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What makes Ball’s approach novel is his use of the unpublished writings and correspondence of several Supreme Court justices whose papers are public: Harry Blackmun, Thurgood Marshall, William J. Brennan, William O.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.

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