” his authority is limited “to determining whether the violator is native or non-native. If the violator is native, the officer may proceed with his investigation. If the violator is non-native, the tribal officer’s authority is limited to detaining the violator for delivery to state or federal authorities.”

Think about this. You are a Native American police officer, patrolling your reservation in the middle of the night. You see a vehicle pulled off to the side. Though the driver is cooperative, and opens the window, you see cause for alarm. He seems impaired, to begin with, and then there are the guns. And the one-year-old child. It is not hard to imagine that Saylor felt it necessary to investigate further.

Yet every court has agreed thus far with Cooley. United States v. Cooley will provide new justice Amy Coney Barrett her first chance to rule on a Native American case.

The United States argued in its petition for a writ of certiorari that the Ninth Circuit decision to throw out all the evidence obtained by Saylor is an “unprecedented, unwarranted, and unworkable curtailment of the sovereignty of Indian tribes,” that “precludes tribal officers from routine law-enforcement activities necessary to protect both the public and the public at large from dangerous and criminal activity within the boundaries of the tribe’s reservation.”

What do you think? Do you agree with the US Solicitor General, or with Mr. Cooley? Both sides agree that Indian tribes have no criminal jurisdiction over non-natives, but is it possible to distinguish the ability to arrest and prosecute from the need to uphold public safety on already under-policed Indian reservations? The Court’s precedents show clearly that tribal law enforcement possesses the authority to detain suspects and hand them over to state or federal authorities, which Officer Saylor did. But what about the evidence uncovered in the interim before those state or federal authorities arrive? The exercise of police authority in this case, the United States argued, “does not subject non-Indians to tribal laws and regulations,” but, rather, “it simply facilitates the exercise of sovereign authority by state and federal governments which plainly do enjoy jurisdiction over non-Indians.” The evidence Officer Saylor uncovered helped United States authorities enforce the laws of the United States.

The United States argues that it is dangerous to permit a tribal officer “to ask only one question to determine whether a suspect is an Indian” and then require that officer to accept that answer. This would allow “serious criminals to escape law-enforcement through the expediency of a simple lie that officers will be powerless to expose through follow-up questioning or investigation.”

So there is a lot at stake in this case, much more than the fate of a suspected drug dealer who pulled his truck over along the side of a road late one night on the Crow Reservation. Think of the recent Violence Against Women Act, which gave to Native nations a limited right to arrest and prosecute non-natives for intimate partner violence committed in “Indian Country.” In an amicus brief written by the National Indigenous Women’s Resource Center and joined in by all the Indian Nations whose lands lie in the Ninth Circuit, Sarah Deer pointed out under VAWA, “many tribes across the United States now detain, arrest, investigate, and prosecute anyone who committed certain domestic violence crimes arising in Indian Country–regardless of whether the perpetrator is Indian or not.” The Circuit Court’s ruling, if allowed to stand, “will merely encourage criminals to lie about their identity, as a simple statement that an individual is non-Indian, regardless of whether it is the truth, will now strip law enforcement of any authority to detain them for suspected illegal conduct.”

If, for example, a “Pascua Yaqui law officer has a reasonable suspicion that the driver of a vehicle on the reservation is committing a crime of domestic violence, must the officer ascertain the citizenship of the suspect before effectuating a . . . stop, despite the fact that Congress has passed a law restoring that officer’s full authority to arrest non-Indians who commit domestic violence crimes on the Pascua Yaqui Reservation?”

Native American women face the highest rates of violence in the country, and the majority of those committing these crimes are non-Indian. Across the United States, many non-Indians live and own lands on Indian Reservations. With almost half of all Native American women experiencing intimate partner violence, and with Native American women more than two and a half times more likely than non-Native women to be victims of rape or sexual assault, the stakes in this case are enormous.

