All photos courtesy Wikimedia
Supreme Court Justices clockwise from top left are: Ruth Bader Ginsburg, Stanley Forman Reed, Sandra Day O’Connor, Clarence Thomas.

Say What? Four More Dumb Things Supreme Court Justices Wrote About Indians

Steve Russell

The first half of eight selected dumb things Supreme Court justices have written about Indians left us breathless. It will take your breath away when tribal courts are called so “savage” that white people have to be protected from them because they don’t punish enough.

RELATED: Say What? Four Dumb Things Supreme Court Justices Wrote About Indians

Then we learned that it’s OK to take Indian land because some emergency might come up and states can tax minerals under the land Indians get to keep because, well, that’s where the minerals are. No discrimination involved.

We take up our burden of Dumb again looking at a case where Indians tried to get their land back in the manner of white people. The Oneida Nation, newly become prosperous, bought back some of its traditional land at market value. Oneida Indian Nation (OIN) attempts to reconstitute a shattered land base and reestablish sovereignty ran smack into the intellectual leader of the liberal wing of the U.S. Supreme Court, and she was packing the Court’s usual load of Dumb.

5. City of Sherill v. Oneida Indian Nation of New York, 2005, Justice Ruth Bader Ginsburg

The wrongs of which OIN complains in this action occurred during the early years of the Republic. For the past two centuries, New York and its county and municipal units have continuously governed the territory. The Oneidas did not seek to regain possession of their aboriginal lands by court decree until the 1970s. ... And not until the 1990s did OIN acquire the properties in question and assert its unification theory to ground its demand for exemption of the parcels from local taxation. … This long lapse of time, during which the Oneidas did not seek to revive their sovereign control through equitable relief in court, and the attendant dramatic changes in the character of the properties, preclude OIN from gaining the disruptive remedy it now seeks.

Did you catch the D that stands for Disregard of history to get to Dumb?

How, pray tell, was the Oneida Indian Nation supposed to assert its rights in court before it had the resources to do so? And, speaking of resources, the Oneidas bought the land they were trying to take off the tax rolls. Does Justice Ginsburg have a clue how long since their land was taken by swindlers the Oneidas have been prosperous enough to buy some of it back and so have necessity to bring a lawsuit?

6. Tee-Hit-Ton Indians v. United States, 1955, Justice Stanley Forman Reed

Every American schoolboy knows that the savage tribes of this continent were deprived of their ancestral ranges by force and that, even when the Indians ceded millions of acres by treaty in return for blankets, food, and trinkets, it was not a sale, but the conquerors' will that deprived them of their land.

* * *

In the light of the history of Indian relations in this Nation, no other course would meet the problem of the growth of the United States except to make congressional contributions for Indian lands rather than to subject the Government to an obligation to pay the value when taken with interest to the date of payment. Our conclusion does not uphold harshness as against tenderness toward the Indians, but it leaves with Congress, where it belongs, the policy of Indian gratuities for the termination of Indian occupancy of Government-owned land, rather than making compensation for its value a rigid constitutional principle.

In making her contribution to Supreme Court Dumb, Justice Ginsburg might have noticed Justice Reed’s Dumb above from 50 years earlier, where Alaska Natives were attempting to do exactly what the Oneidas got hammered for not doing.

The result, as I read it, is that Alaska Natives can be stripped of property they have occupied from time immemorial but Congress really ought to leave a tip (“Indian gratuities”).

7. Hodel v. Irving, 1987, Justice Sandra Day O’Connor

Justice O’Connor’s contribution to Dumb requires some advance explanation so that non-lawyers can see how Disregard of history once more devolves into Dumb, in this case blaming the victims for a plight created by the SCOTUS in the case already listed as No. 3 in the parade of Dumb.

Indians argued against having their property stolen every chance they got.

In Tee-Hit-Ton, they tried to assert aboriginal title and were shot down.

In Lone Wolf, they tried to assert the government’s own written promises in treaties, and they were still shot down.

The Fifth Amendment’s guarantee against having property taken without due process of law did not, you see, apply to Indians.

