This analysis serves to show that the United States Supreme Court often relies on racist and out of date law to deny Native Americans essential rights. I compare Indian law to African American civil rights in order to show that it is inherently the Court's fault for not reversing their precedent on the issue.
In the
United States Supreme Court case Nevada
v. Hicks, 533 U.S. 353 (2001), the Court held that tribal courts do not
have the jurisdiction to hear cases against state game wardens. Furthermore,
the Court also stated that Indian tribes lack legislative authority in general
over state officials. This case, along with Johnson
v. M’Intosh, 21 U.S. 543 (1823), Lone
Wolf v. Hitchcock, 187 U.S. 553 (1903), Tee-Hi-Ton
Indians v. United States, 348 U.S. 272 (1955), and Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) demonstrate
how the Court has held onto colonial values and norms when deciding on matters
concerning Indian law. When looking at the history of the Court, and their
landmark decisions, particularly those concerning African American civil
rights, one can see that the Court often overturns itself on matters concerning
racial inferiority. Dred Scott v. Sandford, 60 U.S. 393 (1857) and Plessy v. Ferguson, 163 U.S. 537 (1986) were later overturned with
the decision reached in Brown v. Board of
Education, 347 U.S. 483 (1954). Resulting from the decision reached in Lone Wolf v. Hitchcock in 1903, Congress
retains “plenary” power over Indian tribes, meaning that they can completely
strip Indians of any rights whenever they want. This case was never overturned
and has often led to racially biased decisions as seen in Nevada v. Hicks. The Court has never officially “authenticated” the
status of Indian tribes, and throughout the Court’s history and legal precedent
concerning Indian law, they have continued to chip away at tribal authority and
legislation. Even today Indians are seen as “backwards” and their legislative
bodies and courts are seen as immature and not of the same caliber as other
state and federal courts. This paper
will serve a cross analysis between African American civil rights and the
rights of Indian tribes to show that the United States Supreme Court has held
onto antiquated law and ideals when deciding on cases concerning tribal law.
In Nevada v. Hicks, the appellee Floyd
Hicks, was attempting to receive a legal remedy from the state on the basis
that state officials of Nevada violated his constitutional rights under Section
1983. Hicks claimed that state officials violated the boundaries of the search
warrant issued by the state of Nevada and treated his belongings with little
respect, amounting to damages that he wished to seek out in tribal court. By
the time this case reached the Supreme Court, this question was dropped
entirely and was morphed into a question of jurisdiction. The decision reached
by the Court stated that state officials of Nevada could not be held
accountable for accusations against them in a tribal court. The Court used this
case as an opportunity to further remove rights from the Indian tribes. After
the Court decided that tribal courts have no jurisdiction to hear cases against
state officials, they went one step further in saying that state officials were
not subject to legislative authority of the tribe at all. This deduction
overreaches the scope of the case and ultimately the initial issue raised by
Hicks. Traditionally, the Supreme Court does not have original jurisdiction on
issues such as these, as the issues must “ripen” in lower courts before the
Court can decide on the matter. Although the issue of jurisdiction came up in
the lower courts, it was not officially decided on until the case reached the
Supreme Court. Essentially, the Court overreached their scope of decision
making power and answered an original question concerning jurisdiction that
wasn’t originally there when the case started. Floyd Hicks never received an
answer or remedy concerning the alleged Section 1983 violations, and was used
as a crutch by the Court to deny tribal courts of jurisdication. Although this
case, on its face, may not seem racist or biased, when looking at the history
of Indian law in the Court, it becomes clear.
Native
Americans are mentioned in the Constitution, however not to the extent that
many people think. The only time Indians are mentioned is in the Commerce
clause, and the only provision listed is that Congress has the power to
regulate commerce with the Indian tribes. All other law or precedent concerning
tribes comes from “man-made” laws, meaning that the laws were not there when
the Constitution was written. In the case of Johnson v. M’Intosh, it was established that any title to land
belonging to Indian tribes was extinguished when the “white man” came. This
case was decided under the pretenses of the “discovery doctrine” which was
created at the beginning of European exploration. Any land discovered by whites
was inherently theirs, regardless of any Native Americans who originally
occupied the land. Following this decision, in Lone Wolf v. Hitchcock, the Court decided that Indians are “wards
of the nation” and Congress has “plenary” power to abrogate provisions of Indian
treaties. This case presents a landmark decision because this is one of the
first times “plenary” power was mentioned in relation to Indian tribes. It also
stripped tribes of control over treaties. Following this decision, even when a
lawful treaty was created that both sides agreed on, Congress could disband or
alter it at any time, against the will of the tribe it affected. It should be
noted that this case was never overturned. In 1955, the Court decided to deny
just compensation for lumber and other goods taken from Indian tribal lands in
the case of Tee-Hi-Ton Indians v. United
States. The Court ruled that the land given to the tribes was established
by Congress and that the Indians only “occupied” the land and did not own it,
even though the land was originally taken away from the Native Americans during
European expansion. The last major case decided before Nevada was Oliphant v.