Gorsuch's Supreme Court LGBTQ opinion shakes conservatives - Los Angeles  Times
Justice Gorsuch wrote the majority opinion in McGirt

Earlier this year the Court issued what I considered a surprising decision in the McGirt case. McGirt involved treaty rights at congressional “plenary authority” over Indian affairs. Land which the State of Oklahoma thought was under its criminal jurisdiction was still legally “Indian Country” because no federal act had changed the status of the land. Cooley touches on what happens when white people living on or passing through Indian Country commit crimes. Originally, Indian tribes were thought to be able to do whatever they wanted, unless they were specifically prohibited from doing so by a treaty or an act of congress. In 1978, the Court modified that, ruling that tribes could do whatever they wanted, unless prohibited by treaty or act of congress, or if the practice in question was somehow inconsistent with their status as domestic dependent nations, like prosecuting non-Indians for crimes committed on reservations. The Supreme Court’s history toward Indian tribes can be understood in terms of the significant erosion of tribes’ ability to exercise sovereign authority. And these rulings, in terms of crimes uninvestigated, unprosecuted, and unpunished, have literally ruined the lives of too many Native peoples. The Cooley case could make it even more difficult for tribes to protect themselves from criminals who pass through their lands. I have no idea how the Court will rule, but I worry very much about its consequences.

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The President’s mishandling of the COVID 19 pandemic–his denial of its seriousness; his refusal to encourage basic public health measures; his denigration of health experts who called upon him for action, his inattention and cruel incompetence–all intensified the suffering of millions of Americans who fell ill or who were left grieving, and nowhere was that more clear than in Native American communities. According to a CDC report released in December of last year, “American Indian and Alaskan Native people were nearly twice as likely to die from COVID-19 compared to non-Hispanic whites.” The age-adjusted mortality rate for Native peoples was 1.8 times higher than it was for whites, a measure that translates “to 55.8 deaths per 100,000 compared to 30.3 deaths per 100,000 in AI/ANs and whites, respectively.

Why was this so? The CDC Report said that “Long-standing inequities in public funding; infrastructure; and access to healthcare, education, stable housing, healthy foods and insurance coverage have contributed to health disparities that put indigenous peoples at higher risk for severe COVID-19-associated illness.”

The Trump Administration excluded small businesses on Indian reservations from the first round of applications from the Paycheck Protection Program, the first effort to address the economic devastation that followed the outbreak of the pandemic. His administration, even during the Covid-19 outbreak, repeatedly threatened the Affordable Care Act, jeopardizing health care on Indian Reservations and initially excluded tribes from the CARES Act before Senate and House leaders secured ten billion dollars in funding.

It turns out that if you elect an insensitive fool as President of the United States, that president will do insensitive and foolish things. And that foolishness, buttressed by racism and spite, is nothing to laugh about. IT is lethal. The Trump Administration, because of COVID-19, and its own incompetence, corruption, and cruelty, has ruined peoples’ lives. If you have grieved in the past year, or fell ill yourself, or felt the economic pains this administration has refused to meaningfully address, of course you know that. For Native peoples, everything you have felt has been many times worse. The Trump Administration caused massive and unnecessary suffering during an already difficult period. It has coarsened racial discourse in a country with deep and obvious problems with structural racism and inequality. It has led by encouraging the fear and anger and hatred of white people who feel any gain by people of color is a loss for them. And it has acted consistently as if any legitimate grievance by Indigenous peoples is unworthy of attention. It has been a brutal four years, and those who have supported this president have done enormous damage to the fabric of this tattered republic.

Amy Coney Barrett’s Constitutionalism is a Fraud

            Supreme Court nominee Amy Coney Barrett argues that the Constitution and its amendments ought to be interpreted in the manner its creators intended. Originalism, the name for the legal theory to which she subscribes, has its adherents who believe that they can intuit the farmers’ intent from the close reading of the nation’s charter documents and the context in which they were written. But originalism has always been a problematic and ahistorical approach to legal interpretation, because so much of the meaning of the Constitution was contested, ambiguous, and unclear at the time it was written.

            This point is amply borne out by the Indian affairs clause of the United States Constitution.  Article I, Section 8 contains a list of powers that “we the people” bestowed upon the legislative branch of the government. Among those is the right to “regulate commerce…with the Indian tribes.”

