Sunday, July 27, 2008

Supreme Court Short Stories

Newcomb The storytelling tradition of the Supreme Court

Indian Country Today
Canastota, NY
07/25/2008

http://indiancountrytoday.com/content.cfm?id=1096417795

Every Supreme Court ruling contains a story or narrative concerning a particular legal dispute and its resolution. In the area of federal Indian law, every Supreme Court ruling contains a story about the relationship between American Indians and the United States of America. Because a story told and decision made by the Supreme Court is referred to as ''the law,'' or ''the supreme law,'' people are left with the impression that the status of a Supreme Court narrative makes it something more than a story.

Every story - even one woven into a Supreme Court ruling - is understood as a cohesive whole, with a cast of characters who move through a series of encounters and events to the eventual conclusion of the storyline. Indeed, the end of the story in a court ruling is the actual decision itself. The ''line'' of reasoning that the court ''takes'' is the metaphorical path or course of argumentation that ''leads to'' the court's conclusion (the ''destination'' of the mental ''path'' taken by the court).

As one genre of story, the classic fairytale begins with a cliche: ''Once upon a time.'' Most Supreme Court rulings in federal Indian law begin with a cliched notion of what happened to the original ''Indian independence'' or ''Indian sovereignty,'' which is what we might term the ''once upon a time'' dimension of federal Indian law.

''Once upon a time, Indian nations were completely free in North America, but then along came the European discovery of America, and the United States, and, as a result, the Indian nations no longer possessed their original free and independent existence, and the white man lived happily ever after.'' (Or, from a Native perspective, ''... and the white man always felt the need to justify what he had wrongfully obtained.'')

The justices of the Supreme Court have used their storytelling abilities to explain how the original free existence of American Indian nations went away (with the underlying assumption that it will never return), and how the United States supposedly obtained a legitimate authority over Indian nations.

The recent U.S. Supreme Court decision in the case Plains Commerce Bank v. Long Family Land and Cattle Company is no exception to this tradition of storytelling. In its decision, written for the 5 - 4 majority by Chief Justice John Roberts, the court devoted several paragraphs to a discussion of American Indian political existence in relation to the United States.

The question before the court was whether the tribal court of the Cheyenne River Sioux Tribe ''had jurisdiction to adjudicate a discrimination claim concerning the non-Indian bank's sale of fee land it [the bank] owed.'' Although the land at issue was within the exterior boundaries of an Indian reservation, because the land was non-Indian owned (as a result of the 1887 General Allotment Act), the court decided that the Cheyenne River Sioux court did not have such jurisdiction.

In its discussion of American Indian political existence, the Supreme Court used bits and pieces of several older rulings. Roberts began this section of the Long decision with the phrase: ''For nearly two centuries, we [the Supreme Court] have recognized Indian tribes as 'distinct, independent political communities.''' Importantly, Roberts used only these four words (''distinct, independent political communities'') from the rather lengthy 1832 Worcester ruling, which involved a dispute between the Cherokee Nation and the state of Georgia.

If Roberts and his associates had been true to the entire context of the story told in Worcester, the court could have reached a different conclusion in the Long case. In Worcester, Chief Justice John Marshall said that the United States had treated the Indians ''as nations,'' ''respect[ed] their rights,'' and ''afford[ed]'' those nations ''that protection which treaties stipulate.'' According to Worcester, the United States treated Indian nations ''as distinct political communities, having territorial boundaries, within which their [the Indian nations'] authority is exclusive.''

Marshall also said in Worcester that the Indian nations were recognized by the United States as ''having a right to all the lands within those [Indian territorial] boundaries.'' The exclusive authority of Indian nations and their territorial boundaries were ''both acknowledged and guaranteed by the United States,'' he said.

On such a line of reasoning, it would necessarily follow that ''the tribal court'' of the Cheyenne River Sioux Tribe would have ''jurisdiction to adjudicate a discrimination claim concerning the non-Indian bank's sale of fee land it [the bank] owned'' since the issue involved land within the ''territorial boundaries'' of an Indian nation, ''within which'' its ''authority is exclusive.'' This would follow because an Indian nation having such exclusive authority would necessarily have a right to regulate activities on ''all the lands within those [Indian territorial] boundaries'' and adjudicate issues pertaining to those lands.

Instead of working from the Indian nationhood paradigm of Worcester, however, the majority in the Long case looked at the effects of the General Allotment Act. As a result of that act, the land at issue in the Long case was non-Indian owned, within an Indian reservation.

In 1901, President Theodore Roosevelt characterized the General Allotment Act as ''a mighty pulverizing engine [designed] to break up the tribal mass.'' In a shocking display of insensitivity, Roberts expressed gratitude for the fact that some two-thirds of all Indian lands were taken from Indian nations as a result of the Alotment Act. Roberts wrote: ''Thanks to the Indian General Allotment Act of 1887 ... there are millions of acres of non-Indian fee land located within the contiguous borders of Indian tribes.'' (emphasis added). Thus, the Roberts court framed allotment as a story of success in the United States' efforts to wrest Indian lands away from Indian nations, a policy that enabled today's court to simultaneously invoke and cast aside Worcester. (I took this as a sarcastic comment by the Roberts Court - that the court is beginning to recognize what the Allotment Act actually did - the result of which they are still struggling with today in the form of a checker board of fee and non fee land within Indian Country - there is very little doubt today that the Allotment Act was devastating to the Indian Nations - and will continue to haunt modern courts in their decisions)

Steven Newcomb, Shawnee/Lenape, is the indigenous research coordinator for the education department of the Sycuan Band of the Kumeyaay Nation, co-founder and co-director of the Indigenous Law Institute, a columnist for Indian Country Today, and author of the book ''Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery'' (Fulcrum, 2008).