Court Cuts Into Tribal Self-Rule
Four cases before US justices may deepen trend that is eroding Indian sovereignty.
BOSTON — Ever since the United States defined "Indian country" as all land west of the Appalachians - and issued passports to go there - relations between the "red man" and the "white man" alternated between two basic policies: assimilation versus sovereignty.
Since the 1970s, the main policy has been sovereignty for the conquered native American tribes and their lands. The courts and Congress have supported Indian claims on land, culture, and the authority of tribal councils to tax and rule.
But the US Supreme Court has backed away from this position in recent years - and is now set to weigh four cases that delve further into the fundamental question of a tribe's ability to govern itself.
"It is clear the court is cutting back from tribal sovereignty these days," says Kevin Worthen, a law professor at Brigham Young University in Provo, Utah. "There are no longer the sure votes on the court today you had with [former] Justices [William] Brennan, [Thurgood] Marshall, and [Harry] Blackmun."
From native religious practice to the status of non-Indians on the reservation, the court's recent rulings are of interest not only to aboriginal Americans but also to other subsets of US society.
Advocates of sovereignty say tribal self-rule is the only way to remedy the vast scope of historic injustices. Skeptics say Indian demands today, which are more aggressive and sophisticated, are a power play for big dollars and land.
Two cases this week, plus two more this winter, may indicate if the justices are inclined to wait and see, or if they will continue to chip away at tribal authority.
Today, the court hears arguments from a tiny upper-Arctic Alaskan native village that wants its tribe to have the same federal-reservation land arrangement that tribes in the lower 48 states have. Should the tribe win, it conceivably could reclaim a huge chunk of Alaska.
The 200 Alaskan tribes are bound by a 1973 settlement act, signed on the eve of the Alaskan oil pipeline project, that gave them $1 billion and land - but not the "Indian country" status enjoyed by reservations in the Lower 48.
Alaska and 25 other states oppose a dramatic reclaiming of Indian land, concerned that a host of sovereignty claims and litigation would ensue across the US.
In a separate case Dec. 8, the high court heard lawyers for the Yankton Sioux tribe in South Dakota, who argued that an 1894 act of Congress involving a lump-sum payment for land had been wrongly interpreted as eliminating all reservation boundaries. The tribe wants to reclaim a reservation it long ago forsook.
Then, in January, an Oklahoma tribe will argue a sovereignty claim before the high court, saying it is exempt from a suit brought when the tribe failed to meet the demands of a contract in a business deal outside the reservation.
The court hears a steady stream of Indian-rights cases, three or four a year - although the cases seldom get much attention beyond the region affected.
Court as a shield
Traditionally, the high court has been a refuge for tribes from Congress and its vacillations. Before 1878, much Indian land was described as a separate "country." In the 1880s, Congress allowed states to break up the tribes and to attempt to turn Indians into farmers. In the 1930s, the US Bureau of Indian Affairs decided native Americans could not be separated from their tribal identity - a policy that lasted until the 1950s and an effort to put reservations under local and state laws in an attempt to assimilate Indians. That push, in turn, was reversed in the 1960s and '70s with a reawakening to Indian identity politics and tribal sovereignty.
During this time, the high court partly curbed the perceived excesses of Congress and preserved Indian property rights. The recent Warren and Burger courts enshrined the idea of "sovereignty."
Rehnquist court is mixed
Yet under the Rehnquist court, the pattern of rulings is more mixed, mainly because the Indian idea of sovereignty is clashing with the claims of non-Indians.
"There is a new uncertainty on this court about ... a tribe's ability to govern on its own territory," says Frank Pomershime of the University of South Dakota law school in Vermillion. "The old doctrine is eroding. You don't see this court looking to create exemptions, protections, or addressing the unique facts of Indian civilization."
The low point, in the tribes' view, has been two First Amendment cases that affect Indians' exercise of religion. A 1988 ruling allowed a highway to run through sacred ground in northern California; a 1990 decision forbade the use of peyote in a religious ceremony in Oregon. Dissenters such as former Justice Brennan blasted the majority in the California case, stating that Indian "beliefs are different and we are not trying to understand that."
At the same time, in the cases being argued this week, state and county officials say they need the court to protect them from excessive Indian claims. If the court upholds the Sioux claim to a reservation, local businesses that fall within old tribal boundaries might have to pay taxes or buy a permit to operate. "If we all had to pay a new tax, that would have a significant economic impact," says Kimron Torgerson, a county lawyer in Idaho who is concerned that several towns might fall within a tribal claim by the Nez Perce.
In today's case, Alaska officials are at odds with a US appeals court ruling that gives Alaskan natives the same status as Indians in the Lower 48. The state, arguing against that position, says its natives have a different history and relationship with the federal government. The natives were not displaced, at war, or subjected to the same history of exploitation as other Indians, state officials say. Why allow vast new claims for their tribes?
The native village of Venetie, on the other hand, argues that a "dependent Indian community" should have the sovereign right to tax.