            But what does “commerce” mean?

            The first federal Congress, in an attempt to add some flesh to these bare bones, enacted in the summer of 1790 the first of a number of “Trade and Intercourse” acts. These laws asserted federal control over non-native Americans and attempted to regulate their conduct when they engaged in commerce with Indian nations. Traders who wanted to engage in the Indian trade needed a license from a federal agent and so on. But there is nothing in the sparse language of the Constitution, or the subsequent legislation defining that language, that gave to the people of the United States power over the internal workings of Indigenous Nations. Yet, over many decades, the United States has seized control over more and more aspects of life in Native American communities, finding justification for this “plenary authority” in Article I, Section 8. “Commerce” now means pretty much everything and anything.

            Judge Barrett has said nothing about Indian affairs during her relatively short legal career, and it never came up in the questions she avoided answering during her hearing before the Senate Judiciary Committee.  But Judge Barrett has made clear her immense respect for Justice Antonin Scalia. During his tenure on the court, tribal interests prevailed only a fifth of the time. Scalia wrote five majority opinions on the subject, all of which were defeats for Native American interests. Yet in each of these cases, the language of the Constitution provided no clear guidance.

            Scalia’s closest intellectual partner on the Court had been Justice Clarence Thomas, who has said very provocative things about the Indian Affairs clause. In 2004 Justice Thomas upheld the constitutionality of a law that allowed Indian tribes to prosecute non-member Indians, but he was troubled by the Court’s arguments. 

            Thomas could not accept the Court’s assertion “that the Constitution grants Congress plenary power to calibrate the ‘metes and bounds of tribal sovereignty.’” He could not “locate such congressional authority in the Treaty Clause. . . or the Indian Commerce Clause.” A decade later, in Adoptive Couple v. Baby Girl (2013), Thomas again considered the constitutional basis for plenary power, this time in a case involving the 1978 Indian Child Welfare Act.  “Although the Court has said,” he wrote, “that the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs,” neither the text nor the original understandings of the Clause “supports Congress’ claim to ‘plenary’ power.”  The contested adoption proceedings at the heart of the Baby Girl case involved neither commerce nor tribes, and Thomas believed that “there is simply no basis for Congress’ assertion of authority over such proceedings.”

            In 2016, in the case of US v. Bryant, Thomas once again wrote that Congress’s “purported plenary power over Indian tribes,” rests on shaky foundations.  “No enumerated power–not Congress’ power to ‘regulate commerce…with Indian tribes,’ not the Senate’s role in approving treaties, nor anything else, gives Congress such sweeping authority.” And in a 2017 dissent in a case involving the Secretary of the Interior’s decision to take 13,000 acres of Oneida land in New York into trust, Thomas again criticized the Court’s Indian Commerce Clause rulings.  Allowing the federal government to take land within a state into trust on behalf of an Indian tribe, Thomas argued, could not be supported by any language in the Constitution, and it would have shocked the “Founding Fathers” to “find such a power lurking in a clause they understood to give Congress the limited authority to ‘regulate trade with Indian tribes living beyond state boundaries.”

            Justice Thomas defined “commerce” narrowly. If Congress had no acceptable justification for its claim to plenary power, Thomas believed that power must exist in some other entity.  For Thomas, it seemed to be with the states.

            What does “commerce” mean, and what did it mean in 1787, when the Constitution was ratified, or in 1789 when it went into effect? It is difficult to say. Various “Founders” disagreed and changed their opinions over time. Justice Thomas has pointed out that the Court’s Indian Commerce Clause rulings are built on a fiction, that they stand without justification in the Constitution’s language. Plenary power may rest on nothing more than brute force. No principle, no historical document, can justify it.  Many of Justice Thomas’s colleagues disagree. They argue that Article I, Section 8 does indeed grant to the federal government “plenary power” over Indian affairs.  The Founders used the word “Commerce.”  They provide little support for those who see in the Constitution what can best be understood as an extralegal, and extra-Constitutional, extension of federal authority over Indian affairs. 

