Scalia Had Ragged Track Record on Native Issues

David Wilkins

Justice Antonia Scalia was one of the most rabidly anti-native justices—closely aligned with former Chief Justice William Rehnquist—ever to serve on the High Court. His passing creates a vacancy on the influential court that will have lasting consequences. The constitutional battle that has already ensued, with Obama preparing to make a nomination and the Republican-controlled Senate already declaring that it will block the nominee, promises to be a doozy. But this column is not about the future. It is about the recent past, focusing on Scalia’s three decades worth of Indian Law opinions.

Petra Shattuck and Jill Norgren wrote a wonderful book in 1991 titled, Partial Justice: Federal Indian Law in a Liberal Constitutional System. The central question they posed was this: “Whether the law ought to be praised or cursed what it has done to Indians.”

While acknowledging that the Supreme Court occasionally hands down decisions on a lower level that interpret treaty language in favor of natives and even some that have guaranteed compensation for the unjust taking of recognized Indian lands, by far their research showed that on a higher level federal courts have long given the political branches virtual carte blanche authority–plenary power defined as virtually absolute–to do whatever federal officials think is in the tribal interest.

Over time, the trust doctrine has consistently been defined by the courts and the political branches in a way that normally benefits the federal government rather than the beneficiaries of the alleged trust, Native peoples.

This two-tiered system of justice leaves Native nations extremely vulnerable and in an inferior legal and political position because the occasional judicial victories on the lower level of treaty interpretation have never been used to breach the higher-level plenary and trust power of the federal government.

Justice Scalia’s Indian Law opinions between 1986-2016 both reaffirmed federal superiority over Native peoples and also dramatically elevated state power vis-a-vis tribal governments in most of the opinions he wrote or joined. Lawrence R. Baca, a Pawnee lawyer, published a useful article last year that covered the last 40 years of Supreme Court cases dealing with native issues. Important for our purpose is that Baca also did a statistical analysis of how individual justices voted in each case and whether the case “favored” or was “adverse” to native interests.

Of the more than 115 Indian law cases delivered between 1975 and April 2015 five justices “have perfect records of their opinions always being against Indian interests:” Clarence Thomas (six opinions), Antonia Scalia (five opinions), Samuel Alito (three opinions), and Chief Justice Roberts (one opinion.) Let us look quickly at the five Scalia anti-native cases that he authored and see if we can tease out his underlying ideology regarding Native peoples.

Employment Division v. Smith (1990)

This was a devastating blow to the First Amendment religious freedom rights of Native American Church (NAC) members. Two men had been fired from their counseling jobs in Oregon and denied unemployment compensation because of their use of peyote, deemed a “prohibited drug” by state law.

In denying NAC members the right to freely practice their religion, Scalia, a devout Roman Catholic, wrote this remarkable sentence: “It would doubtless be unconstitutional, for example, to ban the casting of ‘statues that are to be used for worship purposes,’ or to prohibit bowing down before a golden calf.” Vine Deloria, analyzing Scalia’s opinion, observed that worshiping golden calves had been reprehensible to Moses. He went on to say “That it would now be the primary form of religious activity protected by the U.S. Constitution seems ludicrous.”

Blatchford v. Native Village of Noatak (1991)

In this case the Noatak Village sued a state official in federal court seeking payment of funds of money that the village believed was due under a state revenue sharing plan. The state claimed that it was immune from suit by the Village under the Constitution’s 11th amendment. Scalia, for a 7-2 majority, sided with the state.

County of Yakima v. Confederated Tribes and Bands of Yakama Nation (1992)

Here, Scalia wrote that the General Allotment Act of 1887 permitted Yakima County to impose an ad valorem tax on reservation land that had been patented in fee and owned by individual Yakama’s or the Yakama nation itself.

Nevada v. Hicks (2001)

Scalia, for the court, wrote that tribal courts lacked jurisdiction to regulate state game wardens who were executing a search warrant on the reservation for an incident that had happened off the reservation. This case contains the devastating line: “State sovereignty does not end at a reservation’s border.”

U.S. v. Navajo Nation (2009)

Writing for a unanimous court, Scalia said that the Navajo nation’s complaints against the Secretary of Interior for allegedly violating its trust responsibility by having colluded with a coal company did not rise to a claim under the Indian Mineral Leasing Act and that the nation was not entitled to compensation.

Each of these opinions caused great consternation in Indian Country, especially the Smith

ruling on peyote and the Hicks case on state jurisdiction on tribal lands. In a few cases where individual native interests conflicted with those of their nation, Scalia, usually ruled for individuals against Native national interests. For example, in two cases involving land consolidation, Hodel v. Irving (1987) and Babbitt v. Youpee (1997), Scalia sided with individual Indian property holders who challenged a congressional law that would have had their small interests in land revert to the tribal government upon their death without compensation.

And in two important Indian child welfare cases, Mississippi Band of Choctaw v, Holyfield (1989) and Adoptive Couple v. Baby Girl (2013), he showed support for the Indian Child welfare Act (ICWA). He joined, in Holyfield, with the majority which held that native parents could not avoid ICWA’s provisions by simply giving birth to a child off the reservation. And in Baby Girl he filed a dissenting opinion that stressed that biological parents had legal rights and even if they had no custody of a child in the past they might secure it in the future.

These three cases were solid victories for both individual Indian property rights and for the right of tribal governments to be directly involved in the adoption of native children. Although the Baby Girl case was a terrible loss for the biological parent and a blow to ICWA, the decision clearly outlined Scalia’s support for the rights of native parents.

Given his history of scornfully brushing aside most questions of Native rights, this position is most puzzling. I would speculate that his views might have been based more on strong feelings in support of private property and parental rights—especially a father’s rights—rather than those of indigenous peoples.

On balance, however, the vast majority of Scalia’s jurisprudence was dismissive or denigrated indigenous religious rights, reduced tribal powers vis-à-vis state governments–i.e. jurisdictional, voting rights, taxation, criminal matters, and hunting and fishing rights–and accorded the federal government even greater leeway to define the trust relationship in a way that benefitted the federal government rather than native peoples. His opinions, in short, reaffirmed the two-tiered level of justice that Shattuck and Norgren wrote about.

The next Supreme Court appointee will be immediately besieged by a bevy of constituencies hoping that the jurist will look favorably on their requests. But given the High Court’s historic track record on native issues we should be wary about what to expect. That said, let us hope that Obama is successful in having his judicial candidate confirmed by the Senate. His two previous nominees, Sonia Sotomayor and Elena Kagan, already have established a much more favorable stance on Native issues than Scalia ever did.

David E. Wilkins (Lumbee) is a citizen of the Lumbee Nation and holds the McKnight Presidential Professorship in American Indian Studies at the University of Minnesota. He is the author of several books, including Hollow Justice: Indigenous Claims in the US (2013); The Navajo Political Experience, 4th ed. (2013); and The Hank Adams Reader (2011).

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