Reading the Supreme Court

Beginning with Chief Justice John Marshall, the Supreme Court has changed the lives of Indian people for better and for worse. For the last 25 years, however, a conservative court has pried away tribal powers until, many observers say, justice has turned its back on a long and distinguished tradition of Indian law.

John LaVelle believes the trail of bad decisions began in 1978. LaVelle, associate professor of law at the University of New Mexico, cited Oliphant v. Suquamish Indian Tribe as the beginning of an ominous trend. In Oliphant, he explained, the Supreme Court held that tribes lack criminal jurisdiction over non-Indians arrested by tribal police, a decision subverting sovereign tribal powers. The muddled decision, he added, failed to clarify whether the court was relying on existing statute or rendering a federal common law decision.

It didn't take long for Oliphant to be extended to the civil sphere. Montana v. United States (1981) ruled that the Crow tribe lacked sovereignty to regulate hunting and fishing by non-members on non-Indian fee land. ''Again, the court was making up a new rule that never existed,'' said LaVelle. It used the Oliphant rationale to argue the tribe couldn't challenge U.S. sovereignty, save for limited exceptions. A graduate of Harvard and the University of California/Berkeley School of Law, LaVelle said the court has relied on Montana ever since, ''taking the proposition farther and depriving tribes of more and more power.''

The next skirmish flared after an auto accident on a reservation highway. Could a tribal court at Fort Berthold decide a case in which a non-Indian was injured by another non-Indian? In Strate v. A1 Contractors (1997), the Rehnquist Court unanimously said no, ruling that tribal courts lacked jurisdiction, not only on fee lands but on a state-maintained road under a federally granted right of way. Strate v. A1 ''was shocking to all Indian law observers,'' said LaVelle, a member of the executive committee of the board of editors for the latest edition of Cohen's ''Handbook of Federal Indian Law.''

The trail didn't end in Montana. In 2001, Atkinson Trading Company v. Shirley ruled that the Navajo Nation had no power to tax overnight non-member hotel guests on non-Indian fee land within the reservation, shunning earlier decisions about tribal taxation. The same year, Nevada v. Hicks found tribal courts lacked authority to settle a trespassing claim by a tribal member against state game wardens. ''[Hicks] is full of distortions of prior Indian law doctrine and principles,'' said LaVelle, speaking by telephone from Sioux City, Iowa, while on sabbatical. ''It's caused a great deal of consternation among Indian law scholars and among tribes.''

Such decisions challenge the doctrine, conceptualized by Justice Marshall, of the trust relationship between tribes and the federal government. ''States are beginning to be empowered to act as if they have the freedom to essentially waltz into Indian country and impose their jurisdiction,'' said David Wilkins, professor of American Indian Studies at the University of Minnesota. Federalism is being redefined by states' rights activists, said Wilkins, a political scientist, noting a trend that flies against not only historical precedent, but the U.S., tribal and state constitutions as well. Several western states have ''disclaimer clauses,'' he explained, in which they pledged before entering the union not to exercise jurisdiction over Indians.

Wilkins, Lumbee from North Carolina, also decried recent cases involving Native religious expression. In 1988, Lyng v. Northwest Indian Cemetery Protective Association ruled that a road obliterating sites sacred to three California tribes didn't impede the practice of religion. Two years later, in Employment Division v. Smith, the court denied that peyote usage, sanctioned in federal law for decades, could be interpreted as a First Amendment expression of religious belief. Both cases, he said, ''ratcheted up the level and fundamental animosity of the conservatives on the Supreme Court against Indian rights.''

In this bundle of bad news, a little hope still glimmers. In 2004, U.S. v. Lara turned back Duro v. Reina (1990), an earlier ruling which held that tribes lack criminal jurisdiction over members of other tribes, an extension of Oliphant. In 1991, Congress enacted a permanent override of Duro, declaring that tribes have inherent sovereign power of criminal jurisdiction over non-member Indians and passed it as an amendment to the 1968 Indian Civil Rights Act.

Thus, in Lara, said LaVelle, an enrolled member of the Santee Sioux tribe, ''the court yielded to Congress authority to determine the extent of inherent sovereign power of Indian tribes under federal law. That's a sign of hope for tribes. They can continue to work in the political arena to protect their sovereignty, even when Supreme Court preferences are to the contrary.''

Tribes are exercising many sovereign powers that have lain dormant, LaVelle explained. This new exercise has provoked a reaction by the Court inconsistent with fundamental principles of Indian law. ''We're going through a period of trauma here, of dealing with a reaction by the court that is not thoroughly grounded in these longstanding principles and traditions of the field.''

Wilkins, who cited the diminution of the trust doctrine and loss of tribal jurisdiction over non-Indians as disturbing trends, added to them a third: The court's investiture in states of something starting to resemble a plenary, or virtually absolute, power in Indian country. While agreeing that Lara was a surprisingly favorable ruling, including a concurring decision by conservative justice Clarence Thomas, Wilkins lamented its approbation of plenary power at the federal level.

With Chief Justice William Rehnquist in poor health and other justices considering retirement, the future is uncertain. ''The court has now pivoted,'' said LaVelle, hopefully. Even if it doesn't start issuing progressive decisions in the model of Lara, he added, ''what is incumbent on tribes is to continue working within the political arena of American politics to garner further support for tribal sovereignty. That political support is crucial.''

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