            Judge Coney Barrett’s commitment to discerning an original meaning to the Constitution conveniently ignores all the gray areas, those realms of law and constitutional interpretation where the matters under consideration have been contested ever since the document first was written, debated, and ratified.  Originalism is a scoundrel’s argument. It will be used by the new Supreme Court majority to injure women, people of color, and our friends and family in the LGBTQ community. We could talk about abortion, or the right to marriage, or the very practice of judicial review itself, the Constitution does not always speak clearly to us.  Originalism, a most tendentious way of deducing its meaning, is a flawed approach that has been used as a lever to prop up the power of the federal state to do, in the end, as much or as little as it wants.

The Supreme Court’s “Silent Revolution” in Indian Law

I recently had a chance to read through Dewi Ioan Ball’s The Erosion of Tribal Power: The Supreme Court’s Silent Revolution, published in 2016 by the University of Oklahoma Press.  I am teaching my Indian Law and Public Policy course this semester at Geneseo, and I do try to keep up as best I can with the large literature on the field.  So much to read, so little time.

What makes Ball’s approach novel is his use of the unpublished writings and correspondence of several Supreme Court justices whose papers are public: Harry Blackmun, Thurgood Marshall, William J. Brennan, William O. Douglas, Hugo Black, and Earl Warren.  There are, of course, other justices whose writings Ball might have examined, and the papers of Warren Burger and William Rehnquist, arguably the most consistently anti-Indian voice on the Court, are not open to the public.  Despite these limitations, Ball avoids the approach of too many legal works in analyzing decision after decision, and his work in the legal literature is outstanding. Your students who are interested in this subject will benefit from reading Ball’s footnotes.

Ball argued that a “silent revolution” occurred in the field of American Indian law as promulgated by the Supreme Court.  A long period in which the “sovereignty doctrine” prevailed ran until 1959, when the Court’s decision in Williams v. Lee began to lay “the foundations of the Silent Revolution.”  That era lasted only until 1973 when, Ball argues, the Court began an all-out assault on the sovereignty doctrine.  “Tribal authority,” the justices believed, “was limited to tribal members and subsequently that tribal authority over non-members on the reservations existed only after an explicit delegation of power.”  Furthermore, the Court embraced the “corollary” of this view “that the states had authority on the reservations until it was reversed by Congress.”  Even the Court’s most liberal members believed that “tribal sovereignty could not be applied over nonmembers and was dependent on congressional authority.” Thus the “Silent Revolution.”

If you are like me, this might strike you as a bit too tidy a thesis, and Ball himself admits that during the long period from 1823 to 1959, the Court was hardly consistent in its support for inherent tribal sovereignty.  Indeed, it is hard to look at the long line of cases that proceeded from, say, Kagama (1886) to Lone Wolf (1903) to Celestine (1909) and on to Tee-Hit-Ton (1955), and see any respect for native nationhood. The Court spoke inconsistently and with different voices over that period, and that raises the challenging question as to whether any singular doctrine existed during that long period.

Books like this, however, are bound to produce quibbling from legal scholars and historians, and a few acrimonious debates.  But in taking such a broad expanse of time, and breaking that history into essentially three periods, much of the complexity of the Court’s reasoning is lost.   And, as Ball wisely points out, the Supreme Court was a destructive force but it was hardly the only game in town.  Congress, during the years of the Court’s “silent revolution,” enacted some very significant legislation that provided native nations with an important measure of “self-determination.”

There are a lot of books out there like Ball’s. Scholars familiar with the work of Bruce Duthu, Charles Wilkinson, and Frank Pommersheim will find little here that forces them to go back to the drawing board.  Still, Ball does make at least one really valuable suggestion.  Inadequate attention has been paid, he suggested, to the consequences of these Court decisions.  Court cases, as those of us who teach them tell our students, consist of stories, and the legal questions dissected by jurists and scholars and attorneys had, at times, immense human consequences.  Our analyses, however, too often end with the justices having the last word.  Given the vast amount of material available online, this is a subject on which our students can do some good work.  The Sherill decision, for instance, was devastating to Haudenosaunee land claims in New York State, but what has happened in Sherrill since?  When the Court held in 1978 that Mark David Oliphant could not be prosecuted by the Suquamish Indian Nation for beating up a tribal police officer, what was the effect of this decision upon law and order on that reservation?

