I was reading Justice Scalia's dissent in Windsor the other night and came across a statement that was wrong in regard to whether the Court had decided a previous case in which the plaintiff and defendant were not adverse. There is a very clear example from federal Indian law that contradicted his statement that the Court has never decided such a case, yet no one, as far as I could tell, cited it in the briefs or in any of the opinions. This experience reminded me how important Indian law is, even for those who don't practice or teach it.
Specifically, Justice Scalia says "[w]e have never before agreed to speak--to 'say what the law is--where there is no controversy before us." United States v. Windsor, 133 S. Ct. 2675, at 2700 (Scalia, J., dissenting). So convinced is he of this proposition that he repeats later on, "[t]he majority can cite no case in which this Court entertained an appeal in which both parties urged us to affirm the judgment below." Id. at 2702.
Yet, in Menominee Tribe v. United States, 391 U.S. 404 (1968), Justice Douglas, writing for the majority, explains:
" The Court of Claims by a divided vote held that the tribe possessed hunting and fishing rights under the Wolf River Treaty; but it held, contrary to the Wisconsin Supreme Court, that those rights were not abrogated by the Termination Act of 1954. We granted the petition for a writ of certiorari in order to resolve that conflict between the two courts. On oral argument both petitioner and respondent urged that the judgment of the Court of Claims be affirmed. The State of Wisconsin appeared as amicus curiae and argued that that judgment be reversed." Id. at 407 (emphasis added).
This could have been an incredibly useful case for the majority opinion (and the plaintiff's argument), and knowing about it and distinguishing it could have strengthened Justice Scalia's dissent, but apparently it was on no one's radar, which demonstrates I think just how marginalized federal Indian law is.
Justice Scalia, for his part, has, at least in the past, controversially suggested that he doesn't need to decide Indian law cases based on precedent, so perhaps there is little reason, in his view, for him to be well-versed in the precedents. In a 1990 memo to Justice Brennan, he is reported to have said: "[O]ur opinions in this field have not posited an original state of affairs that can subsequently be altered only by explicit legislation, but have rather sought to discern what the current state of affairs ought to be by taking into account all legislation, and the congressional 'expectations' that it reflects, down to the present day." Philip P. Frickey, "A Common Law for Our Age of Colonialism: the Judicial Divestiture of Indian Tribal Authority over Nonmembers," 109 Yale L.J. 1, 63 (1999) (emphasis added). And, of course, it wasn't just Justice Scalia's oversight--apparently no one thought to raise or distinguish Menominee Tribe.
But Windsor is evidence of why federal Indian law is important, even if you don't expect to teach it, practice it, or decide cases based on it. It relates to other areas. Not only do the cases include structural constitutional issues like the case or controversy requirement, but federal Indian law, contrary to most people's perceptions, is a very broad subject. Issues of taxation, criminal jurisdiction, civil jurisdiction, civil rights, administrative law, environmental law, and child welfare all come up with some regularity.
And that's just the beginning. There's also the fact that federal Indian law is incredibly interesting in it's own right, and it provides important insight into our government and society. Felix Cohen, the primary architect of the field, once explained: "'Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians . . . reflect[s] the rise and fall in our democratic faith." Rennard Strickland, "Indian Law and the Miner's Canary: The Signs of Poison Gas," 39 Clev. St. L. Rev. 483, 483 (1991). If you want to learn about white fear, for example, just read a Supreme Court case about tribal jurisdiction. Jurisdiction cases such as Oliphant v. Suquamish Indian Tribe, Plains Commerce Bank v. Long Family Land & Cattle, Nevada v. Hicks, and Justice Kennedy's concurrence in the judgment and Justice Souter's dissent in United States v. Lara are replete with concerns (sometimes implicit but always readily perceptible) that tribes will not treat non-member litigants fairly. Sometimes I wonder why all of this concern exists. And then America's history of interaction with tribes pops into my head and explains it. Assimilation, termination, extermination have all been official U.S. policies with respect to tribes. As a psychological matter, the fear is understandable.
Along with white fear, you can see the cases in a broader context and think about our government's hypocrisy. While the Court worried about potential unfairness to nonmember litigants in tribal courts, and denied tribal jurisdiction as a prophylactic measure to prevent it, American officials were busy waterboarding and otherwise torturing non-citizens suspected of terrorism, and the federal courts seemed eager to avoid hearing about it. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662 (2009); El-Masri v. United States, 479 F.3d 296, 300 (4th Cir. 2007); Ann E. Tweedy, "Connecting the Dots Between the Constitution, the Marshall Trilogy, and United States V. Lara: Notes Toward a Blueprint for the next Legislative Restoration of Tribal Sovereignty," 42 U. Mich. J.L. Reform 651, 707 n.274 (2009).
And beyond of all these macro issues, federal Indian law, given its variety and complexity, is endlessly interesting. Not to mention that working for tribes is an incredible learning experience and one of the best jobs out there.
Comments