Scalia's Death: Will It Affect Indian Country?

Peter d'Errico

The death of U.S. Supreme Court Justice Antonin Scalia raised the temperature of ongoing electoral campaigns, increased the intensity of Congressional gridlock, and left the court itself in a precarious balance. What, if anything, it means for Indian country remains to be seen.

The Supreme Court has taken Indians for many rides on the legal roller coaster called federal Indian law, starting with the very first decision in Johnson v. McIntosh (1823), which enshrined the Doctrine of Christian Discovery as the basis for the claim that the United States has title to all Indian lands. The Doctrine still stands.

In the years since that strange beginning, the court has struggled to justify keeping Indians under Uncle Sam's thumb, while simultaneously acknowledging that Indian nations existed before the U.S. was founded… and still exist. That effort has led to the contradictory "trust" and "plenary power" doctrines. For example, the "government-to-government," "trust" relationship with the U.S. has to bear the stress of the so-called "plenary power" of Congress to do whatever it wants with Indians and Indian lands.

In practice, "plenary power" tends to cannibalize "trust," as shown in Scalia's opinion for a unanimous court in U.S. v. Navajo Nation (2009), which decided the U.S. owed no "trust" duty to the Navajo for mismanagement of Navajo coal contracts, even though the U.S. maintained "comprehensive control over coal on Indian land."

The court admitted in U.S. v. Kagama (1886) that it couldn't find any provision in the U.S. Constitution to support such control of Indian governments. But that hasn't stopped generations of judges, in hundreds of opinions, from proclaiming to the contrary, saying things like, "The Indian tribes … exercise of separate power is constrained so as not to conflict with the interests of [the] overriding sovereignty [of the United States]."

Scalia didn't clear up the confusion, but acknowledged a basic historical truth when he wrote the majority opinion in Blatchford v. Native Village Of Noatak (1991). The case decided the State of Alaska had sovereign immunity against a suit by Alaska Native Villages. The reason, wrote Scalia, comes down to the fact that Indian nations were not a party to the Constitution: "It would be absurd to suggest that the tribes surrendered immunity in a convention [i.e., the Constitution] to which they were not even parties."

But Scalia added to the confusion when he joined Justice Souter in a dissent in U.S. v. Lara (2004) to argue, "Congress cannot reinvest tribal courts with inherent criminal jurisdiction over nonmember Indians," because that would go against "the constitutional consequences of the tribes' continuing dependent status."

If Indians were not party to the Constitution, how can the Constitution make Indians "dependent"?

All that Scalia and Souter could say was, "the relationship of Indian tribes to the National Government is 'an anomalous one and of a complex character.' They added, "It is of no moment that we have given ostensibly alternating explanations for [our] conclusion." And, finally, to close the door to further questions, "No one could possibly deny that the tribes are subordinate to the National Government. Furthermore, … this is not the place to reexamine the concept of dual sovereignty…."

It was left to Justice Thomas to point out that neither the majority nor dissent could find "any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty." Thomas insisted, "The Federal Government cannot simultaneously claim power to regulate virtually every aspect of the tribes through ordinary domestic legislation and also maintain that the tribes possess anything resembling 'sovereignty.'" Not that Thomas himself favors "tribal sovereignty": "I do not necessarily agree that the tribes have any residual inherent sovereignty…."

Given the messy entanglement of federal Indian law at the basis of U.S. property law, Constitutional law, and the structure of U.S. federal-state relations, one might expect the justices to treat Indian cases seriously and carefully.

In fact, as Professor Matthew Fletcher wrote in a 2013 American Indian Law Journal article, Indian cases "are very unpopular, unsexy cases for the court. Jeffrey Toobin’s book [The Oath: The Obama White House And The Supreme Court] notes that the clerks consider these cases 'dogs.' … Senior Justices often assign the Indian law opinions to junior Justices."

Bob Woodward and Scott Armstrong reported similarly in their 1979 book, The Brethren: Inside The Supreme Court. They said Justice Harlan referred to Tooahnippah v. Hickel (1970), as a "peewee" case; Justice Brennan referred to United States v. Antoine (1977) as a "chickenshit" case. Woodward and Armstrong also quoted Justice William Rehnquist—later Chief Justice—as having "nothing but contempt for Indian cases."

Scalia shared this negative, mocking attitude. In 2009, he opened the court's opinion in U.S. v. Navajo Nation with the words, "the Indian Tribe known as the Navajo Nation." That same year, addressing the Native American Political Leadership Program at George Washington University, Scalia rebuffed a question by Nazune Menka, a graduate student in environmental science. As Menka began a question about Carcieri v. Salazar (2009), Scalia cut her off mid question and said, "The case is a laugher."

One nugget worth pondering appeared in Scalia's dissent in Adoptive Couple v. Baby Girl (2013), the case that restricted the Indian Child Welfare Act (ICWA) and sanctioned the adoption of an Indian child to a non-Indian family. Scalia joined Justice Sotomayor's dissent, stating the majority opinion was "distorting" ICWA; and then he wrote a short dissent of his own, concluding simply, "This father wants to raise his daughter, and the statute amply protects his right to do so. There is no reason in law or policy to dilute that protection."

I don't expect the U.S. Supreme Court to take up a fundamental examination of federal Indian law anytime soon. Given the hostile, demeaning, and even ignorant attitudes to Indian peoples shown so often by members of the court, that may be a good thing. Sometimes even a mess should be left alone, until—as the legal saying goes—it "ripens."

No matter who gets the seat left by Scalia, the education of the Supreme Court about the rights of Indigenous Peoples will be a strenuous journey. It will require those who argue as lawyers in Indian cases to insist on a higher level of clarity about history and law than has generally been displayed.

Antonin Scalia: R.I.P.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.

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