Answering these questions can be difficult work.  We can, after all, sit at our desks and read court decisions.  To do the sort of finely-grained social history, or the oral history, or the work in local collections required to find out what happened on the ground—that is another matter entirely. It is harder work, involving more time and more travel. We have a lot of studies of court cases. We have lots of scholarship attempting to cast new light on the court’s reasoning on this or that question. There are a lot of scholars out there whose research focuses on reading court decisions.  It is important to do this. I get that. Ball attempted to bring some new evidence to bear on the question of the Court’s jurisprudence involving native peoples, and for that he is to be commended. But increasingly, my interests lie elsewhere.  There are other matters that concern me when I read books like this.  For those of us who are interested in native nations, and the native peoples who live in these communities, and the challenges they face, we might get more bang for our research buck by tackling the tougher questions.  Let’s follow native peoples from their defeat in the courthouse, at the hands of anti-Indian Justices hostile to the very idea of native nationhood, back to their lands. There we can, if we work hard enough, learn the very real and compelling stories that come from their efforts to contend with the wreckage the conquerors’ courts have wrought.

On the Notorious RBG and Sherrill

Many of my friends have a great deal of affection for United States Supreme Court Justice Ruth Bader Ginsburg.  My own enthusiasm for the “Notorious RBG,” however, is tempered by a consideration of the 8-1 opinion she wrote in the case of Sherrill v. Oneida Indian Nation in 2005.  Today is the anniversary of that momentous decision.

The Oneida Indian Nation had purchased on the free market lands within the small city of Sherrill, New York, in 1997 and 1998.  The lands in question were once part of the Oneidas’ 300,000 acre reservation. The State of New York had acquired the lands  early in the nineteenth century in a series transactions that clearly violated the terms of the Federal Indian Trade and Intercourse Acts, which stated that purchases of Indian land without a federal commissioner present and without subsequent ratification by the Senate were null and void and of no effect.

With cash from their gaming operations, the Oneidas purchased some of these lands back.  They considered the lands as part of their original reservation, and, exercising their rights as a sovereign nation, they refused to pay taxes to the City of Sherrill.  The town began foreclosure proceedings against the Oneidas.  The federal district court, and then the circuit court, ruled in the Oneidas’ favor.  These rulings, indeed, were entirely unsurprising.  But then came the Supreme Court, and the Notorious RBG.

Writing for the 8-1 majority, she shot the Oneidas down.  “Given the longstanding non-Indian character of the area and its inhabitants, the regulatory authority constantly exercised by New York State and its counties and towns, and the Oneidas’ long delay in seeking judicial relief against parties other than the United States, we hold that the tribe cannot unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue.”

Wow.

Too much time had passed since the original wrong, Ginsburg wrote.  Any remedy now, after the passage of time, would be too disruptive.  It would not be fair to the non-Indian land owners in the region who bought their land, she suggested, in good faith.  Thus the Court must prevent “the Tribe from rekindling the embers of sovereignty that long ago grew cold.”

The Oneidas, it is true, own less than 2% of the land in the contested area and make up less than 1% of its population.  Because courts were closed to the Oneidas until 1974, they could not pursue their claims against parties other than the United States.  And the State of New York had exercised regulatory and legislative authority over the entire area even though its authority for doing so was murky at best.  The book by the Syracuse attorney George Shattuck, who helped get the Oneidas’ land claim cases into the court system, and the Syracuse University dissertation by Philip Geier do a nice job of telling much of this story.

I have strong feelings about the Sherrill decision.  We have to deal with the case.  It is law, and it has had consequences. We have to confront it.