Suquamish Indian Tribe. In this case, the Court decided that Indian tribal
courts do not have criminal jurisdiction to punish non-Indians living on the
tribal land. This case goes hand in hand with the decision reached in Nevada v. Hicks, yet the cases occurred
more than twenty years apart. It is clear that throughout history, the Court
has continued to deny rights to Indian tribes. Native Americans have never had
a “realization” case as African Americans had in Brown v. Board of Education. The Court instead continues to rely on
biased, out-of-date, created law to keep Indian tribes at bay.
For purposes
of comparison, I will turn to cases concerning African American civil rights to
show that the Court continues to hold onto racist ideals when it comes to
matters concerning Indian tribes. In the case of Dred Scott v. Sandford, it was decided that African Americans are
not citizens of the United States due to the fact that in the constitution they
are listed as 3/5 of a person. Following this case, in Plessy v. Ferguson, the Court stated that state imposed racial
segregation was not unlawful discrimination. These cases have striking
parallels to Johnson v. M’Intosh and Plessy v. Ferguson. In Dred Scott and Plessy, blacks were not seen as citizens or people of the United
States, just as Indians were seen as “savages” and “wards of the nation” in Johnson and Lone Wolf. However, after the decision in Plessy, the Court received their “realization” case in the form of Brown v. Board of Education. In Brown, the Court stated that separate
but equal was inherently unequal and Plessy
was overturned. The problem with Indian law lies in the fact that the Court has
never overturned their past, which often includes racism and biased ideals. The
Court continues to use these racist ideals to deny rights to Indian tribes in
the United States. The racist ideals being used against Indian tribes today
reflect the ideals used by the Court in the past to deny rights to African
Americans. The only difference is that the Court realized that it could not
deny blacks rights based on racial inferiority. This has yet to happen to the
Indian tribes. Indian law has yet to see its version of Brown v. Board of Education.
In
conclusion, when the time came for desegregation, the Court realized that it
could no longer make decision based on racial inferiority. After Brown, African Americans were officially
equalized with whites, the Constitution was amended to reverse the 3/5 of a
person statue, and shortly after, African Americans began enjoying freedom from
racial suppression. However, for the Indian tribes, this has never happened.
Colonial era ideals and racist precedent has continued to dominate Supreme
Court decisions concerning Indian tribal law, and Native American civil rights
in general. These racist and biased ideals have been used since the 1700’s to
prevent Indian tribes from gaining autonomy or jurisdictional rights. Furthermore,
the ongoing colonization process has in a way desensitized the Supreme Court
and the American public as a whole. With Native Americans only accounting for
1% of the American population, Indian and tribal concerns and issues are often
placed on the backburner. However, this presents a problem for the Indian
tribes. Today, when a case that deals with rights of Native Americans reaches
the Supreme Court, the decision is often infused with these out-of-date, often
racist norms and ideals. This becomes evident in cases such as Nevada v. Hicks. Instead of the Court
answering the original question presented by Floyd Hicks, they used the case as
an opportunity to take away more rights from Indian tribal authorities. Even in
the 21st century, the Court continues to deny these rights to Native
Americans. Until Indian law has its version of Brown, this trend will continue. After a turbulent history dating
back to European expansion, Indian tribes are left with next to nothing. They
do not have jurisdiction over non-Indian members residing on their own land,
nor do they have jurisdiction over state officials who enter onto tribal land.
Due to earlier cases that were never overturned, the tribes are also unable to
regulate and control treaties they enter into with the United States
government, nor can they receive just compensation for land or items from the land
that are taken by state or federal government. More importantly, since it was
established in 1903 that Congress has “plenary” power over Indian tribes, their
land, customs, norms, and traditions can be taken away at any moment. All of
the Court’s decisions combined presents a great problem for Native Americans
residing on tribal land. Their decisions have led to assaults, rapes, and
murders that occur on tribal land, and if committed by a non-member, the tribe
cannot receive justice in their own courts, even though non-members can reside
on their land. When the Court reaches the fork in the road that can lead to
Indian liberation, they always take the path that leads to racial injustice.
Until the court has a “realization” case concerning Indian rights, the
injustice will continue to be fueled by underlying racism.
