Indian Tribal Law vs. African American Civil Rights: A Racial Injustice?

This essay was submitted for LAW389, do not use without permission.

This analysis serves to show that the United States Supreme Court often relies on racist and out of date law to deny Native Americans essential rights.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 21^st 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.