Ginsburg’s opinion was based upon a long and flawed history. Much has been made about her decision to draw upon the so-called “discovery doctrine” and Chief Justice John Marshall’s opinion in the 1823 Johnson v. McIntosh case.  There is in this a legal and ideological critique of Ginsburg’s ruling that has some heft, though not as much as some people think.  I would rather challenge this ruling for its willful ignorance of the region’s history.  Upstate New York, and specifically the Oneidas’ aboriginal homeland, she wrote, now had few Indians who owned little land.  Of course.  But this was the result of a historical process through which New York became the Empire State, part of a systematic program of Iroquois dispossession.  The loss of Indian lands in New York State and the advance of white settlement was not the playing out of God’s manifest destiny. It was a crime against the laws of the United States.  The region lost its Native American character because of the actions of the state of New York.

Once an Indian tribe lost its lands, even if those lands were obtained illegally in a manner that violated federal law, and even when the tribe reacquired those lands from willing sellers on the open market, Ginsburg and her colleagues on the Court held that there was no longer any remedy open to the Indians.  The only way to revive sovereignty over lost lands was to have Congress take those lands into trust. The very existence of the Oneida Indian Nation was not enough to do this.  Tribal sovereignty, the Court implied, was a quaint and antiquated notion not worthy of its consideration. The passage of time had made history irrelevant. Let that one sink in for a minute.

And keep in mind, at issue in Sherrill was not an Indian nation’s exercise of criminal jurisdiction over non-Indians.  The tribes had lost that power in 1978.  Nor were we taking about the efforts of a native community to regulate or tax the activities of non-Indians on Indian lands. That, too, the Supreme Court had held was out of bounds.  No. In Sherrill, the issue was whether the Oneida Indian Nation would pay taxes to the City of Sherrill on lands the Nation owned, that stood within the bounds of its historic reservation, and that they originally had lost through illegal transactions.  Where is the disruption?  The Oneidas were dispossessing nobody.  They were imposing their authority over no one.  They were merely buying back lands that had been illegally acquired from them two centuries before.  And Ginsburg thought this was too disruptive.  That it was not fair.  The Oneidas sought not redress for waves of epidemic disease, or the military invasions of their homeland, or dispossession, or diaspora, but merely the chance to purchase the land and rebuild their nation.

Ginsburg accepted the premise that New York had acquired these lands in a manner that violated the law.  She refused to allow any remedy.  And with lower courts applying her ruling even more broadly to dismiss all Iroquois land claims, Ginsburg essentially validated illegal acts and excused the state’s misdeeds.

Ginsburg has written some helpful and valuable opinions in my view, but not in this case.  The Supreme Court is not a promising arena for native peoples to look to for the resolution of their claims.  And Sherrill, it was among the worst. It was a cowardly and cynical decision. Yeah, Justice Ginsburg seemed to say, your lands were taken from you illegally.  But even if the law says those sales are of no effect, there is nothing we can do for you now. It would not be fair.  Not to the white people who make up the majority of the population in the claim area.  History, and the law, are written by the winners.  You are out of luck.

Oliphant v. Suquamish: Forty Years Ago Today

 

Today is the anniversary of the Supreme Court ruling in  Oliphant v. Suquamish, a case that involved a native community along the Salish Sea, a white interloper, and the evisceration of the power of native peoples to govern and preserve order in their communities.  The Court issued its ruling on this date in 1978.

When I revised Native America and completed the second edition, I wanted to include more discussion of the role played by the American judiciary in defining and limiting that slippery concept we call sovereignty, and to look closely at the practices of an activist court applied to  Native American tribal governments

I talk a lot about the law and the courts.  I like to have students in my American Indian law course begin at the beginning, or one of a number of possible beginnings, by reading the United States Constitution.  Indians are mentioned twice in that august document.  There is a reference to “Indians not taxed” as being excluded from the tally of population required to calculate representation.  And then there is Article I, Section 8, spelling out the powers of Congress.  Among the long list of things that the legislative branch can do is “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

Commerce.  What does it mean?  The students in my class ponder that question.  They read the Indian Trade and Intercourse Act of 1790. Like a number of pieces of legislation enacted by the first federal congress, the Trade and Intercourse Act elaborated upon the sparse language in the constitution.  Under the Trade and Intercourse Act, trade was licensed and regulated.  Land purchases from Indians not overseen and approved by the United States government were declared invalid.  Congress claimed the power to regulate those instances when native peoples and American citizens interacted with each other.  Importantly,  Congress claimed no authority over the internal affairs of American Indian nations.