As a result, the reservations were split into individual allotments among people with no tradition of land titles or wills or access to lawyers. Every time an allotee died, the ownership of the allotment was split among the children by intestacy laws.  Likewise the children’s children, and the children’s children’s children.

Tiny, uneconomical tracts were created by this “fractionation” and much reservation land stood idle because the owners either could not be identified or could not agree on what should be done.

Congress, having created the fractionation mess, tried to fix it by a law that returned what used to be tribal land, held in common, back to tribal land when a piece was 2 percent or less of the original allotment or it produced less than $100 in a year for the “owner.”

It’s not what Justice O’Connor wrote below that put the D in Dumb, but rather what she did with these facts:

Tract 1305 is 40 acres and produces $ 1,080 in income annually. It is valued at $ 8,000. It has 439 owners, one-third of whom receive less than $ .05 in annual rent and two-thirds of whom receive less than $ 1. The largest interest holder receives $ 82.85 annually. The common denominator used to compute factional interests in the property is 3,394,923,840,000. The smallest heir received $ .01 every 177 years. If the tract were sold (assuming the 439 owners could agree) for its estimated $ 8,000 value, he would be entitled to $ .000418. The administrative costs of handling this tract are estimated by the Bureau of Indian Affairs at $ 17,560 annually.

After showing she understood the immediate problem, Justice O’Connor then led us to wonder whether she understood the cause of the whole thing was keeping Indians outside the protection of the Fifth Amendment.

Allowing tiny, uneconomical slivers of land to return to tribal ownership would, she decided, violate the Fifth Amendment.

The best you could say for that is that Justice O’Conner finally shut the barn door after the cow was nothing but a cloud of dust in the distance.

8. Adoptive Couple v. Baby Girl, 2013, Justice Clarence Thomas (concurring)

Because adoption proceedings like this one involve neither “commerce” nor “Indian tribes,” there is simply no constitutional basis for Congress’ assertion of authority over such proceedings. Also, the notion that Congress can direct state courts to apply different rules of evidence and procedure merely because a person of Indian descent is involved raises absurd possibilities. Such plenary power would allow Congress to dictate specific rules of criminal procedure for state-court prosecutions against Indian defendants. Likewise, it would allow Congress to substitute federal law for state law when contract disputes involve Indians. But the Constitution does not grant Congress power to override state law whenever that law happens to be applied to Indians. Accordingly, application of the ICWA to these child custody proceedings would be unconstitutional.

Why pick on poor Justice Thomas in a concurring opinion, when this is the case that left the Indian Child Welfare Act in bloody tatters on the courtroom floor?

Because of the “parade of horribles” argument he uses here to claim that Congress had no legitimate power to pass ICWA. The Constitution has in fact been held to “grant Congress power to override state law whenever that law happens to be applied to Indians” ever since Chief Justice John Marshall created federal Indian law from nothing.

Every hypothetical exercise of power Thomas puts forward in the service of reductio ad absurdum has in fact happened at some time in the history of federal Indian law with the possible exception of monkeying with state criminal procedure. Why monkey with procedure when great gobs of state law simply cannot be applied to Indians on Indian land? That’s how we got casino gambling in the face of a California law. This is Justice O’Connor’s belated closing of the barn door applied to, well, everything.

Supreme Court Justices, conservative and liberal, may be Dumb only like the proverbial foxen. Were the Thomas view to prevail, the SCOTUS would, over 200 years after Chief Justice John Marshall erected the house of cards that is federal Indian law, huff and puff and blow the house down in a cyclone of Dumb.

We could then ask whether the gale of Dumb was unleashed “on purpose,” but it’s hard to imagine a purpose lasting over so many generations in people with radically different political philosophies.

All the remarks of Supreme Court Justices I have labeled Dumb seek to answer, in one guise or another, whether the same law applies to Indians as applies to everyone else. The answer has not been consistent. Those of us hammered by legal reasoning in law school are taught that which is not consistent is Dumb.

The only rationale that explains conflicting results that otherwise seem terminally Dumb is that the answer could go either way, depending on what is necessary to separate Indians from their property or, worse, their children.

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