Will New Supreme Court Justice Reverse The Trend Against Tribes?

With Justice John Paul Stevens announcing his retirement from the US Supreme Court this year, the Obama administration will have the opportunity to appoint a second new jurist to the bench. The Tribal Supreme Court Project is hoping the new appointee will help reverse a disturbing trend – Tribal interests losing nearly every case that comes before the Court.

"We view this Court as not favorable on our issues," explained Richard Guest, senior staff attorney at the Native American Rights Fund. "We had a winning percentage from 2001 to 2005 but now we're back to a situation where we are zero for five."

There is a concern that certain justices have an agenda in Indian law cases, he added, noting that Chief Justice John Roberts Jr. has been quoted as asking what is so special about Indian tribes and their relationship to the United States. "If this Court grants review, it appears to not only look to decide the case in front of it, but to extend any ruling to future cases," said Guest.

This view is supported by a 2009 empirical study done by Matthew Fletcher of Michigan State University College of Law: "Factbound and Splitless: Certiorari and Indian Law." From 1959, considered the beginning of the modern era of federal Indian law, to 1987, when the Supreme Court decided the major Indian gaming case, California v. Cabazon Band of Mission Indians, reported Fletcher, Indians and Indian tribes won nearly 60 percent of federal Indian law cases. Since the Cabazon decision, the Supreme Court has decided against tribal interests in more than 75 percent of cases.
 

Why Are Tribal Courts The Last Race-Based Jurisdiction In The United States?

If an American enters the sovereign territory of Canada or Mexico and commits murder, he or she can expect to face the full weight of that nation's laws and be punished through that nation's court system.  But if a non-Native American enters the sovereign territory of a Tribe and murders a Tribal member, what punishment can that person expect to receive from the Tribe's Court and legal system?

 

None whatsoever.

 

Due to a unique set of federal legal decisions and policies, Tribal Courts have no jurisdiction to impose criminal penalties against "non-Indians", even when the crimes are committed on Tribal land or against Tribal members.  Crimes committed by "non-Indians" on Tribal land are subject to state and/or federal jurisdiction and the perpetrators face punishment under state and/or federal law, but the affected Tribe has no legal standing to pursue justice for wrongs committed against its own people.

In no other area of American jurisprudence is race - in this case "Indian" or "non-Indian" - a factor in determining whether a court has jurisdiction over a criminal defendant.  Decades ago the Civil Rights Movement helped sweep away race-based segregation and "Jim Crow" laws, but seemingly had no impact on the use of race as a jurisdictional consideration in the realm of Tribal Courts.  Indeed, the seminal Supreme Court opinion that confirmed the restrictions on Tribal Court jurisdiction was issued in 1978, more than a decade after the Civil Rights Act liberated the rest of America's population from racial discrimination in its governmental institutions.  In addition to the basic question of why race is a factor in Tribal justice, numerous other issues arise in this paradigm: Who exactly is a "non-Indian"?  Is a person with a drop of Native blood in the family lineage considered an "Indian" under this system?  What "race authority" should have the final word on determining such questions?

The US Supreme Court's opinion in Oliphant v. Suquamish Indian Tribe provides startling insight into the policies and mind-set that resulted in the limited jurisdiction of Tribal Courts.  It is striking that nearly all of the legal authority on which the court relied was from the 19th Century, when the attitudes of the American government toward Native Americans were anything but enlightened.  Citing In re Mayfield, 141 U.S. 107, 115 -116 (1891), the Oliphant Court noted that the policy of Congress had been to allow the inhabitants of Indian country "such power of self-government as was thought to be consistent with the safety of the white population with which they may have come in contact, and to encourage them as far as possible in raising themselves to our standard of civilization."  The Supreme Court's decision in 1978 also cited the view Congress took toward the state of Tribal Courts in 1834: "With the exception of two or three tribes, who have within a few years past attempted to establish some few laws and regulations among themselves, the Indian tribes are without laws, and the chiefs without much authority to exercise any restraint." H. R. Rep. No. 474, 23d Cong., 1st Sess., 91 (1834).   The idea that such antiquated and ill-informed perspectives could still be the basis for American legal policy in the 21st Century is difficult to fathom, and is a sad reflection of the persistent racial discrimination that lurks even in the land that produced the Bill of Rights.

What is to be done to correct this glaring discrepancy?  Reading between the lines in the Oliphant decision, it seems that the Supreme Court of the time felt that the restrictions on Tribal Court jurisdiction were no longer appropriate, but that under the doctrine of separation of powers an act of Congress was required to rectify the situation.  Thirty years later, Congress has obviously failed to take the hint.  In all likelihood, removing race from jurisdictional considerations for Tribal Courts will require concerted pressure and lobbying of Congress by Tribes all across the country, acting in a coordinated and united front to claim this basic element of sovereignty.