Native nations were autonomous nations.   But that autonomy gradually was defined away. Chief Justice John Marshall, in 1831 and 1832, defined native polities as “domestic dependent nations.”  They could not carry on diplomacy with powers outside of the United States, nor sell their lands to any party but the United States, but they were immune to any state interference.  The State of Georgia’s prosecution of an American missionary resident in the Cherokee Nation was thus deemed unconstitutional, even if Andrew Jackson refused to enforce the decision.

But a series of decisions beginning in the last quarter of the nineteenth century chipped away at the autonomy of native nations even farther. Congress could extend its criminal jurisdiction over Indian country because the very weakness of the Indians, caused by the actions of the American government, demanded protection.  If the relationship of native peoples to the United States resembled, as Chief Justice Marshall had said, that of a ward to its guardian, in the 1886 Kagama decision the Court held that the government had the power to legislate for those communities, to protect them by making native peoples subject to federal criminal jurisdiction for certain “Major Crimes.”

The rule that emerged over time, and through the law, came to be known by legal scholars as explicit divestiture.  Native American nations could do essentially whatever they wanted unless they had been explicitly forbidden from doing so by a treaty or an act of congress, both of which were the “supreme law of the land” according to the Constitution.

And this is where Oliphant comes in.  The facts of Oliphant, according to Judith Royster,  are straightforward. “Mark David Oliphant and his co-defendant were on the Port Madison Reservation during the Suquamish Tribe’s annual celebration. Tribal police arrested both men in separate incidents. Oliphant was charged with assaulting a tribal officer and resisting arrest. The other man was charged with reckless endangerment and injury to tribal property after he led tribal police on a high-speed chase that ended when he crashed into a tribal police car. Both men sought a writ of habeas corpus in federal district court. The district court denied the petitions, the Ninth Circuit affirmed in Oliphant’s case, and the Supreme Court took the cases on review.”

Oliphant asserted that because he was not a member of the Suquamish tribe, and despite his residence on their land, that tribal authorities lacked the authority to prosecute him.  The Supreme Court agreed.  In a devastating ruling, Justice William Rehnquist held that

an examination of our earlier precedents satisfies us that, even ignoring treaty  provisions and congressional policy, Indians do not have criminal jurisdiction over non-Indians absent affirmative delegation of such power by Congress.

Without citing any evidence, Rehnquist concluded that “by acknowledging their dependence on the United States, in the Treaty of Point Elliott, the Suquamish were, in all probability, recognizing that the United States would arrest and try non-Indian intruders who came within their Reservation.”  The treaty does not explicitly say that, nor did the Suquamish specifically give up that power, but Rehnquist did not seem to care.

Oliphant, in essence, produced a new principle for measuring the powers of tribal governments to police their communities.  Adding to the doctrine of explicit divestiture came Rehnquist’s elaboration: the doctrine of implicit divestiture.  Native nations could do anything they wanted, unless explicitly prohibited by the terms of a treaty or an act of Congress or, now, if the power in question were somehow inconsistent with their status as domestic dependent nations.  Defining what was and was not inconsistent with this status was murky at best.

It was, over the course of one hundred and forty years, quite a slide.  The Supreme Court in Oliphant cited little law. It did not cite the constitution.  It simply stated that the exercise of criminal jurisdiction over a non-member in this case was inconsistent with their status as a domestic dependent nation. And the consequences—of Oliphant and the doctrine of implicit divestiture, were significant. It limited significantly the ability of Native American nations to preserve order on their lands, and to police the activities of non-members within their boundaries.  The decision was, according to Royster, “a morass of bad reasoning,” and a ruling that affirmed that the Supreme Court, rather than the military or missionaries, was now the locus of imperial power over native nations in the United States.