Campaign against "terminators in black robes"

Posted: October 11, 2002 - 9:00am EST
by: Jim Adams / Indian Country Today

WASHINGTON -- Passers-by stopped in surprise at the array of tribal regalia on the steps of the U.S. Supreme Court during the Oct. 7 Sovereignty Run rally, but it made a serious point. In a dramatic change from the past, Indian country now fears that the biggest threat to its progress comes from the nation’s highest court.

The rally brought representatives of 50 native nations, including Alaskans, Hawaiians and Taino from Puerto Rico, together with legal scholars, leaders of the National Congress of American Indians and Senate Majority Leader Thomas Daschle for a program of speeches attacking a trend in the Supreme Court that many feel is undercutting tribal sovereignty. The rally, and the end of a 2,800-mile cross-country relay run across the United States, coincided with the opening of the Court’s
fall term.

Daschle jogged the last leg of the run along with NCAI President Tex Hall and 40 other Indian runners, including Sovereignty Run Team Leader Fawn Sharp, Quinault, who participated on the run throughout its entire cross-country course from the Quinault reservation in Washington State. The final stages were rerouted because of the on-going sniper scare in the northern Washington suburbs.

Speaking to the gathering of about 200, Daschle said, "Tribal sovereignty is a fundamental American principle that is rooted in laws and treaties and cannot be broken."

"This is only the beginning of our struggle," said Hall. "It is a struggle that all of Indian Country is squarely behind, evidenced by the great number of native runners who took part in our national sovereignty run."

According to a statement from the NCAI, "the ‘Sovereignty Run’ is part of a larger program called the Tribal Governance and Economic Enhancement Initiative, also known as the Sovereignty Protection Initiative. The Initiative, which was launched in September 2001, is a coordinated, all-tribal strategy designed to address the increasing diminishment of tribal self-government and jurisdiction as a result of recent Supreme Court rulings, such as Nevada v. Hicks and Atkinson Trading Co. v. Shirley -- decisions that have raised strong concerns among tribes that the Supreme Court is on an accelerating trend toward removing tribal jurisdiction within tribal territories. The National Congress of American Indians (NCAI), the Navajo Nation and prominent American Indian tribal leaders are spearheading the Initiative."

Possibly to everyone’s relief, however, the upcoming Supreme Court term will not take up major sovereignty cases. Its major decisions, in suits brought by the Navajo Nation and the White Mountain Apache, will focus on the federal government’s trust obligations to the tribes. On the day of the rally, in fact, the Court declined to hear a range of other cases, letting stand lower court decisions that benefited some tribes but left the Tigua and the Alabama-Coushatta of Texas with no recourse on an interpretation of their Restoration Act which forced the closing of their Class III casinos.

(The Supreme Court agrees to hear less than one percent of the appeals from the U.S. Circuit Court of Appeals, which it does by granting a "writ of certiorari." It announces its "certs" when it publishes its docket for the term, which appeared Oct. 7.)

The Court opened business, however, with a hearing on several technical Federal Communications Commission cases affecting several native Alaskan corporations. The cases, including Arctic Slope Corp. v. Nextwave, involve the auction of frequencies originally purchased by a corporation which went bankrupt and resold them to the native corporations.

Perhaps ironically in light of the morning’s rally, two of the certiorari denials upheld decisions in tribal courts, in Tang v. Northern Cheyenne Tribe and Bank One v. Shumake, an arbitration case in the Missisippi Band of Choctaw judicial system.

These decisions did nothing to allay concern over Supreme Court trend of more than two decades that legal scholars see as undercutting tribal sovereignty. In hearings in February before the Senate Committee on Indian Affairs, Professor David Getches of the law school at the University of Colorado at Boulder, said "the Court, whether purposefully or not, is advancing a kind of termination. But termination, even wrapped in a black robe, is still termination."

"I think its very bleak with respect to the Supreme Court, which has been the traditional protector of tribal rights," said Robert Anderson, a professor specializing in Indian law at the University of Washington and a member of the Bois Forte Band of the Minnesota Chippewa Tribe. "It’s very dire in that sense, that the Supreme Court has proven to be very hostile in this area of tribal rights."

The issue, as defined by Getches and Anderson, is whether tribal sovereignty applies to all individuals on tribal territory of is restricted simply to tribal members on tribally owned land. The latter case, toward which they say the court is heading, would leave tribes with little more than the status of a social club, they say.

In his Senate testimony Anderson said one of the problems is that none of the current Supreme Court justices seem to have a deep interest in Indian law. Unlike the 19th century, when Chief Justice John Marshall defined the tribal status of "dependent sovereignty" and attempted to uphold Indian rights against the oppression of the executive and legislative branch, the court, he said, is now the weakest link.

Indian leaders are now floating a plan to introduce legislation to reverse the drift in the court, an idea which drew a sympathetic ear from U.S. Sen. Daniel Inouye, D-Hawaii, at the February hearing.