September 9, 2009
This article first appeared in Indian Country Today.
Indian Country is celebrating the confirmation of Justice Sonia Sotomayor to the United States Supreme Court – and rightfully so. But those observers hoping for a quick turn-around of the Supreme Court’s pitiless assault on tribal interests as evidenced by cases like Carcieri v. Salazar, United States v. Navajo Nation, and Plains Commerce Bank v. Long Family Land and Cattle Co. may be disappointed.
Justice Sotomayor is just one vote, and replacing Justice Souter’s vote would not have made a difference in the outcomes of any of the cases mentioned above, or literally any Indian law case since Souter began on the court. Moreover, Justice Sotomayor is not a guaranteed vote for tribal interests, though there is good reason to think she will be more sympathetic of the legal arguments made by tribal advocates. As a judge on the Second Circuit, she heard very few Indian law cases, and none involving a hotly-disputed subject. As such, she could be considered a kind of blank slate on Indian law issues.
Justice Sotomayor will be only the third racial minority and the third woman on the Supreme Court. Importantly, she will be the first minority justice with an inkling about the special property and political rights of certain minority groups—in her case, the people of Puerto Rico, home of the Taíno indigenous peoples.
In some ways, American Indians and Puerto Ricans have much in common. Neither group wants complete integration into the American polity, preferring an existence on the fringes of the United States. And both groups have long existed on the fringes of the American constitutional mainstream. Her knowledge and experience may help to shake up the mentality and presuppositions of the rest of the justices, who seem a bit surprised and annoyed that Native people don’t want to give up their separate political and ethnic identities.
However, and this is a huge if, a new justice could force the remainder of the justices to reconsider Indian law principles. Right now, the court merely ignores inconvenient Indian affairs history or congressional intent or its own precedents. A transformative justice could at least force the court to address history and foundational principles—to force the court to recognize its own precedents.
Too many times, especially in Wagnon v. Prairie Band Potawatomi Nation and City of Sherrill v. Oneida Indian Nation, tribal advocates soundly defeat their adversaries on the law as it existed at the time, only for the court to turn the tables and announce new law. Speaking truth to power might be enough to preserve the votes in future cases of Justices Ginsburg, Breyer and Stevens, none of whom are automatic votes in favor of tribal interests.
Realistically, though, Indian country’s best hope for Justice Sotomayor is not for a transformation of the court, but a seeding of the future of Indian law with well-considered concurring and dissenting opinions. Some justices regularly issue concurring and dissenting opinions in Indian law cases, giving life to radical legal positions.
Justice Thomas has asserted that tribal sovereignty should have ended in 1871 when Congress ceased treaty-making with tribes in United States v. Lara. He also paradoxically wondered aloud whether the proper relationship between Indian tribes and the federal government should be more like a guardian-ward relationship than a trust relationship in United States v. White Mountain Apache Tribe. Even Justice Souter argued that tribal courts are too “unusual” to fairly adjudicate cases involving nonmembers in Nevada v. Hicks.
Justice Sotomayor can counteract those radical positions with her own writing, perhaps revealing the practical results of the court’s Indian law decisions. For example, she could highlight the jurisdictional loopholes the court’s decisions create by curbing tribal sovereignty, and how those loopholes create zones of regulatory and criminal lawlessness. Or she could draw upon recent studies about the growing capacity of tribal governments to investigate and prosecute crime, enforce environmental regulations, and grow reservation economies.
These are important, but small steps. Realistically, the Supreme Court is one of the most politicized courts in the world, and maybe the only real hope for tribal interests in the coming decades are more and more Obama appointees.
Federal Indian law is at a dead end in the Supreme Court, but a new justice—a transformative justice—could shake the court out of its current decades-long rut. Time will tell whether Justice Sotomayor’s presence on the court will be sufficient to transform federal Indian law. The court’s view of federal Indian law and policy—and particularly Indian tribal government—is stagnant and atavistic. The court is in need of a visionary mind to help refocus its collective mindset about Indian law and policy.
Matthew L. M. Fletcher is associate professor at Michigan State University College of Law and director of its Indigenous Law and Policy Center. He is an enrolled citizen of the Grand Traverse Band of Ottawa and Chippewa Indians, and editor of Turtle Talk blog.